Louisiana Law Review最新文献

{"title":"The History of the Loyal Denominator","authors":"Christopher R. Green","doi":"10.2139/SSRN.2317471","DOIUrl":"https://doi.org/10.2139/SSRN.2317471","url":null,"abstract":"The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises problems for the Fourteenth Amendment’s compliance with both of Article V’s requirements for constitutional amendments. Congress (a) proposed the Amendment in 1866 while excluding Southern representatives, an exclusion critical to achieving 2/3-of-each-house majorities, and (b) required Southern states in 1867 to ratify as a condition for readmission, an inducement critical to achieving a 3/4-of-the-states ratification requirement. Even if these problems do not imperil the Fourteenth Amendment as an enforceable part of the Constitution, they may give interpreters pause in enforcing it as energetically as they might enforce parts of the Constitution with less-cloudy pedigrees.Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these problems. Ackerman explains the Amendment’s legitimacy on the basis of President Johnson’s 1868 capitulation to a non-Article-V process, confirmed by the Supreme Court in 1873. Harrison relies instead on the unreviewable finality of congressional membership decisions and pressured state ratifications, Amar on congressional power to republicanize Southern states with black suffrage, and Colby on the normative desirability of an intergenerationally-authored Fourteenth Amendment including cases like Brown and Roe. Here, however, I propose an approach that will (a) fit the text and history of the Constitution, (b) preserve Fourteenth Amendment legitimacy in a simple, appealing fashion, and (c) clarify the Fourteenth Amendment’s author and frame the Fourteenth Amendment more straightforwardly as an expression of the victorious Union’s Republican principles. The “loyal denominator” view roots both the 1866 proposal and the 1867 coercion of the South on the continuing suspension of rights that began with secession. A disloyal South whose Article I and Article V rights were suspended upon secession had no right to participate in federal lawmaking process, either in Congress or as part of the Article V denominator, until the Union’s military victory was sufficiently secure in the view of Congress. Given a loyal Article V denominator, the Fourteenth Amendment became law on February 12, 1867, with Pennsylvania’s 20th ratification out of 26 congressionally-represented states, as opposed to July 1868, when 28 of the full 37 states had ratified, including 8 ratifications squeezed out of the South. This view changes the Fourteenth Amendment’s time of adoption, but even more important is the change in the constitutional author: we should understand the text as expressions of meaning uttered by the loyal North, not as jointly uttered by the loyal North and the defeated South. Ackerman, Harrison, Colby, and especially Amar have all explored the possibility of a loyal-denominator solution to Fourteenth Amendment legitimacy and noted substanti","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"79 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2013-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2317471","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68096695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem","authors":"Brannon P. Denning","doi":"10.2139/SSRN.2213511","DOIUrl":"https://doi.org/10.2139/SSRN.2213511","url":null,"abstract":"Among the various branches of the dormant Commerce Clause doctrine (“DCCD”) — the judge-made rules grounded in the Constitution’s grant of power over interstate commerce to Congress — is that which prohibits so-called “extraterritorial” state legislation. As recently as 1989, the Supreme Court held that the DCCD “precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State...” That broad articulation of the principle, however, represented extraterritoriality’s high tide. The Court has since retreated; in 2003 it seemed to limit the extraterritoriality principle dramatically, rejecting arguments that a Maine prescription drug subsidy program actually attempted to fix prices outside the state. At this point, the extraterritoriality principle looks to be quite moribund. This essay, then, is an autopsy of sorts. Assuming, as I do, that extraterritoriality — at least the strong form articulated by the Court in the 1980s — is dead, and unlikely to be revived by the current Court, its passing offers an opportunity to examine the lifecycle of constitutional doctrine, from birth to death. In Part I, I describe extraterritoriality’s early emergence. In its early form, it was not exclusively yoked to the DCCD. The Due Process Clause of the Fourteenth Amendment was also cited as a source, as were less clause-bound structural principles. Beginning in the early twentieth century, however, the doctrine became closely linked with the DCCD; it emerged as a robust branch of that doctrine in the 1980s. This association is described in Part II. Its decline is detailed in Part III; in Part IV, I return to the question of what “killed” extraterritoriality. I conclude that extraterritoriality’s demise was likely overdetermined. Factors contributing to its demise include what Kermit Roosevelt calls a “loss of fit” between the doctrine and the purposes of the DCCD generally, as well as the doctrine’s calcification; the lack of a limiting principle that would prevent it from curtailing legitimate state regulatory power; the Court’s decision to locate limits on punitive damage awards in the Due Process Clause after flirting with the notion that those limits grew out of DCCD extraterritoriality; and shift in attitude on the Court itself from robust enforcement of the DCCD to a desire to limit the doctrine. In Part V, I consider the impact of extraterritoriality’s demise on a related doctrine: the Court’s periodic invalidation of state laws that presented the problem of “inconsistent state regulations.” A brief conclusion follows.","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"73 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2013-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67996088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"And Not a Drop to Drink: Admiralty Law and the BP Well Blowout","authors":"John J. Costonis","doi":"10.2139/SSRN.2113822","DOIUrl":"https://doi.org/10.2139/SSRN.2113822","url":null,"abstract":"Although viewed as an admiralty tort by commentators (e.g., Professor David Robertson) and a 2011 BP Blowout MDL opinion (B-1 Bundle) by presiding MDLJudge Carl Barbier) I argued that the blowout is not an admiralty tort for three reasons: 1. The tort does not satisfy the requirement of Executive Jet Aviation Co. v. City of Cleveland, 409 U.S. 249 (1972) (Executive Jet) that it be \"substantially related to a traditional maritime activity.