Citations to Faculty Publications in Court Opinions, Briefs, and Other Court Documents

New Orleans College of Law

Citations to Faculty Publications in Court Opinions, Briefs, and Other Court Documents

Introduction

This report contains all citations to the College of Law’s faculty publications, in court opinions, briefs, and other filings, as of December 2022. I have been compiling this for several years now and feel it is a good record of our faculty’s influence on the judicial systems in both Louisiana and other jurisdictions. It is as complete as I have been able to make it; new documents that cite to our faculty’s work are promulgated regularly, but I thought the end of 2022 would be a good cut-off point to use to finally make this report available to everyone. It should have every court citation to anything published by our faculty through that point in time, but I apologize in advance for any possible omissions.

Note that typographic, citation and other errors in the text of the opinions, briefs and filings have been retained and appear as they are in the original documents.

Brian Huddleston Senior Reference Librarian

Loyola University New Orleans College of Law Library

March 2023

Mary Garvey Algero, Associate Dean of Faculty Development and Academic Affairs, Philip and Eugenie Brooks Distinguished Professor of Law, and Warren E. Mouledoux Distinguished Professor of Law

Reply Brief of Appellant Riordan & Mckinzie Concerning Sanctions at 10, 11, Reinschreiber v. The Frederick R. Weisman Co., No. B126149 (Cal. Ct. App. Dec. 15, 1999), 1999 WL 33906561 at *10, *11

In their brief, the defendants use the term “forum shopping” in a pejorative sense, without defining it or explaining how it is in any way wrongful. Recent legal commentators have concluded that there is nothing wrong with “forum shopping.” See Note, “Forum Shopping Reconsidered,” 103 Harvard Law Review 1677 (1990), and Algero, “In Defense of Forum Shopping: A Realistic Look at Selecting a Venue,” 78 Nebraska Law Review 79 (1999). The note in the Harvard Law Review concluded that “[f]orum shopping represents a continuum of activities within the legal universe” and that “it cannot be dismissed merely as an evil to be avoided.”

Ms. Mary Garvey Algero, author of the article in the Nebraska Law Review, reached a similar conclusion.

“Regardless of which type of forum shopping is taking place, attorneys filing lawsuits or defending against lawsuits usually have the same objective when it comes to evaluating or seeking a venue -they seek a venue in which their clients can not only get a fair trial, but in which their clients might gain some advantage or begin with the odds in their favor.” 78 Neb. L. Rev. at 79.

Cunningham v. Dir., Office Of Workers' Comp. Programs, 377 F.3d 98, 110 (1st Cir. 2004)

The Board, additionally, credited the ALJ's finding that Thompson Brook may not be considered an extension of the navigable New Meadows River, and it rejected appellant's contention that Thompson Brook should be deemed navigable based on tidal activity. We find no flaw in these judgments.13

13 The ALJ found that Thompson Brook is not affected by tidal activity where the brook flows across BIW's property, relying primarily on maps and a survey conducted by an independent consulting firm.

Whether the “ebb and flow” test retains any vitality remains a matter of discourse, see, e.g., Mary Garvey Algero, Ebb and Flow of the Tide: A Viable Doctrine for Determining Admiralty Jurisdiction or a Relic of the

Past?, 27 Seton Hall L.Rev. 138 (1996), but the ALJ's supportable finding of no tidal influence resolves the issue here.

Brief on Cross-Appeal and Response Brief Submitted on Behalf of Appellee Jon H. Stewart at 17, Flynn v. Tex-Air Helicopters, Inc., No. 06-30766 (5th Cir. Oct. 31, 2006), 2006 WL 6819237 at *17

Furthermore, Duplantis relied on a narrow interpretation of maritime situs that has been criticized. The court essentially concluded that the “ebb and flow” test for maritime jurisdiction was abandoned in favor of the “navigability - infact” test. 1993 WL 370619 at *2. On the contrary, that issue is not so clear. See Mary Garvey Algero, Ebb and Flow of the Tide: A viable Doctrine for Determining Admiralty Jurisdiction or a Relic of the Past, 1 Loy.Mar.L.J. 47 (2002), for a critique of Duplantis.

Response and Reply Brief Submitted on Behalf of Cross-Appellees/Appellants, Tex-Air Helicopters, Inc. and United States Aviation Underwriters, Inc. as Managers for United States Aircraft Insurance Group at 13, Flynn v. Tex-Air Helicopters, Inc., No. 06-30766 (5th Cir. Nov. 30, 2006), 2006 WL 6819236 at *13

Citing In re: Paradise Holdings Co., 795 F.2d 756 (9th Cir. 1986), plaintiff argues that the district court properly applied the “ebb and flow” test in determining that the situs requirement for admiralty jurisdiction was met.

Plaintiff also cites a law review article, Mary Garvey Algero, Ebb and Flow of the Tide: A Viable Doctrine for Determining Admiralty Jurisdiction or a Relic of the Past?, 1 Loy. Mar. L.J. 47 (2002), for the proposition that the “issue is not so clear” as to whether the ebb and flow test continues to be applicable in determining admiralty jurisdiction

Flynn v. Tex-Air Helicopters, Inc., No. 06-30766, 2006 WL 6819236, at *13, *14 (5th Cir. Nov. 30, 2006)

Citing In re: Paradise Holdings Co., 795 F.2d 756 (9th Cir. 1986), plaintiff argues that the district court properly applied the “ebb and flow” test in determining that the situs requirement for admiralty jurisdiction was met.

Plaintiff also cites a law review article, Mary Garvey Algero, Ebb and Flow of the Tide: A Viable Doctrine for Determining Admiralty Jurisdiction or a Relic of the Past?, 1 Loy. Mar. L.J. 47 (2002), for the proposition that the “issue is not so clear” as to whether the ebb and flow test continues to be applicable in determining admiralty jurisdiction

Professor Algero, in the law review article cited by plaintiff, discussed the conflict among the circuits and specifically recognized that this Court in

Sanders applied the “navigability in fact” standard in connection with a determination of admiralty jurisdiction and held that such standard was applicable to “all bodies of water.” 1 Loy. Mar. L.J. at 69. Accordingly, and for reasons more fully discussed in Tex-Air and USAU's original brief, the district court improperly applied the ebb and flow test in this case.

Reply Brief on Appeal By Hackman/Law Corp Appellants at 3, Hackman v. E.M.C. Insurance Co., No. 07-CA-0552 (La. Ct. App. Nov. 29, 2007), 2007 WL 4560149 at *3

A very fine article on our civilian tradition comes from a Loyola Law School professor: Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

Brief of Amicus Curiae DRI - The Voice of the Defense Bar in Support of Petitioner at 5, Direct Digital, LLC v. Mullins, No. 15-549 (U.S. Nov. 25, 2015), 2015 WL 7758583 at *5

Uniformity in important questions of federal law is a basic expectation of civil litigants and a foundational value for the federal courts. See Sup. Ct. R. 10(a); see also Daniel J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeals, 56 U. Chi. L. Rev. 603, 605, 615-16 (1989); Mary Garvey Algero, A Step in the Right Direction: Reducing Intercircuit Conflicts By Strengthening the Value of Federal Appellate Court Decisions, 70 Tenn. L. Rev. 605, 608 (2003)

Plaintiff-Cross-Appellant's Principal Brief at 69-70, Ultimatepointer, LLC v. Nintendo Co. Nos. 2015-1532, 2015-1535, 2015-1584 (Fed. Cir. Aug. 19, 2015), 2015 WL 5076202 at *69-70

Here, Nintendo contends that “[a] case in which a party or its counsel acts against the interests of justice must, almost by definition, be exceptional.” NBr. at 3, 24-25.27

27 Nintendo suggests that this equates “professional misconduct.” NBr. at 25. However,

an attorney’s behavior [in selecting a favorable forum] should not be considered unethical when he is proceeding within the procedural and substantive limits of the law . . . . [The Model Rules] supports attorneys’ efforts to forum shop when the “shopping” is done with the intent of using “legal procedure for the fullest benefit of the client’s cause” and is not done to

delay litigation or to harass.

Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 Neb. L. Rev. 79, 107 (1999) (citing ABA

MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 cmt. 1 (1998)).

In re Angeles Roca First Judicial Dist. Philadelphia Cty., 173 A.3d 1176, 1202 (Pa. 2017)

The courts of Pennsylvania, however, like courts in forty-nine8 of the United States (and elsewhere, including Great Britain, Australia and Canada), are progeny of a common law legal tradition, born in England in the eleventh century

8 Within the United States, only Louisiana maintains a hybrid legal system with elements of both civil and common law traditions. See, generally, Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of A Civil Law State in A Common Law Nation, 65 La. L. Rev. 775, 792 (2005) . . . .

Appellant's Opening Brief at 6, Evangelista v. State, No. A-12316 (Alaska Ct. App. Jan. 30, 2017), 2017 WL 5625610 at *6

Then, in Alex, while there was a developed law of so-called constructive possession in other jurisdictions, particularly the 10th Circuit, the Alaska court relied upon a Louisiana2 case involving a so-called constructive possession in a house . . . .

2 Louisiana is the only civil law jurisdiction in the United States. See Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

Petition for a Writ of Certiorari at 5, W&T Offshore, Inc. v. Apache Deepwater, LLC, No. 19-613 (U.S. Nov. 12, 2019), 2019 WL 6004627 at *5

In civil-law systems like Louisiana's and Puerto Rico's, judicial decisions are only persuasive authority - not primary sources of law - and stare decisis does not apply. See Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775, 798 (2005); . . . .

The closest civil-law jurisdictions come to stare decisis is jurisprudence constante That doctrine recognizes that through “a long line of cases following the same reasoning,” a rule of law can become so accepted by the courts that it

carries “considerable persuasive authority.” Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 79 So. 3d 246, 256 (La. 2011) (internal quotation marks omitted); see also Algero, supra, 65 La. L. Rev. at 799.

Brief of Virginia, Alaska, Arkansas, Idaho, Indiana, Montana, New Hampshire, and South Carolina as Amici Curiae in Support of Respondent at 29, Mallory v. Norfolk Southern Railway Co., No. 21-1168 (U.S. Sept. 2, 2022), 2022 WL 4110480 at *29

In addition, general jurisdiction over other States' citizens promotes forum shopping for favorable juries. See Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 Neb. L. Rev. 79, 80 n.2 (1999) (noting that an “attorney who is forum shopping might take into account ... an evaluation of the reputation and characteristics of potential jurors who would make up the jury venire”).

Memorandum in Support of Motion for Final Approval of Class Action Settlement at 4, McKesson v. City of Baton Rouge, No. 3:16-CV-00520 (M.D. La. Aug. 17, 2017), 2017

WL 10086218 at *4

Evidence of Defendants' misconduct and use of excessive force was collected by notable civil rights and advocacy organizations, in addition to hundreds of cell-phone photographs and videos. News reporters have taken hundreds of photographs, video and audio recordings of the Defendants' actions. Further, upon information and belief, Defendants have custody and control of surveillance videos and body camera recordings, which contain further evidence of Defendants' conduct. See also Erica Navalance and Andrea Armstrong, Punished Protestors: Conditions in East Baton Rouge Parish Prison, the Promise of Justice Initiative (July, 2017) (copy attached, Exhibit 2).

Brief of Amicus Curiae The American Civil Liberties Union of New Jersey at 17, Libertarians for Transparent Government v. Cumberland County, No. 084956 (N.J. Apr. 23, 2021), 2021 WL 9599019 at *17

Transparency and accountability in the jail and prison context have tangible results: when institutions treat people in their custody fairly, those people perceive the institutions to be more legitimate, making them safer. Andrea C. Armstrong, No Prisoner Left Behind? 25 Stan. Law & Pol. Rev. 435, 465 (2014).

Andrea Armstrong, Law Visiting Committee Distinguished Professor of Law

Brief of Amicus Curiae Center for Constitutional Rights at 25, Acoli v. New Jersey State Parole Board, 273 A.3d 426 (N.J. 2022) (No. 083980), 2021 WL 9723468 at *25

Accordingly, people like Acoli who have served the punitive purposes of their sentences4 and have demonstrated rehabilitation remain particularly at risk of parole denial if they hold or have held politically unpopular beliefs. That is even more the case for people associated with radical movements by racial minorities.

See Andrea C. Armstrong, Racial Origins of Doctrines Limiting Prisoner Protest Speech, 60 How. L.J. 221, 265 (2016) (arguing that hostility to prisoners' political speech is “linked to racial fears of the past”).

Brief of Scholars of the PLRA and Prison Grievance Systems As Amici Curiae in Support of Petitioner at 9-10, Ramirez v. Collier, 595 U.S. ___, 142 S. Ct. 1264, 212 L. Ed. 2d 262 (2022), No. 21-5592, 2021 WL 4670958 at *9-10

This “availability” requirement reflects Congress's policy judgment that functioning grievance procedures are essential to prison administration. Empirical research backs that up: “When prisoners perceive the prison administration as legitimate (i.e., that the policies are neutral and fairly applied), prisoners are more likely to contribute to an orderly and safe prison environment.”

Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions, 25 Stanford L. & Pol'y Rev. 435, 464-465 (2014).

State v. Edwards, 2022-Ohio-3408 at ¶ 28

Studies suggest that “minority offenders may be more likely to be perceived as a disciplinary threat by correctional officers, regardless of an offender's actual behavior.” Andrea C. Armstrong, Race, Prison Discipline, and the Law, 5 U.C.IrvineL.Rev. 759, 770 (2015). And “[i]mplicit bias studies may also implicate the severity of the punishment an offender would receive for a rule violation.” Id.

Brief of the Center for Constitutional Rights as Amicus Curiae in Support of RespondentDefendant Reginald Reddick passim, State v. Reddick, No. 202-KP-01893 (La. May 3, 2022), 2022 WL 1517095 passim

Louisiana's enactment of “Black Codes” was especially draconian - and explicit. One Louisiana politician explained that the Black Codes were aimed at “getting things back as near to slavery as possible” by tightly controlling Black Americans' labor and restricting their movements.11

11 Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor,

U.L. REV. 869, 902 (2012)

In other words, Louisiana's criminal justice system forced incarcerated Black Louisianans to live and work on plantations against their will and at risk of death for decades after the Civil War.23

23 The convict-lease system enabled the continued control and exploitation of Black labor by white Southerners, and the ease with which new Black convicts could be produced by a rigged and racist criminal justice system contributed to the system's extreme brutality. Between 1894 and 1901, “an estimated 10% of convicts incarcerated in Louisiana died.”

Armstrong, 35 SEATTLE U.L. REV. at 903

Today, the penal plantation at Angola still serves as Louisiana's state penitentiary and continues to impose “slavery-like conditions on the incarcerated” people of the state.30 The 5,300 people incarcerated at Angola, 75% of whom are Black, are paid only a few cents per hour to work the same fields, picking cotton, com, and more, from the “same land slaves were forced to work 200 years ago.”31 Burl Cain, the current warden of Angola, recently noted that Angola is “like a big plantation in days gone by.”32

30 Armstrong, 35 SEATTLE U.L. REV. at 910

32 Armstrong, 35 SEATTLE U.L. REV. at 908 (citing THE FARM: 10 DOWN, AT 10:05 (Highest Common Denominator Media Group 2009)).

Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment at 9, Guillot v. Russell, No. 3:20-CV-1537 (W.D. La Apr. 4, 2022), 2022 WL 2067467 at *9

There are no mandatory federal or state standards for prions conditions, other than those constitutionally mandated and for those specific populations (religious groups, the disabled), or topics (prison rape). See Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions, 25 STNLPR 435, 456 (2014).

John F. Blevins, John J. McAulay Distinguished Professor of Law

Brief of Amici Curiae of the Ctr. for Democracy & Tech. and Legal Scholars in Support of Appellee at 28-29, Verizon v. FCC, No. 11-1355 (D.C. Cir. Nov. 15, 2012), 2012 WL 5769698 at *28-29

The Rules are also narrowly tailored because they do not apply to all providers of Internet transmission services but only to providers of Internet access,

where the lack of competition and broadband providers' physical control of the communications conduit create a clear bottleneck that would enable content gatekeeping antithetical to First Amendment values. See supra at 9-10 (discussing lack of competition in Internet access market); see also John Blevins, The New Scarcity: A First Amendment Framework for Regulating Access to Digital Platforms, 79 Tenn. L. Rev. 353, 380-81 (2012) (describing how most Americans can only choose between one of two broadband access providers, while many can only choose one)

Nor do the Rules burden speakers and innovators who use Internet access services to provide applications, content, and services. In these markets, a wide variety of competing services are available and the risk and impact of discrimination is much less. See Blevins, 79 Tenn. L. Rev. at 359-361 (2012) (distinguishing the Internet's competitive “application layer” from the less competitive “network layer”).

Plaintiffs' Opposition to Motion by Defendant ICANN to Dismiss Plaintiffs' First Amended Complaint Pursuant to Rule 12(B)(6) at 20, Manwin Licensing International v. ICM Registry, LLC, No. CV11-9514 PSG (JCGx) (C.D. Cal June 19, 2012), 2012 WL 3280137 at *20

The network effects phenomenon is not novel and poses a real and widely recognized monopoly risk. See, e.g., Marina Lao, Reclaiming A Role For Intent Evidence In Monopolization Analysis, 54 Am. U. L. Rev. 151, 182-183 (2004) (“network effects describes situations where, the more people use a good or service, the more valuable that good or service is to the consumer. . . .” “network effects tend to ‘tip’ the market to generate a winner-take-all [monopoly].”); John Blevins, Death Of The Revolution: The Legal War On Competitive Broadband Technologies, 12 Yale J. L. & Tech. 85, 128 (2009) (“One result of network effects, then, is that the market can eventually ‘tip’ into a winner-takes-all monopoly.”); . . . .

Petition for a Writ of Certiorari at 5, Batato v. U.S., No. 16-1206 (4th Cir., Apr. 7, 2017), 2017 WL 1315036 at *5

The indictment contends that Megaupload encouraged its users to infringe copyrights. CAJA 26; Superseding Indictment ¶¶ 10-14. It is thus founded on the questionable legal premise that secondary copyright infringement may be prosecuted as a federal crime. See 117a-118a. Yet the criminal copyright infringement statute, 17 U.S.C. § 506(a), does not expressly encompass secondary liability. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984) (“The Copyright Act does not expressly render anyone liable for infringement committed by another.”); Dowling v. United States, 473 U.S. 207,

228 (1985) (“[T]he deliberation with which Congress . . . has addressed the problem of copyright infringement for profit, as well as the precision with which it has chosen to apply criminal penalties in this area, demonstrates anew the wisdom of leaving it to the legislature to define crime and prescribe penalties.”).3

3 See also, e.g., Jennifer Granick, Megaupload: A Lot Less Guilty Than You Think, Stan. Center for Internet & Soc'y (Jan. 26, 2012), https://goo.gl/uWSISv; Anthony Falzone & Jennifer Granick, Megaupload.com Indictment Leaves Everyone Guessing, Parts I-II, Daily Journal (Mar. 14 & Apr. 6 2012), https://goo.gl/cGfqRl; Eric Goldman, Comments on the Megaupload Prosecution, Tech. & Mkt'g Law Blog (Apr. 30, 2012, 9:30 AM), https://goo.gl/ZgHXkm; John Blevins, Uncertainty as Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms, 34 Cardozo L. Rev. 1821 (2013); Margot Kaminski, Copyright Crime and Punishment: The First Amendment's Proportionality Problem, 73 Md. L. Rev. 587 (2014).

Brief of Amicus Curiae the Copyright Alliance in Support of Appellees and Affirmance at 15, Sony Music Entertainment v. Cox Communications, Inc., No. 21-1168 (4th Cir. July 30, 2021), 2021 WL 3290816 at *15

The DMCA plays an integral role in balancing the interests of Internet platforms, users, and copyright owners. Enacted in 1998, the legislation served as a compromise between copyright owners and Internet platforms to encourage the growth of the Internet while also ensuring that copyright owners have an effective means to protect their valuable intellectual property on the Internet. See H.R. Rep. No. 105-551, pt. 2 at 21 (“[T]he Committee believes it has appropriately balanced the interests of content owners, on-line and other service providers, and information users in a way that will foster the continued development of electronic commerce and the growth of the Internet.”); see also Sag, supra, at 506-10; John Blevins, Uncertainty As Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms, 34 Cardozo L. Rev. 1821, 1834-35 (2013)

Dane S. Ciolino, Alvin R. Christovich Distinguished Professor of Law

Plaintiff's Response To Defendant Daybrook's Motion To Disqualify Counsel at 7, Hampton v. Daybrook Fisheries, INC., Nos. 01-1913, 01-2052 (E.D. La. Oct. 23, 2001), 2001 WL 34673193 at *7

Professor Dane Ciolino, author of the respected treatise, Louisiana Professional Law and Practice, at page 102, concurs that “a lawyer's general

knowledge of the strategies, policies or personnel of the former client is not sufficient by itself to establish a substantial relationship between current and past matters.”

Supplemental Memorandum Supporting Flag Container's Right to a Jury Trial at 1, Cascio v. TMA Marine, Inc., No. 02-2115 (E.D. La. Feb. 10, 2003), 2003 WL 23863893 at *1

During the February 5, 2003 hearing, this Court directed counsel to two separate law review articles concerning Flag Container's Motion for Reconsideration: Billy Coe Dyer, The Jury on the Quarterdeck: The Effect of Pleading Admiralty Jurisdiction When a Proceeding Turns Hybrid, 63 Texas Law Review 533, (1984); and Dane S. Ciolino and Gary R. Roberts, The Missing Direct Tender Option in Federal Third-Party Practice: A Procedural and Jurisdictional Analysis, 68 North Carolina Law Review 424 (1990).

Plaintiff's Post-trial Memorandum at 11, Jeansonne v. Attorney's Liability Assurance Society, 891 So.2d 721 (La. Ct. App. 2004) (No. 2003-CA-1985), 2000 WL 35725595 at *11

This memorandum will not repeat the trial testimony of Mr. Leslie Schiff, offered as an expert witness. Rather, the court is directed to review the following information taken from Louisiana Professional Responsibility Law and Practice edited by Dane S. Ciolino concerning the application of Rule 1.7 of the Louisiana Rules of Professional Conduct.

Conflicts in Representing Business Organizations

When a lawyer represents a corporation, a limited liability company or other business organization, the lawyer owes the duty of loyalty to the organization rather than to its constituents

Appellant's Brief at 16, Jeansonne v. Attorney's Liability Assurance Society, 891 So.2d 721 (La. Ct. App. 2004) (No. 2003-CA-1985), 2004 WL 5870405 at *16

The court is also directed to Louisiana Professional Responsibility Law and Practice edited by Dane S. Ciolino concerning the application of Rule 1.7 of the Rules of Professional Conduct explaining the lawyer's duty is to the company not its officers or shareholders.

Defendants' Memorandum In Oppostion to Plaintiffs Motion for Summary Judgment On the Merits of the Claim at 12, Jeansonne v. Attorney's Liability Assurance Society, 891 So.2d 721 (La. Ct. App. 2004) (No. 2003-CA-1985), 2002 WL 34446753 at *12

Louisiana's Rules of Professional Conduct effective 1/1/87 establish that “[t]he client has ultimate authority to determine the purposes to be served by legal representation . . . .” Rule 1.2(a). Also, “[t]he lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Rule 1.4(b). As noted in Louisiana Professional Responsibility Law and Practice by Prof. Dane Ciolino (LSBA 2001), Louisiana's Rule 1.4(b) differs from the ABA Model Rule 1.4(b) by the addition of the final phrase: “. . . to the extent the client is willing and able to do so.” Id. at p. 56.

Reply Memorandum to Plaintiff's Opposition to the Motion to Dismiss Filed on Behalf of Harry Connick and Henry P. Julien, Jr. at 18, Truvia v. Julien, No. 04-0680 (E.D. La. June 22, 2004), 2004 WL 5493100 at *18

In his discussions of Rule 8.3(a), Professor Dane Ciolino states: “A lawyer must immediately report to the Office of Disciplinary Counsel any violation of the Rules of Professional Conduct of which the lawyer has knowledge, unless doing so would divulge privileged or confidential information.” Louisiana Professional Responsibility Law and Practice, (La. State Bar Ass'n, 2000), p. 327.

State v. Bell, 896 So. 2d 1236, 1243 (La. Ct. App. 2005)

This court has consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict. See, e.g., State v. Carmouche, 508 So.2d at 804; Franklin, 400 So.2d at 620 (“[W]e must agree with the defendant's attorney, and with the trial judge, that an actual conflict arose when the state called [counsel's former client] to the stand. [Counsel] was put in the unenviable position of trying zealously to represent the defendant at trial while simultaneously trying to protect the confidences of a former client who was testifying for the state against the defendant.”); see also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A.2001) (“As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”).

State v. Cogswell, 918 So. 2d 590, 596 (La. Ct. App. 2005)

Defendant argues that defense counsel's current business association with three civil lawyers who represented one of the victims in a civil matter filed against Defendant and the City of Lake Charles caused him to have a conflict of interest. In State v. Cisco, 01–2732, pp. 17–18 (La.12/3/03), 861 So.2d 118, 129–30, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004) (alteration in original), the supreme court stated:

This court has consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict. See, e.g., State v. Carmouche, 508 So.2d at 804; Franklin, 400 So.2d at 620 (“[W]e must agree with the defendant's attorney, and with the trial judge, that an actual conflict arose when the state called [counsel's former client] to the stand. [Counsel] was put in the unenviable position of trying zealously to represent the defendant at trial while simultaneously trying to protect the confidences of a former client who was testifying for the state against the defendant.”); see also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A.2001) (“As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”).

Original Brief of Eddie Douglas Austin, Jr. at 14, In re Austin, (La. June 12, 2006), 2006 WL at *14

Indeed, the rationale behind Rule 5.4 is that an attorney should not assist in the unauthorized practice of law; in addition, an attorney should maintain independent judgment free from the influence of a layperson. See, generally, Dane S. Ciolino, Louisiana Professional Responsibility Law and Practice, 248-250 (2004).

