Faculty Publications 2011-2012

Index

 

 Mary Garvey Algero

Warren E. Mouledoux Distinguished Professor of Law
 

Considering Precedent in Louisiana: Striking the Right Balance Between Predictability and Certainty of Interpretation on the One Hand, and Flexibility and Re-Interpretation on the Other, 58 Loy. L. Rev. 113 (2012).

Despite the fundamental differences between the doctrines employed in common law and civil law (or mixed) jurisdictions when it comes to the respect paid to prior court decisions and their weight or value, United States courts that follow the common law doctrine of stare decisis have embraced some of the flexibility inherent in the civil law doctrine, and civil law and mixed jurisdictions throughout the world, including Louisiana, that use the doctrine of jurisprudence constante seem to have come to value the predictability and certainty that come with the common law doctrine. This Article suggests that Louisiana courts are striking the right balance between valuing the predictability and certainty of interpretation that comes with a healthy respect for precedent and maintaining the flexibility and adaptability of the law by not strictly considering precedent a source of law. This Article discusses the results of an ongoing examination of the sources of law and the value of precedent in Louisiana. The examination involves a study of Louisiana legislation, Louisiana courts' writings about the sources of law and precedent, and a survey of Louisiana judges. Part of the examination included reviewing Louisiana judicial opinions on various issues to determine if there were differences in valuing precedent based on area of law or topic. It also included reviewing judicial opinions from the United States Supreme Court and New York state courts to compare these courts' approaches to the use of precedent with those of the Louisiana courts. The article is based on a paper presented to the Third Congress of Mixed Jurisdiction Jurists, which was held in Jerusalem, Israel in June 2011, and the author's prior writings on the subject.
 

Federal Legal Research (2012) (co-author).

Federal Legal Research explains how to conduct research in the U.S. Constitution and in federal cases, statutes, and administrative regulations. The book begins with an overview of the sources of law and the research process. That chapter is followed with an in-depth discussion of American legal research strategies and techniques for both print and online sources. The book covers secondary sources and practice guides, updating with Shepard's and KeyCite, and legislative research. A separate chapter focuses on legal ethics and court rules.

 

 Hillary J. Allen

Assistant Professor of Law
 

Cocos Can Drive Markets Cuckoo,  16 Lewis & Clark L. Rev. 125 (2012).

Bank-issued contingent-convertible capital instruments (known colloquially as “cocos”) are assumed to be a less costly substitute for common equity that will improve the stability of banks in a crisis situation. However, cocos are new and untested instruments, and in a future financial crisis they are likely to incentivize behaviors and trading strategies (notably panic selling, short selling, and the use of credit default swaps) that have the potential to harm confidence in banks. Without confidence, banks will have difficulty funding themselves and the likely consequences of bank difficulties (credit crunches and possible bail-outs) will be felt by society at large. This should make regulators exceedingly wary of endorsing the use of cocos. Indeed, many of the supposed benefits of using cocos instead of ordinary common equity for regulatory capital purposes appear to be illusory: to best preserve systemic stability, regulatory capital requirements should therefore be satisfied with common equity rather than cocos.

 Andrea Armstrong

Assistant Professor of Law
 

Slavery Revisited in Penal Plantation Labor, 35 Seattle U. L. Rev. 835 (2012).

The Thirteenth Amendment prohibits slavery and involuntary servitude, but contains an exception for convicted prisoners. Scholars who have interrogated the prisoner-labor exception have wrongly concluded that prisoners may constitutionally be subjected to slavery (not just involuntary servitude). Courts have simply construed prisoners' labor complaints as involuntary servitude, failing to distinguish between the two concepts. Similarly, the public has failed to discuss the types of labor we expect from the incarcerated. The lack of attention to prison-created slavery is particularly problematic in the current economy. States, facing increasing budget deficits, are turning to inmate labor to produce additional revenue, or at a minimum, offset the cost of imprisonment.

Based both upon the text and history of the Thirteenth Amendment, this article argues that prisoners may only be subjected to conditions approximating involuntary servitude. When a prisoner experiences "social death," i.e. the chattelizing of a person through the ritual or symbolic social degradation and exclusion, the prisoner is subjected to constitutionally prohibited conditions approximating slavery. In addition, the imposition of slavery on prisoners constitutes "cruel and unusual punishment" under the Eighth Amendment. The article applies these concepts to the history and operation of a modern-day penal plantation, Louisiana State Penitentiary. Last, the article concludes that a broader public discussion of the re-creation of slavery behind prison walls can lead to other positive outcomes, including enhanced legitimacy of the criminal justice system

 

 John F. Blevins

Associate Professor of Law
 

The New Scarcity: A First Amendment Framework for Regulating Access to Digital Media Platforms, 79 Tenn. L. Rev. (2012).

