Guide to Louisiana and Selected French Legal Materials and Citations

The masthead of the Tulane Law Review spans two pages. The first page introduces the reader to the Review's student editors as well as to other individuals who participate in the daily business of publication. The names change from year to year as students graduate from law school and others from their first year of study. The steady turnover coupled with the ever-present threat of rebellion in the event of a misspelled name forces the editor in chief of each volume to spend a substantial amount of time reviewing the contents of the page. Given that the page is read with some frequency, it is time well spent.

Although no less important, the second page of the masthead receives far less attention. Appearing on the second page is a listing of contributing and advisory editors (generally persons of some prominence) as well as an enclosed area providing readers with information of a general nature-subscriptions, copyrights, back issues, etc. The contents of the page are, in fact, so static that in most years student editorial boards adopt the masthead page proofs of the previous volume, making only minor adjustments to account for the Review's increased circulation or the occasional change in subscription price. Defying tradition, the editorial board for volume sixty-six made a discrete but significant change to the second page of the masthead in its May issue. Under the heading of “Production,” the following was replaced:

The citations of the Review conform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (15th ed. 1991). Except when context suggests otherwise, the Review follows the guidelines set forth in the TEXAS LAW REVIEW MANUAL ON STYLE (6th ed. 1990).

The editorial board substituted:

The citations of the Review conform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (15th ed. 1991). On most matters of style, the Review follows the guidelines set forth in the TEXAS LAW REVIEW MANUAL ON STYLE (6th ed. 1990). The Tulane Law Review follows The Bluebook and the Texas Style Manual except when common sense or local custom dictates otherwise.

With this revision, the Review formally recognized a practice it had adopted some time ago-departure from the The Bluebook and the Texas Style Manual when their rules of form and style conflicted with “common sense or local custom.” For anyone who has worked with The Bluebook or the Texas Style Manual, the common sense exception is apt to be self-evident, and thus further explanation would be superfluous. The local custom exception, on the other hand, is surely a bit more ambiguous. Local custom, as used here, is defined as those rules of form applied by the Review to materials especially relevant to the practice of law in Louisiana.

The Tulane Law Review's departure from The Bluebook in matters of local custom was motivated by two concerns. First,The Bluebook's treatment of Louisiana and civilian legal materials is incomplete and, at times, misguided. This lack of clarity leads to inconsistent citation forms among authors and, in turn, confusion among readers. By providing rules of form for such materials, the Review hopes to alleviate any confusion and to reduce the workload of authors and editors by sparing them the tasks of deciphering, interpreting, and interpolating The Bluebook or simply from having to create their own cite forms. Secondly, many rules of form found in The Bluebook conflict with traditional rules of form employed in Louisiana and by practitioners in areas of law to which the Review has a unique commitment. These traditional rules often contain information that assists readers in their evaluation of a cited source and in many instances makes retrieval of the source more convenient.

The Guide was conceived as and became a true community effort for the Law Review. Members of three differentReview classes participated in some fashion in the preparation and publication of the Guide. Grateful acknowledgement for their comments on various drafts of the Guide is especially due the following individuals: Professor Shael Herman (Faculty Advisor, volume 67); Louis L. Plotkin (Editor in Chief, volume 65); Luke LeVasseur (Editor in Chief, volume 66); Marcy V. Massengale (Editor in Chief, volume 67); David V. Snyder (Senior Managing Editor, volume 65); Laura Hegedus (Senior Managing Editor, volume 67); John Hogerty II (Senior Articles Editor, volume 66); and Michael D. Rubenstein (Managing Editor, volume 67). Any mistakes or inadequacies should, of course, be attributed to no one but the author.

Finally, it must be noted that this compilation could not have been completed without the assistance and direction of the staff of the Tulane Law Library. Many of the materials discussed within the Guide are identified in print for the first time. Without the library staff, the existence of these materials would have remained confined to a few individuals. Special thanks are due staff members James Donovan, Kevin Hourihan, and Ray Lytle, who were forced to expend more patience than most. James Donovan's guidance and comments on an earlier draft were also invaluable in the preparation of the Guide for publication. The Tulane Law Review, and I, hope that the Guide's publication will assist authors, editors, and its readership in their efforts to access the legal materials especially relevant to the practice of law in Louisiana.

Contracts in Rome and England

I am not about to enter here into a critical examination of the Roman contracts: it would be a work of deadly ennui. If we were to imagine all possible defects-in their division, in their nomenclature-it would be difficult to exaggerate them. The idea of reciprocal promises, of mutual dispositions, so familiar to all the world, finds itself so obscured in this mischievous and absurd system of jurisprudence, that the lawyers, who have not ceased to explain it, always feel the necessity of new explanations. These are the words of that unrealistic busybody, Jeremy Bentham. Like him, if for very different reasons, we are not going to enter into a critical examination of the Roman contracts, but we do propose to make some observations about them in relation to the common law of England. We are not, any more than Bentham, going to be scholarly; neither, unlike him, have we a unitary view of what is, or what is not desirable.

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Parsing the Admiralty Clause: Jurisdiction of Marine Insurance Transactions

The contract of marine insurance represents one of the characteristic stereotypes of maritime contracts. This paper will explore the analytical components and anomalies of admiralty jurisdiction as it relates to marine insurance and will conjugate, if you will, the “irregular verb” that constitutes admiralty jurisdiction of marine insurance contracts.  