Memorandum in Support of Peremptory Exception of No Cause of Action at 4, Scheffler v. Adams & Reese, LLP, No. 2005-13510 (La.Civil D.Ct. Mar. 23, 2006) 2006 WL 4729779 at *4

The attorney-client relationship is a unique relationship governed by the Rules of Professional Conduct. Under those rules, “[a] client has the right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services.” ABA Model Rules of Professional Conduct, Rule 1.16, Comment 4.1

1 The Louisiana Supreme Court adopted ABA Model Rule 1.16 (a) - (c), verbatim, on January 21, 2004. Louisiana's version of Rule 1.16(d)

incorporates additional language clarifying that client files belong to clients and imposing a duty on the lawyer to return the files promptly upon written request. See Dane S. Ciolino, LOUISIANA PROFESSIONAL RESPONSIBILITY LAW & PRACTICE 149 (2004). This slight variation in the Louisiana rule does not affect a client's absolute right to terminate a lawyer at any time and for any reason.

Gener-Villar v. Adcom Group., Inc., 509 F. Supp. 2d 117, 124 (D. P.R. 2007)

On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant's claim of innocence. See 988 Acts. Senate Report No. 100–352, 1988 U.S.Code Cong. and Adm. News, p. 3706.2

2 “Federal copyright law sets forth a seemingly straightforward standard for copyright infringement: ‘[a]nyone who violates any of the exclusive rights of the copyright owner’ is liable for copyright infringement. By branding as an infringer ‘anyone’ who infringes a copyright, the Copyright Act casts a wide net that ensnares infringers of all different stripes. Indeed, the Act treats all infringers alike-from the most innocent to the most nefarious. In copyright's strict liability scheme, the infringer's faultlessness or culpability is of anomalously little relevance.” See Dane S. Ciolino, Erin A. Donelon, QUESTIONING STRICT LIABILITY IN COPYRIGHT, 54 RULR 351 (2002).

Original Brief of Plaintiffs-Appellants at 7, Smith v. PMI, Inc., No. 2007-CA-0494 (La. Ct. App. Aug. 15, 2007), 2007 WL 2477493 at *7

Notwithstanding the fact that HACKETT did not seek discharge, a §523(a) complaint was filed by WILES/FALCON alleging absolutely false facts, which have not been corrected to date.13 The same §523(a) pleading was further used before other tribunals. HACKETT reported same to Disciplinary Counsel's Office (as best he knows the facts) in his response to Complaint No. 22143 filed by HARLAN/WILES/FALCON. Same is discussed below as far as applicable.14

14 See Dane S. Ciolino, Louisiana Professional Responsibility Law & Practice (2004), p. 58, Comment 10.

State's Memorandum in Opposition to the Defendant's Motions to Recuse the District Attorney and to Disqualify Assistant District Attorneys at 12, State v. Marinello, No. 06-6329 (La. Dist. Ct. Aug. 8, 2007), 2007 WL 2571105 at *12

Of significance, “unlike the rules disqualifying a lawyer based upon conflict of interests, and unlike its Model Code predecessor, Rule 3.7 applies only to representation at trial.”14 Rule 3.7 also states that a “lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.”15

Combining the roles of advocate/witness can prejudice the tribunal, because there is a risk that the trier of fact may be confused or misled when an advocate appears at trial both as an advocate and as a witness.16

15 It is important to note that Defendant has failed to show that the specific assistant district attorneys he seeks to disqualify are “necessary” witnesses within the meaning of Rule 3.7. See, DANE S. CIOLINO, LOUISIANA PROFESSIONAL RESPONSIBILITY LAW AND PRACTICE (L.S.B.A. 2007), Annotations to Rule 3.7, p. 221, defining a necessary witness as one whose testimony is “relevant, material, and unobtainable elsewhere.” citing ABA ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT 384-85 (5th ed. 2003).

16 See, DANE S. CIOLINO, LOUISIANA PROFESSIONAL RESPONSIBILITY LAW AND PRACTICE Rule 3.7, comments 1-5 (L.S.B.A. 2007), pp. 219-220.

State ex rel. D.A., 995 So.2d 11, 21-22 (La. Ct. App. 2008)

This court has consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict. See, e.g., State v. Carmouche, 508 So.2d at 804; see also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A.2001) (“As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”).

Amador v. McDonald's Corp., No. 07–1312 (JAG), 2008 WL 5683885, at *24 (D.P.R. Dec. 5, 2008), Report and Recommendation adopted in part, rejected in part by Amador v. McDonald's Corp., 601 F. Supp. 2d 403 (D.P.R. 2009)

The Copyright provisions, by establishing a realistic floor for liability, preserve its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant's claim of innocence. See

988 Acts. Senate Report No. 100–352, 1988 U.S.Code Cong. and Adm. News, p. 3706.11

11 “Federal copyright law sets forth a seemingly straightforward standard for copyright infringement: ‘[a]nyone who violates any of the exclusive rights of the copyright owner’ is liable for copyright infringement. [FN1] By branding as an infringer “anyone” who infringes a copyright, the Copyright Act casts a wide net that ensnares infringers of all different stripes. Indeed, the Act treats all infringers alike-from the most innocent to the most nefarious. In copyright's strict liability scheme, the infringer's faultlessness or culpability is of anomalously little relevance.” See Dane S. Ciolino, Erin A. Donelon, Questioning Strict Liability in Copyright, 54 RULR 351 (2002).

Respondents' Original Brief in Support of Their Objections to the Recommendation to the Louisiana Supreme Court, Original Brief, at 32, In re Curry, 16 So.3d 1139 (La. 2008) (No. 2008-B-2557), 2008 WL 5979480 at *32

Notably, business dealings with clients are permissible so long as the attorney complies with Rule 1.8(a). The Comments to ABA Mode Rule 1.8, under present Rule 1.8, provides that, “when a lawyer acquires by contract a security interest in property other than that recovered through the lawyer's efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a).”36

36 See Ciolino, Dane S., Louisiana Professional Responsibility Law and Practice (2007), Rule 1.8, Comments to ABA Model Rule 1.8[16].

Memorandum in Support of Motion For Partial Summary Judgments at 18-19, U.S. v. Merck & Co., No. 99-3807 (E.D. La. May 23, 2008), 2008 WL 2546683 at *18-19

Pursuant to the current version of Rule 1.7, the conflict at issue is non-waivable, and therefore the purported email consent by LaCorte is of no moment. As Prof. Ciolino explained in his annotations to Rule 1.7:

Some conflicts of interest, however, cannot be resolved through the informed consent of the affected clients. A conflict is consentable only if a reasonable, disinterested lawyer would believe that the representation will not be adversely affected by potentially conflicting interests. If no reasonable lawyer would have such a belief, the conflict is considered to be “nonconsentable.” Furthermore, under paragraph (b)(3) of Louisiana Rule of Professional Conduct 1.7, a lawyer may never simultaneously represent opposing parties in

litigation. Such conflicting-interest representations are now per se nonconsentable.

Dane S. Ciolino, Louisiana Professional Responsibility Law and Practice, 79-80 (2004) (internal citations omitted, bold emphasis added).

Opposition to Motion for Summary Judgment at 18, U.S. v. Merck & Co., No. 99-3807 (E.D. La. Apr. 29, 2008), 2008 WL 2546678 at *18

Pursuant to the current version of Rule 1.7, the conflict at issue is non-waivable, and therefore the email consent by Dr. LaCorte is of no moment. As Prof. Ciolino explained in his annotations to Rule 1.7:

Some conflicts of interest, however, cannot be resolved through the informed consent of the affected clients. A conflict is consentable only if a reasonable, disinterested lawyer would believe that the representation will not be adversely affected by potentially conflicting interests. If no reasonable lawyer would have such a belief, the conflict is considered to be “nonconsentable.” Furthermore, under paragraph (b)(3) of Louisiana Rule of Professional Conduct 1.7, a lawyer may never simultaneously represent opposing parties in litigation. Such conflicting-interest representations are now per se nonconsentable.

Dane S. Ciolino, Louisiana Professional Responsibility Law and Practice, 79-80 (2004) (internal citations omitted, bold emphasis added).

Burford v. Cargill, Inc., No. 05–0283, 2009 WL 2381328, at *16 (W.D. La. July 30, 2009)

Louisiana Rule of Professional Conduct 4.2(b) provides that a lawyer shall not communicate about a case with a person the lawyer knows is “presently” an employee of a represented organization.3 This court has interpreted the rule and its predecessor versions to permit counsel to conduct ex parte interviews of former employees of a corporate or other organizational adversary, provided counsel does not attempt to discuss matters subject to attorney-client privilege. The approach is reflected in cases such as Jenkins v. Wal–Mart Stores, Inc., 956 F.Supp. 695 (W.D. La.1997). See also Dane S. Ciolino, Lawyer Ethics Reform in Perspective: A Look at the Louisiana Rules of Professional Conduct Before and after Ethics 2000, 65 La. L.Rev. 535, 581 (2005) (“As to contacting constituents of a represented organization, a lawyer is free to communicate with any former employee who is not independently represented.”).

Memorandum of Behalf of Adams and Reese, L.L.P. in Support of Motion for Partial Summary Judgment and Motion in Limine at 5, 12, Asset Funding Group, LLC v. Adams and Reese, LLP, No. 07-02965 (E.D. La. September 29, 2009), 2009 WL 3344672 at *5, *12

As pointed out by Professor Dane C. Ciolino in his book on the Rules of Professional Conduct, Louisiana's rule is identical to ABA Model Rule of Professional Conduct 1.7 (2002). Ciolino, Louisiana Professional Responsibility Law and Practice, LSBA (2007), at p. 74

However, “[a] lawyer need not inform a client or other person of facts or implications already known to the client or other person; . . . . Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.” See ABA Model Rules of Professional Conduct Rule 1.0, cmt.6; Ciolino, supra, at p. 23

Original Brief of Adams and Reese, LLP at 37, Asset Funding Group, LLC v. Adams and Reese, LLP, No. 09-30524 (5th Cir. Sept. 8, 2009), 2009 WL 4901408 at *37

Neither condition under Rule 1.7(a) existed as between A&R and AFG under the facts of this case. The 2008 Opinion of the American Bar Association was that, absent adversity, consultations between a law firm's attorneys and the law firm's in-house counsel regarding compliance with their ethical obligations and professional duties does not create a concurrent conflict of interest between the law firm and its client within the meaning of Rule 1.7.17

17 ABA Model Rule of Professional Conduct 1.7 is identical Louisiana Rule 1.7. See generally Dane S. Ciolino, La. Prof. Responsibility Law & Practice 74 (2007)

Reply Memorandum in Support of Motion to Disqualify Mr. Fransen, Mr. Hardin, and Fransen & Hardin, A.P.L.C. as Plaintiffs' Counsel at 2, Fransen v. The City of New Orleans, No. 2002-5170 (La. Civil D. Ct. Jan. 21, 2009), 2009 WL 1786456 at *2

The attorneys in this case should not be exempted from these ethical requirements. See, e.g., Dane S. Ciolino, Louisiana Professional Responsibility Law and Practice, Louisiana State Bar Association, 2007 ed., at 74-89 (Louisiana's Rule 1.7 is identical to ABA Model Rule 1.7, citing to numerous ABA and national authorities).

Original Brief of the State of Louisiana, Appellee at 28, State v. Marinello, No. KA 09-1260 (La. Ct. App. July 1, 2010), 2010 WL 2752540 at *28

Rule 3.7 of the Rules of Professional Conduct provides in pertinent part that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness,” but there is no prohibition as to participation in pre-trial proceedings.23

23 See Dane S. Ciolino, Louisiana Professional Responsibility Law and Practice (L.S.B.A. 2007), Annotations to Rule 3.7, pp. 221-223. The disqualification of a lawyer “only prohibits a lawyer from acting as an advocate at trial. The advocate-lawyer still may handle pretrial matters without being disqualified.” Id.

Respondent's (Yokum) Original Brief in “Case No. 09-DB-059” at 16, In re Yokum, 85 So.3d 645 (La. 2011) (No. 2011-B-2232), 2011 WL 7415087 at *16

Rules 1.8 and 1.7 formerly required “consultation” to obtain client consent to any conflict, not “informed consent, confirmed in writing.”11

11 See Loyola Law School Professor Dane S. Ciolino's comments in his annotation to this Rule at www.lalegalethics.org.

Reply Memorandum in Support of Motion (1) to Strike Affidavits of Robert G. Harvey and Tom McBride Submitted in Opposition to Adams and Reese, L.L.P.'s Motion for Summary Judgment and (2) to Disqualify Harvey as an Expert Witness at 3, Colonial Freight Systems, Inc. v. Adams and Reese, L L.P., No. 11-1755 (E.D. La. Apr. 10, 2012), 2012 WL 6027043 at *3

The scope of Rule 1.6 is broader than Colonial acknowledges. “A lawyer's duty of confidentiality is significantly broader than many lawyers understand. Because this rule prohibits lawyers from revealing “information relating to representation of a client,” it is not limited merely to matters communicated in confidence by the client . . . . The Louisiana Rules of Professional Conduct expressly permit disclosure only of generally-known information relating to former clients.” Dane Ciolino, La. Prof. Responsibility Law & Practice § 1.6 (2012) (available at http://lalegalethics.org/?page_ id=253).

Memorandum in Support of Motion to Establish the Protocol for File Transfer at 3, Conwill v. Greenberg Traurig, L.L.P., No. 09CV04365 (E.D. La. Jan. 11, 2011) 2011 WL 1506707 at *3

Plaintiff's demands set forth in opposing counsel's December 27 letter seek

to effectively deny Greenberg and its counsel access to its file contents. The file is unquestionably Greenberg's property. See In re Robertson, 19 So. 3d 1186, 1189 (La. 2009); Dane Ciolino, LOUISIANA PROF. RESPONSIBILITY LAW & PRACTICE § 1.16 (stating that Rule 1.16(d), as most recently revised, “clarifies that client files belong to clients, and that lawyers must promptly and unconditionally return any client files upon request.”).

Greenberg Traurig, L.L.P.'s Opposition to Conwill's Appeal of Magistrate Judge's Order Granting Motion to Establish Protocol for File Transfer at 5, Conwill v. Greenberg Traurig, L.L.P., No. 09CV04365 (E.D. La. Feb. 1, 2011), 2011 WL 1506716 at *5

At the outset, it must be emphasized that in Louisiana, the client - not its attorney - is the sole owner of the “entire file” complied during the representation. See La. Rule of Prof. Conduct 1.16(d); In re Robertson, 19 So. 3d 1186, 1189 (La. 2009); Dane Ciolino, LOUISIANA PROF. RESPONSIBILITY LAW & PRACTICE § 1.16 (stating that Rule 1.16(d), as most recently revised, “clarifies that client files belong to clients, and that lawyers must promptly and unconditionally return any client files upon request.”)

State v. Carter, 84 So.3d 499, 509 (La. 2012)

This court in State v. Kahey, 436 So.2d 475, 485 (La.1983), accepting the definition set forth in Zuck v. Alabama, 588 F.2d 436, (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), defined an actual conflict of interest as follows:

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.

See also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A.2001) (“As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”)

Supplemental Brief of Defendants/Appellees Linda S. Harang, and the Law Offices of Linda S. Harang, LLC at 9-10, Murray v. Harang, 104 So. 3d 694 (La. Ct. App. 2012) (No. 2012–CA–0384), 2012 WL 5944555 at *9-10

There is no requirement that this information be provided at any particular time, and notice may be given at any time prior to the division of the fee.9

9 See Ciolino, Dane, Louisiana Legal Ethics, www.lalegalethics.org/? page_id=250, “. . . under paragraph (e)(1), the client must agree ‘in writing’ to the ‘share of the fee each lawyer will receive . . .’ the LSBA proposed this language to permit lawyers to inform the client at any time, rather than only at the commencement of the representation as the ABA Model Rule suggests (but does not expressly provide).”

Brief of the American Bar Ass’n as Amicus Curiae in Support of Petitioner at 8, Smith v. Cain, 565 U.S. 73, 132 S. Ct. 627, 181 L. Ed. 2d 571 (2012) (No. 10-8145), 2011 WL 3739380 at *8

Louisiana, where Petitioner was convicted, was one of the first states to adopt the ABA 1908 Canons, and was “at the forefront of the wave of adoptions” of the ABA's 1969 Code of Professional Responsibility. Dane S. Ciolino, Lawyer Ethics Reform in Perspective: A Look at the Louisiana Rules of Professional Conduct Before and After Ethics 2000, 65 LA. L. Rev. 535, 539-41 (2005).

Reply Brief for Plaintiffs-Appellants at 6, 8, Marceaux v. Lafayette City-Parish Consolidated Government, 731 F.3d 488 (5th Cir. 2013) (No. 13–30332), 2013 WL 3380479 at *6, *8

Further, and even assuming arguendo that Rule 4.4 could reach a website with content postings which are facilitated by an attorney, the Rule's express language states that a lawyer does not violate the ethical canon if the lawyer has any “substantial purpose other than to embarrass, delay, or burden” the third person who is the target of the lawyer's actions.7

7 It is worthy of note that this exception is highlighted by Professor Ciolino in his annotated guide to Louisiana's Rules of Professional Conduct. See, e.g., Ciolino, Dane S., Annotated Louisiana Rules of Professional Conduct, Ann. to La. R.P.C. 4.4 (2004).

Professor Ciolino's annotated version of Rule 3.6 succinctly synthesizes these exceptions to the Rule's general prohibition against disclosure:

Whether a lawyer's statement is substantially likely to have such an effect turns on all of the circumstances including, but not limited to, the following: whether the matter is a civil or criminal proceeding; whether the finder of fact is a jury or a judge; whether the statement consists of information that was already public; and, whether the statement was made at or near the time of trial.11

11 Dane S. Ciolino, Annotated Louisiana Rules of Professional Conduct, Ann. to La. R.P.C. 3.6 (2004) . . . .

Original Brief of Respondent Madro Bandaries in Support of Objection to Recommendation to the Louisiana Supreme Court of the Louisiana Attorney Disciplinary Board at 15, In re Bandaries, Number 13-DB-010 (La. July 31, 2014), 2014 WL 5471407 at *15

Judges sometimes develop an impression of events or persons (rightly or wrongly) and decide to make an award of sanctions. Professor Ciolino, who is a leading authority on ethics, accurately states: “Lawyers who file frivolous lawsuits or otherwise make nonmeritorious claims or contentions are typically sanctioned judicially rather than through disciplinary proceedings.”

Louisiana Legal Ethics, Standards and Commentary, Edited and Annotated by Dane S. Ciolino (2013), p. 207.

Brief of Respondent at 8, In re: Randy J. Fuerst, No. 2014-B-0647, 2014 WL 7009634 (La. May 21, 2014), 2014 WL 4654516 at *8

The American Bar Association adopted Model Rule 1.8(j) in 2002, which expressly prohibits sex with a client unless the consensual relationship predated the representation. In 2004, the Louisiana Supreme Court, on recommendation of the Ethics 2000 Committee of the Louisiana State Bar Association, declined to adopt 1.8 (j) for the following reasons: (1) the court's existing case law adequately addresses the complex and variable issues associated with “unethical” sexual conduct; (2) a bright-line rule could serve as a safe harbor sheltering lawyers engaged in sexual conduct that is inappropriate, but that comports with the letter of Rule 1.8(j); and (3) there may be situations in which sexual conduct should not be treated as per se sanctionable.41

41 Dane Ciolino, Louisiana Legal Ethics Web Blog and E-Book: http:// alegalethics.org/?page id=258 . . . .

Original Brief on Behalf of Appellant at 27, State v. Kelly, No. 14-KA-0241 (La. Ct. App. Apr. 28, 2014), 2014 WL 1994421 at *27

The Louisiana Supreme Court has consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict. See, e.g., State v. Carmouche, 508 So. 2d 792 (La. 1987); State v. Franklin, 400 So. 2d 616, 620 (La. 1981) (“We must agree with the defendant's attorney, and with the trial judge, that an actual conflict arose when the state called [counsel's former client] to the stand. [Counsel] was put in the unenviable position of trying zealously to represent the defendant at trial

while simultaneously trying to protect the confidences of a former client who was testifying for the state against the defendant.”); see also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A. 2001) (“As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”).

LeLeux–Thubron v. Iberia Parish Government, No. 6:13–0852, 2015 WL 339617, at *6, *7, *9 (W.D. La. Jan. 23, 2015)

Comment 9 to ABA Model Rule 1.13 explains that the Rule, applicable to the representation of organizational clients, is equally applicable to governmental organizational clients.14

14 Rule 1.13, adopted by the Louisiana Supreme Court, is identical to Rule 1.13 of ABA Model Rule of Professional Conduct. See Louisiana Professional Responsibility Law and Practice, Louisiana State Bar Association, Edited and Annotated by Dane S. Ciolino, Background. . . .

Indeed, the Annotations to the Rule expressly state that “such joint representation is appropriate if there is no conflict of interest.” See Louisiana Professional Responsibility Law and Practice, Louisiana State Bar Association, Edited and Annotated by Dane S. Ciolino, Annotations to Rule 1.13, Multiple Representation of Organization and Constituents.

Moreover, Rule 3.7(b) expressly permits Duhe to remain in the case because any potential disqualification of Haney imposed under Rule 3.7 is not imputed to Haney's former Office. See Louisiana Professional Responsibility Law and Practice, Louisiana State Bar Association, Edited and Annotated by Dane S. Ciolino, Annotations to Rule 3.7, No Imputation; Comment 7 to ABA Model Rule 3.7 (explaining that under paragraph (b), “a lawyer is not disqualified from serving as an advocate because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph (a)”).21

21 Rule 3.7, adopted by the Louisiana Supreme Court, is identical to Rule 3.7 of ABA Model Rule of Professional Conduct. See Louisiana Professional Responsibility Law and Practice, Louisiana State Bar Association, Edited and Annotated by Dane S. Ciolino, Background.

Original Brief on Behalf of Defendant-Appellant at 9, State v. King, 186 So. 3d 264 (La. Ct. App. 2016) (No. 2015-KA-0980), 2015 WL 6511805 at *9

Ms Pasquarella previously represented Shameka Patin, a State witness in

Anthony King's case. As the Court said in Franklin, “[A]n actual conflict arose when the state called [counsel's former client] to the stand. [Counsel] was put in the unenviable position of trying zealously to represent the defendant at trial while simultaneously trying to protect the confidences of a former client who was testifying for the state against the defendant.” See also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A. 2001), “As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”

Plaintiff's Opposition to Defendants' Motion to Dismiss at 22, Zloop, Inc. v. Phelps Dunbar, L.L.P., Nos. 2:17-cv-08067-JTM-JM, 17-cv-8070 (E.D. La. Sept. 12, 2017), 2017 WL 11685772 at *22

Absent the lawyer communicating adequate information about the material risks and alternatives, informed consent cannot be given. As the most prominent Louisiana authority/commentator (and plaintiff's expert) has written:

[t]he prerequisite of informed consent to a limited representation “is required so that the client will understand the dangers that may be inherent in contracting for limited legal services.” Oklahoma Bar Ass'n v. Green, 936 P.2d 947, 955 (Okl. 1997); see also In re Maternowski, 674 N.E.2d 1287, 1291 (Ind. 1996)(“[M]eaningful consent to a limitation on the lawyer's scope of representation must be based on full, objective disclosure and unbiased advice”).

Dane S. Ciolino, Louisiana Legal Ethics, 44 (2013).

Appellant Brief at 36-37, Barkerding v. Whittaker, 263 So.3d 1170 (La. Ct. App. 2018) (No. 2018-CA-0415), 2018 WL 11453176 at *36-37

In Lomont, 172 So.3d 620, the Louisiana Supreme Court held that “fraud” sufficient to halt the running of peremption can arise simply from a lawyer's silence in the wake of an act of malpractice and, in such case, fraudulent concealment serves to prevent the running of any peremptive or prescriptive periods until the client becomes “aware of the deception.” Professor Ciolino writes:

… the Lomont decision portends a significant expansion of liability for legal malpractice in Louisiana. … In the wake of Lomont, however, the fraud' exception may [not] stop the running of peremption only in those (few) malpractice cases in which the lawyer has expressly informed the client in writing of the act of malpractice.103

Dane Ciolino, Louisiana Legal Ethics, p. 34.

Original Appellant Brief passim, Antoine v. Anding, No. CA 19-240 (La. Ct. App. May 1, 2019), 2019 WL 1986090 passim

According to Professor Dane Ciolino in his book entitled “Louisiana Legal Ethics: Standards and Commentary,” 2018, under the heading “Annotations Diligence and Zeal,” Professor Ciolino states, “This rule nominally replaces the lawyer's obligation to represent a client “zealously”-which was previously set forth in Canon 7 of the former Louisiana Code of Professional Responsibility-with an obligation to act diligently and promptly. Professor Ciolino cites, In re Hollis, 201 So.3d 891 (La. 2016) where a lawyer was found to have violated Rule 1.3 by neglecting a legal matter and allowing the client's claim prescribe. Professor Ciolino notes that, “The Louisiana Office of Disciplinary Counsel alleges violations of this rule in a significant percentage of the cases it prosecutes. A lawyer commits infractions of this rule when they negligently or intentionally ignore matters that warrant attention Such inattention may result in a matter taking an unreasonably long period of time to be resolved. See In re Schaefer, 895 So. 2d 1289 (La. 1999); see also In re Beck, 109 So. 3d 897, 905 (La. 2013); In re Roberson, 19 So.3d 1186, 2009-1353 (La. 2009) (lawyer's lack of diligence caused client's matter to be dismissed). Moreover, inattention may cause a matter to prescribe prior to the filing of suit. See, e.g., In re Broussard, 26 So. 3d 131, 132 (La. 2010); In re Williams-Bensaadat, 964 So. 2d 317 (La. 2007); In re Jackson, 842 So. 2d 359 (La. 2003); In re Thompson, 712 So. 2d 72 (La. 1998); In re Yaeger, 698 So. 2d 951 (La. 1997).” Mr. Ciolino further cites In re Bullock, 187 So. 3d 986 (La. 2016), where a lawyer was suspended because she did not file a wrongful death lawsuit to prevent claim from prescribing.”