Digital media platforms such as broadband networks and search engines are increasingly viewed as 'gatekeepers' that enjoy disproportionate influence over modern speech. In response, policymakers have proposed - and in some instances adopted - regulations to ensure nondiscriminatory access to these platforms. This article examines the intersection of these new access regulations with the First Amendment. The literature continues to analyze these questions through the lens of traditional media technologies. Digital networks, however, differ from these prior technologies in critical, qualitative ways. First Amendment analysis of access regulations must therefore be updated to reflect these technological differences. Specifically, it must recognize the layered infrastructure of digital networks, and the significant differences between network-layer platforms and application-layer platforms. Accordingly, I propose a new conceptual framework - 'infrastructural scarcity' - for analyzing First Amendment challenges of access regulations. My proposed framework better reflects modern technological realities, and synthesizes the competing theoretical approaches of the 'positive rights' and 'negative rights' literature in new ways.

 

 Cheryl Prestenback Buchert

Clinical Professor of Law
 

Family Law, in Louisiana Civil Practice Forms 191 (Susan B. Kohn & Denise M. Pilié eds., 2012).

 

 Mitchell F. Crusto

Professor

SSRN

Empathic Dialogue: From Formalism to Value Principles, 65 SMU L. Rev. 845 (2012).

In response to a recent call for heightened attention to judicial ethics and quality judicial decision making, this Article posits the idea that judges should engage in empathic dialogue, a judicial discipline, to achieve empathic constitutionality—a set of value choices that attend to the real world effects of their decisions on people. It seeks a paradigm shift from rights-neutral formalism to rights-focused value principles in federal courts. And it argues that especially during these economically challenging times, judges should assess their biases to minimize “blind injustice,” the unintended negative effects of their decisions and to achieve true justice.

 

 Dominique M. Custos

Judge John D. Wessel Distinguished Professor of Law
 

The Guarantees of Independence of Agency Quasi-Judicial Function in Louisiana: Towards a French Way of Judicial Review of Administrative Action?, in Indépendance(s), Mélanges en l'honneur du Professeur Jean-Louis Autin 527 (M. Clapié, S. Dénaja & P. Idoux eds., 2012).

 

 Davida Finger

Assistant Clinical Professor
 

Introduction: Theory & Praxis in Reducing Women's Poverty, 20 Am. U. J. Gender Soc. Pol'y & L. 763 (2012) (co-author).

 

 Robert A. Garda, Jr.

Fanny Edith Winn Distinguished Professor of Law
 

SSRN

Disabled Students' Rights of Access to Charter Schools Under the IDEA, Section 504 and the ADA, 32 JOURNAL OF THE NATIONAL ASSOCIATION OF ADMINISTRATIVE LAW JUDICIARY 516 (2012).

Charter schools are heavily criticized for turning away disabled students because they do not have the proper special education programs to serve them. But traditional schools also engage in this conduct, often preventing disabled students from attending their neighborhood schools or even schools within the district. This article discusses when a charter school or traditional school is permitted under federal disability law to deny admission to a disabled student because it does not have appropriate special education programs. After nearly four decades of special education jurisprudence and and regulatory guidance, the circumstances under which a student with a disability may be denied admission to a particular school are still remarkably unclear. This Article first discusses the "zero-reject" principle underlying the Individuals With Disabilities in Education Act and concludes that it does not grant a right of access to a particular school. The Article next explains the complicated interplay between Section 504 of the Rehabilitation Act and the Americans with Disabilities Act and argues that combined they compel particular schools to create special education programs to serve disabled students unless it is unduly burdensome or fundamentally alters the nature of the school. The Article concludes by surveying the regulatory guidance and caselaw regarding what constitutes a fundamental alteration and an undue burden that may justify denying admission to disabled students.
 

Culture Clash: Special Education in Charter Schools, 90 N.C. L. Rev. 655 (2012).

