Will the Rigs-to-Reefs Experiment Be Based on the “Best Scientific Information Available”?

Artificial reefs constructed from decommissioned oil rigs have been proposed as a tool to counteract declines in marine fish populations. There is so much uncertainty surrounding this relatively new proposition to deal with an inherently difficult-to-study problem, however, that it is not yet possible to tell whether these rigs-to-reefs will contribute to the recovery of fish populations or exacerbate the problem. The National Fishing Enhancement Act (NFEA), the statute authorizing the rigs-to-reefs program, requires that agencies implementing it base their decisions on the “best scientific information available” (BSIA). Although no court has yet addressed this provision in the NFEA, it has been the frequent subject of litigation in related statutes. This Comment explores how a Court would likely evaluate a challenge to agency action under the NFEA, based on comparisons to treatment of this provision under the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Magnuson-Stevens Fishery Conservation and Management Act (MSA). Concluding that courts will not likely supply the pressure to advance scientific information about the effects of rigs-to-reefs, this Comment advocates for a targeted approach to closing the information gap.

“Reasons? We Don’t Need No Stinkin’ Reasons”: Why United States District Courts Should Be Required To Explain 18 U.S.C. § 3582(c)(2) Resentencing Decisions

A particular area of federal sentencing that remains problematic in the era of Sentencing Guidelines is resentencing. Whenever the Sentencing Guidelines are amended, convicted defendants whose “guideline ranges” are lowered by the United States Sentencing Commission can move for a reduction in their sentence under 18 U.S.C. § 3582(c)(2). However, district courts can deny motions for a sentence reduction. District court rulings are reviewed under an “abuse of discretion” standard and are rarely given a thoughtful explanation, leaving prisoners with no relief and no  explanation. This Comment examines the problems that exist with district courts’ failure to explain their rulings during § 3582(c)(2) sentence-modification proceedings. Specifically, this Comment discusses how the failure to explain resentencing decisions hinders meaningful appellate review, decreases the public trust in the criminal justice system, and obstructs the Sentencing Commission’s ability to revise the Sentencing Guidelines. Additionally, this Comment describes a model for what explanations from district courts should look like and how to require courts to provide one. This Comment concludes by suggesting that if district courts adequately explained their rulings during § 3582(c)(2) sentence-modification proceedings, each of the problems discussed herein would be alleviated and the number of § 3582(c)(2) motions would decrease over time, lessening the burden on the judiciary and prosecutors.

Orellana-Monson v. Holder: The Fifth Circuit Accepts the BIA’s Particularity and Social Visibility Requirements for Defining Membership of a Particular Social Group in Asylum Claims

Facing death threats from the notorious Mara 18 gang, eleven-year-old José Orellana-Monson fled his home in El Salvador with his little brother Andrés in hopes of finding safety in the United States.[1.  Orellana-Monson v. Holder, 685 F.3d 511, 515 (5th Cir. 2012).]  Mara 18 operates with near impunity in El Salvador, recruiting children like José to work as drug dealers and murderers.[2. Id.]  When a local member of Mara 18, known only as Juan, tried to recruit José, the young boy said he was unsure about joining, fearing the potentially deadly consequences if he refused outright.[3. Id.]  Enraged by José’s response, Juan threatened to kill him.[4. Id.]  One night when José was home alone, Juan went to José’s house and forced him at gunpoint to rob a jewelry store.[5. Id.]  Fearing for her grandsons’ safety, José and Andrés’ grandmother arranged for them to flee to the United States, where their mother lived.[6. Id.] After swimming across the Rio Grande, José and Andrés waited next to a U.S. Border Patrol truck until they were found.[7. Id.]  Once detained, they maintained that they were eligible for asylum under the Immigration and Nationality Act (INA) because they would be persecuted in El Salvador for their membership in a particular social group.[8. Id.at 515-16, 519.]  José alleged that he faced persecution as a member of a social group consisting of Salvadoran young males, aged eight to fifteen years, who were recruited by Mara 18 but refused to join because of a principled opposition to gangs.[9. Id.at 516].  Andrés’ claim derived from that of his brother.[10. Id. Andrés’s proposed group was siblings of members of José’s group or, alternatively, José’s family member.  Id.]  The immigration judge found that the Orellana-Monsons did not belong to particular social groups subject to persecution, and the Board of Immigration Appeals (BIA) dismissed their appeal.[11. Id. A United States Court of Appeals for the Fifth Circuit panel vacated the BIA decision denying asylum and remanded the case to the BIA to explain its reasoning.  Id.at 516-17.  The court found it unclear whether the BIA had found that the petitioners were not members of a particular social group, that they did not fear persecution because of such membership, or both.  Id.at 517.  On remand, the BIA found that the petitioners’ groups did not possess the requisite particularity and social visibility and dismissed the appeal.  Id.  The Orellana-Monsons filed a petition for review.  Id.]  The Orellana-Monsons petitioned for review, claiming that the court erred by accepting this “drastic change” in the BIA’s standard for defining particular social groups, which now requires particularity and social visibility.[12. Id. at 516-17.]  The United States Court of Appeals for the Fifth Circuit held that the BIA’s new particularity and social visibility requirements for defining membership of a particular social group for asylum claims are valid and entitled to deference.  Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012).

