The explosion of the BP-leased Deepwater Horizon and subsequent oil spill stand as an indictment not just of our national energy priorities and environmental law enforcement; they equally represent a failure of Anglo-American corporate law and what passes for corporate social responsibility in business today. Using BP and the disaster as a compelling case study, this Article examines green marketing and corporate governance and identifies elements of each that encourage firms to engage only superficially in corporate social responsibility yet trumpet those efforts to eager consumers and investors. This Article then proposes reforms and protections designed to increase corporate social responsibility, root out greenwashing, and recognize liability for corporate social responsibility frauds on consumers and investors. One of these protections derives from the newly enacted Dodd-Frank Act, whose Bureau of Consumer Financial Protection could play a leading role in policing fraudulent claims of corporate social responsibility.
Deepwater Horizon: Removal Costs, Civil Damages, Crimes, Civil Penalties, and State Remedies in Oil Spill Cases
What is the current scheme in the United States for dealing with oil pollution? This Article examines the question from several perspectives. These include the basic liability regime, including removal costs and damages. OPA has gone further than any other statute in providing for both public and private remedies. The discussion will cover the basis for liability, parties responsible for paying removal costs and damages, defenses to liability, damages recoverable by governmental entities and private parties, limitation of liability, including loss of the right to limit, insurance, and other forms of financial responsibility. This Article will briefly address the claims procedure, including claims made against the Oil Spill Liability Trust Fund. This Article will then discuss possible criminal prosecutions followed by administrative and civil penalties. Finally, this Article will look at choice-of-law issues with particular attention devoted to the role of state laws.
"Unnecessary to Address"?: Tackling the Louisiana Supreme Court's Open Question of Whether a Continuing Tort Can Suspend the Louisiana Unfair Trade Practices Act's One-Year Peremptive Period
This Comment analyzes the open issue of whether a continuing tort can suspend the one-year peremptive period for bringing a claim under the Louisiana Unfair Trade Practices Act. It begins by tracking the development of the continuing tort doctrine in Louisiana jurisprudence as a suspension principle to both prescriptive and peremptive limitations periods. After looking at the application of continuing tort to statutory peremptive periods, such as those provided by the Louisiana Medical Malpractice Act and Louisiana Legal Malpractice Act, the Comment turns to the split in the Louisiana Courts of Appeal as to whether a continuing tort can suspend the Louisiana Unfair Trade Practice Act's one-year peremptive period. In response to the Louisiana Supreme Court's recent decision in Miller v. ConAgra, Inc., to leave the issue open, the Comment concludes that a continuing tort should not, in fact, suspend this statutory peremptive period.
Could You? Should You? Florida v. J.L.: Danger Dicta, Drunken Bombs, and the Universe of Anonymity
Recently, the United States Supreme Court passed on a chance to consider the legitimacy of investigatory stops based on uncorroborated anonymous tips of drunk driving, preferring this issue continue to ferment in the lower courts. When facing this issue, some lower courts seize the opportunity to carve out a drunk-driving exception to the Fourth Amendment based on “danger dicta” found in Florida v. J.L. Other courts hold fast to the corroboration requirement for anonymous informants in Alabama v. White. This Comment considers whether both approaches fail to take full advantage of existing Fourth Amendment jurisprudence so that police can effectively manage the dangers posed by drunk drivers without further eroding Fourth Amendment protections. Rather than polarize informants as either known or anonymous, there is a third classification of informants that are just distinct enough to provide reasonable suspicion for investigatory stops. As Justice Kennedy's concurring opinion in J.L. argued, these quasi-known/quasi-anonymous informants “might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”
"Living Separate and Apart": Solving the Problem of Putative Community Property in Louisiana
This Article argues that Louisiana should instead adopt a modified form of the common law doctrine of “living separate and apart” to address the problems created by the current Louisiana law as to the apportionment of putative community property. Washington, California, and Arizona—all community property states—use the doctrine of living separate and apart in the context of classification of assets. Although the standard differs among the three states, the basic principle is that the spouses can conduct themselves in a manner that demonstrates that they are not only physically, but also emotionally living separate and apart, even if the marriage is legally still intact.If so, then all property acquired after the legal spouses exhibit such sufficient conduct is deemed to be each spouse's separate property. This Article argues that the same requisite conduct sufficient to terminate the community property regime under the common law doctrine of living separate and apart should be sufficient to terminate the legal community property regime between the legal spouse and the common spouse in the context of putative marriage. Such a solution addresses the problems and inequities caused by the current Louisiana law while at the same time addressing some of the issues raised by scholars who argue for putative divorce.
Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill?
Virtual property, or that property which exists only in the intangible world of cyberspace, is of growing importance. Millions of people use virtual property every day, be it an e-mail account, a blog, or a Facebook profile; billions of dollars are spent to acquire virtual property. As the importance of virtual property continues to increase at light year speed, laws pertaining to virtual property must similarly develop. Among the legal issues yet unaddressed is how community property regimes will respond to virtual community (or virtual separate) property. Spouses are on the brink of litigating issues such as whether a Uniform Resource Locator (URL) is community or separate property, whether a website generates an increase in separate property, whether e-mail contacts are profits, and whether Facebook friends create goodwill. Community property jurisdictions must be prepared to quickly adapt to the reality of virtual property if they wish to avoid being lost in cyberspace. To aid courts in their impending task of considering virtual property in a community property setting, this Article examines how different forms of virtual property should be classified in community property regimes. After explaining the classification scheme within community property jurisdictions, the Article details examples of virtual property likely to be present in modern couples' lives, and considers how these identified examples of virtual property should be classified.
Clarity and Confusion: RICO's Recent Trips to the United States Supreme Court
The complicated structure of the Racketeer Influenced and Corrupt Organization Act has bedeviled courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must embody a set of structural attributes that would not ordinarily be present in a conspiracy. This Article analyzes these new cases, puts them in historical context, and discusses their likely ramifications for civil RICO litigation.
Did You Ever Hear of the Napoleonic Code, Stella? A Mixed Jurisdiction Impact Analysis From Louisiana's Law Laboratory
This Article develops the themes of history, language, and culture in the art of mixed jurisdiction impact analysis. It showcases a specific law (former article 177 of the Louisiana Civil Code) governing the liability of the building master for things thrown out of the house into the street or public road. Our case study gives real meaning to the Romanist mixité wrought into Louisiana's civilian core. The reader is not only invited to take a seat on the time machine for a journey through Louisiana's codal triad back to Roman law with stops in Medieval Spanish law and Pre-Napoleonic French law, but also encouraged to reflect on present-day alternatives for construing and applying the law.
Mixed Public-Private Speech and the Establishment Clause
Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes--meaning that the speakers may claim a right to forum access--and at the same time sufficiently governmental for Establishment Clause purposes, potentially creating a secular forum in certain narrowly defined speech contexts.
The Downside of Success: How Increased Commercialism Could Cost the NCAA Its Biggest Antitrust Defense
This Comment examines how the evolution of the NCAA, from an organization designed to promote fair competition and integrate intercollegiate sports into higher education, to a tax-exempt entity with annual revenues of over $500 million, could affect its favored antitrust status by the courts. The Comment first discusses how the NCAA has evolved over time. The author then examines how courts struggled to evaluate the organization's antitrust liability, given its role in promoting amateurism, and how a Supreme Court loss ultimately helped shield the NCAA from antitrust liability in its dealings with student-athletes by accepting the preservation of amateurism as a pro-competitive benefit. With this framework in mind, the Comment examines a recently filed antitrust challenge brought by former student-athletes with the potential to penetrate the NCAA's defense and the merits of the lawsuit's approach. Finally, the Article discusses potential less restrictive alternatives the NCAA may choose to implement to avoid this potentially anticompetitive behavior while maintaining amateurism.