Charter schools and special education for disabled students are based on conflicting education reforms and agency oversight principles. Charter schools operate in a culture of regulatory freedom and flexibility. They arose out of the modern era of accountability reform, in which student outcomes are the primary measure of school success and the driving engine of agency oversight. In stark contrast, special education laws were conceived in the civil rights era of education reform, which emphasized process and paid little attention to outcomes. The education of disabled students is steeped in a culture of regulatory oversight focused on rigid compliance with complex procedures. Special education and charter schools stand on competing foundations in the same schoolhouse. The Article discusses this culture clash and the consequences to disabled students. The uncomfortable fit between charter schools and special education often leads to violations of disabled students’ civil rights. The Article suggests how the three primary sources of law affecting charter schools—federal law, state law, and charter agreements—should be changed to achieve a seamless fit of charter schools’ square peg into special education’s round hole for the benefit of disabled students.

 

 David W. Gruning

William L. Crowe, Sr., Professor of Law
 

Louisiana Law of Sale and Lease: Cases and Materials (2012) (co-author).

Louisiana Law of Sale and Lease is a concise yet thorough casebook for students of Louisiana's Civil law whose authors have taught the subject for many years. By using a direct and straightforward approach, it will help students understand the articles of the Civil Code that govern sale and lease and the judicial decisions that interpret and apply them. The book includes classic cases, newer cases applying the recent revisions of the law, as well as questions and comments that guide the student to an understanding of the Civil Code articles on sale and lease and their place within the law of contract as a whole.
 

Louisiana Civil Law Treatise Vol. 25: Sales (2012) (co-author).

The major 1995 revision of the Louisiana Law of Sale impacted all sales of land, buildings, and movable goods. Every legal professional in Louisiana whose work has any intersection with the broad area of sales law requires new tools to understand the relationship of the sales title to the rest of the Louisiana Civil Code.
With Sales, judges, lawyers, and other legal professionals will benefit from the insights of noted experts Dian Tooley-Knoblett and David Gruning addressing every aspect of the law of sales.

 

 Bobby Marzine Harges

Adams and Reese Distinguished Professor of Law
 

Promoting Equity for Minorities in Hurricane Mediation Programs, Dispute Resolution Magazine, Summer 2012, at 22.

 Johanna Kalb

Associate Professor of Law
 

SSRN

Human Rights Treaties in State Courts: The International Prospects of State Courts after Medellin, 115 Penn State Law Review 1051 (2011).

Subnational implementation of human rights law has been the subject of increasing interest among scholars and litigators in recent years, building on the call for independent state constitutionalism and the rise of New Federalism. The Supreme Court's decision in Medellín v. Texas may have the effect of limiting the space for this kind of independent state level initiative. This Essay examines the conditions under which state courts have engaged with the international human rights treaties the United States has signed or ratified, and considers whether and how these treaties will be affected by the Medellín decision. I conclude that because state courts have been more receptive to arguments based on treaties as non-binding persuasive authority, even the broadest reading of the decision will not end this type of human rights advocacy.

Litigating Dignity, 74 Albany Law Review 1725 (2011).

In the years that followed the adoption of the Universal Declaration of Human Rights, the notion of a protected right to personal dignity began to appear in the jurisprudence of state and federal courts in the United States. The right to dignity also assumed a prominent role in many subsequent international human rights instruments, as well as in the laws of other nations. Nonetheless, despite the parallel development of the dignity concept in the domestic and international realms, only on rare occasions have U.S. courts — state, federal or territorial — considered international conceptions of “dignity” even those embodied in the human rights instruments signed and ratified by the U.S., when discussing the role that dignitary interests have to play in resolving the claims before them. In recent years, scholars and advocates have sought to amplify this connection as part of a broader attempt to situate the resolution of domestic legal claims within an international human rights framework. Particular attention has been paid to the potential for using human rights principles to inform state constitutional interpretation. This Essay proposes a strategy for “litigating dignity,” not only in those states in which dignity is an explicit constitutional principle, but more broadly, drawing on the many cases in which dignity animates state court decision-making on a wide variety of statutory, administrative, and common law claims.

The Persistence of Dualism in Human Rights Treaty Implementation, 30 Yale L. &. Pol'y Rev. 71 (2011).

A close look at the much-discussed state and municipal efforts to implement human rights treaties in the United States exposes an apparent paradox: subnational legislators and executive agencies engage more frequently with unratified human rights treaties than with those that have been ratified and are thus binding law under the Supremacy Clause. This Article explains this phenomenon as a manifestation of how states and localities view their roles and responsibilities in our federalist system. Despite increasing subnational acknowledgment of international law, states and cities continue to take a dualist view of the project of human rights treaty implementation, which places accountability for treaty implementation squarely with the federal government. Because these instruments guarantee broad rights that are not easily divisible along traditional jurisdictional lines, however, the perpetuation of this dualist perspective presents a significant barrier to their implementation. A more dynamic federal-subnational relationship that encourages and promotes multi-level collaboration and jurisdictional redundancy is necessary to realize the goals of these instruments. The Article concludes with strategies for creating this kind of cooperative partnership.

