Issue 3

The Anomalous Interaction Between Code and Statute—Lessor’s Warranty and Statutory Waiver

This Article takes up the debate regarding the Louisiana Civil Code’s role and status as the foremost source of private law in this state, focusing on an aspect of the “ongoing revision” of the Code of 1870 that has thus far been largely ignored by the scholarly dialogue—the complex relationship between the Louisiana Civil Code and the Louisiana Revised Statutes. Although special legislation plays an essential role in all codified legal systems, its relationship to the Civil Code must be clearly understood, lest statutory law be allowed to undermine core principles of the legal system. Although the code is no longer the sole, or even primary, source of law in many civil law jurisdictions, special legislation must be made and applied cautiously, so to minimize deviations from the default rules of the code. In Louisiana, statutory law, particularly that found in the Civil Code Ancillaries, too often subverts the Civil Code rather than supporting it. This Article seeks to elucidate the causes and consequences of this anomalous interaction between code and statute, using as a case study the law governing waivers of the lessor’s responsibility for the condition of the leased premises.

Requiring Proof of Conspiratorial Dangerousness

It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil” that justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Neal Kumar Katyal’s defense of conspiracy law rests on this assumption, but Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true. This Article argues that to impose criminal liability, prosecutors ought to be required to prove a conspiracy’s dangerousness. In doing so, it also provides insight into conspiracy law that Katyal and Goldstein leave unilluminated. Their opinions on conspiracy’s dangerousness diverge because they assume different group data sets: Katyal views only criminal conspiracies, and Goldstein views groups in general. This Article applies a neutral, systemic analysis where theirs do not and thus generates workable, effective reforms where theirs cannot.

To support its argument, the Article places the question of conspiratorial dangerousness in the relevant history. It then establishes a theory of group conduct and applies the Condorcet Jury Theorem and theory of group polarization to demonstrate that a required showing of dangerousness could increase the criminal process’s outcome reliability, enhance the law’s legitimacy, conserve judicial resources, and improve public safety.

 

“Why Won’t My Homeowners Insurance Cover My Loss?”: Reassessing Property Insurance Concurrent Causation Coverage Disputes

Property insurance coverage disputes can be extremely complex cases when there are multiple concurrent causes in a causal chain of events and when some of these concurrent causes are covered under the policy language but other concurrent causes are excluded from coverage. To complicate matters enormously, there are no fewer than three different judicial approaches attempting to resolve this concurrent causation interpretive conundrum. Over the past two decades, a number of property insurance companies have attempted to address this interpretive problem contractually by inserting so-called anti-concurrent causation clauses into their property insurance policy language. But these anti-concurrent causation clauses have engendered unintended and unexpected interpretive consequences of their own that have not been adequately explored by the courts or commentators. The purpose of this Article is to analyze the strengths and weaknesses of the various interpretive approaches in resolving property insurance concurrent causation coverage disputes and to suggest six policyholder defenses to combat the often unchallenged judicial acceptance of such anti-concurrent causation clauses in property insurance policies.

Contemporary First-Generation European Americans: The Unbearable “Whiteness” of Being

Contemporary European immigrants face unique sociocultural and legal concerns that go beyond issues of race, class, national origin, and accent discrimination. These concerns are not adequately addressed by laws protecting groups based on their national origins or ancestries. Scholarship and public discussions are silent on this topic. As a result, European-born Americans fall through the cracks in critical legal theory, not fitting into any of the traditional analytical frameworks. No labels apply to them. Like their predecessors a century ago, they are expected to assimilate easily. At the same time, people assume that European-born Americans always and uniformly benefit from access to white privilege. In reality, European-born Americans oscillate between being visible as foreigners and fading into the invisible “white” norm. A closer analysis of their culturally constructed identity—as illustrated by looking at employment discrimination—exposes the artificiality of the concept of “whiteness.” A more accurate understanding of European immigrants’ experience also calls for a more holistic and consistent definition and application of “national origin” protections under Title VII and of “race”-based safeguards under § 1981. Looking more critically at the European immigrant experience points to the benefits of separating the concept of foreignness from the study of “race,” which often gets conflated with notions of national origin and ethnicity.