According to Professor Dane Ciolino in his book entitled “Louisiana Legal Ethics: Standards and Commentary,” 2018, “Under paragraph ( c), a lawyer must continue to represent a client when ordered to do so by a tribunal, even though grounds exist for either mandatory or permissive withdrawal. A trial court's decision to grant or deny a motion to withdraw is a matter left to the court's sound discretion. See WSF, Inc. v. Carter, 803 So. 2d 445, 448 (La. Ct. App. 2d Cir. 2001); see also Hill v. Tanner, No. 12-369, 2012 WL 4059898 at *6 (E. D. La July 5, 2012) (denying lawyer's request to withdraw after disclosure of client's criminal activity pursuant to Rule

3.3(b)). Note that a lawyer who withdraws with permission of the tribunal under Rule 1.16 ( c) must also comply with Uniform Rule for Louisiana Courts Rule 9.13. *** Under paragraph (d), once a lawyer has decided to withdraw from an ongoing representation, the lawyer must take whatever

steps are necessary to protect the client's interests.”

. . .

As Professor Ciolino pointed out in his book -- “A lawyer who seeks to withdraw from the representation of a client involved in litigation typically must seek permission of the presiding tribunal to do so. Indeed, Louisiana Rule 1.16, governing withdrawal and termination of representation, provides that “a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.”

Brief for Ralph Oman as Amicus Curiae Supporting Respondents at 8, Rimini Street, Inc. v. Oracle USA, 586 U.S. ___, 139 S. Ct. 873, 203 L Ed. 2d 180 (2019) (No. 17-1625) 2018 WL 6716159 at *8

Expert testimony is “routine” in copyright litigation. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12:10[C] (2018); see also, e.g., Dane S. Ciolino & Erin A. Donelon, Questioning Strict Liability in Copyright, 54 Rutgers L. Rev. 351, 391 (2002) (“Expert witnesses are routinely employed by both plaintiffs and defendants, often at great expense.”); id. at 391 n.171 (collecting sources).

Appellants' Original Brief at 26-27, O'Steen v. Entergy Services, Inc., 290 So.3d 196 (La. Ct. App. 2019) (No. 2019-CA-0633), 2019 WL 13223012 at *26-27

Courts typically consider a lawyer to be a “necessary” witness if the lawyer's testimony is “relevant, material, and unobtainable elsewhere.” CIOLINO, DANE, LOUISIANA LEGAL ETHICS: STANDARDS AND COMMENTARY, ed. 2013, p. 244, quoting the ABA Annotated Model Rules of Professional Conduct 384-85 (5th ed. 2003). . . .

Here, the district court skipped voir dire altogether and impermissibly struck evidence at a pre-trial motion for summary judgment . . . . As one Louisiana ethics scholar states: “The advocate-lawyer may still handle pretrial matters without being disqualified.” CIOLINO, supra, p. 244, citing inter alia, In re Phenylpropanolamine Products Liability Litigation, No. MDL 1407, 2006 WL 2473484 (W.D. Wash. Aug. 28, 2006)(holding that Rule 3.7 “relates to testimony at trial, not at the summary judgment stage”).

Memorandum of Law in Support of Defendants' Motion to Dismiss the Third Amended Complaint at 10, Noland v. Janssen, No. 1:17-CV-05452-JPO (S.D.N.Y. May 17, 2019), 2019 WL 5857997 at *10

Indeed, Section 106A explicitly carves out “any reproduction, depiction, portrayal, or other use of a work” from being a “destruction, distortion, or

mutilation” when used “in, upon, or in any connection with” any “advertising [or] promotional ... material,” 17 U.S.C. §§ 106A(c)(3), 101(A)(ii); because “such actions do not affect the single or limited edition copy” that VARA is designed to protect.9

9 It has long been observed that “the nature of the intangible things affected by the Copyright Act ... and the nature of the tangible things affected by federal moral rights are vastly different”—“[u]nlike the Copyright Act, VARA creates rights in tangible art objects (artifacts)—not intangible, intellectual things.” Dane S. Ciolino, Rethinking the Compatibility of Moral Rights and Fair Use, 54 Wash. & Lee L. R. 33 (1997), at 53, 58 . . . .

Memorandum in Opposition to Plaintiffs' Daubert Motion to Exclude the Testimony of Charles W. Wolfram at 10, Wiener, Weiss & Madison v. Fox, No. 5:16-cv-00850-SMH-JPM (W.D. La. Apr. 1, 2019), 2019 WL 13152093 at *10

Professor Wolfram is an expert in legal ethics and professional conduct. His opinions rely heavily on the Louisiana Rules of Professional Conduct, which, in turn, are based on the ABA Rules of Professional Conduct. [See, e.g., Ex. B at ¶ 3, n. 1, n. 2]; See also DANE S. CIOLINO, LOUISIANA LEGAL ETHICS: STANDARDS AND COMMENTARY (2016); . . . .

Memorandum in Support of Motion for Partial Summary Judgment on the Applicability of Louisiana Rule of Professional Conduct 1.8(a) at 25, Wiener, Weiss & Madison v. Fox, No. 5:16-cv-00850-SMH-JPM (W.D. La. Apr. 1, 2019), 2017 WL 11668259 at *25

Here, the Firms did not take a security interest in property owned by Fox to secure their fee, further precluding the application of Rule 1.8.54

54 The Firms did perfect a special privilege pursuant to La. R.S. 9:5001 and La. R.S. 37:218, but this type of security interest is specifically sanctioned by the Louisiana Rules of Professional Conduct. See La. Rule of Professional Conduct 1.8(i); Model Rule of Professional Conduct 1.8, cmt. 16 (“[P]aragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer's fees and expenses and contracts for reasonable contingency fees”); Dane S. Ciolino, Louisiana Legal Ethics: Standard and Commentary (2016) at 116, (“Louisiana Rule 1.8(i) ... permits a lawyer to acquire a lien to secure payment of fees [citing La. 9:5001 and La. R.S. 37:218))

Bruno v. Medley, 310 So. 3d 580, 587 (La. Ct. App. 2020)

Louisiana Legal Ethics: Standards and Commentary, 20196 provides the following annotations under Rule 8.2 of the Louisiana Rules of Professional Conduct with respect to subjective and objective standards in analyzing knowledge of a judicial candidate:

The mere fact that a lawyer subjectively believes statements about a judge or judicial candidate are true will not exonerate the lawyer. In re Mire, 197 So. 3d 656 (La. 2016); In re Lee, 977 So. 2d 852 (La. 2008); In re Simon, 913 So. 2d 816, 824 (La. 2005); See La. State Bar Ass'n v. Karst, 428 So. 2d 406 (La. 1983). Indeed, a lawyer violates this rule if the lawyer has exhibited “reckless disregard” for the truth irrespective of any subjective belief that he was not speaking falsely. See La. Rules of Prof'l Conduct r. 8.2(a) (2004). This is so because the Louisiana Supreme Court has “adopted an objective standard, rather than a subjective standard, in analyzing whether a statement is ... a violation of the rule.” In re Simon, 913 So. 2d 816, 824 (La. 2005); In re Mire, 197 So. 3d 656 (La. 2016). False statements about the judiciary are arguably protected by the First Amendment if made neither knowingly nor recklessly. See Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), overruled on other grounds by Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

6 Dane S. Ciolino, Louisiana Legal Ethics, Rule 8.2. Judicial and Legal Officials (January 10, 2020), https://lalegalethics.org/louisianarules-ofprofessional-conduct/article-8-maintaining-theintegrity-of-theprofession/rule-8-2-judicial-and-legal-officials.

United States v. Young, 809 F. App’x 203, 207 (5th Cir. 2020)

Young contends that Louisiana employs an “exceptionally broad” definition of intent for aggravated assault with a firearm, so that the offense may be committed without a subjective desire to discharge the firearm, such as through the negligent discharge of a firearm. See Dane S. Ciolino, The Mental Element of Louisiana

Crimes: It Doesn’t Matter What You Think, 70 Tul. L. Rev. 855, 857 (1996) (“[G]eneral intent ... can be proved in Louisiana with evidence of mere negligence.”).

Original Brief of Appellees at 28, Wiener, Weiss & Madison v. Fox, No. 19-30688 (4th Cir Feb. 11, 2020), 2020 WL 924093 at *28

Fox suggests that the contingency fee agreement suffers from certain “material” omissions. However, the language used in the Firms' contingency fee agreement meets or exceeds that in the LSBA's model contingency fee agreement and other model fee agreements used in the state.38

38 ROA.12931 (LSBA Model Agreement: “Attorney shall receive the following percentage of the amount recovered and before the deduction of costs and expenses ... “). See also Model Lawyer-Client Contingency Fee Agreement in Dane Ciolino, Louisiana Legal Ethics at 487 (2015)(“Lawyer will handle this matter on a contingent fee basis. Lawyer's fee will be 40% of any gross recovery”) . . . .

However, courts are reluctant to disturb contingency fee agreements.74 For instance, in In re Interdiction of DeMarco, 09-1791 (La. App. 1st Cir. 4/7/10), 38 So. 3d 417, 427, the court explained . . . . Id. at 427 (citation omitted)(emphasis added).75

75 See also Whitney Bank v. NOGG, 15-1399 (La. App. 1st Cir. 6/3/16), 194 So. 3d 819, 827; Tower Credit v. McKnight, 13-2123 (La. App. 1st Cir. 11/7/14), 2014 WL 5800329; Salsbury v. Salsbury, 27,062 (La. App. 2d Cir. 6/21/95), 658 So. 2d 734, 738-39. In his treatise, Ciolino confirmed:

Courts may inquire into the reasonableness of fees as part of their inherent authority to regulate a lawyer who practices before the court. Moreover, courts retain this authority even when a fee-award is fixed by statute or contract. Courts, however, must temper their reasonableness review with restraint, especially when the parties have signed a contract which memorializes the terms of their agreed-upon relationship.

Louisiana Legal Ethics at 60-61 (2015)(citations omitted) . . . .

Lerner & Rowe Nat'l, PLLC v. Brandner, No. CV 20-3228, 2021 WL 1267791, at *4 (E.D. La. Apr. 6, 2021)

The relevant modern rule, La. R. Prof. Cond. 7.10(d), states:

A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in any jurisdiction where an office is located.

La. R. Prof. Cond. 7.10(d).25 Both versions countenance the possibility of a partnership between Louisiana attorneys and non-Louisiana attorneys. Simply put, the Court does not see the distinction the defendants see. See also Dane Ciolino, Louisiana Legal Ethics: Standards and Commentary (2020) at 375–76 (discussing the rule and citing Singer, suggesting it is still viewed as good law).

Plaintif’s Surreply to Defendants Motion to Dismiss at 2, Lerner & Rowe Nat'l, PLLC v. Brandner, No. 20-3228, (E.D. La. Mar. 15, 2021) 2021 WL 9146055, at *2

If anything, the updated rule is more permissive, because it presumes the existence of law firms composed of lawyers barred in different states. Recent commentaries to LRPC 7.10(d) also confirm that Singer is still the law. See Dane S. Ciolino, Louisiana Legal Ethics: Standards and Commentary (2020) at pp. 375-76 (stating that under LRPC Rule 7.10(d), “A firm with an office in another state may use the names of out-of-state lawyers in the firm name,” (emphasis added) . . . .

Original Brief on Behalf of Appellees Sherif K. Sakla, Stephanie C. Reuther, The Sakla Law Firm at 23, Rickerson v. Sakla, 331 So.3d 986 (La. Ct. App. 2021) (No. 2021-CC-0246), 2021 WL 9595458 at *23

When addressing these arguments, the trial court clearly delineated what it was holding, stating:

Allegations of potential violations of the rules of professional conduct or any failure to communicate in and of themselves are not sufficient to allege fraud. There must be specific intent to deceive the plaintiffs.66

In other words, even if the Saklas may have negligently relied on Smitko to communicate, there was no evidence that the Saklas did so with a specific intent to deceive the Rickersons.67

67 The Saklas did not violate Rule 1.4 as alleged and argued by the Rickersons. The Saklas (and Smitko) committed no “material error” with respect to any representation that to their knowledge required reporting to the Rickersons. Moreover, Rule 1.4 does not require an attorney to advise a client about a potential malpractice claim. See Dane Ciolino, Louisiana Legal Ethics, p. 68 (2019) (emphasis added) (quoting Formal Ethics Op. 2014-4 N.C. State Bar Assoc., Disclosing Potential Malpractice to a Client (July 17, 2015)) (“the lawyer should not address whether a legal malpractice claim may exist.”).

Phillips v. Whittington, No. 17-CV-1524, 2022 WL 3994725, at *3 (W.D. La. Aug. 31, 2022)

The exception for a prohibition based on a “personal interest of the prohibited lawyer” does not appear to be applicable. Such a “personal interest” conflict has been described as, for example, when a lawyer has a personal disdain for a client's cause. Dane S. Ciolino, Lawyer Ethics Reform in Perspective: A Look at the Louisiana Rules of Professional Conduct Before and after Ethics 2000, 65 La. L. Rev. 535, 570 (2005)

United States v. Garner, 28 F.4th 678, 683 (5th Cir. 2022)

This inquiry utilizes, in essence, an “objective approach [that] evaluates the offender's acts, not his thoughts, in light of a reasonable-person standard.”

Dane S. Ciolino, The Mental Element of Louisiana Crimes: It Doesn't Matter What You Think, 70 TUL. L. REV. 855, 872 (1996); . . . .

Matter of Andry, No. MC 15-2478, 2022 WL 17292083, at *6-7 (E.D. La. Apr. 20, 2022), aff'd in part, rev'd in part and remanded sub nom. Andry, 54 F.4th 291 (5th Cir. 2022)

Neither Andry nor the en banc court has found a case in which a Louisiana court has determined the appropriate baseline sanction for a violation of Rule 1.5(e). Andry quotes Professor Dane Ciolino in his treatise, Louisiana Legal Ethics: Standards and Commentary (2021), as saying:

When a lawyer violates Rule 1.5, the following sanctions are generally appropriate: disbarment, if the lawyer knowing violated the rule, intended to obtain a benefit for himself or another, and the lawyer's conduct caused serious or potential injury to a client, the public, or the legal system; suspension, if the lawyer knowingly violated the rule, and caused serious or potential injury; reprimand, if the lawyer negligently violated the rule, and caused injury or potential injury; and admonition, if the lawyer's conduct was an isolated instance of negligence that caused that caused little or no actual or potential injury. See Standards for Imposing Lawyer Sanctions stds. 7.0-7.4 (Am. Bar. Ass'n 1992). Reprimand is generally the appropriate sanction in most cases of a duty owed to the legal profession. See Id. Std. 7.3 cmt.86

86 Louisiana Legal Ethics: Standards and Commentary, 77 (2021).

According to Prof. Ciolino, the “baseline” sanction for a violation of

Rule 8.4(c) is a function of the person to whom the false statement is made:

The sanctions appropriate for a violation of paragraph (c) turn on the person to whom the lawyer directs the fraud, deceit or misrepresentation. If the lawyer directs such conduct toward anyone other than a client, the appropriate sanctions are the same as those which are appropriate for a violation of paragraph (b) of this rule [Rule 8].91

91 Louisiana Legal Ethics: Standards and Commentary, 396 (2021).

The false statements made by Andry were not directed to a client. Accordingly, the sanction for a violation of Rule 8.4(c) is the same as for a violation of Rule 8.4(b). Prof. Ciolino describes the baseline sanction for a violation of Rule 8.4(b) as:

The sanctions appropriate for a violation of paragraph (b) are as follows: *** suspension, when the lawyer knowingly engages in other types of criminal conduct that seriously adversely reflects on the lawyer's fitness to practice; reprimand when the lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law. 92

92 Id.

Original Brief on Behalf of Appellant Jonathan Andry at 32, 37-38, In re Andry, Misc. #15-2478 (5th Cir. June 27, 2022), 2022 WL 2391034 at *32, *37-38

In Louisiana Legal Ethics: Standards and Commentary, 2021, Professor Dane Ciolino flatly rejects the notion that the mere “appearance of impropriety” constitutes “misconduct” under Rule 8.4 of the Louisiana Rules of Professional Conduct:

“Although lawyers are often mistaken on this point, the term ‘misconduct’ clearly does not include conduct that may have the ‘appearance of impropriety.’ Indeed, that term appears neither in the Louisiana Rules of Professional Conduct, nor in the ABA Model Rules of Professional Conduct. On the contrary, the ABA has repeatedly stated that a lawyer should not be sanctioned or disqualified under such an ‘undefined,’ ‘question-begging’ standard. See ABA Comm. On Ethics and Prof'l Responsibility, Formal Op. 342 (1975).”97

97 Dane S. Ciolino, Louisiana Legal Ethics Standards and Commentary (2021), Rule 8.4, https://lalegalethics.org/louisiana-rules-of-professionalconduct/ article-8-maintaining-the-integrity-of-the-profession/rule-8-4misconduct (last visited June 23, 2022); . . . .

In Louisiana Legal Ethics: Standards and Commentary (2021)114, at page 77, Prof. Dane Ciolino writes:

When a lawyer violates Rule 1.5, the following sanctions are generally appropriate: disbarment, if the lawyer knowing violated the rule, intended to obtain a benefit for himself or another, and the lawyer's conduct caused serious or potential injury to a client, the public, or the legal system; suspension, if the lawyer knowingly violated the rule, and caused serious or potential injury; reprimand, if the lawyer negligently violated the rule, and caused injury or potential injury; and admonition, if the lawyer's conduct was an isolated instance of negligence that caused that caused little or no actual or potential injury. See Standards for Imposing Lawyer Sanctions stds. 7.0-7.4 (Am. Bar. Ass'n 1992). Reprimand is generally the appropriate sanction in most cases of a duty owed to the legal profession. See id. Std. 7.3 cmt.

114 Louisiana Legal Ethics: Standards and Commentary, Dane S. Ciolino (2021 edition).

Brief of Plaintiff Appellee, Ahern Rentals, Inc. at 3, Ahern Rntals, Inc. v. Green , No. 21-00767-CA (La. Ct. App. Apr. 4 2022), 2022 WL 1121816 at *3

The Louisiana Supreme Court, by enacting Rule 1.16(d), also knows what the word “shall” means: “[u]nder well-established rules of interpretation, the word ‘shall’ excludes the possibility of being ‘optional’ or even subject to ‘discretion,’ but instead means ‘imperative,’ of similar effect and import with the word ‘must.”’ Auricchio v. Harriston, 2020-01167 (La. 12/10/21), 332 So.3d 660, 663. As amatter of law, neither the Trial Court nor the Veron Firm had any discretion or options to deviate from complying with Rule 1.16(d)'s mandatory requirements. See, Dane Ciolino, La. Prof. Responsibility Law and Practice, §1.16 (stating that Rule 1.16(d), as most recently revised, ‘clarifies that client files belong to clients, and that lawyers must promptly and unconditionally return client files upon request.”).

Appellant's Brief at 26-27, U.S. v. Kinzy, No. 22-30169 (5th Cir. Aug. 4, 2022), 2022

WL 3282383 at *26-27

It is an “objective approach [that] evaluates the offender's acts, not his thoughts, in light of a reasonable-person standard.” Garner, 28 F.4th at 683 (quoting Dane S. Ciolino, The Mental Element of Louisiana Crimes: It Doesn't Matter What You Think, 70 TUL. L. REV. 855, 872 (1996)). “Thus, reckless or even negligent states of mind can satisfy Louisiana's general intent standard, so long as a reasonable person would know that the criminal consequences would result from the defendant's actions.” Id.

Mitchell F. Crusto, Henry F. Bonura, Jr. Distinguished Professor of Law

Brief for the Nat’l Ass’n of Criminal Def. Lawyers as Amicus Curiae in Support of Defendants-Appellees’ Petition for Rehearing En Banc at 9, U.S. v. SDI Future Health, Inc., 491 F. Supp. 2d 975 (D. Nev. 2007) (No. 2:05-CR-0078-PMP-GWF)

The panel’s opinion also greatly elevates corporate form over Fourth Amendment substance. Individuals elect to incorporate their small businesses for any one of a number of reasons. Incorporating a business offers several advantages, including limited liability, the ability to sue, perpetual life, the ability to contract, centralized management, and tax advantages. See, e.g., Falwell v. Miller, 203 F. Supp. 2d 624, 631 n.7 (W D.Va. 2002); Manley v. AmBase Corp., 121 F. Supp. 2d 758, 770 n.11 (S.D.N.Y. 2000); Mitchell F. Crusto, Green Business: Should We Revoke Corporate Charters for Environmental Violations?, 63 LA. L. REV. 175, 186 (2003)

Memorandum in Opposition to the Rule 12 Motion to Dismiss of State Farm Fire and Casualty Co. at 19, In re: Chinese Manufactured Drywall Products Liability Litigation, Nos. 2047, 10-1840 (E.D. La. Aug. 3, 2010), 2010 WL 3269562 at *19

Nowhere is this trend more evident than in the Gulf Coast Region, where in the wake of Hurricane Katrina, many citizens who believed that they had coverage for flood insurance were informed that their coverage was either insufficient, or nonexistent. Mitchell F. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harv. J. on Legis. 329,333-34 (2006).

Brief for Plaintiff-Appellant at 23, Kolbe v. BAC Home Loans Servicing, LP, 695 F.3d 111 (1st Cir., 2011) (No. 11-2030), 2011 WL 5323298 at *23

The casualty insurance industry has always viewed hazard insurance as separate and apart from flood insurance. In the early part of the twentieth century, homeowners had to buy separate insurance policies to protect each particular risk.

For example, to insure against both fire and theft, one would have to buy a fire insurance policy and a separate theft insurance policy. Mitchell F. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harvard J. on Legis. 329, 334 (2006). Beginning in the 1950's, insurance companies began offering “comprehensive hazard policies” that protected against damage from many hazards including fire, wind, theft and hail. Id. However, these policies uniformly did not provide coverage for damage caused by floods. Id. In fact, to this day, hazard insurance policies (also known as homeowners' policies) expressly exclude flood damage from coverage. See Crusto, 43 Harvard J. on Legis. at 335; . . . .

Kolbe v. BAC Home Loans Servicing, LP, 695 F.3d 111, 119 (1st Cir. 2012)

Thus, in effect, Congress found that floods were not customarily among the hazards protected by standard homeowners' insurance policies. See Mitchell F. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harv. J. on Legis. 329, 335 (2006) (“The insurance industry has generally excluded flood damage in a homeowners policy because flood insurance is not commercially viable.”); . . . .

Brief of Plaintiff-Appellant at 25, Lacroix v. U.S. Bank, No. 12-2701 (8th Cir., Sept. 7, 2012), 2012 WL 4061609 at *25

The distinction in the mortgage between hazard insurance and flood insurance makes sense, given that hazard insurance (also known as homeowner's insurance) is different from flood insurance, and covers different types of losses (e.g., losses due to fire or wind damage) . . . . Because there is no coverage for damage from flood under the homeowner's policy, both policies of insurance do not cover the same loss.”); Mitchell F. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harvard J. on Legis. 329, 334 (2006).

Plaintiff's Memorandum in Opposition to Defendant's Amended Motion to Dismiss Plaintiff's Complaint at 13, Lacroix v. U.S. Bank, No. 11CV03236 (D. Minn. Jan. 17, 2012), 2012 WL 6659419 at *13

Hazard insurance (also known as homeowner's insurance) is different from flood insurance, and covers different types of losses (e.g., losses due to fire or wind damage). As HUD explains on the same section of its website that addresses flood insurance requirements:

Question: Doesn't the homeowner property casualty insurance cover financial loss

due to flooding damage?

Answer:

Generally, homeowner and other property casualty insurance policies do not provide coverage for potential financial loss that may be caused by flooding damage.

http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/envir onment/review/qa/floodinsurance (last visited Jan 16, 2011); accord, Mitchell F. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harvard J. on Legis. 329, 334 (2006).

Kolbe v. BAC Home Loans Servicing, LP, 738 F.3d 432, 449, 480 (1st Cir. 2013)

We explain why. In the middle of the twentieth century, insurance companies began issuing comprehensive hazard insurance policies that covered against a wide variety of risks. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harv. J. on Legis. 329, 334 (2006).

Thus, in effect, Congress found that floods were not customarily among the hazards protected by standard homeowners' insurance policies. See Mitchell F. Crusto, The Katrina Fund: Repairing Breaches in Gulf Coast Insurance Levees, 43 Harv. J. on Legis. 329, 335 (2006) (“The insurance industry has generally excluded flood damage in a homeowners policy because flood insurance is not commercially viable.”); . . .

Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016)

In 1962, Paul Guihard, a reporter for a French news service, was killed by gunfire from a white mob during protests over the admission of James Meredith to the University of Mississippi.17

17 Mitchell F. Crusto, The Supreme Court's “New” Federalism: An Anti–Rights Agenda?, 16 Ga. St. U. L. Rev. 517, 572 (2000) (citations omitted).

Appellants' Brief at 25-26, Owner-Operator Independent Drivers Association, Inc. v. Wolf, No. 19-1775 (3d Cir. May 6, 2019), 2019 WL 2024769 at *25-26

Plaintiffs claimed a violation of the fundamental right of freedom of movement, not the right to migrate from one state to another.7

7 The importance of the right of freedom of movement cannot be

overestimated. Examining the right to intra-state travel, which this Circuit recognizes, Professor Mitchell F. Crusto wrote:

As a standalone issue, intra-state travel is clearly a critical constitutional issue, essential to the exercise of personal liberty and freedom. Intra-state travel is also vital to the exercise of many other constitutional rights, such as the right to vote, the right to associate, the right to exercise one's religion, the right to interstate travel, and the right to bear arms, to name a few.

Mitchell F. Crusto, Enslaved Constitution: Obstructing the Freedom to Travel, 70 U. Pitt. L. Rev. 233, 237 (2006).