 

 Blaine G. LeCesne

Professor of Law
 

Crude Decisions: Re-Examining Degrees of Negligence in the Context of the BP Oil Spill, 2012 Mich. St. L. Rev. 103.

The blowout of the Macondo well caused the worst environmental disaster in history and the ensuing high-stakes litigation is the largest ever mass tort case. The pivotal issue in the case is whether this cataclysmic event was caused by the “gross negligence” or “willful misconduct” of the responsible parties. Such a determination could result in exponentially increased compensatory and punitive damages, augmented environmental sanctions and potential criminal liability. These heightened degrees of fault are frequently used in regulatory statutes, like the Clean Water Act and Oil Pollution Act of 1990, as liability triggers for substantially increased damages and sanctions. As such, a finding of gross negligence or willful misconduct serves to both deter and punish the more culpable behavior they connote, as well as to assure an adequate reparative mechanism for the damage caused. Despite their ubiquitous statutory usage, the jurisprudence surrounding use of these terms is largely in a state of disarray, riddled with contradictory and conflated definitions that provide scant interpretative guidance for courts applying them, especially in factually and technically complex cases like the BP litigation. Lacking meaningful criteria for their application, courts have struggled, unsuccessfully, to develop a coherent doctrine which distinguishes ordinary negligence from these advanced forms of fault and the more severe punishment they merit. The BP litigation provides a unique opportunity to develop a workable set of criteria for the application of gross negligence and willful misconduct, a result that has eluded courts for over a century. In an effort to provide a meaningful analytical framework for applying these terms to catastrophic events such as the BP oil spill, and future high-risk scenarios like it, this article offers a novel, criteria-guided approach which will better enable the fact finder to reach fact-driven conclusions regarding the gradation of the defendant’s misconduct with analytical clarity and precision. The criteria are set forth in a multi-factor balancing test and are tethered to policy-related doctrinal regimes that serve the same deterrent, punitive and reparative functions as do degrees of negligence. The proposed test is then illustratively applied against some of the alleged negligent acts that caused the oil spill. Much is at stake in the final determination of whether gross negligence or willful misconduct precipitated this disaster. What the courts ultimately decide in this high-profile case will have far-reaching implications for how safely future high-risk enterprises are conducted and the well-being of the communities placed in harm’s way by these abnormally dangerous activities. 

 

 María Pabón López

Dean and Judge Adrian G. Duplantier Distinguished Professor of Law
 

SSRN

The Prospects and Challenges of Educational Reform for Latino Undocumented Children: An Essay Examining Alabama's H.B. 56 and Other State Immigration Measures, 6 FIU L. Rev. 231 (2011) (co-author).

This essay analyzes the provisions of Alabama’s recent anti-illegal immigration law that affect the education of undocumented children and examines their constitutionality in view of current federal law, as embodied in Plyler v. Doe, 457 U.S. 202 (1982). As immigration law is an area of federal legislative authority, a key constitutional concern is whether Alabama’s law is preempted. This essay further discusses the recent litigation filed following the passage of this act. This essay also examines other recently enacted state anti-immigrant measures which pose obstacles to undocumented students and concludes by offering thoughts regarding the use of children as pawns in the raging immigration debate in the United States.
 

An Essay Examining the Murder of Luis Ramírez and the Emergence of Hate Crimes Against Latino Immigrants in the United States, 44 Ariz. St. L.J. 155 (2012).

This essay discusses the brutal killing of Luis Ramírez, the state court trial that failed to produce a homicide conviction against the defendants, and the federal civil rights case brought against two of the assailants. Other recent hate crimes again Latinos and the trends such crimes contribute to are examined in the context of federal hate crime laws and the appropriateness of using such laws to address hate crimes perpetrated against Latino immigrants.
 

Reflections About Legal Education and Justice from the Perspective of a Latina Law School Dean, 48 Cal. W. L. Rev. 431 (2012).

The challenges of being a law school dean for the first time are immense, especially when trying to balance the disparate competing interests of all the component stakeholders that make up a law school. This article examines these challenges from the perspective of a new law school dean who is also Latina.

