Issue 4

United States Coast Guard Vessel Regulations and Federal Preemption

In the wake of recent judicial developments surrounding questions of federal preemption of state laws, this Article seeks to explain and clarify the proper preemption analysis that applies to shipping and vessel regulations that impact federal, state, and maritime commerce interests. Each preemption analysis is different, depending on the source of law for the regulation, the nature of the regulation, the class of vessels, and the activity being regulated. This Article identifies the key categories and provides the framework for preemption analysis for each. It provides a reference guide to the preemptive characteristic of promulgated regulations for the benefit of practitioners, regulators, and marine operators. This Article, however, does not provide a comprehensive recitation of the facts and analysis for each case impacting United States Coast Guard regulatory efforts.

Deregulating Public Interest Law

The shortfall of legal services for indigent clients is alarming. The present rules seem unlikely to incentivize or require lawyers to address adequately the unmet legal needs of the poor. Several commentators have suggested the possibility that increased regulation could improve access to legal services. Very little scholarship, however, has considered whether the opposite proposition might be true: Could deregulation actually improve the availability of legal services for the poor? This Article will consider four fairly radical proposals: (1) liberalizing the restrictions on foreign attorneys in order to allow outsourcing of legal aid services to India and Mexico, (2) permitting the practice of public interest law by laypeople in related fields such as family counseling and social work, (3) suspending the application of certain ethical rules to individuals and firms that exceed a minimum number of pro bono hours, and (4) reining in the American Bar Association’s accreditation requirements in order to allow the creation of “public interest academies” that would provide a low-cost alternative for law students who aspire to practice public interest law.

Close scrutiny reveals that the first three of these proposals are not viable. But the fourth proposal could transform American legal education and greatly advance the goal of equal access to justice. This Article concludes by noting some potential objections to the proposal for public interest academies and by identifying areas for future research.

A Compelling Case for Streamlining Venue of Actions To Enjoin Arbitration

As arbitration, rather than litigation in court, grows as a favored forum for dispute resolution, the role of federal courts in guiding parties toward arbitration has increased in importance. Federal courts are regularly asked to intervene to compel arbitration or to enjoin arbitration from proceeding. A circuit split has developed regarding whether federal courts have the power to compel arbitrations in districts outside their own, stemming from § 4 of the Federal Arbitration Act’s conflicting permissive versus mandatory venue provisions. There are likewise conflicting opinions regarding whether a federal court can enjoin an arbitration pending in another district. This Article explores the disparate decisions on these issues, arguing that venue for an action to enjoin arbitration should be limited to the district where arbitration is pending in order to promote judicial efficiency, to prevent forum shopping, to avoid inconsistent rulings, and to funnel parties quickly to arbitration.

Maintain a Seaman’s Protection or Cure a Seaman’s Fraud? Weighing the Proper Balance Between Seamen and Employers

Wallace Boudreaux had been working less than five months when he first filed for maintenance and cure from his employer, Transocean Deepwater, Inc. After working on the anchor of a Transocean vessel in May 2005, he claimed that he had injured his back due to the company’s negligence. Transocean thereafter began making maintenance and cure payments to Boudreaux. These awards did not satisfy the seaman, though, and almost three years later, in April 2008, he sued for further damages. The suit led Transocean to a revelation during discovery: in his initial medical interview with the company, Boudreaux never acknowledged that he had had back injuries and pain as early as 1997. Based on this concealment, Transocean filed a motion for summary judgment, leading the district court to dismiss Boudreaux’s maintenance and cure claims in April 2010. By that point, though, Transocean had already paid him $276,263.36 over nearly five years. Wishing to recover the money, the company filed a counterclaim for restitution in June 2010. It then filed a motion for summary judgment on the counterclaim, arguing that because it successfully showed that it was not responsible for further maintenance and cure payments, the court should also grant it restitution for those payments already made in order to avoid unjust enrichment. The district court agreed with this argument and granted Transocean’s motion for summary judgment on the counterclaim for restitution. Boudreaux appealed, leading the United States Court of Appeals for the Fifth Circuit to consider the novel issue of whether a maritime employer should automatically be granted restitution for prior maintenance and cure payments where the employer successfully defends against further payments by showing that an employee intentionally concealed a relevant, preexisting medical condition. The United States Court of Appeals for the Fifth Circuit held that an employer is not entitled to an automatic right of action for restitution of maintenance and cure payments obtained by a seaman after an inaccurate medical interview, although the employer can use these prior payments to offset further Jones Act damages. Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728, 2013 AMC 2457, 2464 (5th Cir. 2013).