Qun Lin v. Cruz, 239 A.3d 720, 739 (2020)

A sole proprietorship is a form of business that provides “complete identity of the business entity with the proprietor himself.” Bushey v. N. Assur. Co. of Am., 362 Md. 626, 637, 766 A.2d 598 (2001) (citation omitted). A business organized as such “has no legal existence apart from its owner[.]” Id. Consequently, a sole proprietor is personally liable for all debts and obligations of the sole proprietorship, whether arising out of contract or tort.17

17 A number of law review articles extol the virtues of a form of limited liability sole proprietorship to avoid these liability consequences. E.g., Mitchell F. Crusto, UNCONSCIOUS CLASSISM: ENTITY EQUALITY FOR SOLE PROPRIETORS, 11 U. PA. J. CONST. L. 215, 226 (2009).

Motion to Dismiss for Violation of Defendant's Speedy Trial Rights at 6, State v. Counterman, No. D0302020CR001644 (Colo. Dist. Ct. May 11, 2021), 2021 WL 6502801, at *6

Nothing in the Constitution permits the judiciary to limit the fundamental rights secured under the Sixth Amendment. “[T]here is only one instance in the Constitution where the government is expressly permitted to suspend a fundamental right[.]” Mitchell F. Crusto, State of Emergency: An Emergency Constitution Revisited, 61 Loy. L. Rev. 471, 504 & n. 189 (2015); (see U.S. Const. art I., § 9, cl. 2).

Motion to Allow Unrestricted Use of Hospital Peer Review Committee Information at 3, State v. Counterman, No. D0302020CR001644 (Colo. Dist. Ct. Aug. 27, 2021), 2021 WL 6502807, at *3

Nothing in the Constitution permits the judiciary to limit the fundamental rights secured under the Sixth Amendment. “[T]here is only one instance in the Constitution where the government is expressly permitted to suspend a fundamental right[.]” Mitchell F. Crusto, State of Emergency: An Emergency Constitution Revisited, 61 Loy. L. Rev. 471, 504 & n. 189 (2015); (see U.S. Const. art I., § 9, cl. 2).

Associate Professor Nikolaos A. Davrados

Wightman v. Ameritas Life Insurance Corp., 426 F. Supp. 3d 258, 269 (E.D. La. 2019)

There are two fatal flaws to Ameritas’s position. First, Ameritas ignores the well-established principle of unjust enrichment, codified in Louisiana in Article 2298 of the Louisiana Civil Code.10 Article 2298 codified long-standing Louisiana jurisprudence “that had imported the theory of action de in rem verso.” Nikolaos A. Davrados, Demystifying Enrichment Without Cause, 78 La. L. Rev. (2018).

Rodriguez v. Nevares, 2021 TSPR 107 (2021)

Asimismo, la constitución de Luisiana expresamente exige que los candidatos a la legislatura estatal residan por cierto tiempo en el estado y, además, estén realmente domiciliados en el distrito que desean representar.16 Según lo han interpretado las propias cortes del estado, su propósito está arraigado en el interés de “eliminate a system under which candidates would establish a ‘political domicile’ from which to seek office even though they chose to live and maintain their families in another area, and were not truly representative of the district from which they sought election”.17 Por consiguiente, se requiere, en primer lugar, que se demuestre la residencia, la cual debe ser cierta, no pretendida o fraudulenta.18 En segundo lugar, debe probarse el domicilio.19 En consecuencia, un aspirante a la candidatura debe ser un residente habitual y, además, estar presente físicamente y establecido de forma principal en el lugar.20

20 N. A. Davrados, Louisiana My Home Sweet Home: Decodifying Domicile, 64 Loy. L. Rev. 287, 357-59 (2018).

Appellees' Original Brief and Opposition to Application for Supervisory Writs on Behalf of Plaintiff/Appellee Dennis Gibson, Individually and on Behalf of All Others Similarly Situated at 12-13, Gibson v. National Healthcare of Leesville, Inc., Nos. 21-00369-CW & 21-00757-CA (La. Ct. App. Feb. 7, 2022), 2022 WL 502796 at *12-13

In Demystifying Enrichment Without Cause, Professor Nikolaos Davrados, stated the following in footnote 331:

Marty & Raynaud, supra note 81, No. 354. The accessory nature of the actio de in rem verso [Ed. unjust enrichment] is appealing to French and Louisiana judges because it also achieves a necessary “economy of means” in civil procedure. See Bénabent, supra note 110, No. 485. Conversely, an action for a payment of a thing not due is rightly characterized as an independent, not subsidiary, action. A good illustration of the need for this distinction can be found in the case of an enrichment ob turpem vel injustam causam.[Ed.37 ] In the case of a tort of conversion, for example, two separate causes of action can be contemplated - that of the tort itself, which is subject to a liberative prescription of one year; and that for the claim of restitution of the thing as a “thing not due,” which is subject to a ten-year prescriptive period. See La. Civ. Code Ann. art. 2299 cmt. c (2018); see also Whitten v. Monkhouse, 29 So. 2d 800, 804 (La. Ct. App. 1947); Cumis Ins. Soc'y, Inc. v. Hill, 574 F. Supp. 174 (M.D. La. 1983).38

38 Nikolaos A. Davrados, Demystifying Enrichment Without Cause, 78 La. L. Rev. 1223, 1288 (2018).

Lloyd L. Drury, III, McGlinchey Stafford Distinguished Professor of Law

Brief for Amicus Curiae Better Markets, Inc., in Support of Petitioner at 13, New England Teamsters and Trucking Industry Pension Fund v. Sun Capital Partners III, LP, No. 20-155 (U.S. Sept. 14, 2020), 2020 WL 5578822 at *13

Similarly, as noted above, once a private equity fund takes over the operations of the target company, it will typically pay itself a management fee, ensuring itself a stream of income at the expense of the company it is operating. Lloyd L. Drury, III, Publicly-Held Private Equity Firms and the Rejection of Law As A Governance Device, 16 U. PA. J. BUS. L. 57, 90 (2013).

Robert A. Garda, Jr., Fanny Edith Winn Distinguished Professor of Law

Mr. And Mrs. I v. Maine School Administrative District No. 55, 416 F. Supp. 2d 147 passim (D. Maine 2006)

The School District denied the request. Instead, the School District offered accommodations under Section 504 of the Rehabilitation Act (“ § 504”), 29 U.S.C. § 794 (2000).1

1 A number of factors may affect a school district's or a parent's judgment as to which statute is more desirable including funding, identification and scope of services, and the sometime stigma of special education. See

Robert A. Garda, Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Education Act, 69 Mo. L.Rev. 443–47 (2004).

Federal regulations do not define the phrase “adversely affects . . . educational performance.” Instead, “each State [gives] substance to these terms.”

J D. ex rel. J D. v. pawlet sch. Dist., 224 F.3d 60, 66 (2d Cir.2000); . . . see generally Garda, supra, at 465–86.

The Maine special education regulation nowhere limits that concern to academic impact. As one academic commentator has observed more generally:

[N]eed for special education can exist in any area of educational performance adversely affected by the disability, not just academics . . . . [For example,] attendance and behavior are educational performance that must be addressed despite good academic performance. They are not merely means to the end of academic achievement, but are themselves educational ends.

Garda, supra, at 498–99.

Neither the federal statute and regulations nor the Maine statute and regulations define “adversely affects.” . . . At least one academic commentator has agreed, and has also suggested that “[d]ecision-makers adding a qualifier to adverse effect are engaging in inappropriate judicial lawmaking . . .” Garda, supra, at 485 (citing, inter alia, Cedar Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 77, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999)).

Neither the federal statute and regulations nor the Maine statute and regulations define the term “need.” The caselaw is exceedingly murky on what the term means.13 See Garda, supra, at 491–512

Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 passim (1st Cir. 2007)

Indeed, “there is nothing in IDEA or its legislative history that supports the conclusion that . . . ‘educational performance’ is limited only to performance that is graded.” See Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 471 (2003).

So a finding that a child meets the first criterion because his or her disability adversely affects educational performance—to whatever degree—does not itself entitle the child to special education and related services under the IDEA. See

Mark C. Weber, Special Education Law and Litigation Treatise § 2.2(1), at 2:4 (2d ed.2002); Garda, supra, at 490–91.

. . .

In this way, the regulation sensibly demands that a disability cannot qualify a child for IDEA benefits unless it has a negative effect on educational performance; no effect, or a positive one, will not do.15

15 The “adversely affects” test also serves an additional function: ensuring that it is the “enumerated disability, and not other factors” that impacts educational performance. See Garda, supra, at 486.

The former inquiry considers the effect of special education on the child's overall achievement in school, while the latter focuses on the effect of special education on the components of that achievement hampered by the child's disability. See Garda, supra, at 498–99 (positing “which of the child's performance areas must need special education?” as a crucial question in developing the test for IDEA eligibility under § 1401(3)(A)(ii)).

The questions of whether such a child “needs special education” under a proper interpretation of § 1401(3)(A)(ii)—and how to articulate that interpretation in the first instance—have generated a cacophony of different answers. See Garda, supra, at 491–507 (surveying divergent authority).

Susquehanna Twp. Sch. Dist. v. Christini, No. 1:04-CV-0057, 2007 WL 9773741, at *10 (M.D. Pa. May 2, 2007)

Whether A.H. satisfied the second eligibility criterion – a need for special education and related services – is less clear from the record. Subsumed within the second eligibility requirement are three discrete inquiries: (1) is there a “need?”; (2) is there a need for “special education?”; and (3) is there a need for “related services?” See Robert A. Garda, Jr. & Robert T. Stafford, Who is Eligible Under the Individuals with Disabilities Education Improvement Act, 35 J. L. & Educ. 291, 306 (2006). If, and only if, all three are answered in the affirmative is a child eligible under the IDEA as a “child with a disability.” Id.

R.C. v. York School Dept., No. 07-177-P-S, 2008 WL 4427194 at *46, *51-52 (D. Me. Sept. 25, 2008)

Yet there is material difference between requiring demonstration of skills and behaviors in school in the hope that they will be generalized to other contexts, see, e.g., Mr. and Mrs. I, 416 F. Supp.2d at 158 n.4 (describing Maine’s aspirational guiding principles) . . . see also, e.g., Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities

Education Act, 69 Mo. L.Rev. 441, 479 (2004) (“Garda”) (noting that, while schools typically track behavior, “the poor behavior must occur in-school, as out-of-school behaviors such as those relating to parent/child relationships are typically not tracked by schools and not covered in the curriculum . . . . The only exception [for purposes of assessing adverse effect on educational performance] should be when the out-of-school behavior affects an area of educational performance, such as completing homework or attending school.”)

A child could have some minor adverse effect and still be doing quite well in school academically, behaviorally, and functionally. That child would not need special education to benefit[.]” District Brief at 42 (footnote omitted); see also, e.g., Garda at 490 (“[A] child that achieves a B+ in math instead of an A because of a disability fulfills the ‘adversely affects' requirement but does not ‘need’ special education, even if special education would help. Determining that a child's disability adversely affects educational performance simply does not answer the question of whether the child needs special education.”) (footnote omitted). . . .

Whatever the extent and scope of her needs generally, she did not need special education to benefit from the education offered her in public school. See Katherine S. v. Umbach, No. CIV.A. 00-T-982-E, 2002 WL 226697, at * 10 (M.D.Ala. Feb.1, 2002) (child did not need special education when she attended school regularly, had friends, participated in extracurricular activities, had slipping, but still passing, grades in accelerated courses, and her behavior problems and family conflict experienced at home were not reflected in her behavior in school); Garda at 511 (“[T] he free appropriate public education standard applied to eligible children supports finding that children passing yet performing poorly need special education. This standard appropriately eliminates average and above average performers from eligibility, an outcome that already finds virtually unanimous support from courts and hearing officers. Children able to compensate for their disability so that their educational performance (e.g., grades, attendance, behavior) is average to above average should not be eligible.”).

Joint Brief and Required Short Appendix of Plaintiff-Appellants at 38, Loch v. Board of Education of Edwardsville Community School District 7, 327 F. App’x 647 (7th Cir. 2009) (No. 08-3073), 2008 WL 5788105 at *38

The former inquiry considers the effect of special education on the child's academic achievement in school, while the later focuses on the effect of special education services on the components of educational performance hampered by the child's disability See Robert A. Garda, Jr. “ Untangling Eligibility

Requirements under the Individual with Disabilities Education Act,” 69 Mo. L. Rev. at 498-99 (2004) (posting “which of the child's [educational] performance areas must need special education?” as a crucial test for IDEA eligibility under § 1401(3)(A)(ii). A child may “do well in school” without special education, and progress academically, but may nevertheless perform below acceptable levels in other areas, such as behavior, social and emotional development, etc. In re Monrovia Unified Sch. Dist., 38 Inds. With Disabilities Educ. L. Reptr. (LRP Publ'ns) 84, at 342-43 (Cal. State Educ. Agency Nov. 27, 2002) found a student to “require special education to address social, behavioral, and written expression needs” despite “good academic work”).

Complaint at 9, M.M. v. Gov. of D.C., 607 F. Supp. 2d 168 (D.D.C. 2009) (No. 07CV02316), 2007 WL 4759662 at *9

The benefits available under the IDEIA are not relegated solely to the purview of academic progress; on the contrary, the “need for special education can exist in any area of educational performance adversely affected by the disability, not just academics . . . attendance and behavior are educational performance that must be addressed despite good academic performance.” Mr and Mrs. I v. Main Sch. Admin. District, 416 F.Supp.2d 147, 159 (D. Me., 2006), quoting Robert A. Garda, Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Education Act, 69 Mo. L.Rev. 443-47 (2004) at 498-499

D.R. ex rel. Courtney R. v. Antelope Valley Union High School Dist., 746 F. Supp. 2d 1132, 1142-1143 (C.D. Cal. 2010)

When a child's needs can be adequately addressed through non-special educational services, the student is not eligible for IDEA. See Hood, 486 F.3d at 1110 (holding that a California student was not eligible for IDEA because she can be accommodated in a general classroom); Robert A. Garda, Who Is Eligible Under the Individuals with Disabilities Education Improvement Act?, 35 J.L. & Educ. 291, 308 n. 73 (2006) (citing Ludington Sch. Dist., 35 IDELR 137, 140 (Mich. SEA 2001) . . . .

The factual record shows that Plaintiff's needs were being met through modifications like extra time between classes and to turn in work, an extra set of textbooks, and permission to sit on a chair rather than the floor. ( See Jennifer R. Decl. ¶ 4; D.R. Decl. ¶ 16.) These were not special, individualized instructions; the modifications therefore cannot constitute special education. See Garda, 35 J.L. & Educ. at 324–25 nn. 131–33 (citing Arlington Cent. Sch. Dist., 35 IDELR 205 (N.Y. SEA 2001) (finding that a child who needed more time to complete

assignments did not need special education); . . . ).

Reply Brief of Appellants at 5-6, Durrell v. Lower Merion School District, 729 F.3d 248 (3d Cir 2013) (No. 12-3264), 2013 WL 523723 at *5-6

In “What Color is Special Education?”, Sarah Redfield and Theresa Kraft, 41 J.L. & Educ. 129 (2012), the authors traced repeated national studies that have concluded African-American children have been overidentified as having disabilities and incorrectly placed in special education, as well as Congress's reaction to that problem from the beginning of the IDEA to the most recent revision in 2004. Notably, two years after S.H. was wrongly designated as having a disability, Robert A. Garda, Jr., The New Idea: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071 (2005), succinctly explained the problem:

Since the landmark decision of Brown v. Board of Education mandated desegregation in public schools, African-American students have been resegregated within public schools through their over-placement in special education classes. . . . African-American students are identified as disabled under the IDEA in numbers that so exceed their proportion in the general population that the Department of Education considers it a “national problem” and experts proclaim it a “crisis.”

Brief of Appellants at 27-28, A.D. and R.D. v. Haddon Heights Board of Education, No. 15-1804 (3d Cir. July 27, 2015), 2015 WL 4592114 at *27-28

Specifically, evaluations must demonstrate that the child has “[intellectual disability], a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities” and, because of the disability, needs special education and related services. 34 C.F.R. § 300.8. “These apparently simple provisions are in fact among the most complex requirements of IDEA.” Robert A. Garda, Jr. and Robert Stafford, Who is Eligible Under the Individuals with Disabilities Education Improvement Act, 35 J.L. & Educ. 291, 292 (2006).

Unlike 504/ADA, which explicitly provide broad coverage, the IDEA protects a child only if he (1) is diagnosed with an enumerated disability that (2) adversely affects educational performance, and (3) by reason thereof needs special education.” Garda and Stafford, supra, at 294. “Children who need

only the minor modifications available to all should not be identified as needing “special education.” Rather, only significant adaptations in instructional content, unavailable to all other children irrespective of disability, should be considered ‘special education.’ ” Id. at 332.

Motion of Amicus Nat’l School Boards Ass’n for Leave to File Proposed Brief in Support of Appellee and Urging Affirmance at 7, 16, D.A. and J.A. v. Meridian Joint School Dist. No. 2, 618 F. App’x 891 (9th Cir. 2015) (No. 14-35081), 2014 WL 5427750 at *7, *16

Although a child may be diagnosed with a particular disability and may even experience some effects of that disability in the educational setting, he is not eligible for services under the IDEA unless that disability creates an adverse impact on the student's educational performance and the student needs special education to benefit from his or her education. See 20 U.S.C. § 1401(3)(A)(i)-(ii) (2014); see also Robert A. Garda, Jr., Untangling Eligibility Requirements

Under the Individuals with Disabilities Education Act, 69 MO. L. REV. 441, 458 (2004) (“A disability is not qualifying and eligibility does not attach, despite a medical diagnosis, unless the disability ‘adversely affects a child's educational performance.’ ”).

Instead, a student's individual needs may be better served through accommodations provided under Section 504 of the Rehabilitation Act of 1973. See Robert A. Garda Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 ALA. L. REV. 1071, 1101 (Summer 2005) (“Not all services provided by schools to disabled students are special education. A child with cystic fibrosis may need respiratory therapy, a child with spina bifida may need catheterization services, and a child with diabetes may need monitoring of meals, but these services are not special education, and these children are not eligible under the IDEA. . . Rather, these children typically receive services under Section 504 of the Rehabilitation Act of 1973, a nondiscrimination statute that works in tandem with the IDEA.”).

Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 91 (1st Cir. 2016)

That is to say, even a child, like Jane, who is performing well above average according to grades and standardized test results, may be able to show a need for special education, if she can demonstrate a social or behavioral problem that hinders her ability to benefit from the educational experience in school.17 See West Chester Area Sch. Dist. v. Bruce & Suzanne C. ex rel. Chad C., 194 F.Supp.2d 417, 420 (E.D. Pa. 2002) . . . see also Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities Act, 69 Mo. L. Rev. 441, 499 (2004) (observing that “attendance and behavior

are educational performance that must be addressed despite good academic performance” under the need inquiry because “[t]hey are not merely means to the end of academic achievement, but are themselves educational ends”).

Brief of the National School Boards Ass’n, Texas Ass’n of School Boards Legal Assistance Fund, American Ass’n of School Adm’rs, American School Counselors Ass’n, Ass’n of School Business Officials Int’l, Nat’l Ass’n of Secondary School Principals, and PDK Int’l as amici curiae in Support of Respondents at 10, Fisher v. University of Texas at Austin, 579 U.S. 365, 136 S. Ct. 2198, 195 L. Ed. 2d 511 (2016) (No. 14-981), 2015 WL 6774019 at *10

These educational benefits do not accrue to the students alone. Rather, diversity in schools is essential to prepare students to meet the needs of twenty-first century employers. “Global business and homegrown firms alike demand workers that can relate to, understand, and engage people from all walks of life and from diverse backgrounds.” Coleman, Achieving Educational Excellence for All, at 5. Many of the nation's economic sectors require that workers have the problem-solving and interpersonal skills that are enhanced by education in diverse environments.4

4 See Conference Bd. et al., Are They Really Ready to Work? Employers' Perspectives on the Basic Knowledge and Applied Skills of New Entrants to the 21st Century U.S. Workforce 49 (2006) (placing ability to handle diversity and to participate in teamwork and collaboration as two of the top five work-related skills expected to increase in importance over the next five years); Robert A. Garda, The White Interest in School Integration, 63 Fla. L. Rev. 599, 630-43 (2011) (describing ways in which employers favor students who have developed cross-cultural competence enhanced by education in schools with diverse student bodies)

Brief of Amici Curiae Education Law Center and the Constitutional and Education Law Scholars in Support of Plaintiffs-Petitioners passim, Cruz-Guzman v. State, 892 N.W.2d 533 (Minn. Ct. App. 2017), 2017 WL 7550720 passim

Simultaneously, increasing globalization requires American businesses, and in turn American employees, to interact more frequently with people of different cultures and ethnicities. See Robert A. Garda, Jr., The White Interest in School Integration, 63 Fla. L. Rev. 599, 602 (2011).

Generally, throughout the country, white, black, and Hispanic students attend schools where their race is the majority of the student body See Garda, The White Interest in School Integration, at 613. Moreover, most of the 16,000

school districts in the country are greater than ninety percent white or ninety percent minority. Id. . .

Children educated in an integrated environment are also less likely to harbor racial bias, and therefore more likely to lead integrated lives as adults. “The more contact between races, the more likely people of different races will become friends and shed harmful stereotypes, biases, and prejudices.”

Garda, The White Interest in School Integration, at 626. Importantly, researchers agree that primary and secondary education is the “critical time to expose children to different races and ethnicities” because “the attitudes children develop early on can become entrenched, life-long beliefs.” Id. Teaching racial tolerance to older students, even college-age students, is difficult because they can already be locked into racialized thinking. Id.

To succeed in employment, it is imperative that children develop the skills to function effectively in diverse workplaces. Garda, The White Interest in School Integration, at 631. The consensus among both large and small businesses is that whites educated in integrated environments will be more productive and effective employees than those educated in segregated environments. Id. This consensus is reflected in that over eighty-nine major corporations, including General Motors, filed briefs in Grutter v. Bollinger supporting University of Michigan's affirmative action program. See Garda, The White Interest in School Integration, at 631. Similarly, in Parents Involved, “entities representing more than 2,800 companies filed briefs supporting voluntary integration” in public elementary and secondary schools. Garda, The White Interest in School Integration, at 631.

Employers in today's economy are also seeking a workforce that has cross-cultural competence and the ability to market products to a multi-cultural consumer base. Id. at 632. Lawyers, doctors, and virtually all vocations dependent on clients similarly require individuals to identify, understand, and address the needs of a diverse client base. Id. at 636. And increased globalization requires employees to be able to interact with racial and ethnic groups outside the United States. Id. at 641. Multiracial education is a strong indicator of cross-cultural competence and adaptability to different cultures. Id. at 642. Individuals who have engaged these skills with one culture will be better able to understand and interact with other cultures. Id.

Contemporary employees also need to work more productively with their own colleagues in a diverse workplace. Id. at 636. These cross-cultural competency skills are best learned through attending integrated schools. Id. at 631. Learning in a racially diverse environment makes it “more likely that people will bring fewer racial and ethnic stereotypes into the workplace, and will work more productively with other members of [our] diverse nation.” Brief of 553 Social Scientists at 24a. Other means of building interracial competency, such as

diversity training, are not nearly as effective as direct contact with people of different races and ethnicities. See Garda, The White Interest in School Integration, at 628. Similarly, these skills cannot be as effectively passed down from parents to children and parents cannot assume that their anti-prejudice teachings will help their children overcome implicit racial biases or teach them cross-cultural competence. Id. at 629

Brief of Appellant M.G. at 41, In the Matter of M.G. v. Williamson County Schools, No. 17-5300 (6th Cir. May 12, 2017), 2017 WL 2131580 at *41

In Who is Eligible under the Individuals with Disabilities Education Improvement Act?, 35 J L & EDUC. 104.1, 317--18 (2006), Vermont Senator Robert Stafford, the co-sponsor of the IDEA, explains both the “general rule,” and the “major exception” on the issue of provision of related services under IDEA:

But this general rule has a major exception: states are permitted to include any of the enumerated “related services” that are also “special education” within their definition of “special education.” . . . .

(emphasis added); see also Robert A. Garda, Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality In Special Education, 56 ALA. L. REV. 1071, 1105 (2005) (listing Tennessee as an example of a state whose definition of “special education” is broader because it includes related services)

Brief of Appellant Leander Independent School District at 44, Lisa M. v. Leander Independent School District, Defendant-Appellant., No. 18-50160 (5th Cir. May 14, 2018), 2018 WL 2722732 at *44

Moreover, while a student's disability may adversely affect a student's educational performance, that inquiry is separate and apart from whether the student “needs” specially designed instruction.48 As the district court in R.C. explained,

Nonetheless, even assuming arguendo that J.C.'s condition adversely affects her educational performance, the [SEHO] correctly held her ineligible because she did not need special education. As the [school district] reasons, “The ‘adverse effect’ and ‘need for special education’ prongs are independent of each other. A [student] could have some minor adverse effect and still be doing quite well in school academically, behaviorally, and functionally. That child would not need special education to benefit[.]”49

49 R.C., 2008 WL 4427194, at *30. The district court went on to cite a law review article further explaining the differentiation: “[A] child that achieves a B+ in math instead of an A because of a disability fulfills the ‘adversely affects' requirement but does not ‘need’ special education, even if special education would help. Determining that a child's disability adversely affects educational performance simply does not answer the question of whether the [student] needs special education.” Id. (quoting Robert A. Garda, Jr., Untangling Eligibility Requirements

Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 490 (2004))

Lisa M. v. Leander Independent School District, 924 F.3d 205, 216 (5th Cir. 2019)

“[N]either the IDEA nor federal regulations” define what it means to “need” special education and related services. J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000). See also Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 491 (2004) (noting that the “IDEA and its regulations provide no clues whatsoever to the definition of ‘need,’ ” and describing a “barren” legislative history on the matter).