 

 Kathryn Venturatos Lorio

Leon Sarpy Professor of Law
 

2011-2012 Supplement to Louisiana Civil Law Treatise Vol. 10: Successions and Donations (2d ed. 2009).

Successions and Donations covers such issues as sources of Louisiana law, illegitimate children, the incapacity and unworthiness of heirs, etc.
 

Reflections: A Generation Later, 80 UMKC L. Rev. 745 (2012).

This article, as part of a collection of reminisces by past chairs of the AALS Women in Legal Education Section, provides the author’s thoughts both on women and legal education over the past several decades, and on her time as chair in 1990.

 

 Chunlin Leonhard

Associate Professor of Law
 

The Unbearable Lightness of Consent in Contract Law, 63 Case W. Res. L. R. 57 (Fall 2012).

Consent has enjoyed a dominant position in U.S. contract law. This article queries whether consent alone is sufficient to justify the government’s choice of sides in a private contractual relationship. This article contributes to the current scholarly discussion on the problematic aspects of consent and proposes an alternative way to evaluating when a court should use its coercive power to enforce a contract. This article proposes that contract law abandon its consent centric focus. The elasticity of the concept and its easy manipulability render it an improper basis for state intervention. Instead, courts should adopt a totality of circumstances standard to determine whether the government should exercise its coercive power to favor one contractual party over the other.

 John A. Lovett

Associate Dean for Faculty Development and De Van D. Daggett, Jr. Distinguished Professor of Law
 

Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction, 72 La. L. Rev. (2012).

This article examines the design of legal directives found in and surrounding the Louisiana Civil Code through the prism of the classic rules versus standards debate. The Preliminary Title portion of the article introduces the vocabulary, descriptions and justifications typically displayed in jurisprudential debates over the propriety of rules and standards. Books One, Two and Three of the article analyze the extent to which several significant legal regimes in the Louisiana Civil Code — regimes that are likely to affect individuals in moments of personal crisis, when they enter into and exit from intimate personal relationships and when their love and loyalty to one another and to other intimate associates is most severely tested — have incorporated open textured standards as a primary form of rule design, have resisted discretionary remedialism by remaining tethered to relatively crystalline rules or have produced models of hybrid discretion.

Although the author originally expected to discover that Louisiana private law had largely embraced discretionary decision making within the realm of the Civil Code, punctuated with occasional moments of discretion skepticism, just as Niall Whitty has observed occurring in Scotland, the article’s analysis reveals that Louisiana has not evolved so decisively in the direction of standard based decision making models. Indeed, in the particular areas of private law examined (family law, co-ownership, and the inter-relationship between forced heirship and undue influence claims challenging wills), the author finds that Louisiana’s private legal order has only been partially transformed by the general trend toward discretionary remedialism that scholars like Whitty have observed occurring in other legal regimes. The article concludes by pointing to a number of additional concerns that should inform further scholarship examining whether Louisiana has assembled the proper mix of rules and standards.
 

 

 M. Isabel Medina

Ferris Family Distinguished Professor of Law
 

The Challenges of Facilitating Effective Legal Defense in Deportation Proceedings: Allowing Nonlawyer Practice of Law Through Accredited Representatives in Removals, 53 S. Tex. L. Rev. 459 (2012).

Making History Loyola University New Orleans College of Law Welcomes Dean Maria Pabon Lopez, 58 Loy. L. Rev. 1 (2012) (co-author, with Kathryn Venturatos Lorio, the Rev. Lawrence Moore, S.J., and Natasha Lacoste).

2012 Supplement to Constitutional Law: Cases, History, and Practice (4th ed. 2011) (co-author).

 

 Denise M. Pilié

Academic Success Instructor
 

Does AT&T Mobility L.L.C. v. Concepcion Spell the End to Class Actions?, 59 La. B.J. 277 (2012).

 

Louisiana Civil Practice Forms (2012 ed.) (co-editor).

 

 

 William P. Quigley

Janet Mary Riley Distinguished Professor of Law
 

Racism: The Crime in Criminal Justice, 13 Loy. J. Pub. Int. L. 417 (2012).

Obama's Assault on Civil Liberties, in Hopeless: Barack Obama and the Politics of Illusion 243 (Jeffrey St. Clair ed., 2012).

Ten Questions for Social Change Lawyers, 17 Pub. Int. L. Rep. 204 (2012).

 

 Gerard A. Rault, Jr.

Professor Emeritus
 

Handbook on Louisiana Evidence Law (2012) (co-author).

