Issue 1

"This Is Not the System Congress Created": Rethinking Louisiana's Immigration Law After Arizona v. United States

Arizona’s infamous immigration law of 2010 garnered national attention and prompted a lawsuit by the federal government.  Many considered it to be the harshest of its kind in any state, but Louisiana had crafted a law years earlier that targeted immigrants on the roads and criminalized their status.  Louisiana’s alien driving law, disguised as a rational exercise of the state’s police power, survived numerous court challenges.  The legal landscape of state immigration laws, however, changed with the United States Supreme Court’s decision in Arizona v. United States, which strengthened the force of federal preemption of immigration law.  This Comment explores the constitutionality of Louisiana’s alien driving law, both under an Arizona analysis and independent of it. It argues that Louisiana’s law is unconstitutional not only because of federal preemption, but also because it violates individual rights.  It concludes that courts should be mindful to strike down state immigration laws on both grounds, lest we find ourselves with Arizona or Louisiana-style legislation becoming part of the system Congress creates.

Balancing Policy Goals in the Cable Industry After the Expiration of the Exclusive Contract Prohibition

Since the inception of the cable industry, lawmakers have been concerned with the dual goals of diversity in video programming and competition in video programming delivery.  To encourage competition in the market for video programming delivery, the Federal Communications Commission (FCC) for years prohibited exclusive contracts between vertically integrated cable operators and their affiliated content providers.  On October 5, 2012, however, the FCC found that the prohibition was no longer necessary to protect competition in video programming and replaced the prohibition with a case-by-case approach.  Under this approach, an exclusive contract is unfair and, therefore, unlawful only when its anticompetitive harms outweigh its procompetitive benefits.  Although beneficial for program diversity, the FCC’s case-by-case approach to exclusivity risks causing a backward slide in the market for video programming delivery.  Uncertainty surrounding the application of the antitrust laws to regulated industries, such as the cable industry, may render even more precarious the balance achieved between these two policy goals.  This Comment details the evolution of the FCC’s approach to exclusive contracts between vertically integrated cable operators and their affiliated content providers and explores how the FCC’s new approach to exclusive contracts could affect competition in the market for video programming delivery.

Micropaternalism

In this Article, I have created a theory of “micropaternalism” to capture the essence of a unique regulatory dynamic.  As I define it, micropaternalism describes when policy makers paternalistically regulate a narrow area, thereby provoking public debate about the underlying controversial issues addressed by the regulation.  The loss of autonomy, even in a narrow zone, can instigate a broad-ranging discussion that ultimately influences social norms. For example, Mayor Michael Bloomberg’s attempt to limit the portion sizes of sugary-drink servings in New York City started a legal fight and a loud social fight about public health and paternalism.  The New York City Board of Health enacted a code that covered an extremely narrow piece of the obesity problem, but the public debate took place on a big stage.  Discussions about obesity as a public health problem leapt from the policy sphere to the popular sphere.  In the long run, the dialogue may have more of an impact on public attitudes and private behavior than the actual regulation—a regulation that may not even prove enforceable.  By putting the issue before the public and raising awareness, the debate about overconsumption could reset norms.

The Debtor Class

In recent years, individuals seeking bankruptcy protection have encountered an unexpected harm: their lenders have misrepresented the amounts they owe, lost or misapplied their loan payments, and violated clear requirements of bankruptcy law and procedure. Recent investigations of consumer bankruptcy cases reveal widespread abuse of the Bankruptcy Code, ranging from the filing of unsupported or overinflated proofs of claim to violations of the automatic stay and discharge injunction. Such practices undermine consumer bankruptcy’s central goals to provide consumer debtors a fresh financial start and to achieve the fair treatment of and distribution of assets to creditors. Because many debtors affected by lender misconduct may not have the resources or the financial incentives to fight back individually, class actions may serve a valuable remedial role. Class litigation additionally may create a deterrent effect that institutional checks have failed to provide. But debtor class actions face two primary impediments: The first is jurisdictional. The concept of a debtor class appears to conflict with fundamental principles of bankruptcy jurisdiction. The second emanates from the class device itself and the Supreme Court’s apparent drive to limit the availability of class litigation.

