As arbitration, rather than litigation in court, grows as a favored forum for dispute resolution, the role of federal courts in guiding parties toward arbitration has increased in importance. Federal courts are regularly asked to intervene to compel arbitration or to enjoin arbitration from proceeding. A circuit split has developed regarding whether federal courts have the power to compel arbitrations in districts outside their own, stemming from § 4 of the Federal Arbitration Act’s conflicting permissive versus mandatory venue provisions. There are likewise conflicting opinions regarding whether a federal court can enjoin an arbitration pending in another district. This Article explores the disparate decisions on these issues, arguing that venue for an action to enjoin arbitration should be limited to the district where arbitration is pending in order to promote judicial efficiency, to prevent forum shopping, to avoid inconsistent rulings, and to funnel parties quickly to arbitration.
Maintain a Seaman’s Protection or Cure a Seaman’s Fraud? Weighing the Proper Balance Between Seamen and Employers
Wallace Boudreaux had been working less than five months when he first filed for maintenance and cure from his employer, Transocean Deepwater, Inc. After working on the anchor of a Transocean vessel in May 2005, he claimed that he had injured his back due to the company’s negligence. Transocean thereafter began making maintenance and cure payments to Boudreaux. These awards did not satisfy the seaman, though, and almost three years later, in April 2008, he sued for further damages. The suit led Transocean to a revelation during discovery: in his initial medical interview with the company, Boudreaux never acknowledged that he had had back injuries and pain as early as 1997. Based on this concealment, Transocean filed a motion for summary judgment, leading the district court to dismiss Boudreaux’s maintenance and cure claims in April 2010. By that point, though, Transocean had already paid him $276,263.36 over nearly five years. Wishing to recover the money, the company filed a counterclaim for restitution in June 2010. It then filed a motion for summary judgment on the counterclaim, arguing that because it successfully showed that it was not responsible for further maintenance and cure payments, the court should also grant it restitution for those payments already made in order to avoid unjust enrichment. The district court agreed with this argument and granted Transocean’s motion for summary judgment on the counterclaim for restitution. Boudreaux appealed, leading the United States Court of Appeals for the Fifth Circuit to consider the novel issue of whether a maritime employer should automatically be granted restitution for prior maintenance and cure payments where the employer successfully defends against further payments by showing that an employee intentionally concealed a relevant, preexisting medical condition. The United States Court of Appeals for the Fifth Circuit held that an employer is not entitled to an automatic right of action for restitution of maintenance and cure payments obtained by a seaman after an inaccurate medical interview, although the employer can use these prior payments to offset further Jones Act damages. Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728, 2013 AMC 2457, 2464 (5th Cir. 2013).
In State v. Louisiana Land & Exploration Co., the Louisiana Supreme Court Retreats from Progress in Oil Field Contamination Litigation
In the ongoing saga of Louisiana “legacy litigation,” the Louisiana legislature and Louisiana Supreme Court have together taken several cautious steps along an uneasy tightrope strung between the competing interests of private landowners and oil and gas exploration and production companies accused of environmental contamination. The most recent opportunity for advancing the resolution of oil field contamination disputes arose in the matter of State v. Louisiana Land & Exploration Co., in which the state of Louisiana and the Vermilion Parish School Board haled into court a dozen exploration and production companies to answer for alleged contamination resulting from oil and gas operations performed on lands owned by the state and managed by the school board. Though it was undisputed that the original 1935 oil, gas, and mineral lease lacked any express provision for environmental remediation, the plaintiffs nevertheless alleged, inter alia, that they were entitled to “excess remediation damages” in spite of the procedural mechanisms for administering remediation awards put in place by Act 312. The defendant companies—admitting responsibility for the contamination, but objecting to the plaintiffs’ contention that they were liable for damages above and beyond the amount required for a statutory cleanup—moved for partial summary judgment. They sought dismissal of the plaintiffs’ claims for excess remediation damages in light of the procedural requirements established under Louisiana Revised Statute (La. R.S.) section 30:29, which, they argued, acted as a substantive cap on remediation damages. The trial court granted the defendants’ motion for partial summary judgment, and the state and school board appealed. The Louisiana Court of Appeal for the Third Circuit agreed with the plaintiffs, reversing the trial court’s granting of partial summary judgment and holding, “La. R.S. 30:29, by its clear language, provides for a landowner to recover damages in excess of those determined in the feasible plan whether they are based on tort or contract law.” The defendant companies sought review of the appellate court’s determination, and the Louisiana Supreme Court held that Act 312 does not prohibit plaintiffs from pleading for and receiving awards for remediation damages in excess of the amount needed to fund the statutorily required cleanup plan. State v. Louisiana Land & Exploration Co., 2012-0884, p. 16 (La. 1/30/13); 110 So. 3d 1038, 1049.
Cell Phones as an Eye of the Government: In re Application of the United States for Historical Cell Site Data
Federal authorities in Texas sought a court order from a federal magistrate to compel a cell phone service provider to disclose records for a particular cell phone number under the Stored Communications Act (SCA). These records included historical cell site data, which service providers collect and store for each of their cell phone subscribers. Historical cell site data provide the locations of antennae towers that receive the signal of a subscriber cell phone and the direction from which that signal emanates. Service providers may record and collect these data at times when the phone is in use and when the phone is idle. Federal authorities sought this order under the SCA on a showing of “specific and articulable facts,” rather than by a warrant on a showing of probable cause. The magistrate refused to grant the order as pertaining to the historical cell site data. The magistrate found that although federal authorities did meet the specific and articulable facts standard of the SCA, this provision allows the government to effect a search under the Fourth Amendment on a lower evidentiary showing than probable cause and is, therefore, unconstitutional. When the government objected to the magistrate’s ruling, the district court affirmed the magistrate’s decision. The government appealed the district court’s decision while the American Civil Liberties Union, the Electronic Frontier Foundation, and others participated as amici. In a split decision, the United States Court of Appeals for the Fifth Circuit held that court orders to compel service providers to provide historical cell site data based on the specific and articulable facts standard under the SCA do not categorically violate the Fourth Amendment and that courts do not have discretion to require a showing of probable cause when the government seeks to compel disclosure of historical cell site data under the SCA. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).