Handbook on Louisiana Evidence Law is the only all-inclusive publication of the Louisiana Code of Evidence prepared by the code's principal drafters. Extensive step-by-step checklists help you argue admissibility and objections to admissibility of evidence. 

 

Craig Senn

Associate Professor of Law

SSRN

Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law, UCLA Law Review, Vol. 58, p. 947, (2011).
    
At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism – the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally-protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the EEOC reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin. In contrast, under the Americans with Disabilities Act of 1990, the courts and the EEOC allow applicant-specific paternalism, thereby permitting an employer to seize decision-making power from a disabled applicant.

Consequently, the validity of an excluded applicant’s employment discrimination claim regrettably depends on a single factor or variable: the at-issue protected characteristic. The "favored" characteristic (i.e., a Title VII characteristic) yields a viable claim. But, the "disfavored" characteristic (i.e., an ADA disability) produces a losing claim.

This Article proposes a new approach – termed “informational paternalism” – that brings needed uniformity and consistency of legal protection in the area of applicant-specific paternalism. This middle-ground approach has two features: a blanket prohibition of applicant-specific paternalism, and a job-related risk notification requirement. Together, these two features are justified because they: (a) reflect a longstanding philosophy of both Congress and the Supreme Court that rejects an employer’s applicant-specific protective purpose as an unacceptable basis for excluding an applicant; (b) serve to fully advance federal anti-discrimination policy; and (c) embrace a philosophy shared by Congress and the Occupational Safety and Health Administration that seeks to protect workers by providing them with information relevant to their employment-related decisions (rather than by seizing their decision-making power).

 

Ending Discriminatory Damages, 64 Alabama Law Review 187 (2012).

Anti-discrimination laws that discriminate? It sounds crazy. Yet, the different remedial models of our federal employment discrimination laws can (and often do) yield discriminatory damages. 

Title VII of the Civil Rights Act of 1964, as amended, and the Americans With Disabilities Act of 1990 (ADA) share one model: victims of intentional sex-, race-, religion-, national origin-, color-, or disability-based discrimination may recover monetary damages for lost wages (or back pay), plus “compensatory and punitive damages” subject to statutory caps ranging from $50,000 to $300,000 (depending on the number of the employer’s employees). In contrast, the Age Discrimination in Employment Act of 1967 (ADEA) uses a different model: victims of intentional age-based discrimination may recover monetary damages for lost wages (or back pay), plus “liquidated damages” that equal, dollar-for-dollar, the lost wage amount. 

While innocent in appearance, these different models create an ironic phenomenon: the “Discriminatory Damages Paradox,” whereby victims with certain federally protected characteristics can be (and often are) monetarily favored over those with other federally protected characteristics. In some Paradox situations, a prevailing Title VII or ADA plaintiff can recover substantially more monetary damages than an otherwise identically situated ADEA plaintiff. In other Paradox situations, the opposite is true. 

This article proposes a “Uniform Title VII/ADA-Based Damages Model” to solve this Discriminatory Damages Paradox. This uniform model is warranted for three reasons: (1) it embraces Congress’s philosophy of promoting reasonably comparable and consistent (rather than unfairly disparate) monetary damages for victims of intent-based discrimination, as evidenced by the Civil Rights Act of 1991; (2) it better serves the ADEA’s purposes and interests by (a) more effectively promoting its remedial purpose of deterrence and (b) expanding its remedial purposes to include harm compensation and claim incentive; and (3) it serves to fully advance federal employment discrimination policy.

 

Karen C. Sokol

Associate Professor of Law

SSRN

The Underrecognized Role of Tort Law in the U.S. Healthcare System, Hamline Journal of Public Law and Policy, Vol. 32, p. 429, (2011).

In considering the regulatory role of tort law in the U.S.healthcare system, the focus tends to be on medical malpractice liability. Though an important part of the role of tort law, it is by no means the only one: litigants have used tort claims to seek redress for health harms caused by pharmaceutical drugs and medical devices, as well as by products such as cigarettes. In light of the reality of the devastating health harms that have been caused by these products and the current inability of federal agencies to provide adequate protections, the larger role of tort law in the healthcare system must be taken into account. This is particularly so given the campaign to bring a halt to such litigation - product claims as well as malpractice claims - with calls for “reform” of the tort system, and, relatedly, the argument that the limited federal law governing these products preempts state tort law claims. In this essay, I explicate the great import of products-liability litigation for the U.S. healthcare system, thereby highlighting the significant role that tort law plays in that system, a role that is obscured by a narrow focus on medical malpractice liability.
 