\" 2. It does not satisfy the Executive Jet requirement for a \"vessel.\" More specifically, the Deepwater Horizon drilling rig or \"mobile offhsore drilling unit\" (MODU) does not qualify as a \"vessel\" under Outer Continental Shelf Act(OCSLA) sec.1333(a)(1), which, instead classifies MODUs as \"temporarily attached devices (TADs). 3. In line with Rodrigue v. Aetna Cas. & Sur. Co., 395 U,S,352 (1969), torts occurring on OCSLA situses are governed by the (non-admiralty) OCSLA, not by admiralty law. Rodrigue overruled the leading Fifth Circuit precedent, Snipes v. Pure Oil Co., 293 F.2d 60 (5th Cir. 1961), because, like the B-1 Bundle ruling in the BP MDL, it wrongly ruled that tdortgs on OCSLA situses are not \"maritime\" events but rather are ruled by OCSLA. A major theme of the article is that virtually all 5th Circuit OCSLA tort rulings up to the BP MDL addressed the entitlement of injured or deceased workers atop drilling rig platforms (whether fixed or TADS) whereas the unique OCSLA/Oil Pollution act of 1990 tort being litigated in the BP blowout is an action to remedy the economic and property losses incurred by tens of thousands of off-platform plaintiffs in the Gulf coastal state in consequence of the OCS oil discharge of the BP subsea and the 45/10,0000ths of the total discharge from the Deepwater Horizon. The policy argument in favor of deeming the MODU an admiralty \"vessel\" in the conventional injured deceased platform worker case (that the latter's recovery is dependent on that labelling) is wholly irrelevant with respect to the dissimilar OCSLA/OPA tort in the BP MDL.","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"73 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2012-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67917264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Can Congress Make a President Step Up a War","authors":"Charles Tiefer","doi":"10.2139/SSRN.2293151","DOIUrl":"https://doi.org/10.2139/SSRN.2293151","url":null,"abstract":"May Congress use its appropriation power to direct the President to step up a war? When Congress uses its spending power for intensifying a war-stepping it up, pressing it more aggressively-against the resistance of a \"less hawkish\" Commander in Chief, who wins?This Article posits differences of view in the 2010s toward the Afghanistan war as a way to revisit, generally, the history of constitutional disputes over war-related appropriation riders. Describing the differences in very simplistic terms, a \"hawkish\" opposition in Congress may gain political strength at any time, such as in 2010 or 2014, not necessarily because of the war issues but perhaps from running on a political platform in which a \"hawkish\" view of the war is one of the platform's explicit or implicit planks. An elected \"hawkish\" majority in Congress may want to use tougher measures in the theatre of war than the President. It would enact measures past the bounds of policy set by the President as its way to step up the war.This Article does not look at such hypotheticals, of course, to discuss their policy implications. Rather, the discussion seeks to develop the analytical structure about whether a \"hawkish\" Congress may constitutionally enact various kinds of provisions. The provisions at issue have been chosen so as not to aim at restricting war, rather, these make a reluctant Commander in Chief step up a war.Accordingly, Part II of this Article provides the constitutional history of Congress's war appropriation riders. It develops the key background events, shedding a special light on the Framers' intent in wording the potent \"No Appropriation\" provision in the negative so that Congress would have a great power to limit, not to force, action. Proper appropriation riders derive great support from the plenary nature, venerable history, and contemporary significance of Congress's power of the purse.Part III of this Article uses the just-summarized constitutional history to set up and to apply a basic structure to categorize congressional appropriation riders. Although the main focus is to contextualize provisions for stepping up a war, the approach also yields insight regarding all war-related appropriation riders. In light of history, whether provisions are presumptively unconstitutional depends on whether the provision goes to the very core of the Commander in Chiefs more \"central\" concerns in the war zone: command, disposition of forces, and militarycampaigns.Part IV proceeds to apply the analysis to three hypothetical measures, one in each of these categories that Congress might enact years from now in the Afghan conflict. First, Congress may enact a provision that directs the President to make an armed incursion into \"border sanctuaries\" within Pakistan. Such congressional action would collide with the core of the Commander in Chief's central issue of Campaigning.The next Section of Part IV studies a congressional mechanism for intrusively overseeing command- a special ove","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"71 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2293151","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68071937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The English Fox in the Louisiana Civil Law Chausse-Trappe: Civil Law Concepts in the English Language; Comparativists Beware!","authors":"A. Levasseur, V. Feliú","doi":"10.2139/SSRN.2043175","DOIUrl":"https://doi.org/10.2139/SSRN.2043175","url":null,"abstract":"The Avant-Projet of the French Law of Obligations and the French Law of Prescriptions, which we will cite as the Projet-Catala, is a monumental undertaking to modernize Parts III and IV of Book Three of the French Civil Code, “Obligations,” and to continue the work of Jean Carbonnier who demonstrated “in transfiguring the first Book” that it was possible