This is the first of a series examining these hurdles. This Article addresses the threshold jurisdictional challenges facing the debtor class. It reconciles the divergent case law and presents a framework for approaching class action proceedings in bankruptcy. It concludes that courts generally should not hesitate to exercise jurisdiction over nationwide classes of consumer debtors asserting violations of bankruptcy law. Still, the debtor class action is no panacea. Class relief may be unavailable in many cases, and additional law reform efforts will be needed to fully remedy the disconnect between bankruptcy law and creditor action. A forthcoming article will consider these issues.

 

The Financial Crisis and the Forgotten Law of Contracts

At the bottom of the financial crisis lie failed contracts. Failed contracts are the stuff of contract law. Yet, to date, most discussions of possible responses to the financial crisis ignore contract law. To the extent contract law makes an appearance, the assumption is usually that the contracts at issue should and will be strictly enforced, so there is not much more to say. Contract law, however, is not dead. Nor is it impotent; it has just been forgotten. This Article explores how courts could use a number of contract doctrines to address perhaps the biggest remaining problem resulting from the financial crisis: the huge number of foreclosures of residential mortgages that have occurred, are occurring, and are expected to continue for some time. Modifications, especially those reducing principal, might have avoided many of these past foreclosures and might prevent ongoing and further foreclosures. Yet despite the fact that such modifications are often in the interests of both homeowner-borrowers and investors in bonds derived from those mortgages, in many cases, they do not happen. The political will for bold legislative action on this problem seems to be lacking. Many solutions to this problem have been proposed, but only a few have been attempted and those have not worked well. A cramped view of contract doctrine may be contributing to this lack of political will. Recognizing the flexibility of contract law may foster a greater willingness to consider creative legislative solutions. After reviewing the conventional contract law approach to the mortgage contract and examining how financial wizardry changed the relevant risks, this Article considers how courts might interpret the contract law doctrines of assignment, modification, restraint of trade, unconscionability, mistake, impracticability, damages, and the objective theory of intent to address the current foreclosure mess.

A Constructive Critique of Public Health Arguments for Antiobesity Soda Taxes

This Article constructively critiques the two arguments that public health advocates have made in support of antiobesity soda taxes or junk food taxes. Part II discusses and critiques the first argument, an economic externalities argument that government should tax soda or junk food to internalize the disproportionately high health care costs of obesity. Part II also explores an alternative economic internalities argument for food or soda taxes, with a focus on incomplete information, bounded rationality, and bounded willpower. Part III discusses and critiques the second argument made by public health advocates, that government should adopt antiobesity measures to improve population-wide health. This Part considers the appropriate scope of public health law interventions with respect to behavioral risk factors (for example, diet), comments on empirical evidence offered by public health advocates to support proposed soda taxes, and cautions public health advocates to consider possible unintended consequences of antiobesity proposals. Obesity policy debates present a conflict of fundamental values, such as health, fairness, efficiency, and autonomy. Part IV attempts to reconcile these values and responds to the “personal responsibility” objection to soda taxes and food taxes. Part V considers various factors that would affect behavioral responses to proposed soda taxes and food taxes and addresses concerns that such taxes would be regressive and thus unfair to low-income consumers. This Part also explores the tax design implications of the literature on tax salience and on asymmetric paternalism and libertarian paternalism. Part VI suggests the way forward for public health advocates, including a proposal to enact a tax on nutritionally poor foods and drinks, paired with a salient benefit. This Part also recommends enactment of a federal system of food classification, based on nutrient-profiling methods, along with a federal system of front-of-package nutritional labeling.