 Imre Szalai

Associate Professor
 

An Introduction – Prosecutorial Immunity: Deconstructing Connick v. Thompson, 13 Loy. J. Pub. Int. L i (2012).

 

 Dian Tooley-Knoblett

Jones Walker Distinguished Professor of Law
 

Louisiana Civil Law Treatise Vol. 25: Sales (2012) (co-author).

The major 1995 revision of the Louisiana Law of Sale impacted all sales of land, buildings, and movable goods. Every legal professional in Louisiana whose work has any intersection with the broad area of sales law requires new tools to understand the relationship of the sales title to the rest of the Louisiana Civil Code.
With Sales, judges, lawyers, and other legal professionals will benefit from the insights of noted experts Dian Tooley-Knoblett and David Gruning addressing every aspect of the law of sales.

 

 Sandi Varnado

Assistant Professor
 

Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DePaul L. Rev. 113 (2011).

Although it is almost universally recognized that a child benefits from a close relationship with both of his parents, some divorcing parents, either because of the general ugliness of divorce or because of a custody battle, engage in intra-parent competition for the title of "best parent," where the prize to be won is their child. This, in turn sometimes leads to guerilla warfare between the parents, where one or both of them attempt to destroy the parent-child relationship between the other parent and the child. Referred to in the Article, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, as parental alienation, such behavior illustrates a rank disregard and disrespect for the bond between parent and child.

The Article addresses the quagmire in which many alienated parents find themselves. Most alienated parents have turned to family law for relief, but in some cases, they have found courts hesitant to redress the injuries inflicted by parental alienation upon their relationship with their child. Even where that particular wrong is, in fact, remedied by family law, alienated parents are left without a remedy for their resulting emotional distress, which is unsurprising, given that family law is not designed to remedy emotional distress in any context. Moreover, the relief provided by family law does not impose sufficient costs on alienating parents to deter their harmful conduct.

Therefore, in more recent times, alienated parents, attempting to upgrade their legal relief, have turned to tort law. While parental alienation, as a course of conduct, is nothing new to divorcing couples or their attorneys, asserting a tort-based cause of action for that conduct is. Although courts have expressed concern about allowing feuding parents such a cause of action, creative parental alienation victims have nevertheless forced the judiciary into the foreign territory of analyzing parental alienation within the rubric of tort law. In doing so, courts have attempted to force parental alienation into existing tort causes of action, typically alienation of affections and/or intentional infliction of emotional distress. Yet, existing tort-based claim effectively addresses or redresses parental alienation, leaving some alienated parents without a remedy to make them whole and crying out for a new tort law app for parental alienation.

The Article first explores the concept of parental alienation, providing an overview of it, discussing how and why an alienator parent alienates, and reviewing its deleterious effects upon alienated parents. It then considers two sources of law - family law and tort law - under which parental alienation could be attacked. Although many jurists, scholars, and lawyers favor one area of law over the other, the Article posits that neither can wholly remedy the harms suffered by alienated parents, given that each focuses on different harms and offers different remedies. Instead, both family law and tort law have an important role to play for alienated parents. That said, given the inadequacy of existing tort law claims, the Article urges for a revamping of tort law to recognize a new cause of action specifically tailored to parental alienation: "inappropriate parental influence." Additionally, it develops this proposed new tort claim, suggesting the elements of it and addressing the valid concerns surrounding the creation such a tort, ultimately concluding that the policy of protecting the parent-child relationship should trump those concerns.

 

 Robert R.M. Verchick

Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law
 

SSRN

Adapting to Climate Change While Planning for Disaster: Footholds, Rope Lines, and the Iowa Floods, 2011 BYU L. Rev. 2203 (2011) (co-author).

This article uses the example of flood recovery after the 2008 Midwest floods to propose a more effective way for federal, state, and municipal governments to join forces against the effects of climate change. Our analysis draws from our work with President Obama's Interagency Climate Change Adaptation Task Force, in which the Environmental Protection Agency took part in a pilot project lending technical assistance to vulnerable cities in eastern Iowa. The lessons learned through this experience have relevance to many climate change adaptation efforts around the country.

