There is a state of uncertainty that is threatening to undermine the two most significant evidentiary protections in American jurisprudence: the attorney-client privilege and the work product doctrine. The Federal Rules of Civil Procedure require parties to explicitly assert privilege claims, usually by providing information about the privileged materials in the form of a “privilege log.” The Rules do not say whether this requirement applies to materials created or obtained after the filing of the complaint. But that is exactly when the attorney-client privilege and work product doctrine are most likely to protect not only the materials themselves, but also the information about them that would normally be included in a privilege log. Despite that undeniable fact, the courts are bitterly divided on whether these “postcomplaint” materials should be exempt from the privilege log requirement. In this Article, I propose an amendment to the Federal Rules of Civil Procedure that would exempt postcomplaint materials from the privilege log requirement. The attorney-client privilege and work product doctrine are intended to encourage communication between clients and attorneys, and to provide attorneys with a zone of privacy to prepare efficiently for trial, respectively. These activities are the most critical after the litigation has begun. Absent an exemption, an adversary could effectively require a party to create an ongoing “log” of communications and materials prepared during the course of a pending litigation. Such a burdensome requirement would effectively “chill” the crucial preparation that these protections were developed to ensure, subverting two key pillars of the adversary system. My proposal would provide the badly needed certainty and predictability parties must have in an era where the potential universe of discoverable electronic materials has few other limits.
The French Revision of Prescription: A Model for Louisiana?
In 2008, the French Legislature took the necessary step and drastically reformed prescription. The general period is now shorter and unified (five years), there are new grounds for suspension (including codified contra non valentem), and a long-stop period is introduced. Louisiana has yet to make any substantial reform to prescription, and revision is long overdue. This Article will outline the faults in Louisiana and France's original prescriptive regimes and identify the main innovative trends in the French revision. It then will offer a critical appraisal of the French revision, endorse it as a basis for a Louisiana revision, and discuss how Louisiana jurisprudence is uniquely positioned to integrate the revision in French law. We offer the following as a true dialogue from both the French and Louisiana perspectives about the continuing influence of the French Civil Code in Louisiana,the nature of prescription and its placement in a civil code, and the unique opportunity for the Louisiana experience to influence the interpreta-tion of the French revision.
Law and Longitude
The story of the eighteenth-century quest to “find the longitude” is an epic tale that blends science with law. The problem of determining longitude while at sea was so important that the British Parliament offered a large cash prize for a solution and created an administrative agency, the Board of Longitude, to determine the winner. The generally popular view is that the Board of Longitude cheated John Harrison, an inventor, out of the great longitude prize. This Article examines the longitude story from a legal perspective. The Article considers how a court might rule on the dispute between Harrison and the Board of Longitude. The Article suggests that the popular account of the dispute is unfair to the Board. The Board gave a reasonable interpretation to the statute creating the longitude prize and was not improperly biased against Harrison's method of solving the longitude problem. The Article concludes with some lessons the longitude story offers for modern intellectual property and administrative law.
Domestic Courts and Global Governance
Domestic court decisions often make headlines around the world. For example, recent United States Supreme Court decisions about the International Court of Justice and the rights of foreign detainees held by the United States at Guantanamo Bay have attracted international attention. However, the role of domestic courts in the world extends far beyond headlines. Seemingly routine decisions on issues such as personal jurisdiction, forum non conveniens, choice of law, extraterritoriality, and arbitration have implications for global governance. Legal scholarship divides these issues into doctrinal categories like civil procedure, conflict of laws, and international law. But by doing so, it misses the bigger picture: for better or worse, domestic courts are pervasively involved in regulating transnational activity.This Article cuts across doctrinal categories to provide a systematic analysis of the global impact of domestic courts. It argues that domestic courts perform two global governance functions: they allocate governance authority, and they determine rights and obligations of transnational actors. It shows that these functions matter not only for litigants, but also for global welfare. And it proposes a method to critically evaluate these functions that moves beyond traditional litigant-focused assessments to analysis of the cross-border effects of domestic court decisions. This method will allow scholars and policy makers to develop the empirical foundations needed for the intensifying debate over the proper role of domestic courts in addressing global challenges.
Interpreting Ne Exeat Rights as Rights of Custody: The United States Supreme Court's Chance to Advance the Purposes of the Hague Convention on International Child Abduction
In Abbott v. Abbott, the United States Supreme Court will construe the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, the Court will determine whether a ne exeat clause, which precludes a parent from taking his or her child out of the country without the other parent's consent, is a “right of custody” for purposes of the Convention. The U.S. circuit courts are divided on the issue, and the approach of the majority of circuits is in opposition to the approach taken by the majority of foreign courts that have addressed the issue. This Comment argues that the Court appropriately granted certiorari in Abbott and that the Court should decide that the rights conferred by a ne exeat clause do constitute rights of custody under the Convention.
How the Legal Regimes of the European Union and the United States Approach Islamic Terrorist Web Sites: A Comparative Analysis
Eight years after the 9/11 terrorist attacks it comes as no surprise that the Internet has become a tool of terrorism. In addition to using the Internet to spread propaganda and raise funds to support their cause, terrorists also use the Internet to recruit and train new members. What should come as a surprise, however, is that the U.S. government has failed to take any steps towards deterring terrorist recruitment and training online. In stark contrast, the European Union recently passed three laws targeted directly at online terrorist activity, including: (1) public provocation to commit a terrorist offense, (2) recruitment for terrorism, and (3) training for terrorism. This Comment compares how the legal regimes of the United States and the European Union differ in their approaches to online terrorist activity and suggests a new approach for the United States—one that balances increased action against creators and developers of terrorist Web sites with freedom of speech.
More Cooperation, Less Uniformity: Tax Deharmonization and the Future of the International Tax Regime
Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity. By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity-- could provide a viable alternative. Achieving tax deharmonization's potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.