Shooting for the Stars (and Stripes): How Decades of Failed Corporate Tax Policy Contributed to Puerto Rico’s Historic Vote in Favor of Statehood

Puerto Ricans voted, in 2012, to abandon the island’s status as an unincorporated territory and adopt statehood. The current territorial system subjects Puerto Rico to some federal laws and privileges but exempts it from others. Income taxation is one area in which Puerto Rico is traditionally exempt from federal law. In an effort to generate employment and compensate for the privileges that are not extended to Puerto Rico, the United States implemented several tax policies between 1921 and 1996 designed to incentivize investment in the island from the mainland. The last of these tax incentives was phased out as ineffective in 2006. This Comment describes the unique economic challenges Puerto Rico faces as an unincorporated territory, examines why the tax initiatives that the United States applied to Puerto Rico all failed, and posits that statehood offers superior opportunities for Puerto Rico’s long-term economic outlook.

Why Don’t You Do Right? Corporate Fiduciary Law and the Self-Critical Analysis Privilege

The financial crisis of 2008 has led to widespread recognition that further incentives are needed to encourage meaningful corporate self-study and allow corporate officers and directors to fulfill their fiduciary obligations without risking future liability. This Comment will analyze the current incentive structure in corporate fiduciary law and the law of privilege to support voluntary self-critical analysis and explore a statutory solution to promote more thorough corporate self-study and internal investigations.

The Body, Incorporated

Listen to Professor Matambanadzo discuss The Body, Incorporated. Legal personhood has become a contested issue for individuals of all political persuasions. Some activists seek to expand the boundaries of legal personhood to include fetuses, human tissue, or even animals. Other activists, however, have sought to limit the community of legal persons by expelling one long-recognized group: corporations. Since the United States Supreme Court decided Citizens United v. Federal Election Commission in 2010, a variety of activists, artists, entertainers, and political commentators have claimed that corporate personhood should be severely limited or completely eliminated.This Article addresses the current controversy surrounding legal personhood by focusing on how legal personhood for corporations has been constructed by jurists and scholars in historical and contemporary contexts. This Article does so through an examination of the metaphorical use of the human body as an anchor for determining the status of corporations as legal persons. This analysis shows that even for corporations—disembodied, legally constructed entities lacking many of the rights and privileges of personhood—the human body serves as an important framework for shaping the legal community of persons and resolving theoretical disputes concerning those legal persons.

This Article also presents a novel theoretical justification of corporate personhood embedded in the legal tradition of the United States: the embodiment theory of the corporation. The embodiment theory of the corporation—deployed by courts, scholars, and lawyers—reveals how the embodied human being serves as the paradigmatic person of law. In the embodiment theory, human beings provide a model for determining how legal recognition functions for entities, collectives, and individuals—even those that are disembodied and legally constructed. For this reason, this Article argues that future efforts to determine the boundaries of legal personhood should incorporate human embodiment as a guiding framework for thinking about who “counts” in the community of persons.

NEPA’s Footprint: Information Disclosure as a Quasi-Carbon Tax on Agencies

The National Environmental Policy Act’s (NEPA) information-disclosure requirements have the potential to create a quasi-carbon tax on greenhouse gas emissions arising out of major federal actions. By requiring government polluters to expend more resources, both financial and political, on disclosure as project-related emissions increase, NEPA can operate like a carbon tax that forces agencies to internalize negative externalities associated with emissions. Federal agencies routinely undertake actions with enormous potential to affect the earth’s climate. When the predicted impacts of such actions on the environment are significant, NEPA demands that the agency prepare an Environmental Impact Statement (EIS) to disclose and assess those impacts. Outside of the climate change context, NEPA’s onerous disclosure requirements for significant impacts create incentives for agencies to reduce the impacts of their actions on the environment to avoid these burdens. Due to pervasive uncertainty as to what NEPA requires agencies to disclose in the climate change context, however, NEPA’s potential to spur agencies to reduce or mitigate emissions remains unrealized.

Without amending the existing statute or regulations, the White House Council on Environmental Quality can and should structure NEPA’s burdens and reporting boundaries on a sliding scale to mimic key structural features of a Pigouvian carbon emissions tax. The marginal costs of greater emissions should be payable in increased reporting specificity and breadth, with concomitant economic and political costs. This approach will harness NEPA’s substantive effects to combat global climate change.