Experts in adaptation policy often point to three major challenges: (1) coordinating efforts across government sectors, (2) coordinating efforts among levels of government, and (3) developing an action model that can successfully move forward in the context of great uncertainty. One promising way to address these concerns, we believe, is to pay close attention to what we metaphorically call “footholds” and “rope lines.” A foothold is a preexisting law or standard that, while not specifically intended to abet adaptive efforts, may be successfully used that way, thus allowing the integration of important climate concerns into an existing public or private mission. A rope line refers to the dynamic network of public and private stakeholders (across many relevant sectors and levels of government) that can support the adaptive effort and guide it flexibly through a process of evolutionary learning in the face of uncertainty. The lessons we glean from the Iowa Pilot Project are necessarily tentative, but trends are emerging that shed light on future endeavors.

The first section of the article describes how climate change is increasing the risk of catastrophic events and notes the structural challenges of scope, scale, and uncertainty. The second section describes the federal government’s recent efforts toward climate adaptation. The third introduces the ideas of footholds and rope lines, which we believe helps conceptualize the coordination problems inherent in adaptation policy; as a bonus, the reader is apt to learn a little about ice climbing too. The next section then describes the process and findings of the Iowa Pilot Project, emphasizing the challenges of scope, scale, and ncertainty. The final section concludes with a summary of lessons learned and our thoughts about next steps.
 

Protecting the Coast, in The Law of Adaptation to Climate Change: United States and International Aspects 235 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012) (co-author).

In this draft book chapter, the authors – one a former political appointee at EPA in the Obama administration, the other a senior climate change adaption adviser at EPA – discuss the law and policy of adapting to climate change in coastal areas of the United States. The most dramatic effects of climate change will occur on the coast. That’s where the twin threats of rising seas and stronger storms are already mounting the beaches. And that is where most Americans, along with billions of dollars in cultural and commercial assets, currently reside. Cities like Miami, New York, New Orleans, and Washington, D.C., are in the crosshairs. Adapting to climate change on the coast will require a plan based on a tough defense, smart adjustment, and managed retreat. This Chapter addresses the legal framework of the first two elements. Part I of this Chapter divides adaptation into helpful categories and sets out some guiding principles that we think all adaptation strategies should follow. Part II focuses on strategies geared toward resisting storm surge or floodwaters. These include “hard armoring” strategies, like dikes and levees and “soft armoring strategies,” like coastal restoration. Part III focuses on strategies of adjustment, in which use patterns or consumption patterns are modified to take into consideration climate impacts. We illustrate this type of adaptation with the example of adapting to saltwater intrusion. In Part IV, we offer concluding remarks.

Disaster Justice: The Geography of Human Capability

“Social vulnerability,” the part of a community’s susceptibility to harm that can be attributed to demographic characteristics, should become a more prominent concern in disaster policy. The failure to address a community’s social vulnerability to hazard not only results in higher losses in total, but also losses that are distributed unfairly and impinge on personal freedom. This article is about setting the foundation for more legal analysis of what I call “Disaster Justice.” Part I investigates the social meaning and geographic patterns of disaster. It shows how social scientists – in particular geographer Susan Cutter and her colleagues – have come to think of disaster as a social phenomenon, where demographic characteristics like class and race can influence a community’s hazard-risk index as much as its location. Part II investigates the social and political meaning of injustice, drawing from the work of political theorist Judith Shklar and economist Amartya Sen, to show that social resilience in times of disaster is not only a factor in public safety, but a significant aspect of personal freedom. Applying these insights, Part III sets forth some general principles for developing new policies and using old ones to strengthen social resilience in the future. In this Part, I offer two concrete policy initiatives that can set us on a course for progress: a federal executive order on disaster justice and a nationally consistent disaster-justice mapping tool.

 

 James Etienne Viator

Adams & Reese Distinguished Professor of Law
 

Legal Education's Perfect Storm: Law Students' Poor Writing and Legal Analysis Skills Collide with Dismal Employment Prospects, Creating the Urgent Need to Reconfigure the First-Year Curriculum, 61 Cath. U. L. Rev. 735 (2012).

This article addresses concerns about the quality of legal education, specifically law schools’ perceived failure in teaching legal writing and critical thinking skills. The solution suggested is, instead of teaching rhetoric or legal reasoning as a separate course (or integrated with a school’s legal research and writing course), for law schools to adopt the Iowa model of integrating the teaching of these skills into first-year casebook courses.
 

 Jeanne M. Woods

Henry F. Bonura, Jr. Distinguished Professor of Law
 

A Human Rights Framework for Corporate Accountability, 17 ILSA J. of Int'l & Comp. L. 321 (2011). 

Give Now