Heather H. v. Northwest Independent School District, 529 F Supp. 3d 636, 662 (E.D. Tex. 2021)

Further to this point, the record is not, as Plaintiffs contend, replete with behavioral concerns or demonstrations of anxiety at the time of the completion of the FIE; . . . there is no indicia that, at the time of the FIE, P.H. was exhibiting the symptoms and behaviors set forth in the IDEA disability category of ED [AR 697, 717-18, 721, 730-33, 750, 768, 787-88, 881].15

15 To the extent Plaintiffs rely on P.H.’s behavior outside of school to support their view of the required scope of evaluation, their arguments fall short of making a persuasive case that the scope of the FIE must be judged with reference to P.H.’s misconduct or behaviors occurring outside of school. See, e.g., Robert A. Garda, Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 479 (2004) (discussing out-of-school behavior); Escambia Cty. Bd. of Educ. v. Benton, 406 F. Supp. 2d 1248, 1265 (S.D. Ala. 2005) . . . .

E.G. v. Castro Valley Unified School District, No. 19-CV-06691-JCS, 2021 WL 4339200, at *9 (N.D. Cal. Sept. 23, 2021)

The plaintiff in McIntyre had asked her school to: “(1) provide an alternative, quiet location to take exams, (2) provide extra time to complete exams, and (3) comply with an emergency health protocol.” Id. at 914. In the Ninth Circuit's view, “[t]hese accommodations cannot be construed as ‘special education,’ because they do not provide ‘specially designed instruction.’ ” Id. (quoting 20 U.S.C. § 1401(29)) (emphasis added in McIntyre). In a long string citation, the panel elaborated on the meaning of “special education”:

See 34 C.F.R. § 300.39(b)(3) (“Specially designed instruction means adapting ... the content, methodology, or delivery of instruction....”); Fry, 137 S. Ct. at 755 (“[T]he [IDEA's] goal is to provide each child with meaningful access to education by offering individualized instruction....”); “Instruction,” Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/instruction (“[T]he act of teaching someone how to do something.”); see also Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 486–87 (2004) (“[N]ot all services provided by schools to disabled students are special education. A child with Attention Deficit Disorder (“ADD”) may need preferential seating and the use of a word processor, but not special education.” (citations omitted)); . . . .

N.G. v. E.L. Haynes Pub. Charter Sch., No. 20-CV-1807-TJK-ZMF, 2021 WL 3507557, at *12 (D.D.C. July 30, 2021)

“Need for special education can exist in any area of educational performance adversely affected by the disability, not just academics.... [For example,] ... behavior [is an] educational performance that must be addressed ... [and is itself an] educational end[ ].” Mr. I. v. Me. Sch. Admin. Dist. 55, 416 F. Supp. 2d 147, 159 (D. Me. 2006) (quoting Robert A. Garda Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 498–99 (2004)).

Brief for Amicus Curiae Council of Parent Attorneys and Advocates, Inc. in Support of Respondents at 7, CVS Pharmacy, Inc. v. Doe, No. 20-1374 (U.S. Oct. 29, 2021), 2021 WL 5137945 at *7

By contrast to Section 504, IDEA includes a more particularized definition of “child with a disability” for the purposes of its protections. To be eligible under IDEA, a student must meet a two-pronged eligibility test: first, the student must

have one of thirteen enumerated conditions, and, second, because of the disability, the student must need special education and related services. 20 U.S.C. § 1401(3); 34 C.F.R. § 300.8. “These apparently simple provisions are in fact among the most complex requirements of IDEA.” Robert A. Garda, Jr. & Robert Stafford, Who is Eligible Under the Individuals with Disabilities Education Improvement Act, 35 J.L. & Educ. 291, 292 (2006).

Brief for Amici Curiae Council of Parent Attorneys and Advocates, Inc. and the Education Law Center in Support of Plaintiff-Appellant at 9, Lejeune G.,v. Khepera Charter School, 779 F App’x 984 (3d Cir. 2019) (No. 18-3157), 2019 WL 268410 at *9

Pennsylvania made the choice to allow charter schools to exist as independent LEAs within the Commonwealth.5

5 State law governs the “creation, oversight, legal status, and governance of charter schools.” Robert A. Garda, Jr., Culture Clash: Special Education in Charter Schools, 90 N.C. L. Rev. 654, 706 (2012), available at http://bit.ly/gardacultureclash. This creates a risk that charter schools will be unable to meet their obligations under IDEA. Garda, 90 N.C. L. Rev. at 694 (“Every major study conducted on charter schools . . . concludes that charter schools that are linked with a special education infrastructure better serve disabled students”).

Brief of Amici Curiae Lawyers' Committee for Civil Rights Under Law and Constitutional and Education Scholars in Support of Appellants The Education Law Center at 10, In re Renewal Application of Robert Treat Academy Charter School, 252 A.3d 1008 (N.J. 2020), 2020 WL 12969082 at *10

Importantly, researchers agree that primary and secondary education is the “critical time to expose children to different races and ethnicities” because “the racial attitudes children develop early on can become entrenched, life-long beliefs.” Robert A. Garda, Jr., The White Interest in School Integration, 63 Fla. L. Rev. 599, 626 (2011) Once students reach college, though diversity experiences can continue to shape one's attitudes, it tends to be more difficult because they may be locked into racialized thinking. Id.

Brief of Amici Curiae American Civil Liberties Union Foundation, American Civil Liberties Union of Massachusetts, Inc., Lawyers' Committee for Civil Rights Under Law, and National Coalition on School Diversity in Support of Defendants-Appellees at 11, Boston Parent Coalition for Academic Excellence Corp. v. The School Committee of the City of Boston, Nos. 22-1144, 21-1303 (1st Cir. Sept. 9, 2022), 2022 WL 6376133 at *11

Students learning in diverse environments thus experience “a dramatic decrease in

discriminatory attitudes and prejudices,” which increases their likelihood of living in diverse neighborhoods, emerging with greater intellectual self-confidence, and enhancing their own leadership skills.11 These benefits of diversity begin in K-12 schools and “flow in all directions--to white and middle-class students as well as to minority and low-income pupils.”12 The timing of exposure is particularly important as primary and secondary education is a “critical time” and “the racial attitudes children develop early on can become entrenched, life-long beliefs.”13

13 Robert A. Garda, Jr., The White Interest in School Integration, 63 Fla. L. Rev. 599, 626 (2011).

Brief of Amici Curiae National Coalition for School Diversity, Poverty & Race Research Action Counsel, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Virginia, Lawyers' Committee for Civil Rights, and Washington Lawyers' Committee for Civil Rights in Support of Defendant - Appellant at 8-9, Coalition for T.J. v. Fairfax County School Board, No. 22-1280 (4th Cir., May 13, 2022), 2022 WL 1568312 at *8-9

Primary and secondary education is a particularly “critical time” because “the racial attitudes children develop early on can become entrenched, lifelong beliefs.” 4

4 Robert A. Garda, Jr., The White Interest in School Integration, 63 Fla. L. Rev. 599, 626 (2011).

Bobby Marzine Harges, Adams & Reese Distinguished Professor of Law

Taylor v. Gen. Motors Corp., No. 1:96CV179-B-A, 1996 WL 671648, at *2-3 (N.D. Miss. Aug. 6, 1996)

That intention is made clearer when the court addresses the question of what the Bill actually did to products liability law in Mississippi. Essentially, the legislature codified the existing common law of strict liability in tort as presented in the Restatement (Second) of Torts § 402A. See Bobby M. Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697 (1994); . . . . The legislature also made certain changes to that existing law. Harges, supra at 708 et seq

O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 533 (Miss. Ct. App. 2000)

Again, notwithstanding this procedural bar, the “state of the art” instruction considered with other jury instructions did not misguide the jurors. Both O'Flynn and Hatten and OCF argue as to what is the applicable state of

the art standard to a manufacturer in a failure to warn theory of strict liability. The term “state of the art” is appropriate to a design defect not a failure to warn products liability cause of action. See Phillip L. McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 MISS. C.L.REV. 277, 279-82 (1997); Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 MISS. L.J. 697, 715-16 (1994);

Original Brief of Appellant Cooper Tire & Rubber Co. at 11, Cooper Tire & Rubber Co. v. Tuckier, No. 00-CA-00404 (Miss. Sept. 27, 2000), 2000 WL 34429685 at *11

A product is defective under § 11-1-63(a)(i)(1) if the manufacturer failed “to conform its product to the standards it has chosen to impose upon itself.” Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L. J. 697, 717 (1994). Evidence of the manufacturer's specifications for the product (or proof of the construction of “otherwise identical units manufactured to the same manufacturing specifications”) is necessary because the specifications serve as the standard against which the construction of each unit of the product is measured . . . . And, as with any other theory of strict liability, the defendant's negligence or fault is irrelevant to proof of a manufacturing defect. The plaintiff is “relieved of proving that the defect occurred through the defendant's negligence or other fault.” Harges, at 717-18.

Brief of Appellee, Trudys Tuckier, Individually, and as Administratrix of the Estate of Laura Dawn Tuckier, Deceased, and as Representative of the Wrongful Death Beneficiaries at 7, Cooper Tire & Rubber Co. v. Tuckier, No. 00-CA-00404 (Miss. Jan. 22, 2001), 2001 WL 34643448 at *7

Cooper argues that its negligence is irrelevant as proof of a manufacturing defect. Bobby Marzine Harges, An Evaluation of the MS Products Liability Act of 1993, 63 Miss. L.J. 697, 717 (1994) (appellant's brief, p. 11).

Smith v. Mack Trucks, Inc., 819 So. 2d 1258, 1265-66 (Miss. 2002)

This suggests a bifurcated approach for determining whether a product is defective in design and unreasonably dangerous. One commentator has agreed, stating that:

Section 1(b) relieves a manufacturer of liability for harm caused by an inherent characteristic of the product if, but only if, (1) such aspect of the product cannot be eliminated without compromising the product's usefulness or desirability, and (2) the harm-causing inherent

characteristic is one that would be recognized by the ordinary person with the ordinary knowledge common to the community.

Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 715 (1994) quoting William Liston, Products Liability in Mississippi After the Enactment of House Bill 1270: The People's Perspective 26, a paper delivered for Mississippi Bar Summer School for Lawyers in Biloxi, Mississippi (July 19, 1993) (available at Mississippi Bar Center, Jackson, Mississippi).

Class Action Plaintiffs' Reply to Defendant Gsk's Second Response to Plaintiffs' Motion for Class Certification at 21, In re Paxil Litigation, 218 F.R.D. 242 (C.D. Cal. 2003) (No.: CV-01-07937 MRP (CWx)), 2002 WL 32983896 at *21

Further, nothing in the MPLA evinces any legislative intent to abrogate a statutory cause of action for breach of express warranty based upon Mississippi Code Ann. § 75-2-313 which adopts the U.C.C. See Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L. J. 697, 727 (1994).

U.S. v. Conn, 297 F.3d 548, 556 (7th Cir. 2002)

Of particular help in the present case are those situations in which trial courts have admitted the testimony of law enforcement officers about the modus operandi of narcotics dealers. See, e.g., United States v. Ortega, 150 F.3d 937, 943 (8th Cir.1998). Our circuit has permitted regularly such an approach. See United States v. Doe, 149 F.3d 634, 636-38 (7th Cir.1998); United States v. Hubbard, 61 F.3d 1261, 1274-75 (7th Cir.1995); United States v. Lipscomb, 14 F.3d 1236, 1239, 1242 (7th Cir.1994); see also Walter G. Amstutz & Bobby Marzine Harges, Evolution of Controversy: The Daubert Dilemma: The Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. to Expert Testimony of Law Enforcement Officers in Narcotics Related Cases, 23 U. Haw. L.Rev. 67, 100-07 (2000) . . . .

Lane v. R.J. Reynolds Tobacco Co., 853 So.2d 1144, 1147-48 (Miss. 2003)

Generally, to recover in a products liability action based on a design defect, plaintiffs must prove that at the time the product left the control of the manufacturer or seller: (1) the product was designed in a defective manner; (2) the defective condition rendered the product unreasonably dangerous to the user or consumer; and (3) the defective and unreasonably dangerous condition of the product was the proximate cause of plaintiff's damages.

Bobby Marzine Harges, An Evaluation of the Mississippi Products liability Act of 1993, 63 Miss. L.J. 697, 712 (1994) (paraphrasing Miss.Code Ann. § 11-1-63 (1993)).

In the past, the Court has used the accompanying comment, specifically comment i, for guidance. Id.; See also, Harges, supra at 713.

State v. Murrell, No. W2001-02279-CCA-R3-CD, 2003 WL 21644591 at *6 (Tenn. Crim. App. July 2, 2003)

It appears that most courts that have considered the question of whether police officers may testify to the habits of drug dealers have concluded that they may do so if they are qualified through experience, or other means, to testify as an expert witness under the federal and state counterparts to Tennessee Rule of Evidence 702. See Walter G. Amstutz & Bobby Marzine Harges, Evolution of Controversy: The Daubert Dilemma: The Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. to Expert Testimony of Law Enforcement Officers in Narcotics Related Cases, 23 U. Haw. L.Rev. 67, 100-07 (2000) . . . .

State v. Robinson, 874 So.2d 66, 77 (La. 2004)

However, in addition to evidence of gunshot residue on defendant's clothing, the state also presented DNA evidence which linked defendant to the scene of the murders.3

3 In State v. Foret, this Court adopted the Daubert requirement . . . . One of the scientific methodologies that is challenged most in Louisiana courts is the analysis of deoxyribonucleic acid (DNA). Bobby M. Harges, An Analysis of Expert Testimony in Louisiana State Courts After State v. Foret and Independent Fire Insurance Co. v. Sunbeam Corporation., 49 Loy. L.Rev. 79, 98 (2003). In State v. Quatrevingt, 93–1644 (La.2/28/96), 670 So.2d 197, this Court applied the Daubert factors to hold that DNA profiling is sufficiently reliable to cross the admissibility threshold as long as the trial court performs its gate-keeping functions. Harges, 49 Loy. L.Rev. at 99. As a result of the Quatrevingt decision, the use of DNA evidence to establish the identity of a defendant as an offender has become well-recognized in Louisiana. Id.

James E. Anderson, Et al., Complaint Plaintiffs' Brief in Opposition to Mississippi Retailer Defendants' Motion to Dismiss at 6, 7, In re Phenylpropanolamine (PPA) Products Liability Litigation, No. CV03-2739 (W.D. Wash. June 28, 2004), 2004 WL 2974811 at *6, *7

In granting the motion to remand, the Bridgestone/Firestone court followed, to the letter, the citations of authority and arguments set forth above, thus demonstrating that the Mississippi Retailer Defendants should not be dismissed:

In their responses to the plaintiffs' motions for remand . . . . However, the defendants neglect to acknowledge the Mississippi Products Liability Act of 1993. enacted several years after the Reeves decision, which provides for product liability actions against both manufacturers and sellers. See Miss.Code Ann. § 11-1-63 (1999); see also Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 768 (1994) (“The Mississippi Products Liability Act of 1993 effectively overrules the Shainberg decision.”)

Additionally, this Court should look to the Mississippi Law Journal article: Prof. Bobby Marzine Harges, An Evaluation of the Mississippi Pro ducts Liability Act of 1993, 63 MISS. L. JOURN. 697, 765-69 (1994) (pertinent pages attached as Exhibit C).

As Professor Harges concludes, when discussing the 1993 enacted Mississippi Code § 11-1-63:

Hence, it is clear that a plaintiff in a products liability action in Mississippi may not only seek recovery against the manufacturer of the product but against anyone in the distribution chain, including the wholesaler, distributor or retailer of the product. This is true even if the wholesaler, distributor or retailer of the product is a mere conduit in the distribution chain. If the injured party recovers against such wholesaler, distributor or retailer, that party's remedy is seek indemnification from the manufacturer for the cost of litigation including any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact, hi order to seek indemnity against the manufacturer, such wholesaler, distributor or retailer must notify the manufacturer within thirty days of the filing of the complaint against it. Thus, subsection (g) of the Mississippi Products Liability Act brings Mississippi in compliance with the view adopted by the majority of states. This view is consistent with the spirit of strict liability in tort.

Id. at 768-69 (emphases added).

Kenneth Davis, Et al., Complaint Plaintiffs Brief in Opposition to Mississippi Retailer Defendant's Motion to Dismiss at 6,7, In re Phenylpropanolamine (PPA) Products Liability Litigation, No. CV03-2742 (W.D. Wash. June 28, 2004), 2004 WL 2974827 at *6, *7

In granting the motion to remand, the Bridgestone/Firestone court followed, to the letter, the citations of authority and arguments set forth previously in the

instant motion to remand, thus demonstrating that the instant case should be remanded:

In their responses to the plaintiffs' motions for remand . . . . However, the defendants neglect to acknowledge the Mississippi Products Liability Act of 1993. enacted several years after the Reeves decision, which provides for product liability actions against both manufacturers and sellers. See Miss.Code Ann. § 11-1-63 (1999); see also Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 768 (1994) (“The Mississippi Products Liability Act of 1993 effectively overrules the Shainberg decision.”)

Additionally, this Court should look to the Mississippi Law Journal article: Prof. Bobby Marzine Harges, An Evaluation of the Mississippi Pro ducts Liability Act of 1993, 63 MISS. L. JOURN. 697, 765-69 (1994) (pertinent pages attached as Exhibit C).

As Professor Harges concludes, when discussing the 1993 enacted Mississippi Code § 11-1-63:

Hence, it is clear that a plaintiff in a products liability action in Mississippi may not only seek recovery against the manufacturer of the product but against anyone in the distribution chain, including the wholesaler, distributor or retailer of the product. This is true even if the wholesaler, distributor or retailer of the product is a mere conduit in the distribution chain. If the injured party recovers against such wholesaler, distributor or retailer, that party's remedy is seek indemnification from the manufacturer for the cost of litigation including any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact, hi order to seek indemnity against the manufacturer, such wholesaler, distributor or retailer must notify the manufacturer within thirty days of the filing of the complaint against it. Thus, subsection (g) of the Mississippi Products Liability Act brings Mississippi in compliance with the view adopted by the majority of states. This view is consistent with the spirit of strict liability in tort.

Id. at 768-69 (emphases added).

Plaintiff's Brief in Opposition to Mississippi Retailer Defendants' Motion to Dismiss at 6, 7, In re Phenylpropanolamine (PPA) Products Liability Litigation, No. CV03-2739 (W.D. Wash. June 28, 2004), 2004 WL 2974811 at *6, *7

In granting the motion to remand, the Bridgestone/Firestone court followed, to the letter, the citations of authority and arguments set forth above, thus demonstrating that the Mississippi Retailer Defendants should not be dismissed:

In their responses to the plaintiffs' motions for remand . . . . However, the defendants neglect to acknowledge the Mississippi Products Liability Act of 1993. enacted several years after the Reeves decision, which provides for product liability actions against both manufacturers and sellers. See Miss.Code Ann. § 11-1-63 (1999); see also Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 768 (1994) (“The Mississippi Products Liability Act of 1993 effectively overrules the Shainberg decision.”)

Additionally, this Court should look to the Mississippi Law Journal article: Prof. Bobby Marzine Harges, An Evaluation of the Mississippi Pro ducts Liability Act of 1993, 63 MISS. L. JOURN. 697, 765-69 (1994) (pertinent pages attached as Exhibit C).

As Professor Harges concludes, when discussing the 1993 enacted Mississippi Code § 11-1-63:

Hence, it is clear that a plaintiff in a products liability action in Mississippi may not only seek recovery against the manufacturer of the product but against anyone in the distribution chain, including the wholesaler, distributor or retailer of the product. This is true even if the wholesaler, distributor or retailer of the product is a mere conduit in the distribution chain. If the injured party recovers against such wholesaler, distributor or retailer, that party's remedy is seek indemnification from the manufacturer for the cost of litigation including any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact, hi order to seek indemnity against the manufacturer, such wholesaler, distributor or retailer must notify the manufacturer within thirty days of the filing of the complaint against it. Thus, subsection (g) of the Mississippi Products Liability Act brings Mississippi in compliance with the view adopted by the majority of states. This view is consistent with the spirit of strict liability in tort.

Id. at 768-69 (emphases added).

Plaintiffs' Motion to Remand and Supporting Memorandum of Law passim, Campbell v. Bayer Corp., No. 2:03-CV-00040-WAP-EMB (N.D. Miss. Nov. 03, 2005), 2005 WL 3490346 passim

Professor Mclntosh was not alone in his appraisal of the MPLA. This Court should also look to the Mississippi Law Journal article: Prof. Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L. JOURN. 697, 765-69 (1994). Attached as Exhibit “C” to the Motion for Remand for the Court's ready reference is a copy of a Mississippi Law Journal article entitled “AN EVALUATION OF THE MISSISSIPPI PRODUCT LIABILITY ACT OF 1993” (63 MLJ 697, et seq.). This article has been cited as authoritative and persuasive by Federal District Judges in the State of Mississippi. See, e.g., Taylor v. General Motors. No. 1: 96CV179-B-A(1996 WL671648 (N.D. Miss.)) (Judge Biggers). (A copy of Judge Biggers' opinion is attached as Exhibit “D”).

When discussing the 1993 enacted Mississippi Code § 11 -1-63, Professor Harges concludes;

Hence, it is clear that a plaintiff in a products liability action in Mississippi may not only seek recovery against the manufacturer of the product but against anyone in the distribution chain, including the wholesaler, distributor or retailer of the product. This is true even if the wholesaler, distributor or retailer of the product is a mere conduit in the distribution chain. If the injured party recovers against such wholesaler, distributor or retailer, that party's remedy is seek indemnification from the manufacturer for the cost of litigation including any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact. In order to seek indemnity against the manufacturer, such who lesaler, distributor or retailer must notify the manufacturer within thirty days of the filing of the complaint against it. Thus, subsection (g) of the Mississippi Products Liability Act brings Mississippi in compliance with the view adopted by the majority of states. This view is consistent with the spirit of strict liability in tort.

Id. at 768-69 (emphases added).

In granting the motion to remand, the Bridgestone/Firestone court followed, to the letter, the citations of authority and arguments set forth previously in the instant motion to remand, thus demonstrating that the instant case should be remanded:

In their responses to the plaintiffs' motions for remand . . . . However, the defendants neglect to acknowledge the Mississippi Products Liability Act of 1993. enacted several years after the Reeves decision, which provides for product liability actions against both manufacturers and sellers. See Miss.Code Ann. § 11-1-63 (1999); see also Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 768 (1994) (“The Mississippi Products Liability Act of 1993 effectively overrules the Shainberg decision.”)

By asserting the 402A elements contained in § 11-1-63 (a), the Plaintiffs asserted a prima facie strict liability case against the retailer defendants. See Cooper Tire and Rubber Co. v. Tuckier, 826 So.2d 679,682-83 (Miss. 2002); see also Mississippi Model Jury Instruction, Civil (2003) § § 17:2 (strict liabilitydesign defect) and 17:4 (strict liability - failure to warn) (asserting 402A elements and present no element pertaining to retailer knowledge and citing both Professor Harges' article and Professor Mclntosh's article).

Plaintiffs' Responses to Defendant Ford Motor Company's Omnibus Motion in Limine at 59, Love v. Ford Motor Co., No. 1:03CV638-D-D (N.D. Miss Jan. 9, 2006), 2006 WL 509885 at *59

Prior to the adoption of the MPLA, Mississippi imposed liability for failure to warn based on Restatement (Second) of Torts § 388. Swan v. I.P.,613 So.2d 846 (Miss. 1993); O'Flynn v. Owens Corning Fiberglass, 759 So.2d 526 (Miss. App. 2000) quoting Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 715-16 (1994);(“[t]he negligence theory is derived from section 388 of the Restatement (Second) of Torts”)

Appellee's Opposition to the Motion for Rehearing at 1, R.J. Reynolds Tobacco Co. v. King, No. 04-IA-01170-SCT (Miss. Sept. 6, 2005), 2005 WL 4122762 at *1

Third, the Legislature merely codified Mississippi's products liability jurisprudence as it existed at the time § 11-1-63 was adopted. See Bobby M. Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697 (1994).

Brief of Appellants at 17, In re Phenylpropanolamine (PPA) Products Liability Litigation, No. 04-35875 (9th Cir. Mar. 2, 2005), 2005 WL 925816 at *17

This indemnity would be an empty gesture if the plaintiff were required to prove that the retailer knew or should have known of the defect, as Prof. Mclntosh observes:

The indemnity provision of the Act allowing sellers to seek indemnity from manufacturers seems to support the view favoring expanded liability for sellers. One could argue that the existence of the indemnity provision implies an intent of the legislature to hold sellers vicariously liable for the defects created by the manufacturer. Since sellers are entitled to claim indemnity unless the seller is at fault, strict liability may be inferred in cases where the seller is not at fault and the plaintiff otherwise has a valid claim.

Tort Reform, 17 Miss. C.L. Rev at 314. Accord, Prof. Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 MIss. L. J. 697, 768-69 (1994).

Memorandum of Law in Support of Defendant's Motion in Limine to Restrict Testimony of Detective Simmons to Limits of Admissible Evidence and for Voir Dire at 6, U.S. v. Jadlowe, 534 F. Supp. 2d 217 (D. Mass. 2008) (No. 05-10306-RGS.), 2008 WL 6601061 at *6

While Jadlowe does not contend that all expert or opinion evidence regarding the operations of a drug conspiracy is inadmissible, and indeed the holdings in reported cases run the gamut,3 . . . .

3 See, e.g., Walter Amstutz, Bobby Harges, “Evolution of Controversy: The Daubert Dilema: The Application of Daubert v. Merrell Dow Pharmaceuticals Inc. to Expert Testimony of Law Enforcement Officers in Narcotics-Related Cases,” 23 U. Haw. L. Rev. 67 (2000).

Memorandum in Opposition to Defendant's Motion in Limine to Exclude Documents

Prepared By Guideone's Adjuster, Greg Baker at 3, First Apostolic Church of Moss Bluff, Inc. v. Guideone Specialty Mutual Insurance Co., No. 207CV02007 (W. D. La. Apr. 15, 2009) 2009 WL 1623864 at *3

“Further, actual compromise or settlement negotiations must be present, and the offer or acceptance of the compromise offer or statements made must occur during the compromise negotiations. A statement of a party's position on an issue that is not intended to be a compromise or settlement offer is not excluded by the Article.” See Author Comments, Bobby Marzine Harges & Russell L. Jones, L. Prac. Evidence Art. 408 (2008 ed.).