In State v. Louisiana Land & Exploration Co., the Louisiana Supreme Court Retreats from Progress in Oil Field Contamination Litigation

In the ongoing saga of Louisiana “legacy litigation,” the Louisiana legislature and Louisiana Supreme Court have together taken several cautious steps along an uneasy tightrope strung between the competing interests of private landowners and oil and gas exploration and production companies accused of environmental contamination. The most recent opportunity for advancing the resolution of oil field contamination disputes arose in the matter of State v. Louisiana Land & Exploration Co., in which the state of Louisiana and the Vermilion Parish School Board haled into court a dozen exploration and production companies to answer for alleged contamination resulting from oil and gas operations performed on lands owned by the state and managed by the school board. Though it was undisputed that the original 1935 oil, gas, and mineral lease lacked any express provision for environmental remediation, the plaintiffs nevertheless alleged, inter alia, that they were entitled to “excess remediation damages” in spite of the procedural mechanisms for administering remediation awards put in place by Act 312. The defendant companies—admitting responsibility for the contamination, but objecting to the plaintiffs’ contention that they were liable for damages above and beyond the amount required for a statutory cleanup—moved for partial summary judgment. They sought dismissal of the plaintiffs’ claims for excess remediation damages in light of the procedural requirements established under Louisiana Revised Statute (La. R.S.) section 30:29, which, they argued, acted as a substantive cap on remediation damages. The trial court granted the defendants’ motion for partial summary judgment, and the state and school board appealed. The Louisiana Court of Appeal for the Third Circuit agreed with the plaintiffs, reversing the trial court’s granting of partial summary judgment and holding, “La. R.S. 30:29, by its clear language, provides for a landowner to recover damages in excess of those determined in the feasible plan whether they are based on tort or contract law.” The defendant companies sought review of the appellate court’s determination, and the Louisiana Supreme Court held that Act 312 does not prohibit plaintiffs from pleading for and receiving awards for remediation damages in excess of the amount needed to fund the statutorily required cleanup plan. State v. Louisiana Land & Exploration Co., 2012-0884, p. 16 (La. 1/30/13); 110 So. 3d 1038, 1049.

Cell Phones as an Eye of the Government: In re Application of the United States for Historical Cell Site Data

Federal authorities in Texas sought a court order from a federal magistrate to compel a cell phone service provider to disclose records for a particular cell phone number under the Stored Communications Act (SCA). These records included historical cell site data, which service providers collect and store for each of their cell phone subscribers. Historical cell site data provide the locations of antennae towers that receive the signal of a subscriber cell phone and the direction from which that signal emanates. Service providers may record and collect these data at times when the phone is in use and when the phone is idle. Federal authorities sought this order under the SCA on a showing of “specific and articulable facts,” rather than by a warrant on a showing of probable cause. The magistrate refused to grant the order as pertaining to the historical cell site data. The magistrate found that although federal authorities did meet the specific and articulable facts standard of the SCA, this provision allows the government to effect a search under the Fourth Amendment on a lower evidentiary showing than probable cause and is, therefore, unconstitutional. When the government objected to the magistrate’s ruling, the district court affirmed the magistrate’s decision. The government appealed the district court’s decision while the American Civil Liberties Union, the Electronic Frontier Foundation, and others participated as amici. In a split decision, the United States Court of Appeals for the Fifth Circuit held that court orders to compel service providers to provide historical cell site data based on the specific and articulable facts standard under the SCA do not categorically violate the Fourth Amendment and that courts do not have discretion to require a showing of probable cause when the government seeks to compel disclosure of historical cell site data under the SCA. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).

Preface

Two of my principal antipathies, doubtless idiosyncratic (though not unshared), are Festschriften and student-run law reviews . . . . [1. Tony Weir, All Or Nothing?, 78 Tul. L. Rev. 511, 512 (2004).]

