In Bell v. Wolfish, the United States Supreme Court upheld visual body-cavity strip searches on pretrial detainees but called for a balancing of privacy and security interests. For the three decades following Bell, courts routinely read in a reasonable suspicion requirement as part of that balance. That changed in 2008 when the United States Court of Appeals for the Eleventh Circuit held that the Fourth Amendment permits strip searches of all arrestees, regardless of whether there is any reasonable suspicion that an arrestee possesses contraband. In 2010, the United States Courts of Appeals for the Third and Ninth Circuits followed suit. In light of the recent split, the Supreme Court granted certiorari to determine whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense regardless of the circumstances. This Comment recounts the context of Bell, traces the courts' previously uniform interpretation of that decision, and explores this emerging debate, ultimately concluding that institution-specific security concerns could be a factor worthy of great weight in the Bell balancing equation.
False Efficiency and Missed Opportunities in Law and Economics
This Article points out a simple flaw common to many law-and-economics analyses, ranging from fundamental models like the Hand Formula to narrower arguments like those that oppose the doctrine of unconscionability.
The flaw is straightforward: economic analyses of law often assume, either implicitly or explicitly, that when it is more efficient for an activity to occur than for it not to occur, it is efficient for legal rules to encourage the activity. Even on grounds of efficiency alone, however, knowing in isolation whether an activity produces more wealth than its absence is insufficient to conclude that the activity is efficient. The determination of efficient legal rules requires an answer to a further question too often neglected by legal economists: what are the activity's alternatives? Even if an activity is more efficient than its absence, it may produce less wealth (perhaps significantly less wealth) than its alternatives, once its harms are taken into account. Encouraging all activities that appear to produce wealth on their own runs the risk of encouraging opportunistic behavior whose effect is more to transfer wealth than to create it.
As a simple example, a legal regime that followed the Hand Formula would encourage businesses to earn $100,000 by causing $95,000 worth of unavoidable harms to others; that incentive alone, while probably objectionable for other reasons, is not inefficient because, instrumentally speaking, the $100,000 social gains justify the $95,000 social losses. But a rule based on the Hand Formula would also encourage economic actors to engage in that $100,000-earning activity rather than one that paid $90,000 but caused no harms; that incentive is inefficient.
Some economic analyses acknowledge related points, but the law-and-economics movement insufficiently understands the flaw that this Article describes. Similarly, critics of the law-and-economics movement—while aware of other fundamental flaws in legal-economic analysis, such as the inapplicability of the rational-actor model in many circumstances—do not readily enough engage economic models on their own terms. This Article attempts to remedy those oversights, and in doing so, it suggests greater caution in applying economic reasoning to law.
Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines
This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines.
This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of title for desalination is uncertain. Emerging desalination projects face questions about the entity with proprietary authority over seawater, the nature of the right to intake seawater, the nature of a desalinator's interest in desalinated water, and the nature of the interest that a utility, upon receiving water from a desalinator, holds in the desalinated water. This Article argues that legislation is necessary to clarify this chain of title both because existing common law doctrines are insufficient to resolve these issues and because development of new common law cannot keep pace with emerging desalination projects. Thus, the Article proposes legislation that (1) clarifies federal sovereignty over saltwater, (2) considers the public trust doctrine in creating a permit scheme for the intake of saltwater, (3) recognizes desalinators as service providers rather than holders of private property in desalinated water, and (4) recognizes municipal utilities as holding vested property rights in desalinated water. Finally, the Article proposes that this clarified chain of title for desalination can serve as a model for developing ecosystem service markets, public trust doctrine applications, and property theories aimed at adapting other resource doctrines to cope with climate change.
United State v. Pickett: The Fifth Circuit Renders Point of Origin Irrelevant in Evaluating the Application of the Border Search Exception
On appeal, the United States Court of Appeals for the Fifth Circuit held that the border search exception applied, regardless of a defendant's point of origin, as long as the defendant crossed a border. United States v. Pickett, 598 F.3d 231, 235 (5th Cir. 2010), cert. denied, 131 S. Ct. 637 (2010).
Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC: The Fifth Circuit Finds Comparative Fault Principle Unaffected By Burden-Shifting Presumption of Fault in Admiralty Case
Reversing the district court, the United States Court of Appeals for the Fifth Circuit held that United could seek contribution from Carnival after settling with Combo, reasoning that contribution can be sought by a settling tortfeasor who releases all claims, that the presumption of fault against a defendant in the case of drifting vessels is not to be applied between codefendants, and that the presumption of fault does not affect the principle that joint tortfeasors are entitled to allocate damages relative to their proportionate degree of fault. Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 2010 AMC 2196 (5th Cir. 2010).
Peterson v. City of Forth Worth: The Fifth Circuit Demands More Than the Demanding Standard of Monell to Establish Municipal Liability under § 1983
Ultimately, the United States District Court for the Northern District of Texas concluded that while Peterson made a colorable claim for the excessive use of force against the individual officers, he failed to meet the rigorous standard necessary to impose municipal liability, and the court consequently dismissed his complaint under summary judgment. Affirming this decision, the United States Court of Appeals for the Fifth Circuit held that twenty-seven claims of excessive force did not amount to an official city policy permissive of excessive force and, thus, the city could not be liable. Peterson v. City of Fort Worth, 588 F.3d 838, 852 (5th Cir. 2009), cert. denied, 79 U.S.L.W. 3195 (U.S. Oct. 4, 2010) (No. 09-983).
Smith v. Xerox Corp.: The Fifth Circuit Maintains Mixed-Motive Applicability in Title VII Retaliation Claims
The United States Court of Appeals for the Fifth Circuit held that the mixed-motive framework applies to Title VII retaliation cases and a plaintiff can present circumstantial or direct evidence to obtain a mixed-motive jury instruction. Smith v. Xerox Corp., 602 F.3d 320, 329, 331-32 (5th Cir. 2010).
Marine Casualty Investigations
This Article will focus primarily on the government entities (e.g., Coast Guard and NTSB) responsible for conducting marine casualty investigations. These formal investigations allow evidence to be gathered and preserved in a more orderly manner than can be done during, or even immediately after, a serious collision, fire, oil discharge, sinking, or other casualty, when response is the primary goal and the “Incident Command Center,” whether run solely by the Coast Guard or in conjunction with other federal and state agencies, is still in full swing.
Maritime Catastrophe Response — Civil and Criminal Counsel Investigation; Illustrative Recent Collision and Platform Case Law; Criminalization of Marine Negligence
To most people, nothing is more fascinating and newsworthy than a maritime disaster. A burning factory in Kentucky or a pipeline oil spill in Utah does not generate the same sense of drama and excitement as an equivalent amount of spilled oil from a burning ship or oil platform in Louisiana, Texas, or anywhere else. This Article partners a panel presentation at the 2011 Tulane Admiralty Law Institute. In this presentation, for illustrative purposes, the authors played back a United States Coast Guard Vessel Traffic Service (VTS) Automatic Identification System (AIS) Electronic Chart Display (ECDIS) for the M/T BOW FORTUNE--M/T STOLT ZULU collision at 81 Mile Point on the Mississippi River above New Orleans at about 0440 hours on May 19, 2006.
The Role of the P&I Clubs in Marine Pollution Incidents
The fire and explosion on the mobile offshore drilling unit Deepwater Horizon and the subsequent release of nearly five million barrels of crude oil into the Gulf of Mexico has been characterized as “the worst environmental disaster America has ever faced.” Although the oil spill occurred while the rig was operating as an offshore facility, among the many issues arising from the disaster is the adequacy of the current limits of liability applicable both to vessels and offshore oil exploration and production facilities under the U.S. Oil Pollution Act of 1990 (OPA 90), and the role of the marine insurance industry in meeting the costs of response and damages caused by such catastrophes. Pollution risks are borne primarily by the owner of the ship or facility concerned, who will normally insure against them, along with other marine liability risks, by separate liability cover. In the case of vessels, this is arranged most commonly by entering the vessel in one of the shipowners' mutual insurance associations, which specialize in providing cover of this kind, and which are more commonly known as Protection and Indemnity Associations, or P&I Clubs. This Article will discuss the law and practice of P&I insurance with particular emphasis on the liabilities arising from major marine pollution incidents.