Hodges v. Reasonover: The Louisiana Supreme Court Balances Policy Goals of Binding Arbitration and Attorney- Client Fiduciary Duty

The plaintiff, Jacqueline Hodges, retained the defendant, Kirk Reasonover of the law firm Reasonover & Olinde, LLC, as counsel to represent her interests in a multimillion dollar business dispute—a decision she would later come to regret.[1. Hodges v. Reasonover, 2012-0043, p. 2 (La. 7/2/12); 103 So. 3d 1069, 1071.]  Prior to commencing their relationship, Hodges signed a retainer agreement with Reasonover & Olinde that included a binding arbitration clause.[2. Id.]  The arbitration clause mandated that the parties bring any dispute arising between them to the American Arbitration Association (AAA).[3. Id.  The AAA imposes filing fees on a sliding scale, in which a plaintiff’s costs are proportionate to the damages sought.  Hodges alleged that arbitration would cost her $18,800 because she claimed damages totaling $70 million.  Id. at p. 7 n.1; 103 So. 3d at 1074 n.1.]  The parties kept the arbitration clause intact despite later renegotiating the terms of their fee agreement.[4. Id. at p. 3; 103 So. 3d at 1072.  The revised fee agreement set fees on a contingency basis.  Id.]  The revised fee agreement stated that Hodges should seek independent counsel before signing because her interests were adverse to the interests of the firm.[5. Id.]  However, Hodges proceeded to sign the revised agreement, without consulting independent counsel.[6. Id.]  Hodges sued Reasonover & Olinde alleging legal malprac-tice after her complaint in the underlying matter was dismissed on a motion for summary judgment.[7. Id.] Defendants filed declinatory exceptions in response to Hodges’s suit in Civil District Court for the Parish of Orleans, citing the binding arbitration clause as grounds for challenging venue and subject matter jurisdiction.[8. Id.]  The district court found the arbitration clause void and refused the defendants’ exceptions, and the Louisiana Court of Appeal for the Fourth Circuit denied supervisory writ.[9. Id. at pp. 3-4; 103 So. 3d at 1072.]  The Louisiana Supreme Court granted writs to review the case.[10. Id. at p. 4; 103 So. 3d at 1072.]  The Louisiana Supreme Court held that courts may enforce mandatory arbitration clauses in attorney-client agreements when they are fair and reasonable, but the firm’s arbitration clause was unenforceable because the defendants did not make the specific disclosures about the effects of arbitration that were necessary for Hodges to consent.  Hodges v. Reasonover, 2012-0043, p. 14 (La. 7/2/12); 103 So. 3d 1069, 1078.

Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs: Abortion and the Right To “Affiliate”