Plaintiff's Motion for Summary Judgment and Memorandum of Facts and Law in Support of the Motion at 15, Kortum v. Sink, No. 2009CA003926 (Fla. Cir. Ct. Dec. 15, 2009), 2009 WL 8631978 at *15

Florida laws are considered among the most “long, detailed, and complex” state regulations of the profession. See, Bobby Marzine Harges, Disaster Mediations in Mississippi, 77 Miss. L.J. 761, 776 (2008).

Defendant's Reply Brief in Support of His Motion for a Judgment of Acquittal, to Vacate the Conviction and Dismiss the Indictment, or for a New Trial at 13, U.S. v. Kozlowski, 647 F. Supp. 2d 1045 (W.D. Wis. 2009) (2009 WL 3794652), 2009 WL 3794652 at *13

As the Seventh Circuit has made abundantly clear, however, a court must not permit a law enforcement witness who has not been disclosed to the defense as an expert to cross the line from lay to expert testimony. Oriedo, 498 F.3d at 602-03; see generally Walter G. Amstutz & Bobby Marzine Harges, Evolution of Controversy: The Daubert Dilemma: The Application of Daubert v. Merrell Dow Pharmaceuticals Inc. to Expert Testimony of Law Enforcement Officers in Narcotics Related Cases, 23 U. Haw. L. Rev. 67, 86-88 (2000) (discussing the common practice by some courts of misapplying Rule 701 to expert testimony by law enforcement officers).

Finch v. ATC/Vancom Management Services Ltd. Partnership, 33 So.3d 215, 219 (La. Ct. App. 2010)

In his brief to this Court, Finch suggests that “commentators to La. C.E. art. 804 state that a witness is unavailable if he resides out of state.” Finch cites to a treatise on Louisiana evidence, which provides “[l]egal unavailability of a witness may come about because of illness (both mental and physical), physical infirmity, residence outside the state, or loss of memory.” See BOBBY MARZINE HARGES AND RUSSELL L. JONES, LOUISIANA PRACTICE; LOUISIANA EVIDENCE § 804.

Finally, several legal commentators suggest that Finch's argument is erroneous. The treatise on Louisiana evidence cited by Finch states unequivocally “[i]n the case of an absent witness, the offering party must demonstrate that he exercised due diligence in attempting to procure the presence of the witness” before the witness can be considered unavailable. See BOBBY MARZINE HARGES AND RUSSELL L. JONES, LOUISIANA PRACTICE; LOUISIANA EVIDENCE § 804.

Brief of Plaintiff-Appellant at 7, Finch v. ATC/Vancom Management Services Ltd. Partnership, 33 So.3d 215 (La. Ct. App. 2010) (No. 09-CA-483), 2009 WL 2574835 at *7

Because Mr. Davis is outside the subpoena power of the trial court, Plaintiff could not procure his appearance through process. Thus, Mr. Davis was unavailable for trial testimony under La.C.E. art. 804.1

1The commentators to La.C.E. art 804 state that a witness is unavailable if he resides out of state. See Louisiana Evidence; Harges, Bobby and Jones, Russell L.; 4th Edition, pg 319.

State v. Henry, 102 So.3d 1016, 1022 (La. Ct. App., 2012)

Summarizing the jurisprudence addressing the lack of a temporal limit on sex crimes admissible under Article 412.2, a commentator states:

The legislature did not address a temporal limitation for sex crimes in Article 412.2. Under current Louisiana jurisprudence, the acts that are admissible under Article 412.2 could occur prior to or subsequent to the charged crime. Moreover, the courts have not set a limit on the number of years a sex crime could have occurred before or after the charged crime. The age of the prior sex crime is a consideration for the trial judge when he does the 403 balancing test to determine whether the prior crime should be admitted. However, it is only one factor to be considered and prior sex crimes that occurred several years earlier have not been excluded because of the length of time.

Bobby Harges & Russell Jones, LA. PRAC. EVIDENCE, Art. 412.2, n. 28 (2012 ed.) (citing State v. Buckenberger, 07–1422 (La.App. 1 Cir. 2/8/08), 984 So.2d 751; and State v. Willis, 05–218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365).

Reply Brief for Defendant-Appellant Moses Torres at 11-12, The People of the State of New York v. Torres, 951 N.Y.S.2d 522 (N.Y. App. Div. 2012) (No. 4892/05, 8195), 2012 WL 13029429 at *11-12

If the Supreme Court sitting in review of a Louisiana trial court's Batson ruling twelve years after the fact is not limited to the facts and arguments made by counsel at trial, neither is this Court. See also Bobby Marzine Harges, Batson Challenges in Criminal Cases: After Snyder v. Louisiana, is Substantial Deference to the Trial Judge Still Required?, 19 B.U. Pub. Int. L.J. 193, 222 (2010) . . . .

Brief of Defendants-Appellees at 26, Lashley v. Pfizer, Inc., No. 12-60861 (5th Cir. Feb. 27, 2013), 2013 WL 874852 at *26

To be clear, that is a reason for dismissing the claims against the brand-name manufacturers, not a basis for recognizing them by excluding them from the MPLA. Lashley’s claims are all governed (and barred) by the MPLA.10

10 The legislative history of the MPLA confirms the Act’s plain text. The MPLA simply codified existing Mississippi law. See Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 772 (1994).

Appellants’ Brief at 34, Elliott v. City of Holly Springs, Nos. 2013-IA-01338, 2013-CA-01173 (Miss. June 30, 2014), 2013 WL 10823828 at *34

Under Mississippi law, victims of defective products with inadequate warnings may bring negligence actions - separate and apart from claims under the MPLA - against the responsible parties, although courts have applied what is essentially a negligence analysis in MPLA failure to warn cases. O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 534-35 (Miss. Ct. App. 2000). The Mississippi Court of Appeals has approvingly quoted a law journal article for the proposition that:

In order to recover in a failure to warn cause of action, the plaintiff has to prove that the manufacturer or seller knew or had reason to know of the hazard or risk associated with the product about which it failed to warn. In proving the foregoing, the plaintiff is in effect proving that the defendant was negligent in its failure to warn. Hence, even though the cause of action for failure to warn could be based on negligence or strict liability in tort, the two theories, while conceptually different, often merge into a single breach of duty.

Id. (citing Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 MISS. L.J. 697, 718-19 (1994)).

Appellants' Reply Brief at 22, Elliott v. El Paso Corp., Nos. 2013-CA-01173, 2013-IA-01338 (Miss. Nov. 24, 2014) 2014 WL 10050421 at *22

Hence, even though the cause of action for failure to warn could be based on negligence or strict liability in tort, the two theories, while conceptually different, often merge into a single breach of duty See O'Flynn, 759 So. 2d at 534-35 (citing Bobby Marzine Harges, An Evaluation of the. Mississippi Products Liability Act of 1993, 63 MISS. L.J. 697, 718-19 (1994))

Original Brief of the State of Louisiana, Appellee at 9, State of Louisiana In the Interest of K.M., 146 So.3d 865 (La. Ct. App. 2014) (No. 2014-CA-0306 ), 2014 WL 2106549 at *9

Stated another way, while prior inconsistent statements can be used to attack credibility under La. C.E. art. 607(D)(2), they are also admissible for their assertive value pursuant to La. C.E. art. 801(D)(1)(a), provided they meet the broad definition of non-hearsay statements.22

22 State v. Wells, 10-1338, p. 6 (La. App. 4 Cir. 3/30/11), 64 So.3d 303, 307; State v. Rankin, 42,412, p.7 (La. App. 2 Cir. 9/19/07), 965 So.2d 946, 950 (citing George W. Pugh et al., Handbook on Louisiana Evidence Law, pp. 484, authors' note no. 9 to La. C.E. art. 607 and pp. 560-561, authors' note 3 to La. C.E. art. 801 (2007)); Bobby Marzine Harges and Russell L. Jones, La. Prac. Evidence. Art. 801, Authors' Comment to La. C.E. art. 801(D)(1)(a) (2013 ed.).

Appellees' Brief at 57, Tri-State Meter v. Elliott, Nos. 2013-CA-01173, 2013-IA-01338 (Miss. Oct. 3, 2014), 2014 WL 10050420 at *57

Under Mississippi law, victims of defective products with inadequate warnings may bring negligence actions - separate and apart from claims under the MPLA - against the responsible parties, although courts have applied what is essentially a negligence analysis in MPLA failure to warn cases. O'Flynn v. Owens-Corning Fiberglas, 759 So.2d 526, 534-35 (Miss. Ct. App. 2000). The Mississippi Court of Appeals has approvingly quoted a law journal article for the proposition that:

In order to recover in a failure to warn cause of action, the plaintiff has to prove that the manufacturer or seller knew or had reason to know of the hazard or risk associated with the product about which it failed to warn. In proving the foregoing, the plaintiff is in effect proving that the defendant was negligent in its failure to warn. Hence, even though the cause of action for failure to warn could be based on negligence or strict liability in tort, the two theories, while conceptually different, often merge into a single breach of duty.

Id. (citing Bobby Marzine Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 MISS. L.J. 697, 718-19 (1994)).

Elliott v. El Paso Corp., 181 So.3d 263, 268 (Miss. 2015)

The Court of Appeals in O'Flynn specifically stated that “[s]ince O'Flynn and Hatten filed their complaints before [the MPLA became law], the Mississippi

Products Liability Act is inapplicable.”17 The Court of Appeals—applying pre-MPLA law-explained that a products-liability suit “ ‘may be based on the theory of negligence or strict liability in tort.’” 18

18 Id. at 535 (quoting Bobby Marzie Harges, An Evaluation of the Mississippi Products Liability Act of 1993, 63 Miss. L.J. 697, 718–19 (1994)).

Reply Brief for Petitioner at 5, Henry v. Louisiana, 147 So.3d 1143 (La. Ct. App. 2014) (No. 2013–KA–0059), 2015 WL 5935387 at *5

The recent denials of certiorari by the Louisiana Supreme Court in this case and in State v. Lee reaffirm the categorical exclusion of this type of evidence.3 Henry, 164 So.3d at 831 (“Expert testimony regarding eyewitness identification is inadmissible.…”) (Clark, J., concurring); Lee, 169 So.3d 350, 350-51 (La. 2015) (same) (Clark, J., concurring and Crichton, J., concurring).4 It is therefore no surprise that Respondent cites no post-Young cases in which an eyewitness expert was admitted and not later rejected by the appellate courts. There are none.5

5 Courts outside Louisiana, treatises, and academic literature have recognized Louisiana's categorical ban. E.g., State v. Carr, 331 P.3d 544, 689 (Kan. 2014); Commonwealth v. Walker, 92 A.3d 766, 775 (Pa. 2014); Bobby Marzine Harges & Russell L. Jones, La. Prac. Evid. Art. 702, Cmt. (2015); . . . .

Opposition to Defendant's Motion in Limine at 7, Seale v. Liberty Mutual Fire Insurance Co., No. 2014-1513 (La. Dist. Ct. Dec. 8, 2015), 2015 WL 13273380 at *7

A small amount of unfair prejudice is not sufficient for the court to properly determine that relevant probative evidence should be excluded. Rather, the burden is that it “substantially” outweigh the probative value. As Professor of Law Bobby Harges states, “For evidence to be excluded under the Article the policy reason for rejection must substantially outweigh its probative value. Because the threshold for excluding evidence under the Article is high, it will admit prejudicial evidence more often than it will exclude it.”5

5Harges La. Prac. Evidence Art. 403 (2015 ed.)

State v. White, 261 So. 3d 763, 763 (2019)

Commentators have opined that additional wording of the Louisiana Constitution appears to require greater protections to an accused:

With the language “confront and cross-examine,” the Louisiana

confrontation clause is broader than its federal counterpart and grants arguably greater protections to a criminal defendant. Consequently, the right to cross-examination should be more meaningful to defendants in criminal trials in Louisiana. However, Louisiana courts have not construed the state confrontation clause as granting more rights than the federal one.

BOBBY MARZINE HARGES AND RUSSEL L. JONES, LOUISIANA EVIDENCE, APPENDIX A, p. 417 (2018 ed.).

Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc., and Ten Civil Rights Litigating Organizations in Support of Respondents at 19, Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171 (U.S. Sept. 30, 2019), 2019 WL 4858286 at *19

The Court's longstanding efforts to eradicate racial discrimination in the exercise of peremptory challenges are also instructive. In Batson v. Kentucky, 476 U.S. 79, 98 (1986), the Court recognized that facially race-neutral preemptory challenges “create a cloak for possible discrimination.”5

5 Bobby Marzine Harges, Batson Challenges in Criminal Cases: After Snyder v. Louisiana, Is Substantial Deference to the Trial Judge Still Required?, 19 B.U. Pub. Int. L.J. 193, 193-194 (2010)

Opening Brief of Appellants Doe 378 and Doe 840 at 30-31, Does 1 Through 976 v. Chiquita Brands International, No. 19-13926-C (S.D. Fla. Mar. 4, 2020), 2020 WL 1130253 at *30-31

After Daubert, some wondered whether a previously qualified expert, whose methodology or technique hasn't necessarily been tested or subjected to peer review, doesn't necessarily have a known or potential rate of error, or generally has no standards controlling its operation, would now be precluded from testifying as an expert. See Walter G. Amstutz & Bobby Marzine Harges, Evolution of Controversy: The Daubert Dilemma: The Application of Daubert v. Merrell Dow Pharmaceuticals Inc. to Expert Testimony of Law Enforcement Officers in Narcotics-Related Cases, 23 U. HAW. L. REV. 67 (2000).

State v. Evans, 298 So. 3d 394, 403 (La Ct. App. 2020)

Further, as it pertains to sex crimes evidence under La. C.E. art. 412.2, the legislature has not addressed a temporal limitation for sex crimes in La. C.E. art. 412.2. It is only one factor to be considered and prior sex crimes that occurred several years earlier have not been excluded because of the length of time. Bobby

Harges & Russell Jones, LA. PRAC. EVIDENCE, Art. 412.2 (2019 ed.)

Yepez v. Yepez, 2021-0477, 340 So.3d 36, 39 (La. Ct. App. 2021)

La. R.S. 46:236.5C provides that an expedited process may be implemented for the establishment of paternity and the establishment and enforcement of support and other related family and domestic matters in district courts using hearing officers.3

3 Prior to 2003, domestic hearing officers were authorized by La. R.S 46:236.5 to hear only paternity cases brought by the State of Louisiana, support, and support-related matters. La. Acts 2003, No. 964, § 1, broadened the scope of the use of domestic hearing officers to include all “domestic and family matters.” See La. R.S.46:236.5C(1); Bobby Marzine Harges, Appropriate Dispute Resolution Inside the State Courts - A Closer Look at the Power, Duties, and Responsibilities of Court Commissioners and Hearing Officers in Domestic Cases, 9 Loy. J. Pub. Int. L. 1, 29 n.142 (2007)

Brief of Amici Curiae Texas Ass’n of Public Insurance Adjusters in Support of Petitioners at 5, Texas Department of Insurance v. Stonewater Roofing, Ltd., No. 07-21-00016-CV (Tex. Dec. 6, 2022), 2022 WL 17736124 at *5

The ability to “negotiate” or “effect” the settlement of a property damage claim with an insurance company once formerly solely fell within the province of a lawyer. With the passage of Chapter 4102, the Texas legislature, together with the Texas Department of Insurance, carefully crafted licensing laws and regulations that would allow the resolution of damage claims without the need of legal intervention while protecting the insured public though strict oversight, financial responsibility, education, and ethical constraints. 10

10 Considering the thousands, if not hundreds of thousands, of insureds that may be affected by catastrophic storms and in light of the use of adjusters by insurance companies to administer claims, Texas had and has a compelling interest to enable and protect its citizens by allowing licensed professionals without conflicts of interest to act on behalf of insureds so that claims can be resolved efficiently, inexpensively, and fairly. For a thorough discussion of the compelling interests in passing legislation to regulate the profession of public insurance adjusting, see Bobby Marzine Harges, Disaster Mediations in Mississippi: the Influx of Public Adjusters into Mississippi after Hurricane Katrina Compels the Mississippi Legislature to Enact the Mississippi Public Adjuster Act, 77 Mississippi L. J. 761 (Spring 2008).

Madeleine Landrieu, Dean and Judge Adrian G. Duplantier Distinguished Professor of Law

Brief of Appellee Riverway Harbor Service St. Louis, Inc. at 9, In re Complaint of Riverway Harbor Service St. Louis, Inc., Webber v. Riverway Harbor Service St. Louis, Inc., No. 00-1415 (8th Cir. May 11, 2000), 2000 WL 35494404 at *9

The Limitation of Liability Act (now 46 U.S.C. §§ 181 et seq.) was passed in 1851 as a response to complaints that American shipowners were at a competitive disadvantage relative to English shipowners who had the benefit of such a statute since 1734. M. Landrieu, “Stipulations: Sidestepping the Limitation of Shipowners' Liability Act,” 23 Tulane Maritime Law Journal 429, 430-31 (1999). The purpose of the Act was to encourage the development of American shipping by providing a mechanism by which shipowners could avoid a bankrupting loss caused by a disaster at sea.

In re Ingram Barge Co., 419 F. Supp. 2d 885, 889 (S.D. W. Va. 2006)

Although neither the Supreme Court nor the Fourth Circuit has addressed whether limitation plaintiffs can be adequately protected by stipulations in multiple-claimant-inadequate-fund situations, the circuits that have ruled on this issue have uniformly acknowledged that, in such a situation, stipulations can provide the requisite protections. See Madeleine M. Landrieu, Stipulations: Sidestepping the Limitation of Shipowners' Liability Act, 23 Tul. Mar. L.J. 429, 436 (citing Beiswenger, 86 F.3d at 1038; Texaco, 47 F.3d at 768 (5th Cir.1995); Magnolia Marine Transp., 964 F.2d at 1576; Dammers & Vanderheide v. Corona, 836 F.2d 750, 756 (2d Cir.1988); S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 644 (6th Cir.1982); Universal Towing Co. v. Barrale, 595 F.2d 414, 419 (8th Cir.1979)).

Reply Memorandum of Claimants Harry Junior White, Jr. and Roxanne Y. Murphy to Plaintiffs’ Memorandum in Response to Claimants’ Motion to Stay this Action and Lift Injunction Against Prosecution of Their State Court Suit at 7, In re Campbell Transp. Co., Inc., 937 F. Supp. 2d 796 (N.D. W. Va. 2013)

Plaintiffs' and the Benedict's on Admiralty treatise's misinterpretation of Ex parte Green so as to require Claimants to concede via stipulation in order to return to state court that the vessel owner wins the limitation issue without a fight makes no sense. Such a misinterpretation has been explained as follows:

The United States Supreme Court's opinion in Ex parte Green was read by some to require a claimant to stipulate to the right of the shipowner to limitation in order to proceed with a remedy at common law. Most circuits have proclaimed, however, that the Green case only

requires the claimant to recognize the plaintiff-in-limitation's right to litigate the limitation issue in federal court. Thus, in drafting a stipulation on this issue, claimants must recognize the distinction between the shipowner's right to limit and its right to seek limitation. If the claimant concedes the shipowner's right to limit, the only question remaining in the limitation proceeding is the value of the fund. Such a stipulation is not necessary in order to proceed at common law.

Landrieu, Madeleine M., “Stipulations: Sidestepping the Limitation of Shipowners' Liability Act,” 23 Tul. Mar. L. J. 429, 435-436 (Spring 1999).

Archer Daniels Midland v. M/T American Liberty, 545 F. Supp.3d 390, 412 (E.D. La. 2021)

All claimants must enter the appropriate stipulations in order to deprive a vessel owner of its right to a federal forum to determine its right to limitation. In re ADM/Growmark River System, Inc., 234 F.3d 881, 885-86 (5th Cir. 2000); see generally Madeleine M. Landrieu, Stipulations: Sidestepping the Limitation of Shipowners’ Liability Act, 23 Tul. Mar. L. J. 429 (1999)

Blaine G. LeCesne, Associate Dean of Diversity, Equity, and Inclusion, and Donna and John Fraiche Distinguished Professor of Law

Reply Brief of Defendant-Appellant at 6-7, Dye v. State, No. 49S00-9801-DP-55 (Ind. 1999), 1999 WL 34755735 at *6-7

Moreover, courts have regularly condemned the practice of inviting jurors to speculate on such matters as parole, pardon or clemency.2 One commentator has written.

Instructing jurors on the possibility of executive clemency compels the jury to speculate on several levels . . . [G]iven the vagaries and complexity of the process, jurors must speculate about its meaning and availability. They must also predict the offender's future behavior, which future governor will likely consider a clemency request, and the clemency standards of this unknown governor, all of which are “unanswerable” and imponderable.”

Blaine LeCesne, Tipping the Scales Toward Death. Instructing Capital Jurors on the Possibility of Executive Clemency, 65 U.Cin.L.Rev. 1051 (1997).

2See LeCesne, infra, at p. 22.

Johnson v. State, 95 P.3d 1099, 1102, 1107 (Okla. Crim. App. 2004) (Majority Opinion and Lumpkin, J., dissenting)

Comments about commutation are prohibited as they inject speculation into sentencing, lead to death sentences due to juror fear of defendants' release, and undermine the jury's sense of responsibility for its sentencing decision.12

12. Blaine LeCesne, Tipping the Scales toward Death: Instructing Capital Jurors on the Possibility of Executive Clemency; 65 U.Cin.L.Rev. 1051, 1055 (1997).

Contrary to the majority's assertion, this Court has never held evidence of this type cannot be admitted, if invited. I find it of interest that in citing to 65 U.Cin.L.Rev.1051 (1997)1 the majority fails to cite the last sentence of the article which states, “[c]ourts should employ a per se prohibition against any evidence, argument, or instruction on the governor's clemency powers unless the defendant chooses to raise the issue.”

1. Blaine LeCesne, Tipping the Scales Toward Death: Instructing Capital Jurors on the Possibility of Executive Clemency

Lompe v. Sunridge Partners, LLC, 818 F.3d 1041, 1084-1085 (10th Cir. 2016)

In my view, AMC's conduct was worse than trickery or deceit—AMC recklessly risked the life of every tenant in the entire apartment complex. See Mendez v. Cty. of San Bernardino, 540 F.3d 1109, 1120 (9th Cir.2008) (stating that on a scale of reprehensibility, reckless disregard for others' health and safety is even more egregious than affirmative acts of trickery and deceit), overruled on other grounds by Arizona v. ASARCO LLC, 773 F.3d 1050, 1058 n. 1 (9th Cir.2014); Action Marine, Inc. v. Cont'l Carbon Inc., 481 F.3d 1302, 1320 (11th Cir.2007) (noting that, though “punitive damages may not be awarded to punish for harm inflicted on nonparties, [the court] may consider the risk of harm to others as part of the reprehensibility analysis” and the fact that the defendant's conduct endangered “a great number of people” who were not parties to the litigation rendered the defendant's conduct “exceedingly reprehensible” (citing Philip Morris U.S.A. v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007))); see also Blaine LeCesne, Crude Decisions: Re–Examining Degrees of Negligence in the Context of the BP Oil Spill, 2012 Mich. St. L.Rev. 103, 126 (“It is this focus on the design or purpose in the actor's state of mind which places willful misconduct closer to the intentional conduct end of the spectrum, while gross negligence is nearer to the ordinary negligence end of that spectrum.”).

Chunlin Leonhard, Leon Sarpy Distinguished Professor of Law

Plaintiff Pemex Exploración y Producción's Reply in Support of Its Dispositive Motion (DKT. 492) at 2, Pemex Exploracion y Produccion v. BASF Corp., Nos. 4:10-CV-01997, 4:11-CV-02019 (S.D. Tex. Apr. 5, 2013), 2013 WL 1456005 at *2

Again, the defendants' unsupported argument is directly contrary to the UCC, which sets forth the basic rule of ownership. “The UCC states that so long as the fungible goods are ‘agreed upon by number, weight, or other measure,’ the goods may be sufficiently identified. The reason for this is because fungible goods usually are sold by ‘weight, measure, or count,’ and not by description. Thus, an ownership interest of an undetermined amount exists by measuring the share of each owner in relation to the entire bulk.” C. Leonhard & J. Wunderlich, Identifying Fungible Goods Under the UCC Through A Contextual Lens, 55 Wayne L. Rev. 901, 907-08 (2009) . . . .

Reply Brief for Plaintiff-Appellant at 19, Pemex Exploracion y Produccion v. Conocophillips Co., 595 Fed.Appx. 445 (5th Cir. 2015), 2014 WL 7249628 at *19

As a result, property law has developed clear rules to determine ownership in such cases. The correct rule was set out by the Supreme Court:

“Each owner of property intermingled with other property of the same kind and value, and stored in a common mass, becomes the owner as tenant in common of an interest in the mass proportionate to his contribution.”

The Intermingled Cotton Cases, 92 U.S. 651, 653 (1875); see also UCC 7.207 (“If different lots of fungible goods are commingled, the goods are owned in common by the persons entitled thereto . . . .”); C. Leonhard & J. Wunderlich, Identifying Fungible Goods Under the UCC Through A Contextual Lens, 55 Wayne L. Rev. 901, 907-08 (2009) (“[A]n ownership interest of an undetermined amount exists by measuring the share of each owner in relation to the entire bulk.”)