The Painless Truth: Challenging Fetal Pain-Based Abortion Bans

After her arrest for an alleged violation of title 18, section 606 of the Idaho Code, which criminalizes all abortions not performed by a physician in Idaho, Jennie Linn McCormack, a thirty-two-year-old mother of three and resident of southeast Idaho, brought a lawsuit challenging three aspects of Idaho’s abortion statute. McCormack’s lawsuit includes a challenge to the constitutionality of Idaho’s Pain-Capable Unborn Child Protection Act, which makes it illegal for a woman to receive an abortion when the “probable postfertilization age of the woman’s unborn child is twenty (20) or more weeks.” Although the United States District Court for the District of Idaho dismissed her challenge to the Pain-Capable Unborn Child Protection Act due to a lack of standing (because McCormack was not pregnant when she filed suit), it later allowed McCormack’s lawyer Richard Hearn, who is also a medical doctor, to intervene as a plaintiff challenging the law as it applies to doctors who seek to perform abortions in Idaho. Because of Hearn’s intervention, Idaho’s law may be the first fetal pain law subject to a constitutional challenge. This Comment argues that based on United States Supreme Court precedent on the abortion right, statutes banning abortion twenty weeks postfertilization are unconstitutional and thus should be overturned.

Low-Profit Limited Liability Companies (L3Cs): Many Traps for the Unwary

Amid a sluggish economy and fiscal challenges at every level of government, the low-profit limited liability company (L3C) has spread rapidly over the past four years, promising a way to spur investment in small businesses and achieve socially beneficial goals with minimal governmental expense or oversight. The L3C’s calculated and focused marketing campaign has convinced eight states, including Louisiana, to adopt this new business structure, but the substance of this corporate form leaves much to be desired. Although the L3C is designed to combine investment capital from nonprofit foundations and private investors, the current L3C laws fail to deliver on that promise. The L3C business form, with its distortion of tax policy, inherently conflicting goals, and intractable governance problems, offers nothing but pitfalls and obstacles to the socially beneficial, hybrid enterprises that it purports to help.

The Emergence of Neuroscience Evidence in Louisiana

Law and science intersect in many arenas. For instance, an Internet search containing the words “law” and “science” immediately produces countless results ranging from playful “Law School vs. Med School” blogs, to more substantive law and science pairings including interdisciplinary “Law and Neuroscience” research efforts and various “Law and Science” periodicals. Despite this apparent connection between the two fields of study, it has resulted in a great deal of debate, particularly when science enters the courtroom. Nevertheless, the use of neuroscience evidence is on the rise, as indicated by a doubling of cases in the United States involving neuroscience evidence from 2006 to 2009. Given the already-existing utilization of (and attempts to use) neuroscience evidence for various legal purposes in jurisdictions throughout the United States, one can expect Louisiana to encounter more lawyers offering such evidence shortly. Therefore, it is important for lawyers and judges in Louisiana to be familiar with the contexts in which this type of evidence is likely to arise and understand how courts have been and ought to be treating it. Accordingly, with a focus on Louisiana, this Comment explores the burgeoning discipline of law and neuroscience by analyzing the multifaceted difficulties of offering neuroscience evidence for purposes of supporting claims of mental incompetency to rescind a contract and claims of insanity to avoid criminal responsibility. This Comment argues that neuroscience evidence in its current stage of development has little utility with regard to proving contractual incapacity and criminal insanity. In addition to these specific claims, this Comment analyzes more general concerns relating to the use of functional neuroimaging in any legal context: the difficulty in assessing a legally defined mental state, the uncertainty involved in generalizing the results of neuroimaging tests to real-world behavior, and the potential prejudicial effects of neuroimaging evidence on a jury.

Emergence of a Deportation Gideon: The Impact of Padilla v. Kentucky on Right to Counsel Jurisprudence

In Padilla v. Kentucky, the United States Supreme Court imposed a Sixth Amendment mandate on criminal defense attorneys to warn their clients of the immigration consequences of a criminal plea. Rooted in Sixth Amendment precedent, the Court's new constitutional requirement arose principally out of its concern that the unique nature of immigration consequences required heightened due process protections. This Comment analyzes Padilla's specific impact on the concept of a right to appointed counsel in deportation proceedings. Although no deportation Gideon right existed before Padilla, signs indicate that the Court may be willing to revisit the issue. After explaining Padilla's relation to right to counsel jurisprudence, the Comment explores how the Court's newly heightened concerns over due process protections in immigration proceedings will affect its future analysis of the right as applied to the immigration context. This Comment concludes with an analysis of the manner in which the Court might come to recognize a categorical right to counsel in deportation proceedings.