Recently, the United States Supreme Court passed on a chance to consider the legitimacy of investigatory stops based on uncorroborated anonymous tips of drunk driving, preferring this issue continue to ferment in the lower courts. When facing this issue, some lower courts seize the opportunity to carve out a drunk-driving exception to the Fourth Amendment based on “danger dicta” found in Florida v. J.L. Other courts hold fast to the corroboration requirement for anonymous informants in Alabama v. White. This Comment considers whether both approaches fail to take full advantage of existing Fourth Amendment jurisprudence so that police can effectively manage the dangers posed by drunk drivers without further eroding Fourth Amendment protections. Rather than polarize informants as either known or anonymous, there is a third classification of informants that are just distinct enough to provide reasonable suspicion for investigatory stops. As Justice Kennedy's concurring opinion in J.L. argued, these quasi-known/quasi-anonymous informants “might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”
"Living Separate and Apart": Solving the Problem of Putative Community Property in Louisiana
This Article argues that Louisiana should instead adopt a modified form of the common law doctrine of “living separate and apart” to address the problems created by the current Louisiana law as to the apportionment of putative community property. Washington, California, and Arizona—all community property states—use the doctrine of living separate and apart in the context of classification of assets. Although the standard differs among the three states, the basic principle is that the spouses can conduct themselves in a manner that demonstrates that they are not only physically, but also emotionally living separate and apart, even if the marriage is legally still intact.If so, then all property acquired after the legal spouses exhibit such sufficient conduct is deemed to be each spouse's separate property. This Article argues that the same requisite conduct sufficient to terminate the community property regime under the common law doctrine of living separate and apart should be sufficient to terminate the legal community property regime between the legal spouse and the common spouse in the context of putative marriage. Such a solution addresses the problems and inequities caused by the current Louisiana law while at the same time addressing some of the issues raised by scholars who argue for putative divorce.
Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill?
Virtual property, or that property which exists only in the intangible world of cyberspace, is of growing importance. Millions of people use virtual property every day, be it an e-mail account, a blog, or a Facebook profile; billions of dollars are spent to acquire virtual property. As the importance of virtual property continues to increase at light year speed, laws pertaining to virtual property must similarly develop. Among the legal issues yet unaddressed is how community property regimes will respond to virtual community (or virtual separate) property. Spouses are on the brink of litigating issues such as whether a Uniform Resource Locator (URL) is community or separate property, whether a website generates an increase in separate property, whether e-mail contacts are profits, and whether Facebook friends create goodwill. Community property jurisdictions must be prepared to quickly adapt to the reality of virtual property if they wish to avoid being lost in cyberspace. To aid courts in their impending task of considering virtual property in a community property setting, this Article examines how different forms of virtual property should be classified in community property regimes. After explaining the classification scheme within community property jurisdictions, the Article details examples of virtual property likely to be present in modern couples' lives, and considers how these identified examples of virtual property should be classified.
Clarity and Confusion: RICO's Recent Trips to the United States Supreme Court
The complicated structure of the Racketeer Influenced and Corrupt Organization Act has bedeviled courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must embody a set of structural attributes that would not ordinarily be present in a conspiracy. This Article analyzes these new cases, puts them in historical context, and discusses their likely ramifications for civil RICO litigation.
Did You Ever Hear of the Napoleonic Code, Stella? A Mixed Jurisdiction Impact Analysis From Louisiana's Law Laboratory
This Article develops the themes of history, language, and culture in the art of mixed jurisdiction impact analysis. It showcases a specific law (former article 177 of the Louisiana Civil Code) governing the liability of the building master for things thrown out of the house into the street or public road. Our case study gives real meaning to the Romanist mixité wrought into Louisiana's civilian core. The reader is not only invited to take a seat on the time machine for a journey through Louisiana's codal triad back to Roman law with stops in Medieval Spanish law and Pre-Napoleonic French law, but also encouraged to reflect on present-day alternatives for construing and applying the law.
Mixed Public-Private Speech and the Establishment Clause
Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes--meaning that the speakers may claim a right to forum access--and at the same time sufficiently governmental for Establishment Clause purposes, potentially creating a secular forum in certain narrowly defined speech contexts.
The Downside of Success: How Increased Commercialism Could Cost the NCAA Its Biggest Antitrust Defense
This Comment examines how the evolution of the NCAA, from an organization designed to promote fair competition and integrate intercollegiate sports into higher education, to a tax-exempt entity with annual revenues of over $500 million, could affect its favored antitrust status by the courts. The Comment first discusses how the NCAA has evolved over time. The author then examines how courts struggled to evaluate the organization's antitrust liability, given its role in promoting amateurism, and how a Supreme Court loss ultimately helped shield the NCAA from antitrust liability in its dealings with student-athletes by accepting the preservation of amateurism as a pro-competitive benefit. With this framework in mind, the Comment examines a recently filed antitrust challenge brought by former student-athletes with the potential to penetrate the NCAA's defense and the merits of the lawsuit's approach. Finally, the Article discusses potential less restrictive alternatives the NCAA may choose to implement to avoid this potentially anticompetitive behavior while maintaining amateurism.
Forum and Venue Selection Clauses in Seamen's Employment Contracts: Can Contractual Stipulations Be Used to Defeat a Seaman's Choice of Forum or Venue in a Jones Act Claim?
A split in authority has developed over the enforceability of forum and venue selection clauses in Jones Act claims. While some courts hold such restrictions of a seaman's choice of forum or venue invalid and unenforceable, others find forum and venue selection clauses presumptively valid. Confusing the issue further, several courts have held that while a seaman's choice of forum is protected, and cannot be limited by a forum selection clause, the seaman's choice of venue merits no such protection. This Comment suggests that the last of these approaches—under which a seaman's choice of forum is protected, but choice of venue can be limited by contract—best embodies the congressional intent behind the Jones Act.
Tracing the Origins of Fairly Traceable: The Black Hole of Private Climate Change Litigation
[O]ur emerging problems of the environment and ecological unbalance are worrisome problems indeed, and I am distressed that our law is so inflexible that we find ourselves helpless procedurally to meet these new problems.
-- Justice Harry Blackmun
Convergence in Contort: Landlord Liability for Defective Premises in Comparative Perspective
The relatively recent transformation of landlord-tenant law has imported into the common law landlord-tenant relationship a number of obligations that have been recognized in civil law leases for centuries.Thus the common law's embrace of an implied warranty of habitability closed a long-existing gulf between the two legal traditions' approaches to the obligations of residential landlords. In both traditions today, breach of the landlord's obligation to provide a safe and habitable dwelling gives rise to traditional contractual remedies, including termination of the lease and damages.However, the treatment of personal injuries, property damage, and nonpecuniary losses continues to differ across jurisdictional lines. While American tenants who suffer such losses are largely restricted to a tort theory of recovery, civil law tenants have both contractual and tort theories at their disposal. This Article turns to the civilian tradition to determine whether this concurrent approach to landlord liability better allocates the risk of harm between residential landlords and their tenants.