The Deepwater Horizon Rig Disaster: Issues of Personal Injury and Death

On April 20, 2010, the mobile offshore drilling unit (MODU) Deepwater Horizon exploded and caught fire in the Gulf of Mexico. Eleven (11) workers were killed and seventeen (17) were injured. Three days later the rig sank, and millions of gallons of oil escaped into the Gulf of Mexico until the well was finally capped on July 15, 2010. Numerous lawsuits followed seeking compensation for the personal injuries and deaths as well as for property, business, and natural resource damages caused by the explosions, fire, and spill. These cases have been consolidated in the United States District Court for the Eastern District of Louisiana by order of the United States Judicial Panel on Multidistrict Litigation.

This disaster and the resulting litigation has brought national attention to the complex substantive and procedural issues that arise from such maritime accidents. It has also showcased the disparities in the remedies among classes of personal injury and wrongful death plaintiffs. While the litigation also involves claims for property damage, business loss, and damage to natural resources, this Article will analyze the issues strictly as they relate to the claims for personal injury and death. It will provide a broad overview of the rights and remedies of the injury and death plaintiffs and highlight the differences between the different plaintiff groups.

Odd Men In: The Fascinating Legal Kinship of Scotland and Louisiana

Conscientious scholarly exploration of a burgeoning family of mixed jurisdictions dates from 1958. Visiting Louisiana law faculties in that year, a Scots law professor, Sir Thomas Brown Smith, urged comparison of Scotland's legal system with that of Louisiana as “a means of overcoming the perils of isolation and steady assimilation by the Common Law." Spurred by Smith's lectures, scholars in time classified over a dozen hybrid systems into a “third legal family,” featuring a blend of civilian and common law influences. The private laws in a number of these jurisdictions (for example, Louisiana, Quebec, and Puerto Rico) were enshrined in a civil code of typically French or Spanish provenance. Although other mixed systems (such as South Africa and Scotland) had no civil code, their legal communities found “proto-codes” in major treatises and institutional writers indebted to Roman law.. . .

Decision By Recusal: Comer v. Murphy Oil USA Let's Naysayers and Disqualified Judges in the Fifth Circuit Determine the Outcome of a Case Without a Hearing

The United States Court of Appeals for the Fifth Circuit held that disqualified judges must be counted to determine the number of judges required for a quorum; because half the judges could not participate due to recusal and one vacancy, the court could no longer hear the case en banc, nor could they reinstate the earlier panel decision. Comer v. Murphy Oil USA, 607 F.3d 1049, 1055 (5th Cir. 2010).  

Proving Natural Resource Damage Under OPA 90: Out with the Rebuttable Presumption, in with the APA-Style Judicial Review?

In the aftermath of the Deepwater Horizon oil spill of 2010, President Obama urged Congress to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmospheric Administration with the standard of judicial review prescribed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional term ended. Nevertheless, White House and congressional support in the wake of the 2010 spill suggests that the proposal is likely to resurface in the near future. Accordingly, this Article examines the meaning and effect of the proposed substitution of APA review for the existing rebuttable presumption, potential difficulties in implementing the new standard, and whether the amendment might unconstitutionally deprive spillers of the right to a jury trial.

Beyond Profit: Rethinking Corporate Social Responsibility and Greenwashing After the BP Oil Disaster

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.