Comment by Alexis L. Sullivan
This Comment focuses on the United States Court of Appeals for the Fifth Circuit’s “rule of orderliness” as applied specifically to prior Erie Guess precedent on issues of Louisiana substantive law in cases of diversity jurisdiction. It aims to expose the inconsistencies between the Fifth Circuit’s application of the rule of orderliness and well-established United States Supreme Court precedent set out in West v. American Telephone & Telegraph Co. and Erie Railroad Co. v. Tompkins. To do so, it focuses on recent Louisiana state court and Fifth Circuit decisions regarding the proper interpretation under Louisiana law of “physical loss of or damage to” provisions in business interruption insurance contracts and relatedly, whether a business’s closure or suspension resulting from COVID-19 and related government shutdown orders constitutes a “physical loss of or damage to” the insured property. However, this Comment’s arguments and proposal apply more broadly to all Fifth Circuit cases in which a subsequent Louisiana intermediate appellate court decision raises doubt as to the validity of a prior Fifth Circuit panel’s Erie Guess on Louisiana substantive law. Ultimately, this Comment proposes that the Fifth Circuit adopt a deferential approach to subsequent Louisiana intermediate court decisions contravening its Erie Guess precedent—absent convincing evidence that the Louisiana Supreme Court would rule differently—and implement a process to facilitate rehearing en banc for the court to determine whether to maintain or overturn panel precedent.
About the Author
Alexis L. Sullivan. J.D. Candidate 2025, Tulane University Law School; MBA Candidate 2025, A.B. Freeman School of Business, Tulane University; B.A. 2021, Tulane University.
Citation
98 Tul. L. Rev. Online 35 (2024)