For Want of a Nail: Causation in Marine Insurance--The Pervasive Determinant

Causation in marine insurance is both pervasive and perverse. It is pervasive in that the cause of a particular loss must be assessed in connection with every corresponding claim under a marine insurance policy to determine whether it is a covered risk; it is perverse in that it stubbornly resists rational analysis and hence the articulation of generally applicable principles. A consequence of causation's dual personality is the occurrence of disputes between underwriters and their insureds about the answer to a deceptively simple question: What was the cause of the loss? Some of these disputes become the subject of litigation and must be resolved by the courts. Because the event immediately preceding a loss is itself preceded, in the metaphysical sense, by innumerable other events extending back to the beginning of time, the law has required a method of dispute resolution that both limits in a rational way the spectrum of events that may be considered and facilitates the selection of certain events as relevant to the contract of insurance and thus determinative of coverage. The doctrine of proximate cause developed in response to these needs.

Practitioners who resort to reported cases, texts, and articles for guidance in resolving a particular proximate cause issue will find that surfeit, not scarcity, is the burden of their research. While these resources are of value to the extent that they provide a framework for analysis, they are unlikely, given the infinite factual variations possible from case to case, to provide a complete answer. Ultimately, therefore, the practitioner must rely on a thorough analysis of the events leading to the loss in question and the best judgment possible concerning which of those events is properly labeled as the proximate cause of the loss.

The purpose of this paper is to provide some background and a few tools to facilitate thinking about proximate cause issues. We begin with a hypothetical to illustrate how proximate cause issues arise, then briefly discuss choice of law, proceed to consider whether proximate cause is a question of fact or law, and, finally, turn to a review of some of the substantive problems involved in the determination of proximate cause.

Judicial Interpretation of Insurance Contracts in Maritime Law: The Duty of Good Faith in Handling Claims

The diversity of remedies relating to the breach of the duty of good faith represents a real challenge to the uniformity of maritime law. This paper reviews judicial decisions that focus on bad faith in the claims handling stage. First, however, the current rules controlling uniformity (or, more accurately, dictating lack of uniformity) in the interpretation of marine insurance policies will be reviewed. Second, focus will shift to the diversity of state remedies available. This diversity will be illustrated by identifying representative issues and comparing their treatment under Texas law to their treatment under the laws of California, New York, Louisiana, and other jurisdictions in which the subject matter is particularly well developed. Lastly, the question of whether maritime law should treat bad faith claims uniformly will be raised and answered.  

Marine Cargo Insurance: An Overview

Marine insurance encompasses many diverse risks within its basic classes of coverage. These include hull, cargo, freight, and marine liabilities. This Article will focus on the subject of cargo insurance and will explore issues concerning some of the clauses contained in typical cargo policies, courts' interpretation of the coverage provided thereunder, and various elements necessary to obtain a recovery under a cargo policy.  

Coverage, Warranties, Concealment, Disclosure, Exclusions, Misrepresentations, and Bad Faith

The title of this Paper, Coverage, Warranties, Concealment, Disclosure, Exclusions, Misrepresentations, and Bad Faith, sounds like a catalogue of the Seven Deadly Sins or something out of a Cold War spy novel. To those in the insurance industry and its supporting legal services these simple words spell “trouble.” Before looking at what form this trouble takes and what it means in the United Kingdom and the United States, some historical background is appropriate.  

Choice and Uniformity of Law Generally

The Wilburn Boat decision has not had a significant impact on admiralty law in the United States. The need for uniformity in admiralty law, and the desire for harmony between the laws of the United States and England in the interpretation of marine insurance policies, therefore, remain persuasive and viable goals.  

Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed

This Article examines the conflict of interest issues that frequently arise in the insurance defense practice. Upon examination it becomes clear that these issues are neither as complex nor as difficult to resolve as they appear. The source of much of the confusion in liability insurance litigation is the “dual-client” doctrine, namely, the increasingly well-entrenched rule that the insurance defense counsel is deemed to have two clients in any given case: the insurer and the insured.  

Ch-Ch-Changes: Stumbling Toward the Reasonable Expectations of the Assured in Marine Insurance

Marine insurance contracts have traditionally been interpreted according to well-established contract principles. The construction of policies is said to be governed by the same principles that apply to the construction of any other contracts. Phrases such as the “intention of the parties must be discovered from the document itself,” or words to that effect, still dominate the literature on marine insurance contracts. It is the document itself, not what the parties might have intended to write, that is important. Even in considering the most common exception to this rule, usage, evidence is only admitted to demonstrate the mutual intent of the parties to the contract. This Paper examines the changing judicial attitudes toward the interpretation of insurance contracts. In particular, consideration is given to the doctrine known in the United States as “the reasonable expectations of the assured.” This doctrine has been adopted in Canada in a limited fashion to assist judges in reaching conclusions favorable to an assured. It has not yet been applied to the construction of marine insurance contracts. This paper considers such application.

It is impossible to come away from a study of the doctrine of reasonable expectations without being struck by its incongruity with traditional principles of contract interpretation. This doctrine's approach to construction is based entirely on the “expectations” of one of the parties to the contract. Stripped down to its bare bones, the doctrine represents an individual judge's view of what is fair in the circumstances of a particular case. This paper also explores the extent to which the judiciary, in its desire both to create and to apply rules to guide future conduct, has given birth to a rule that, when applied to its full extent, is the antithesis of the traditional principles of contract construction. One is forced to ask whether judicial models of contract interpretation have changed so radically that the traditional rules are at risk of being discarded. The effect of the dissolution of traditional rule-based analysis in favor of the “reasonableness” approach is another focus of this Paper. As part of its focus, this Paper also explores whether a rule-based analysis may be subject to re-evaluation by the increasing number of women in the legal profession and the judiciary.

Finally, the implications that these developments may have on the future construction of marine insurance contracts are considered. An attempt is made to provide the reader with some idea of the manner in which these developments may affect the outcome of litigation involving marine insurance policies.