SCF Consulting, LLC v. Barrack, Rodos & Bacine, 175 A.3d 273, 276, 277 (Pa. 2017)

On the other hand, a minority of courts decline to accord substantive effect to such rules, at least where to do so would result in a windfall to offending attorneys. See, e.g., Marin v. Constitution Realty, LLC, 28 N.Y.3d 666, 71 N.E.3d 530, 533 (2017) (“[I]t ill becomes defendants, who are also bound by the Code of Professional Responsibility, to seek to avoid on ‘ethical’ grounds the obligations of an agreement to which they freely assented and from which they reaped the benefits.” (quoting Benjamin v. Koeppel, 85 N.Y.2d 549, 626 N.Y.S.2d 982, 650 N.E.2d 829, 832–33 (1995)). See generally Chunlin Leonhard, Illegal

Agreements and the Lesser Evil Principle, 64 Cath. U.L. Rev. 833, 866 (2015) (advocating that courts should recognize the mixed policy implications of applying a per se rule of invalidity for contracts that violate public policy).

As noted, this approach comports with that of several other jurisdictions, see, e.g., Atkins v. Tinning, 865 S.W.2d 533, 537 (Tex. Ct. App. 1993), and we view it as a variant of the lesser-evil principle advocated by some commentators. See Leonhard, Illegal Agreements and the Lesser Evil Principle, 64 Cath. U.L. Rev. at 866.

Hector Linares, Director of Skills and Experiential Learning, and Edward J. Womac, Jr. Distinguished Clinic Professor

State v. M.C., 60 So. 3d 1264, 1270 (Ct. App. La. 2011)

For all these reasons, we construe La. Ch.C. art. 305(E) as intended to halt the waiver of juvenile jurisdiction when the juvenile court has found reasonable cause to doubt the juvenile's competency, ordered a competency examination, and found the juvenile not to be competent. Our construction of La. Ch.C. art. 305(E) is buttressed not only by the First Circuit's decision in T.C., but also by a failed legislative attempt in 2010 to repeal the special competency protection waiver provision contained in La. Ch.C. art. 305(E).6

6 In an apparent response to the Louisiana Supreme Court's unanimous denial in March 2010 of the State's writ application in T.C., supra., the Louisiana Legislature in its 2010 session attempted unsuccessfully “to eliminate this [special competency] protection [in La. Ch.C. art. 305(E)].” Hector Linares and Derwyn Bunton, An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana's System for Juvenile Waiver. 71 La. L.Rev. 191, 228, n. 140 (2010). The bill “almost succeeded but was thwarted when House Bill 1106 died in a Senate committee after having been unanimously approved in the House of Representatives.” Id

State v. Roberson, 179 So. 3d 573, 578 (La. 2015) (Weimer, J., concurring)

However, even commentators who are critical of Louisiana's juvenile procedures—including the prosecutor's largely unfettered ability to transfer certain cases out of juvenile courts-recognize that these procedures have been implemented by the legislature. See, e.g., Hector Linares & Derwyn Bunton, An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana's System for Juvenile Waiver, 71 La.L.Rev. 191, 193–197, 226 (2010) (discussing the legislative evolution of three pathways to trying juvenile courts in

Louisiana, the “legislative waiver,” the “prosecutorial waiver,” and the “judicial waiver,” the authors favor legislatively eradicating all but the “judicial waiver.”).

John A. Lovett, De Van Daggett, Jr. Distinguished Professor of Law

Brief of Appellees, Board of Mississippi Levee Commissioners and Board of Levee Commissioners for the Yazoo-Mississippi Delta at 14-15, Mississippi River Basin Alliance v. Board of Mississippi Levee Commissioners, No. 99-31235 (5th Cir. Mar. 14, 2000), 2000 WL 33984578 at *14-15

In Louisiana, the local levee boards perform similar functions by providing construction material to the Corps. Louisiana Civil Code Article 665 imposes a servitude for construction of levees on certain lands adjacent to rivers. Pursuant to La. Const. art. 6,§ 42, the owners of lands used for construction or repair of levees or levee drainage purposes must be compensated by the taking authority unless the land is batture. “Land classified as batture, therefore, is the only domain in which the State may exercise its once preeminent power of appropriation.” John A. Lovett, Comment, Batture, Ordinary High Water, And The Louisiana Levee Servitude, 69 TUL. L. REV. 561, 564 (1994)

Willis-Knighton Med. Ctr. v. Caddo Shreveport Sales & Use Tax Comm'n, 903 So. 2d 1071 passim (La. 2005)

In addressing the latter issue, we are called upon to resolve a significant controversy related to the proper interpretation of LSA–C.C. art. 466 and its definition of a component part. See and compare, Equibank v. United States Internal Revenue Service, 749 F.2d 1176 (5th Cir.1985) and Prytania Park Hotel, Ltd. v. General Star Indemnity Co., 179 F.3d 169 (5th Cir.1999). See also, John A. Lovett, Another Great Debate?: The Ambiguous Relationship Between the Revised Civil Code and Pre–Revision Jurisprudence as seen through the Prytania Park Controversy, 48 Loy. L.Rev. 615 (2002) (hereinafter Lovett) and articles cited at footnote 6, infra.

As it turns out, Article 466 is at the epicenter of a debate that “raises serious questions about civilian methodology in general and specifically about the role of pre-revision jurisprudence in interpreting a revised Civil Code.” Lovett, 48 Loy. L.Rev. at 620. Its proper interpretation, as evidenced in the diametrically opposed federal court decisions of Equibank v. United States Internal Revenue Service, 749 F.2d 1176 (5th Cir.1985) and Prytania Park Hotel, Ltd. v. General Star Indemnity Co., 179 F.3d 169 (5th Cir.1999), has “spawned a civilian cause-celebre,” resulting in extensive academic commentary and debate6 that pits some of Louisiana's most well-respected scholars and academicians (notably

Professors A.N. Yiannopoulos and Symeon Symeonides) against Judge Jacques L. Wiener, Jr. and the U.S. Fifth Circuit Court of Appeals.7 Lovett, 48 Loy. L.Rev. at 620 . . .

The opposing sides of what Professor Lovett characterizes in his law review article as the “Great Debate” about the purity of Louisiana's civil law system are epitomized in the competing interpretations accorded LSA–C.C. art. 466 in the Equibank and Prytania Park decisions.

Section 3 of the Act further provides that “[a]ll other laws or parts of laws in conflict with this Act are repealed.” 1978 La. Acts No. 728, § 3, at 1943. This language indicates that former Articles 467, 468, and 469 fall into the category of articles that have not been expressly repealed, but are subject to implicit repeal to the extent to which their content is irreconcilable with that of the new article. Lovett, 48 Loy.L.Rev. at 667–668.

The plain text of Article 466 does not reference “societal expectations” in determining whether an item is a component part of a building. Rather, it employs a straightforward, practical, bright-line test: permanent attachment, as defined by the article. As Professor Lovett notes in his law review article:

[T]he Prytania Park interpretation of Article 466 offers one clear, easily applied, practically black letter rule that courts and litigants can employ with little need to use complex or highly technical expert testimony. By relying on a “terse and lapidary” rule, as opposed to a more flexible “standard,” this approach tends to promote the classic civilian priority of certainty in the law and forces parties who desire to alter the Code's classification of movables as either component parts or as separate movables to do so in negotiation and in carefully drafted and perhaps more detailed agreements.

Lovett, 48 Loy. L.Rev. at 712.

With its near-rhetorical inquiry, the societal expectations test interjects too much open-endedness, flexibility, and discretion in an area of the law that demands certainty and predictability 19

19 See Exxon Corporation v. Foster Wheeler Corporation, 2000–2093 (La.App. 1 Cir. 12/28/01), 805 So.2d 432, 438, writ denied, 02–0261 (La.3/28/02), 812 So.2d 633, wherein, in a concurring opinion Judge Fitzsimmons notes that the societal expectations analysis “lacks predictability for lawyers and litigants.” See also, Lovett, 48 Loy.L.Rev. at 712, in which Professor Lovett describes the societal expectations

analysis as requiring the judge and attorney to “engage in an a textual and often subjective inquiry,” that, in hard cases, “can cause serious evidentiary problems.”

Further, in the same paragraph, the Expose explains that policy goals may often require the law to classify certain objects, such as standing crops, animals, and farm implements, in precisely the opposite way they would be classified if “lay notions” prevailed, indicating the ways in which societal expectations can be unreliable as a source of legal classification. Id. See also, John A. Lovett, Another Great Debate?: The Ambiguous Relationship Between the Revised Civil Code and Pre–Revision Jurisprudence as seen through the Prytania Park Controversy, 48 Loy.L.Rev. 615, 670 (2002).

Opposition Memorandum of Plaintiffs to Defendants Motion for Summary Judgment at 13, Arculeer v. deBen, No. 2002-11232 (La. Dist. Ct. Nov. 5, 2003), 2003 WL 25497309 at *13

The Ellis decision used the term “societal needs” in establishing the intent of the creators of the covenants as applied to the current modern situation. That is, just because recreational vehicles were not in existence in 1958, was the intent of the creators of the covenants to exclude such vehicles as temporary structures and in violation of the covenants had recreational vehicles existed in 1958?

The Ellis approach has been favorably cited in a recent Law Review Article when it was said:

From a doctrinal perspective, this articulation of the relevance of prevailing ideas in society and an ordinary buyer's expectations - the twin sources of the notion of societal expectations - seems to harken back both to Judge Tate's focus on ‘contemporary objective standards' and “contemporary views” in Lafleur and to Professor Yiannopoulos' own views based in part on the insights of Planiol and Ripert. In addition, the value of considering such societal views had been recommended in several judicial decisions advising other kinds of classification problems along the movable/immovable fault line both before and after the 1978 revision. (Ellis cited as part of footnote 301), Another Great Debate? The Ambiguous Relationship between the Revised Civil Code and Pre Revision Jurisprudence as seen through the Prytania Park Controversy, John A. Lovett. 48 Loy. L. Rev. 615, 677.

Sanders v. State Dep't of Nat. Res., 973 So. 2d 879, 884 (La. Ct. App. 2007)

No one disputes that it is the ordinary high water level as it existed in 1812 in Catahoula Lake that determines the extent of the State's ownership. This is evidenced by the physical characteristics surrounding the lake. While the trial court found the Russell-Brown study to be scientifically unreliable, the physical characteristics test has been used by both state and federal courts in determining the ordinary high water mark. See John A. Lovett, Batture, Ordinary High Water, and the Louisiana Levee Servitude, 69 Tul.L.Rev. 561 (1994).

Linvestment CC v. Hammersley (634/2006) [2008] ZASCA 1, 15 (28 Feb. 2008) (S. Afr.)

Scots law is discussed in extenso by Cusine and Paisley.36 There is apparently an unresolved dichotomy of authority between that which favours sanctity of contract and that which would allow a right to relocate on the grounds of manifest convenience to the servient owner and absence of detriment to the dominant proprietor. The authors debate the arguments for and against the respective views. Within the same legal environment, an instructive comparative survey37 traces the progress of the law from the common Roman roots of Scotland and the state of Louisiana until the 21st century, showing how the tide is turning from strict adherence to contractual rights toward a utilitarian power of relocation that is judicially controlled or to legislative intervention having similar effect.

37 ‘A New Way: Servitude Relocation in Scotland and Louisiana’ by John A Lovett 9 Edin LR 352 (2004-5)

Appellants Reply Brief passim, St. James’s Village, Inc. v. Cunningham, 210 P.3d 190 (Nev. 2008) (No. 49398), 2008 WL 8511087 passim

Indeed, a commentator cited by Respondents confirms: “Although several courts have recently followed the lead of academic critics and rejected the proposed rule [§4.8(3)], a larger number of courts - including courts of last resort in New York, Colorado, Massachusetts, and South Dakota - have embraced the new Restatement Rule in recent years when confronted with easement relocation disputes.” John A. Lovett, A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property: Servitudes, 38 Conn. L. Rev. 1, 4 (2005)5 (attached hereto as Addendum D) (hereinafter “Lovett”) (also noting that courts in South Carolina and New Jersey adopted the Restatement Rule, and that the District of Columbia recognized §4.8 without adopting it).

5 It is also noteworthy, as stated in SJV's Opening Brief about Professor French's article, that the Lovett article cited by Respondents addresses

only §4.8(3), ignoring the introductory language cited by Respondents and demonstrating that the introductory language of §4.8 simply has not been applied to the right to relocate set forth in §4.8(3). Lovett at 5-6; . . . .

Lovett's endorsement of the Restatement Rule is based in large part upon the recognition of an easement as a limited property interest. He refers favorably to the Colorado Supreme Court's analysis in the Roaring Fork case that:

the court emphasizes the complex nature of the relationship between easement owner and servient estate owner and notes the carefully balanced set of rights and responsibilities imposed on each party. Further, the court stresses that Colorado law increasingly recognizes that when there are two competing interests in the same land (as in the case with an easement holder and a servient estate owner), those interests ‘should be accommodated if possible and that inflexible notations of dominant and servient estates do little to advance that accommodation’.

Id. at 36 (citing Roaring Fork, 36 P.3d at 1232, 1235).

Lovett also cites with approval the following passages from the Massachusetts Supreme Court in the M.P.M. Builders case:

‘Our adoption of §4.8(3) will neither devalue easements nor place property interests in an uncertain status. An easement is by definition a limited, non-possessory interest in realty . . . . The owner of the servient estate is in possession of the estate burdened by the easement. An easement is created to serve a particular objective, not to grant the easement holder the power to veto other uses of the servient estate that do not interfere with that purpose.’

Having drawn attention to this non-possessory quality of an easement and its limited nature, the court continued: ‘[a] rule that permits the easement holder to prevent any reasonable changes in the location of an easement would render an access easement virtually a possessory interest rather than what it is, merely a right of way.’

Id. at 36-37 (citing M.P.M. Builders, 809 N.E.2d at 1058).

The position advocated by Respondents has not even been discussed, much less advocated, by any of the numerous commentators cited by the Parties. Indeed,

the commentators frequently cite to §4.8(3), not §4.8, and do not even consider the prefatory language of §4.8 relating to the initial location of the easement contained in the granting document. Lovett at 5-6 and French at 1.

Respondents' argue that even the Commentators that favor the Restatement Rule over the general rule have advocated for additional requirements, citing Lovett. Lovett discusses the law relating to easements in general and the right to relocate under §4.8(3) and includes a reference to most of the cases and other authorities cited by the Parties in this case. See Addendum D, Lovett at 52-72. While endorsing the Restatement Rule, Lovett does offer three proposed “refinements.” The first refinement is that an easement should not be relocated for a period of twenty (20) years. Id. at 55-56. The second refinement is that the servient owner obtains “either a judicial or . . . a quasi-judicial declaration that the reasonableness criteria of §4.8(3) have been satisfied.” Id. at 56. Both of these “refinements” are satisfied in the present case.

Lovett's third refinement is to provide compensation to the dominant estate holder for any diminished property value resulting from the relocation of the easement. Id. at 64. There are a number of problems with respect to Lovett's third refinement, not the least of which is that if there is any significant diminished property value as a result of the easement relocation, the relocation would not be permissible under §4.8(3). However, this refinement does not apply to the present case because the relocation of the Easement will not only not diminish but will actually increase the value of Respondents' property by improving access. Thus, Lovett provides no support to Respondents' position.

Respondents’ Answering Brief passim, St. James’s Village, Inc. v. Cunningham, 210 P.3d 190 (Nev. 2008) (No. 49398), 2008 WL 8511086 passim

Even proponents of the new Restatement § 4.8 provision have criticized its present formulation. See, e.g. John A. Lovett, A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property Servitudes, Conn. L.Rev. 1, 9-10 (2005).

Courts and academicians criticize the Restatement for failing to provide for truly just compensation for easement rights. Even proponents of the Restatement admit it needs several amendments, including a requirement that genuinely just compensation be paid for easement rights taken. John A. Lovett, A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property Servitudes, Conn. L.Rev. 1, at 3, 9 (2005).

John A. Lovett, at the University of Connecticut, a proponent of the

Restatement, has acknowledged it needs to be reformulated for several reasons to avoid or minimize the alarming problems it creates as described by the courts and academicians. John A. Lovett, A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property Servitudes, Conn. L.Rev. 1, 8-10, and F.N.s 114, 115 and 116 (2005) (detailing at least four respects in which the Restatement § 4.8 needs to be revised).

Indeed, Professor John Lovett, a proponent of the Restatement, says that it is the Restatement which lacks necessary reciprocity. The majority rule unlike the Restatement, he says, is more fair in this respect because it “ applies to both parties.” This is just one of four respects in which he advocates revising the Restatement to make its application more fair and reasonable. John A. Lovett, A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property Servitudes, Conn. L.Rev. 1, 8-10, and F.N.s 114, 115 and 116 (2005).

Wisconsin Realtors Ass’n Amicus Curiae Brief at 13, Grygiel v. Monches Fish & Game Club, Inc., 787 N.W.2d 6 (Wis. 2010) (No. 2008AP2028), 2010 WL 285110 at *13

If servient and dominant owners clearly understand their rights, they can reliably plan and invest money and labor in their properties for the future without the fear of abrupt disruption or having their rights taken away. Reliable rules lead to the increased ability for private bargain, as when property owners consider the granting of express easements. See John A. Lovett, A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property: Servitudes, 38 Conn. L. Rev. 1, 12 (2005).

Response to Petition for Writ of Mandamus at 4, In re Bryan C. Wagner, James D. Finley, Trade Exploration Corp., and Duer Wagner, III, Relators, No. 12-1030 (Tex., Jan. 10, 2013), 2013 WL 238134 at *4

Corbello “shook the Louisiana legal community like few others in recent memory.”4

4 John A. Lovett, Doctrines of Waste in a Landscape of Waste, 72 MO. L. REV. 1209, 1236 (2007)

Amended Response to Petition for Writ of Mandamus at 4, In re Bryan C. Wagner, James D. Finley, Trade Exploration Corp., and Duer Wagner, III, Relators, No. 12-1030 (Tex., Apr. 3, 2013), 2013 WL 1622386 at *4

Corbello “shook the Louisiana legal community like few others in recent memory.”4

4 John A. Lovett, Doctrines of Waste in a Landscape of Waste, 72 Mo. L. Rev. 1209, 1236 (2007).

Brief on the Merits of Real Party in Interest at 5-6, In re Bryan C. Wagner, James D. Finley, Trade Exploration Corp., and Duer Wagner, III, Relators, No. 12-1030 (Tex., June 21, 2013), 2013 WL 3246583 at *5-6

Corbello “shook the Louisiana legal community like few others in recent memory.” John A. Lovett, Doctrines of Waste in a Landscape of Waste, 72 MO. L. REV. 1209, 1236 (2007).

Boudreaux v. OS Restaurant Services, LLC, No. 14-1169, 2015 WL 5454017, at *5 (E.D. La. Jan. 23, 2015)

“

‘Although its meaning is not perfectly clear, the malice element seems to require a showing of spite or ill will, which is difficult (if not impossible) to prove in most commercial cases in which conduct is driven by the profit motive, not by bad feelings. In fact, there appear to be no reported cases in which anyone actually has been held liable for the tort.’ ” JCD Mktg., 812 So.2d at 841 (quoting George Denegre, Jr., Shannon S. Holtzman, & John A. Lovett, Tortious Interference and Unfair Trade Claims: Louisiana's Elusive Remedies for Business Interference, 45 Loy. L. Rev. 395, 401 (1999)).

Defendant and Counterclaim-Plaintiff's, Post-Trial Brief at 30, Weston Street Hartford, LLC v. Zebra Realty, LLC., No. TTD-CV15-6009858-S. (Conn. Super. Ct. Nov. 7. 2016), 2016 WL 9282548 at *30

In addition, permitting the servient owner to change the location under the enumerated circumstances provides a fair trade-off for the vulnerability of the servient estate to increased use of the easement to accommodate changes in technology and development of the dominant estate. Furthermore, the right of unilateral easement relocation in the servient owner serves to protect against, as is the case here, an opportunistic or irrational easement holder whom desires to block the productive development or use of the servient estate merely by invoking the traditional no-unilateral relocation rule, even though a new relocated easement would serve the easement holder just as well, if not more efficiently, or might serve the public interest. A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property: Servitudes, John A. Lovett 38 Conn. L. Rev. 1. 26-27 (emphasis supplied).

South

Lafourche Levee Dist. v. Jarreau, 217 So. 3d 298, 309 (La. 2017)

In 1898, the Louisiana legislature, for the first time, provided compensation to riparian landowners whose property was appropriated under the levee servitude. Id.; see also La. Const. of 1898, art. 312. However, the effect of this constitutional provision was limited to the jurisdiction of the Orleans Levee District and specifically exempted batture. See La. Const. of 1898, art. 312; Dickson, 210 La. at 135, 26 So.2d at 479. The Louisiana Constitution of 1921 provided compensation for the first time on a statewide basis to property owners whose lands, excluding batture, and improvements were used or destroyed for levee or levee drainage purposes. See La. Const. of 1921 art. XVI, § 6; see also John A. Lovett, Batture, Ordinary High Water, and the Louisiana Levee Servitude, 69 Tul. L. Rev. 561, 562 n.2 (1994).

Appellant's Petition for Review at 15, Denardi v. TPL, LLLP, No. S242268 (Cal., June 1, 2017), 2017 WL 3675364 at *15

These issues, particularly in relation to subjective and objective views of hostility, have inspired a great deal of commentary in law reviews going back decades and continuing to the present. For instance:

• Richard H. Helmholz, Adverse Possession and Subjective Intent, 61 Washington University Law Quarterly 331 (1983) . . .

• John A. Lovett, Precarious Possession, 77 La. L. Rev. 617, 621 (2017)

Kalencom Corp. v. Shulman, No. CV 17-5453, 2018 WL 1739213, at *3 (E.D. La. Apr. 11, 2018)

“

‘Although its meaning is not perfectly clear, the malice element seems to require a showing of spite or ill will, which is difficult (if not impossible) to prove in most commercial cases in which conduct is driven by the profit motive, not by bad feelings. In fact, there appear to be no reported cases in which anyone actually has been liable for the tort.’ ” JCD Mktg. Co. v. Bass Hotels & Resorts, Inc., 812 So.2d 834, 841 (La. App. 4 Cir. 2002) (quoting George Denegre, Jr., Shannon S. Holtzman, & John A. Lovett, Tortious Interference and Unfair Trade Claims: Louisiana’s Elusive Remedies for Business Interference, 45 Loy. L. Rev. 395, 401 (1999)).

Brief of Defendant-Appellant Zebra Realty, LLC passim, Weston Street Hartford, LLC v. Zebra Realty, LLC., No. 40415 (Conn. App. Feb. 6, 2018), 2018 WL 7462590 passim

Consistent with these common law principles, Restatement (Third), supra,

provides an integrated and cohesive set of rules, which, when applied together as intended by the Restatement's drafters, are designed to promote balance, fairness and just outcomes. As one commentator has explained:

Restatement drafters explain that section 4.8(3) seeks ... to compensate the owner of the servient estate for the risk that the easement holder will intensify her use of the easement by relying on the traditional common law rule that permits changes in the “manner, frequency and intensity” of an easement's use “to accommodate changes in technology” and “to permit normal development of the dominant estate.”' Thus, rather than creating a new asymmetry in the narrow context of servitude relocation, section 4.8(3) remedies a pre-existing lack of reciprocity in the broader common law easement landscape in which an easement holder was granted a powerful default right to exploit changing conditions, while the burdened land owner's prospects for development were effectively frozen in place by the economic conditions and assumptions existing at the time of the easement's creation.

John A.

Lovett, A Bend in the Road: Easement Relocation

and

Pliability

in the New Restatement (Third) of Property: Servitudes, 38 Conn. L. Rev. 1., p. 34. (2005).

Furthermore, the right of unilateral easement relocation in the servient estate owner protects against an opportunistic or irrational easement holder whom desires to block the productive use of the servient estate “merely by invoking the traditional no-unilateral relocation rule, even though a new relocated easement would serve the easement holder just as well, if not more efficiently, or might serve the public interest.” Lovett, supra, 38 Conn. L. Rev. 26-27

Moreover, judicial decisions commonly cited as authority for the reasons to adopt the traditional rule, (e.g., Davis v. Bruk, 411 A.2d 660 (Me .1980)), predate the issuance of Restatement (Third), and “typify the common law's lack of concern that an opportunistic or irrational easement holder could block the productive development of a servient estate merely by invoking the traditional no-unilateral relocation rule, even though a new relocated easement would serve the easement holder just as well, if not more efficiently, or might serve the public interest.” Lovett, supra, 38 Conn. L. Rev. 1, 26-27. Thus, a key advantage of Restatement (Third), § 4.8(3) is “preventing an easement holder from using the traditional majority no-relocation rule to extort ransom payments.” Id., 7-8.

Brief of Legal Historians as Amici Curiae in Support of Respondents at 7, Cedar Point Nursery v. Hassid, No. 20-107 (U.S. Feb. 12, 2021), 2021 WL 637236 at *7

The United Kingdom has retained a robust tradition of public ways over private land, expanding them by statute in recent decades. See John A. Lovett, Progressive Property in Action: The Land Reform (Scotland) Act 2003, 89 Neb. L. Rev. 739, 769-77 (2011) (discussing the National Parks and Access to the Countryside Act of 1949 and Countryside and Rights of Way Act of 2000 in England, and the Land Reform (Scotland) Act of 2000)

Mary v. QEP Energy Co., 24 F.4th 411, 418 (5th Cir. 2022)

The default rule is that the owner of a thing owns by accession the fruits of that thing.18 However, a good faith possessor may keep the fruits he has gathered, while “[a] possessor in bad faith is bound to restore to the owner the fruits he has gathered, or their value, subject to his claim for reimbursement of expenses.”19 Article 487, quoted and discussed above, provides the standard for good and bad faith in this context as well.20

20 See Lemoine v. Downs, 125 So.3d 1115, 1119 (La. App. 3 Cir. 2012) (applying Article 487 to determine whether a possessor was in bad faith and had to return fruits of the property); John A. Lovett, Good Faith in Louisiana Property Law, 78 La. L. Rev. 1163, 1203-04 (2018)

M. Isabel Medina, Ferris Family Distinguished Professor of Law

Newport Ltd. v. Sears, Roebuck & Co., No. CIV. A. 86-2319, 1995 WL 688799, at *13 (E.D. La. Nov. 21, 1995)

Second, the reliance on the reasoning in Hernandez appears to be misplaced as Hernandez did not concern a “bad faith” award of attorneys' fees in a breach of contract situation or any specific discussion of article 1934 (1870).5 The most relevant statement in the context of the proper application of article 1997 in the Hernandez decision is contrary to Lloyd's interpretation of Hernandez, “Attorney's fees should not be allowed as an element of damage in this case for the further reason that the seizing creditor acted in good faith and without malice . . . .” Hernandez, 111 So.2d at 327.6

6 See generally M. Isabel Medina, Comment, Award of Attorney Fees in Bad Faith Breaches of Contract in Louisiana–An Argument Against the American Rule, 61 Tul.L.Rev. 1173, 1194–1202 (1987).