In April 2012, nine Planned Parenthood clinics in Texas (referred to collectively as the Texas clinics) were granted a preliminary injunction halting the enforcement of public funding restrictions that the clinics claimed violated their First Amendment rights.[1. Planned Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 346-48 (5th Cir. 2012).]  It was years earlier, in 2005, that Texas created the Women’s Health Program (WHP) to promote health and family planning services for low-income women through a combination of state and federal funds.[2. Id. at 346.]  The Texas legislature charged the Texas Health and Human Services Commission (THHSC) with dispensing these WHP funds to different recipients across the state as long as the health care providers did not “perform or promote elective abortions or be[come] affiliates of entities that perform or promote elective abortions.”[3. Id. (quoting Act of June 17, 2005, ch. 816, § 1(h), 2005 Tex. Gen. Laws 2816, 2818).]  Despite a legal relationship with the Planned Parenthood Federation of America, the clinics were never denied WHP funds because the THHSC never formally interpreted these restrictions.[4. Id. at 346-47.]  It was only in 2011, when Texas reauthorized the WHP, that the THHSC disseminated regulations that defined key terms like “affiliate” and “promote.”[5. Id. at 347 (citing 1 Tex. Admin. Code § 354.1362(1), (6) (2012)).]  Believing they could not comply with the restrictions, the Texas clinics filed suit in the United States District Court for the Western District of Texas to block their implementation.[6. Id.] In their suit, the clinics sought declaratory relief and a preliminary injunction against the THHSC.[7. Id. at 346.]  They alleged that the restrictions violated their First Amendment rights to free speech and association, as well as their right to equal protection under the laws, because health care providers that associate with hospitals that promote or perform abortions were exempt from the restrictions.[8. Id.  For the purpose of standing, the clinics were forced to concede that they promote and affiliate with entities that promote or perform elective abortions.  Id. at 347-48.]  Granting the injunction, the district court reasoned that the Texas clinics showed a substantial likelihood of succeeding on the merits of each claim.[9. Id. at 348.]  The state of Texas appealed the district court’s decision.[10. Id.]  The United States Court of Appeals for the Fifth Circuit held that the clinics failed to demonstrate that the new restrictions violated their First Amendment rights and vacated the injunction because there was not a substantial likelihood that the clinics would succeed on the merits of their claims.  Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343, 352 (5th Cir. 2012).

Louisiana Environmental Action Network v. City of Baton Rouge: The Fifth Circuit Follows the Trend and Finds the Clean Water Act’s Diligent Prosecution Bar Is a Nonjurisdictional Rule, to the Benefit of Citizen Suit Plaintiffs

After witnessing years of pollution by the City of Baton Rouge and the Parish of East Baton Rouge, the most significant obstacle facing the Louisiana Environmental Action Network (LEAN) in its citizen suit under the Federal Clean Water Act (CWA) was overcoming the CWA’s “diligent prosecution” bar in an atmosphere of procedural uncertainty.  The litigation in the noted case arose out of alleged violations of National Pollutant Discharge Elimination System (NPDES) permits issued to the city and parish by the Louisiana Pollutant Discharge Elimination System (LPDES).[1. La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 740-41 (5th Cir. 2012).]  These permits allowed the city and parish to release pollutants from wastewater treatment facilities provided that certain conditions were met.[2. See id. at 741.]  In 1988 and 2002, in response to complaints filed by the United States over the city’s and parish’s noncompliance with the NPDES permits, the district court entered consent decrees to require compliance with the CWA.[3. Id.  The 2002 consent decree superseded and terminated the 1988 consent decree.  Id.]  The 2002 decree provided for less rigid standards and set guidelines for the facilities to achieve compliance.[4. Id.]  In 2009, the district court modified the 2002 consent decree to require the city and parish to bring the facilities into compliance by 2015.[5. Id. at 741-42.] Despite multiple consent decrees, LEAN observed that the city and parish continued to violate the requirements of the original NPDES permit and the 2002 consent decree as modified in 2009.[6. Id. at 742.]  After providing notice to the city and parish of the alleged violations in both November and December 2009, LEAN filed a citizen suit under the CWA against the city and parish in the United States District Court for the Middle District of Louisiana on March 22, 2010.[7. Id.]  In its complaint, after alleging that it met the CWA’s citizen suit notice requirement and that the diligent prosecution requirement was not met by either the Environmental Protection Agency (EPA) or state of Louisiana, LEAN claimed that the wastewater treatment plants violated multiple requirements of the NPDES permit and the 2002 consent decree.[8. Id.]  The city and parish subsequently filed a motion to dismiss, citing the 2002 consent decree, which they claimed met the diligent prosecution bar of the CWA.[9. Id. at 742-43.]  The district court granted the motion, not on the basis that the diligent prosecution bar was met, but rather on the basis that the defendants’ compliance with the 2002 consent decree mooted LEAN’s claims.[10. Id. at 743.]  In doing so, the district court dismissed LEAN’s claims on jurisdictional grounds and therefore did not need to accept LEAN’s well-pled allegations as true or view the facts in the light most favorable to LEAN.[11. See id. at 743-45.]  On appeal, the United States Court of Appeals for the Fifth Circuit held that the district court erred in dismissing LEAN’s citizen suit as moot, that the diligent prosecution bar of the CWA is a nonjurisdictional limitation to citizen suits, and that the action should be remanded to the district court to determine whether the diligent prosecution bar precludes the suit on nonjurisdictional grounds.  Louisiana Environmental Action Network v. City of Baton Rouge, 677 F.3d 737, 745, 749 (5th Cir. 2012).

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.

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.]

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.

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.