—Tony Weir

Although his name appeared often in the bylines, text, and margins of the Tulane Law Review, these words opened the last of many pieces Tony Weir contributed.  In writing of Judge Martin L.C. Feldman, he noted that despite these antipathies “my esteem for [him] helped me overcome them in this instance.”

In deference to Weir’s aversion to Festschriften, this Issue does not intend to assume that form nor its name.  The Editors have instructed each of the authors to omit any allusion to Weir the individual, and instead to use these pages to expand upon his body of work in the comparative law, especially with regard to the law of torts.[2. Id.]

Because we are unable to give deference to Weir’s other antipathy, the Editors hope that the authors’ esteem for him would have helped him overcome his distaste for student-run law reviews in this instance as well.  We dedicate the Issue to him in his words:  “[We] proffer the following . . . as a friendly token of [our] regard.”[3. Id.]

Friendship's Bounty

Sacerrimus intimæ pietatis indagator ("Devoted investigator of profound faithfulness"). Born April 2, 1936, in Edinburgh, Scotland, John Antony Weir, called “Tony” by friends and colleagues, graduated in 1952 from Fettes College, Edinburgh.  Both polymath and polyglot, he was excused from regular classes in his last year at Fettes to roam through self-designed reading lists.  At age sixteen he won a scholarship to Trinity College, Cambridge.  He deferred enrollment at Trinity for several years so that he could perform military service in the Cameronians, a Scots rifle regiment.

Initially a student of classical languages, Weir switched to law at Trinity and graduated in 1960 with a first.  He spent the years from 1960 to 1962 at Tulane University Law School where he earned an LL.M. and then taught briefly.  According to Stephen Zimmermann, who graduated from the law school with an LL.B. in 1964 and became a cherished friend who met Weir soon after his arrival, he must have enjoyed the conviviality of the Cameronians, for he gave up a military barracks for a Tulane law students’ dormitory.  There he took under his wing a number of anxious first-year students, coached them through their first examinations, and assured them that diligent study would repay them handsomely.

Unworthiness to Inherit, Public Policy, Forfeiture: The Scottish Story

The concerns addressed by the civilian rules on unworthiness to inherit (indignitas succedendi) must be addressed by any legal system.  When they arose in Scotland, responses tended to be found by the extension or development of other rules.  Even where there was reference to the idea of unworthiness, as in the Parricide Act 1594 and in Buchanan v Paterson (1704), the result was later re-conceptualized along different lines.  In recent years, the Scottish courts have been more receptive to the public policy principle that no one is to benefit from his or her own wrong, taken from the English common law.  Even there, however, the Scottish courts have shown a reluctance to follow foreign authorities too closely.  The result is a series of shoots, each taking a slightly different direction and none of them growing to maturity.  Thus, whatever might be said about Lord Cooper’s characterization of Scottish legal history as a story of “false starts and rejected experiments” on a general level, it is certainly an accurate description of the story told in this Article, that is, of the treatment of persons who do not deserve to inherit in Scots law. It is remarkable how much of the discussion in Scots law is focused on cases involving the killing of the deceased.  The differences between the unworthiness and the public policy approach do not in fact play a role in this situation and that is probably the reason why they have not elicited much comment.  Beyond killing there is hardly any case law.  One of the main reasons for this appears to be that other legal devices are available to take care of many, perhaps most, of the practical problems that may be raised in other instances of unworthiness to inherit.

Path Dependence and Legal Development

“Path dependence” is an important explanation in comparative law, but it also recognises that the law does develop by breaking out of the mould cast by the past.  Path dependence affects not only the legal concepts that the law uses to solve problems, but whether the law will intervene in a problem area or not.  Path dependence assumes that there is no ideal solution, but an equilibrium can be found within a particular society between the role of law and that of other social institutions.  The scope for change depends significantly on the extent to which a particular legal approach is “embedded” within the legal system—how many parts of the law depend on it.  Real embeddedness involves the way in which a particular rule or practice connects to other parts of the law, especially when it is underpinned by structural or organisational aspects of the system.