to “rehabilitate” the Code of 1804 “without damaging its structure or form.” “The program mobilized thirty-four persons” under the sponsorship of the Association Henri Capitant and was presented in the form of a “Rapport a Monsieur le Garde des Sceaux” in September 2005. A few months later, this draft of the Projet-Catala was sent to several foreign comparative law scholars throughout the world for the dual purpose of translating it, if possible, into their national languages and, on that occasion, to contribute their comments, observations, and remarks as they considered appropriate, especially as regards incorporated into the French Civil Code, should it be approved by the French Parliament. These foreign comparative law scholars were advised that, in fulfilling their tasks, the authors of the Preliminary Draft had not been motivated by any “plan to oppose that which is or anything of what should be the idea of the Civil Law” and that “the modernization of the Civil Code will continue as the hub of private law, the sturdy trunk of a tree whose branches can stretch out without losing their strength” so that the modern Civil Code becomes “the natural recourse of the judge faced with the silence of statutes and conventions, the pool of our legal reason.” The instructions received informed us that “the Projet-Catala does not propose a breaking of the Code, but an adjustment” and that “it (the Projet) is supportive of doctrine and jurisprudence.”","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"69 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2009-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67877268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The distinctiveness of domestic abuse : a freedom-based account","authors":"Victor Tadros","doi":"10.1093/ACPROF:OSO/9780199269228.003.0006","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780199269228.003.0006","url":null,"abstract":"","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"65 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60649285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Of Constitutional Amendments, Human Rights, and Same-Sex Marriages","authors":"M. Medina","doi":"10.2139/ssrn.3344582","DOIUrl":"https://doi.org/10.2139/ssrn.3344582","url":null,"abstract":"The author explores the role of amendments in the constitutional scheme and the role of the U.S. constitution as the guarantor in the United States of basic human rights. The author contends that constitutional amendments should not be used to perpetuate tyranny and deny certain human beings the exercise of basic human rights. Whether viewed as preservation of a basic human right to pursue happiness through marriage or to be free from societal animus because of one’s sexual orientation, it is difficult to justify prohibitions against same-sex marriage. Same-sex marriages involve protected conduct, a highly valued institution and relationships that cause no harm or injury to individuals or society at large.","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"64 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2004-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68586537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rights and Remedies","authors":"Marsha S. Berzon","doi":"10.4324/9780203761748-13","DOIUrl":"https://doi.org/10.4324/9780203761748-13","url":null,"abstract":"","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"64 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70591908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Error-Centricity, Habeas Corpus and the Rule of Law as the Law of Rulings","authors":"R. Berkowitz","doi":"10.2139/SSRN.466381","DOIUrl":"https://doi.org/10.2139/SSRN.466381","url":null,"abstract":"This article begins with an historical observation, that until recently error was not considered a problem in criminal law. Today, however, an elaborate system of appellate courts and extraordinary means of post-conviction relief have been adopted to root out error from legal verdicts. This article asks what law's relatively newfound concern with error reveals about the changing nature of truth and justice in modern society. By asking how error comes to be understood within habeas corpus jurisprudence, the article explores the modern legal understanding of truth and justice as objectivity and fairness.","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"64 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2003-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67742021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reputation and Intermediaries in Electronic Commerce","authors":"C. Gillette","doi":"10.2139/SSRN.308440","DOIUrl":"https://doi.org/10.2139/SSRN.308440","url":null,"abstract":"Electronic commerce offers the promise of facilitating transactions, especially low-value transaction, between distant parties. These transactions, however, are not readily susceptible to the legal enforcement mechanisms that are typically assumed necessary to generate a successful system of commercial transactions. Enforcement costs related to long-distance, low-value transactions suggest that parties will forgo otherwise value-enhancing transactions unless they can find some substitute for ex post legal redress. In theory, a reputation for contractual performance can fill this gap. But the creation and transmission of reputational information is itself costly. The history of commercial transactions suggests that reputational intermediaries can reduce these costs. This paper explores the possibilities and limits of using such intermediaries in electronic commerce by investigating the efforts by eBay, the online auction site, to create a reliable base of information for and about its members. The paper concludes that eBay's mechanism, while valuable, may suffer from biases that limit the utility of the reputational information it provides. The paper examines possible changes in legal rules that could, in theory, improve the quality of information in electronic commerce.","PeriodicalId":39678,"journal":{"name":"Louisiana Law Review","volume":"62 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2002-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.308440","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68552367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}