Registering Relationships

Despite the dramatic changes in family structure in the past decades—including the unprecedented and skyrocketing number of families who live in nonmarital arrangements— marriage and marriage-mimic institutions remain the only legal options for the recognition of relationships. This regulatory regime leaves millions of Americans without the means to establish and protect relationship rights. This Article suggests that the legal issues arising from nonmarital relationships would be best addressed if more options for legal recognition of such relationships were offered. Accordingly, this Article presents the primary principles of a registration-based marriage alternative that is founded on contract: “registered contractual relationships” (RCRs). This legal institution would offer couples the option to sign—and deposit with the state—a contract defining the partners’ obligations and rights vis-a?-vis one another and changing their status to that of “registered partners.” Registered partners would receive most of the rights and benefits that the state provides for married couples. Registration would not require a solemnization process nor any ceremonial or religious component and would provide an easy way to dissolve relationships in cases where couples do not have minor children. This model enjoys the flexibility of contracts and the certainty of official registration. It promotes greater autonomy in family formation in two ways: it allows more choice among state-sanctioned mechanisms, and it allows people to design the terms of their relationships, rather than imposing the one-size-fits-all structure of marriage. The introduction of RCRs would have far-reaching legal and societal consequences. RCRs would provide a functional model for registration and termination of partnerships, offer an alternative that is not associated with marriage's symbolism and that acts to reduce the harm that symbolism creates, and accommodate a wide range of family structures. At the same time, they would efficiently address the state’s need to regulate some aspects of relationships in the interest of avoiding and mediating conflicts and of encouraging couples to think about and negotiate their rights early in their relationships. The Article also looks at the success of the French Pacte Civil de Solidarite? (PACS)—a model that resembles RCRs and provides important lessons to the United States.

A Bibliography of Executive Branch War Powers Opinions Since 1950

Listen to Professor Griffin discuss A Bibliography of Executive Branch War Powers Opinions Since 1950. While there is extensive literature on presidential war powers,[1. See, e.g., John Hart Ely, War and Responsibility:  Constitutional Lessons of Vietnam and Its Aftermath (1993); Louis Fisher, Presidential War Power (2d ed., rev. 2004); Michael J. Glennon, Constitutional Diplomacy (1990); H. Jefferson Powell, The President’s Authority over Foreign Affairs (2002); Michael D. Ramsey, The Constitution’s Text in Foreign Affairs (2007); W. Taylor Reveley III, War Powers of the President and Congress:  Who Holds the Arrows and Olive Branch? (1981); Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power:  The Origins (1976); The Constitution and the Conduct of American Foreign Policy (David Gray Adler & Larry N. George eds., 1996); Donald L. Westerfield, War Powers:  The President, the Congress, and the Question of War (1996); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War:  The War Power of Congress in History and Law (2d ed. 1989); John Yoo, The Powers of War and Peace:  The Constitution and Foreign Affairs After 9/11 (2005).  Two other upcoming books on war powers worthy of note are Stephen M. Griffin, Long Wars and the Constitution (forthcoming 2013), and Mariah A. Zeisberg, War Powers:  The Politics of Constitutional Authority (forthcoming 2013).] to my knowledge there has never been a comprehensive listing of the relevant legal opinions provided by the executive branch.  This bibliography of executive branch legal opinions on war powers since the beginning of the Korean War in 1950 is therefore intended as an aid to future scholarship.  The opinions are listed in chronological order.  Most have been published as public documents, although some were confidential at the time they were written.  The once-confidential documents are available from presidential libraries, and I have provided the information necessary for the library archivists to retrieve them.  This bibliography is limited to opinions that are related to the initiation of war, including the interpretation of the 1973 War Powers Resolution (WPR).[2. Pub. L. No. 93-148, 87 Stat. 555 (1973) (current version at 50 U.S.C. §§ 1541-1548 (2006)).]  Eight opinions that I believe were previously unknown or not easily accessible have been included as appendices to this Bibliography.  I provide a commentary on the various items in the bibliography at the end.  I welcome suggestions for additions to this list.