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.]
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.
Competition on and off the Field: An Analysis of the Role of Antitrust Law in the Continuing Evolution of Professional Sports and Intercollegiate Athletics
When Congress passed the Sherman Act in 1890, professional football did not exist, basketball had not been invented, and the National Collegiate Athletic Association (NCAA) was yet to be born. That all five of the Essays in this Symposium deal in one way or another with the intersection of antitrust law and professional or collegiate sports is a testament to the enduring relevance of the Sherman Act in face of changing market realities. Two of the Essays explore the competing claims of antitrust law and labor law to the relationship between professional athletes and the leagues that employ them. In Brady v. NFL and Anthony v. NBA: The Shifting Dynamics in Labor-Management Relations in Professional Sports, Professor Gabriel Feldman analyzes professional athletes' recent resort to antitrust law to counteract the leagues' use of offensive lockouts to gain salary concessions from players' unions. Feldman traces the development of the nonstatutory labor exemption from the antitrust laws, which the United States Supreme Court created to exempt restraints on competition imposed through the collective bargaining process from antitrust scrutiny and later extended to certain postimpasse conduct. Feldman explains that although the Court said that the antitrust exemption lasts only until the “collapse of the collective-bargaining relationship,” recent cases posed the still unanswered question whether players can avoid the exemption by dissolving their unions and then challenging lockouts under the antitrust laws. Feldman examines the arguments on both sides of the issue and concludes that its resolution will decide the trajectory of labor relations in professional sports. In The Narcotic Effect of Antitrust Law in Professional Sports: How the Sherman Act Subverts Collective Bargaining, Professor Michael H. LeRoy argues that professional football and basketball players have become “addicted” to subverting collective bargaining by seeking court intervention under the antitrust laws in disputes with management. He contends that repeated resort to the antitrust laws provides a “habit forming” release from the obligation of hard and responsible bargaining. In his view, this de facto displacement of collective bargaining undermines the salutary purposes of the National Labor Relations Act, which is to leave management and labor free from government interference as they adjust their differences.
Radical Reform of Intercollegiate Athletics: Antitrust and Public Policy Implications
Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes “corruption” when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question why these revenues should subsidize nonrevenue sports at the expense of financially pressed classroom activities. Contrary to the NCAA Constitution, major football programs do not operate “in keeping with prudent management and fiscal practices.” This Essay sets forth an agenda for reform, explains why the agenda reflects sound public policy, and analyzes why and how the NCAA can implement the agenda in a manner consistent with the Sherman Antitrust Act. It builds upon four foundational principles: (1) prudently managed, self-sustaining intercollegiate sports are legitimate; (2) intercollegiate sports programs that are not self-sustaining have no greater claim on the surplus proceeds from the activities of other sports programs on campus than any other educational program offered by the university; (3) the equal opportunity purposes that underlie Title IX should be maintained; and (4) whatever the additional societal benefits that may result from Division I nonrevenue sports, they do not justify the cost of operating those sports, having regard for the societal benefits that can be achieved by operating these sports at the equivalent of an elite club or Division III level. Applying these foundational principles in light of the problems facing intercollegiate athletics, this Essay offers a five-part Charter of Reform for intercollegiate athletics: (I) end subsidies for men's sports at the Division I level; (II) operate sufficient women's Division I sports to provide female students with sports opportunities equal to male students; (III) offer other sports on an equal basis to male and female students, limited to financial aid only for financial need or academic merit independent of athletic ability, with significant restrictions on coaching and travel; (IV) allow all scholarships to be partial or full and reduce football scholarship totals to fifty-five; and (V) permit up to one and one-half scholarships for the most elite athletes.
From Dallas Cap to American Needle and Beyond: Antitrust Law's Limited Capacity to Stitch Consumer Harm from Professional Sports Club Trademark Monopolies
A nearly fifty-year contemporaneous trend of increasing legal protection for sports team trademarks, collective exclusive licensing of professional sports team trademarks, and antitrust litigation regarding its validity culminated in the United States Supreme Court's 2010 decision American Needle, Inc. v. NFL, which rejected the NFL's single-entity defense. Collective exclusive trademark licensing by professional sports leagues generally does not have significant incremental anticompetitive effects beyond the consumer harm already caused by each individual club's lawful trademark monopoly, which likely are outweighed by procompetitive benefits in many instances. However, in order for antitrust law to minimize the consumer harm caused by the extension of trademark law protection beyond its traditional boundaries to create professional sports club trademark monopolies, the collective granting of exclusive product category licenses should be invalidated under the quick-look rule of reason because this restraint has clear anticompetitive effects that are not necessary to achieve legitimate procompetitive justifications and/or which may be achieved by a substantially less restrictive alternative.
Consensus at Last: The Broadening of LUTPA Standing in Cheramie v. Shell Deepwater Production
The Louisiana Supreme Court held that although LUTPA protection extends beyond business competitors and consumers, the trial court correctly granted Shell's motion for summary judgment because Cheramie did not meet its evidentiary burden in proving that Shell and Filco conspired against it. Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 2009-1633 (La. 4/23/10); 35 So. 3d 1053.