Bibliography

  1. Memorandum from the U.S. Dep’t of State to President Harry S. Truman (July 3, 1950), in H.R. Rep. No. 81-2495, pt. IV, at 61 (1950), quoted in 23 Dep’t St. Bull. 173 (1950).
  2. Staff of Joint Comm. Made Up of the Comm. on Foreign Relations and the Comm. on Armed Services of the Senate, 82d Cong., 1st Sess., Powers of the President To Send the Armed Forces Outside the United States (Comm. Print 1951).
  3. Memorandum from Dean Rusk, U.S. Sec’y of State, U.S. Dep’t of State, to President Lyndon Baines Johnson (June 29, 1964) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix A.
  4. Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (Feb. 11, 1965) (on file with LBJ Presidential Library, National Security Files, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix B.
  5. Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (Apr. 6, 1965) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix C.
  6. Memorandum from Nicholas deB Katzenbach, U.S. Att’y Gen., U.S. Dep’t of Justice, to President Lyndon Baines Johnson (June 10, 1965), in 2 Foreign Relations of the United States, 1964-1968: Vietnam, January-June 1965, at 751-54 (David C. Humphrey, Ronald D. Landa, Louis J. Smith & Glenn W. La Fantasie eds., 1996).
  7. Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (June 11, 1965) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix D.
  8. Memorandum from Leonard C. Meeker, Legal Advisor to the President, to the Senate Committee on Foreign Relations (Mar. 4, 1966), in 54 Dep’t State Bull. 474 (1966).
  9. Memorandum from William H. Rehnquist, U.S. Assistant Att’y Gen., Office of Legal Counsel, U.S. Dep’t of Justice, to Charles W. Colson, Special Counsel to the President (May 22, 1970) (on file with Nixon Presidential Library and Museum, White House Special Files, Staff Member and Office Files, Charles W. Colson, Box 42, Cambodia, Accordion Folder II, Cambodia Legal Briefs, 1 of 2), infra Appendix E.[3. Special thanks to Nathan A. Forrester, Attorney-Adviser/Editor of the Office of Legal Counsel in the U.S. Department of Justice, for his assistance.]
  10. Memorandum from Elliot Richardson, U.S. Att’y Gen., U.S. Dep’t of Justice, to Roy L. Ash, Dir., Office of Mgmt. & Budget (Oct. 18, 1973) (on file with Nixon Presidential Library and Museum, White House Central Files, Subject Files, FE (Federal Government) 4-1, 10/1/73-11/30/73, Box 6), infra Appendix F.
  11. Veto of the War Powers Resolution, Pub. Papers 893 (Oct. 24, 1973).
  12. A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon and the Mayaguez Incident: Hearings Before the Subcomm. on Int’l Sec. & Scientific Affairs of the H. Comm. on Int’l Relations, 94th Cong. 95 (1975) (statements of Monroe Leigh, Legal Adviser, U.S. Dep’t of State).
  13. Presidential Power To Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185 (1980).
  14. Overview of the War Powers Resolution, 8 Op. O.L.C. 271 (1984).
  15. Memorandum from C. Boyden Gray, White House Counsel, to President George H.W. Bush (Aug. 7, 1990) (on file with George Bush Presidential Library and Museum, John Sununu Files, OA/ID 29166-008, Persian Gulf War 1991, 6), infra Appendix G.
  16. Memorandum from C. Boyden Gray, White House Counsel, to Governor John H. Sununu, White House Chief of Staff (Dec. 6, 1990) (on file with George Bush Presidential Library and Museum, John Sununu Files, OA/ID CF 00472, Persian Gulf War 1991, 11), infra Appendix H.
  17. Authority To Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
  18. Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994).
  19. Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995).
  20. Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000).
  21. John C. Yoo, The President’s Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them, U.S. Dep’t of Justice (Sept. 25, 2001), http://www. justice.gov/olc/warpowers925.htm.
  22. Jay S. Bybee, Authority of the President Under Domestic and International Law To Use Military Force Against Iraq, U.S. Dep’t of Justice (Oct. 23, 2002), http://www.justice.gov/olc/2002/iraq-opinion-final.pdf.
  23. Caroline D. Krass, Authority To Use Military Force in Libya, U.S. Dep’t of Justice (Apr. 1, 2011), http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.

For the complete article, including appendices with eight previously unpublished memoranda, please see the links to Westlaw, LexisNexis, HeinOnline, and Amazon below.