Petition for Writ of Certiorari at 6, Gilbert v. Baltimore County, No. 00-1226 (U.S. Jan. 29, 2001), 2001 WL 34116821 at *6

Something is broken with the summary judgment machinery in our federal judiciary This may not be apparent at first glance, because summary judgments are clearly being granted at a brisk pace. But a machine with all working parts in order generally contains a functioning “governor,” a component that prevents the machinery from working too fast or too indiscriminately. The governor has broken here. The pace of summary judgments has evolved from being a sign of the system's good functioning to a sign of the opposite. The hallmark of dysfunction is the resolution of factual disputes by the courts on summary judgment motions.

This evolution has been decried both by at least one prominent jurist,4 and by a wealth of academic commentators,5 not to mention many appellate panels.6

5 See, e.g. T. Beiner, The Misuse of Summary Judgment in Hostile Environment Cases, 34 WAKE FOREST L. REV. 71 (1999); I. Medina, A Matter of Fact: Hostile Environments and Summary Judgments, 8 S.CAL. REV. L. & WOMEN'S STUD. 311 (1999); . . . .

Motion for Leave to File a Brief as Amicus Curiae and Brief of NOW Legal Defense and Education Fund as Amicus Curiae in Support of Petitioner at 15, Duncan v. General Motors Corp., 538 U.S. 994, 123 S. Ct. 1789, 155 L. Ed. 2d 695 (2003) (No. 02-1201), 2003 WL 21699533 at *15

In the context of a hostile work environment sexual harassment case, the jury pool will include men and women familiar with contemporary workplace conduct and sexual norms.9 See M. Isabel Medina, A Matter of Fact: Hostile Environments and Summary Judgments, 8 S. Cal. Rev. L. & Women's Stud. 311, 358 (1999) (juries possess “familiarity and direct involvement with workplace norms” and “a sense of workplace and community values critical to determining the fact issues posed by sexual harassment cases”).

Brief for Appellant at 21, Lee-Crespo v. Schering-Plough Del Caribe Inc. 354 F.3d 34 (1st Cir. 2003) (No. 03-1033), 2003 WL 25791410 at *21

In addition, fact-intensive issues such as whether a reasonable person would find a particular environment hostile, abusive or harassing and where an evaluation of the witness demeanor is necessary to determine credibility are inappropriate for summary judgment. M. Isabel Medina, A Matter of Fact: Hostile Environments and Summary Judgments, 8 S.Cal.R.L. & Women's Studies 311, 314-15 (1999); . . . .

Petitioner's Brief at 68-69, Raharjo v. U.S. Dept. of Justice, 94 F. App’x 84 (3d Cir. 2004) (No. 03-1941), 2003 WL 25287460 at *68-69

INA sec. 208(a)(3), 8 U.S.C. sec. 1158(a)(3) violates the separation of powers doctrine because it is an impermissible “rule of decision”. United States v. Klein, 80 U.S. 128, 20 L.Ed. 519, 13 Wall. 128 (1871). Additionally, it works to keep the legislative and judicial power within the executive branch, in violation of the separation of powers doctrine. Plaut v. Spendthrift Farm, 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed. 2d 328 (1995)(Scalia, J.); Judicial Review-A Nice Thing? Article III, Separation of Powers and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 29 Conn. L.Rev. 1525 (1997); . . . .

Mahan v. Arctic Catering, Inc., 133 P.3d 655, 666 (Alaska 2006)

The evidence in these cases, which may consist primarily of the testimony of the alleged victim and the alleged perpetrator, is likely to contain conflicting claims, and is likely to be susceptible to different interpretations, depending on which inferences the factfinder draws. For this reason, discrimination claims — including claims that might prevail if allowed to proceed — are particularly vulnerable to summary judgment if courts improperly weigh the credibility of evidence, fail to draw reasonable inferences in favor of the non-moving party, or decide outright the ultimate questions of fact. As several scholars have noted, this makes it significantly more difficult for victims of discrimination to seek redress, even when the law grants them a cause of action.19

19 See, e.g., M. Isabel Medina, A Matter of Fact: Hostile Environments and Summary Judgments, 8 S. Cal. Rev. L. & Women's Stud. 311, 357-71 (1999) (arguing that the practice of deciding certain factual questions, such as whether the plaintiff experienced a hostile work environment, at the summary judgment stage makes it unnecessarily difficult for plaintiffs to bring sexual harassment claims); . . . .

Petitioner's Reply Brief at 15-16, Cano-Diego v. Gonzalez, 254 F. App’x 698 (9th Cir. 2007) (No. 06-73690) 2007 WL 2041507 at *15-16

The regulations provide that the respondent may admit the factual allegations and concede the charge of removability. The IJ may then determine removablity based on the admissions and concession. 8 C.F.R. § 1240.10(c).

Professor Isabel Medina explains the process as follows:

Because the statutory decision to deport is mechanical and absolute, the removal or deportation hearing may be, in a substantial number of cases, a fairly straightforward proceeding. In fact, many aliens concede

deportability and tend to focus their efforts on obtaining discretionary relief The real “adjudication” occurs in the decision whether or not to grant relief from deportation, that is, the decision in which all of the factors that are material to a decision whether to deport an alien that has ties to the United States are considered.

Isabel M. Medina, “Judicial Review: a Nice Thing?”, 29 Conn. L. Rev. 1525, 1542-3 (1997). In assessing the number of aliens who concede deportability, Professor Medina states “[i]n an informal survey of 1995 cases involving orders to deport appealed to federal circuit courts of appeals, aliens conceded deportability in approximately one-half of the cases surveyed.” Id. at 1642, n. 71.

Mohamad Kamal El-Zahabi Memorandum in Support of Motion for Judgment of Acquittal Under Rule 29, and, Alternatively, for New Trial Under Rule 33 at 2, U.S. v. El-Zahabi, 517 F Supp. 2d 1121 (D. Minn) (No. CR. 04-282), 2007 WL 5827600 at *2

United States immigration law provides that an alien may obtain permanent resident status by marrying a United States citizen. See Immigration and Nationality Act § 319(a); 8 U.S.C. § 1430(a). Given the unique value United States citizenship confers on its holder, abuse of marriage for citizenship has understandably followed. In response, Congress has steadily tinkered with the law in an attempt to balance the enforcement of the benefits enjoyed by an alien who marries a citizen with the sanctity of the institution of marriage. See Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud, 5 GEO. MASON L.REV. 669, 700-703 (1997) (for a review of the history of the marital benefit in American immigration law).

Pohlabel v. Nevada, 268 P.3d 1264, 1270 (Nev. 2012)

One way to read the word “citizen” is as a “generic substitute for ‘accused,’ ‘person,’ ‘defendant,’ or ‘individual.’ ” M. Isabel Medina, Ruminations on the Fourth Amendment: Case Law, Commentary, and the Word “Citizen,” 11 Harv. Latino L. Rev. 189, 192 (2008)

Brief of Law Professors as Amici Curiae in Support of Petitioner at 15, Bernardo v. Johnson, No. 15-1138 (U.S. Apr. 13, 2016), 2016 WL 1555007 at *15

When laws are construed to remove this check on executive power, they raise serious separation of powers concerns because they allow the executive branch to encroach upon the functions of the judicial branch. The judicial branch is the only branch of the government “whose independence and authority ensures that individuals exposed to the government's coercive force will be

treated fairly and in accordance with the rule of law.” M. Isabel Medina, Judicial Review - A Nice Thing? Article III, Separation of Powers and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 29 Conn. L. Rev. 1525, 1525 (1997).

Luz M. Molina, Jack Nelson Distinguished Professor of Law

Thongsavanh v. Schexnayder, 40 So.3d 989, 997 (La. Ct. App. 2010)

Defendant raises legitimate questions regarding the issue presented. One commentator has also recently discussed the issue in detail, reviewing the jurisprudence and proposing procedural and conceptual changes. Luz M. Molina, Language Access to Louisiana Courts: A Failure to Provide Fundamental Access to Justice, 10 Loy. J. Pub. Int. L. 1 (2008). That commentator has noted that “[t]he fact of being bilingual does not qualify an individual for court interpreting, even if the person is fluent.” Id. at 11. The same commentator has also observed that under the present system, litigants, particularly those without substantial financial means, “must rely on friends and relatives for interpretation services,” and suggests that such friends and relatives “most likely will not be qualified to interpret in court.” Id. at 25 Finally, it is emphasized that even “[t]he appearance of bias” on the part of an interpreter “should be of concern to the courts and the administration of justice[.]” Id. at 21.

Brief for Appellants at 29, Zuniga v. Whiting-Turner Contracting Co., No. 20-CV-77 (D.C. June 30, 2020), 2020 WL 9076385 at *29

These arguments are meritless. “There is nothing unfair about seeking to enforce a validly entered judgment when the defendant refuses to pay.” Robinson v. Ergo Solutions, LLC, 4 F. Supp. 3d 181, 188 (D.D.C. 2014). Moreover, collecting from a recalcitrant and well represented judgment debtor is not simple or inexpensive. See Luz M. Molina, et al., Vulnerabilities of Low-Wage Workers and Some Thoughts on Improving Workplace Protections, Loy. J. Pub. Int. L. 215, 240 (2016) (“[c]ollecting judgments on behalf of low-wage workers … is often laborious [and] expensive.”); . . . .

Petition for Writ of Certiorari at 22, Jenkins v. Florida Keys Community College, No. 97-803 (U.S. Oct. 15, 1997), 1997 WL 33549721 at *22

Nevertheless, in a futile effort to comply with this confused and conflicted Southern District Court, petitioner went forward and expanded his initial 20 page

Professor Lawrence W. Moore, S.J.

complaint into a much more specific 500 page amended complaint. Rather than risk underestimating the level of detail which would suit the whim and fancy of the judge, and in so doing disobeying his order to be ‘specific’, petitioner was much more detailed in the second complaint. The district judge then deemed the amended complaint not short and plain enough and the court of appeals affirmed. The court placed petitioner in peril, between the Scylla of legal conclusions and the Charybdis of evidence.55

Loyolla professor Lawrence W. Moore captured the issue somewhat more metaphorically in the last paragraph of Pleading Civil Rights Complaints: Wheat and chaff, 23 Akron L.Rev. 187 (1989): “requiring specificity is not a very good way to distinguish wheat from chaff as both are likely to be blown away in the hurricane of supposed efficiency.

Petition for a Writ of Certiorari at 30, Daimlerchrysler Aktiengesellschaft v. Olson, No. 01-929 (U.S. Dec. 19, 2001), 2001 WL 34131430 at *30

In recent years, moreover, several state high courts have endorsed even broader definitions of “relatedness” that go beyond both the “proximate cause” and “but for” tests.

Commentators have also engaged in extended analysis of this issue. See, e.g., Moore, The Relatedness Problem in Specific Jurisdiction, 37 Idaho L. Rev. 583, 591-93 (2001) (summarizing debate)

Adams v. Unione Mediterranea Di Sicurta, 234 F. Supp. 2d 614, 620 (E.D. La. 2002)

Minimum contacts with the forum state can arise incident to either “specific jurisdiction” or “general jurisdiction.” The Supreme Court gave its approval to this distinction in the seminal case, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984). Lawrence W. Moore, S.J., The Relatedness Problem in Specific Jurisdiction, 37 Idaho L.Rev. 583 (2001).

Petition for a Writ of Certiorari at 12, McInnis v. Daniel (No. 01-1290) (U.S. Mar. 4, 2002), 2002 WL 32134658 at *12

There is widespread confusion and disagreement among federal and state appellate courts, however, concerning the proper test for determining whether this “relatedness” requirement has been satisfied. Indeed, numerous courts have expressly recognized the existence of a substantial and continuing conflict among the authorities on this question.3 Commentators have likewise noted the division and confusion among federal and state courts over this issue.4

4 See, e.g., Lawrence W. Moore, The Relatedness Problem in Specific

Jurisdiction, 37 IDAHO L. REV. 583, 584 (2001) (“Although the formulas for general and specific jurisdiction suggest that the arising or related requirement presents problems for each, the source of the confusion is with specific jurisdiction.”); . . . .

Appellants' Brief at 11, Adams ex rel. 100 Blacks in Law Enforcement Who Care v. City of New York, 81 F. App’x 750 (2d Cir. 2003) (No. 03-7448), 2003 WL 24136315 at *11

The minimal pleading requirements established by Rule 8, as construed in Conley, apply to all types of federal court actions. See Moore, Pleading Civil Rights Complaints: Wheat and Chaff, 23 Akron L. Rev. 187 (1989); . . . .

Petition for Review at 10, Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex 2007) (No. 04-0432), 2004 WL 1144065 at *10

State and federal courts throughout the nation have recognized that in order for specific jurisdiction to exist, the jurisdiction selected must be “the focal point of both the story and the harm suffered.” Calder v. Jones, supra at 789. The litigation “must result from alleged injuries that arise out of and relate to defendant's activities in the forum state. Burger King Corp., supra at 471. However, courts throughout the United States have struggled with defining what “arise from and relate to” actually means . . . . Lawrence W. Moore, The Related Problem in Specific Jurisdiction, 37 IDAHO L. REV. 583 (2001) (“Although the formulas for general and specific jurisdiction suggest that the arising or related requirement presents problems for each, the source of the confusion is with specific jurisdiction - how closely related must the contacts be to the claim to invoke specific jurisdiction?”).

Brief of Appellee at 18, Glattly v. CMS Viron Corp., 177 S.W.3d 438 (Tex. App. 2005) (No. 01-04-00998-CV), 2005 WL 274981 at *18

Although he does not say so explicitly, the approach urged by Glattly is sometimes called “substantive relevance” test. As this Court has summarized it, that approach “requires that the non-resident defendant's purposeful contacts be at least a proximate cause of the plaintiffs injury.” Shell, 84 S.W.3d at 837 n.5; see also Lawrence Moore, The Relatedness Problem in Specific Jurisdiction, 37 IDAHO L. REV. 583, 591 (2001) (“To count for specific jurisdiction under this approach, the defendant's contact must have directly caused the claim that the plaintiff is bringing.”)

Tecre Co. v. Buttonpro, Inc., 387 F. Supp. 2d 927, 933 (E.D. Wis. 2005)

A third approach is a sliding scale or balancing test–the more unrelated to

the claim the contacts are, the greater the contacts' quality and quantity must be; the more related to the claim the contacts are, the lesser the quality and quantity must be. See Lawrence W. Moore, S.J., The Relatedness Problem in Specific Jurisdiction, 37 Idaho L.Rev. 583, 593 (2001); . . . .

Petition for Writ of Certiorari at 10, First Nat. Bank of Ames, Iowa v. Innovative Clinical and Consulting Services, LLC, No. 06-900 (U.S. Dec. 27, 2006), 2006 WL 3858039 at *10

The question of how the “arise out of or relate to” requirement should be interpreted is now ripe for decision.6 The issue is one that frequently arises and has been resolved in many conflicting ways by the state courts and lower federal courts. Those courts have developed their own differing and inconsistent judicial constructs on how far the scope of the relatedness requirement should extend. Legal commentators have debated this issue for years.7

7 See, e.g., Lawrence W. Moore, The Relatedness Problem In Specific Jurisdiction, 37 Idaho L. Rev. 583, 591-93 (2001) (discussing the debate amongst scholars concerning the degree of relatedness required to find specific jurisdiction); . . . .

Plaintiff-Appellant's Reply Brief and Supplemental Excerpt of Record at 10, Robinson v. Harley-Davidson Motor Co., 270 P.3d 367 (Ore. 2012) (No. A143846), 2011 WL 3699929 at *10

The Due Process Clause of the Fourteenth Amendment requires that this court recognize and weigh the facts of this particular case within the context of this new era of the Internet and expansion of commercial activities across state lines through e-commerce. With this changed business landscape and the Supreme Court's guidance from Helicopteros, application of the Michelin court's rigid “substantive relevance” test needs to be revisited.1

1 See Vons Cos. V. Seabest Foods, Inc., 14 Cal 4th 434, 926 P2d 1085 (1996), cert. denied, 522 US 808 (1997) (California Supreme Court offering a comprehensive judicial treatment of the relatedness controversy and reaffirming that jurisdiction is constitutional if the claim has a “substantial connection” to the defendant's forum contacts); Moore, The Relatedness Problem in Specific Jurisdiction, 37 Idaho L. Rev. 583, 593-601 (2001) (advocating for the “substantial connection” approach to relatedness under minimum contacts analysis as used in Vons, supra).

Brief of Appellant at 18-19, Hofferber v. Georgia-Pacific Corp., No. 74225-6-I (Wash. Ct. App. May 2, 2015) 2015 WL 10936876 at *18-19

As the Second Circuit has observed, “the relatedness test is but a part of a general inquiry which is designed to determine whether the exercise of personal jurisdiction in a particular case does or does not offend ‘traditional notions of fair play and substantial justice.’” Chew v. Dietrich, 143 F.3d 24, 29 (2d. Cir. 1998) (quoting International Shoe, 326 U.S. at 316, 66 S. Ct. at 158).5

5 One commentator invoked John Locke's theory of consent to emphasize that the “fair play” principle from International Shoe is a recognition of the reciprocity inherent in the social contract:

Locke asserts that individuals surrender their natural autonomy to governments in order to obtain the liberties found in an ordered society, thus avoiding the hazards present in a natural state. This leads me to a critical understanding - that a reciprocity binds court and party. The party has garnered the benefits offered by the government in which the court sits. These benefits include the laws, the administrative framework and their restraining effects. In return, the party concedes to that government a quantum of power to govern his conduct, a power which he himself holds in a natural autonomous state.

Lawrence W. Moore, The Relatedness Problem in Specific Jurisdiction, 37 IDAHO L. REV. 583, 599 (2001).

Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 907 (Cal. 2016) (J. Werdegar, dissenting), rev’d, 582 U.S. ___, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017)

Reciprocity, in this context, refers to the idea that the litigation to which a defendant is exposed in a particular forum should bear some relationship to the benefits the company has sought by doing business in the state. (See Moore, The Relatedness Problem in Specific Jurisdiction (2001) 37 Idaho L.Rev. 583, 599 [“The party has garnered the benefits offered by the government in which the court sits. These benefits include the laws, the administrative framework and their restraining effects. In return, the party concedes to that government a quantum of power to govern his conduct, a power which he himself holds in a natural autonomous state.”].)

Corrected Brief of Appellant at 24-25, Cox v. Certainteed Corp. and Georgia-Pacific, LLC, No. 76090-4-I (Wash Ct. App. May 5, 2016), 2016 WL 7322442 at *24-25

As the Second Circuit has observed, “the relatedness test is but a part of a general inquiry which is designed to determine whether the exercise of personal jurisdiction in a particular case does or does not offend ‘traditional notions of fair play and substantial justice.”’ Chew v. Dietrich, 143 F.3d 24, 29 (2d Cir. 1998) (quoting International Shoe, 326 U.S. at 316).7

7 One commentator invoked John Locke's theory of consent to emphasize that the “fair play” principle from International Shoe is a recognition of the reciprocity inherent in the social contract:

Locke assert's that individuals surrender their natural autonomy to governments in order to obtain the liberties found in an ordered society, thus avoiding the hazards present in a natural state. This leads me to a critical understanding - that a reciprocity binds court and party. The party has garnered the benefits offered by the government in which the court sits. These benefits include the laws, the administrative framework and their restraining effects. In return, the party concedes to that government a quantum of power to govern his conduct, a power which he himself holds in a natural autonomous state.

Lawrence W. Moore, The Relatedness Problem in Specific Jurisdiction, 37 IDAHO L. REV. 583, 599 (2001).

Defendant Kent Torrence's Reply in Support of His Motion to Dismiss Plaintiff's Amended Complaint at 3, Young v. East Texas Medical Center Regional Healthcare System, Inc., No. 17-cv-00101-RAW-TLW (N.D. Ok. July 11, 2017), 2017 WL 11268939 at *3

A civil rights complaint must be pleaded with specificity. See Lawrence W. Moore, S.J., Pleading Civil Rights Complaints: Wheat and Chaff, 23 Akron L. Rev. 187 (Fall 1989).

Plaintiff's Opposition to Defendant's Motion to Dismiss for Lack of Personal Jurisdiction at 5, Clark v. Netgain Technology, LLC, No. 3:21-CV-01432-LL-MSB (S.D. Cal. Feb. 14, 2022), 2022 WL 1028650 at *5

The Supreme Court has not provided precise criteria regarding how to analyze the relatedness inquiry. Lawrence W. Moore, The Relatedness Problem in Specific Jurisdiction, 37 Idaho L. Rev. 583 (2001)

María Pabón, Dean Brian Bromberger Distinguished Professor of Law

Golphin v. State, 945 So. 2d 1174, 1198 (Fla. 2006)

The use of government-issued photo identification has only grown in the years since Bostick, Royer, and Mendenhall were decided. As one commentator has noted, the state driver's license is

the most commonly requested form of verification in industries ranging from banks, to nightclubs and liquor stores, to trains, planes, and rental cars. In fact, it would be difficult to cash checks, enter secured areas, or even purchase alcohol without a driver's license. In this way, it has become the form of identification upon which Americans most often depend.

Neda Matar, Are You Ready for a National ID Card? Perhaps We Don't Have to Choose Between Fear of Terrorism and Need for Privacy, 17 Emory Int'l L.Rev. 287, 321 (2003); see also María Pabón López, More Than a License to Drive: State Restrictions on the Use of Driver's Licenses by Noncitizens, 29 S. Ill. U.L.J. 91, 109 (2004–2005) (noting that drivers' licenses are now used for many purposes “tied to verifying identity—from obtaining a library card to cashing a check”).

Opening Brief of the Committee of Bar Examiners of the State Bar of California Re: Motion for Admission of Sergio C. Garcia to the State Bar of California at 40, In re Garcia, No. S202512 (Cal. June 18, 2012) 2012 WL 13184045 at *40

In Plyler, the Supreme Court struck down as unconstitutional a Texas law that effectively barred undocumented students from receiving an elementary and secondary school public education. In so holding, the Court recognized that:

The children who are plaintiffs in these cases are special members of [an alien] underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. ... Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.

(Plyler, supra, 457 U.S. pp. at 219-20 [Emphasis added].)21

21 See generally, Michael A. Olivas, No Undocumented Child Left

Behind (2012) [analyzing legal developments concerning access to public education by undocumented students]; Maria Pabon Lopez & Gerardo R. Lopez, Persistent Inequality: Contemporary Realities and the Education of Undocumented Latina/o Students (2010) [to the same effect].

Complaint for Declaratory and Injunctive Relief at 6,12, Nat’l Immigration Law Ctr. v. U.S. Dep’t of Homeland Sec., No. 2:14-CV-09632 (C.D. Cal. Dec. 17, 2014), 2014 WL 7156844 at *6, *12

21. Other positive effects of these new driver's license laws include: (i) benefits to the U.S. economy through a more mobile labor force,12 . . . .

12 See Keaney Decl. at ¶ 20(u), Exhibit EE, Maria Pabon Lopez, “More Than a License to Drive: State Restrictions on the Use of Driver's Licenses by Non Citizens,” 19 S. Ill. U. L.J. 91 (2005).

39. Third, there has been increasing public interest in ICE's use of state driver's license records for purpose of immigration enforcement.28

28 See, e.g. . . . . Exhibit EE, Maria Pabon Lopez, “More Than a License to Drive: State Restrictions on the Use of Driver's Licenses by Noncitizens,” 19 S. Ill. U. L.J. 91 (2005).

Anonymous Healthcare Provider's Cross-Appellant's Reply at 20, Tramill v. Anonymous Healthcare Provider, No. 49A02-1408-CT-528 (Ind. Ct. App. Feb. 9, 2015), 2015 WL 1576155 at *20

In trying to cast the Tramills' counsel's attempt to extract concessions for his withdrawal of a second meritless disciplinary *20 grievance in the same case as some sort of chivalrous act, the brief claims that Provider's attorney's “emotional well-being was at risk,” that Tramill's counsel had “sincere concerns about her emotional health,” that he acted “in a reflex of collegial compassion he now regrets,” and that he “had no intention to cause harm to her health.” (Tramill Reply 15.)1

1 A survey commissioned by the Indiana Supreme Court Commission on Race and Gender Fairness, in partnership with others, asked respondents to identify the source of gender-based harassment. Maria Pabon Lopez, The Future of Women in the Legal Profession: Recognizing the Challenges Ahead by Reviewing Current Trends, 19 Hastings Women's L.J. 53, 77 (2008), available at http:// www.in.gov/judiciary/admin/files/fair-pubs-women.pdf. The survey

found that the leading source of harassment in both 1990 and 2004 was opposing counsel. Id. A resulting analysis of the study surmised, “It may be, even if the practice is unethical, some lawyers have used harassment as a strategy when advocating for their clients.” Id.

Craig Robert Senn, Janet Mary Riley Distinguished Professor of Law

Petition for a Writ of Certiorari at 22, Weliver v. Merit Systems Protection Bd., No. 06-330 (U.S. Sept. 5, 2006), 2006 WL 2581851 at *22

More recently, in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), this Court considered the standards governing the waiver or release of claims under the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq The Court did not apply the general standards governing knowing and voluntary waivers, however, because it concluded that Congress, by passing the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), had set a higher threshold and precluded waiver of ADEA rights unless certain specific preconditions were met.8

8 The Court's resolution of the issue in Oubre left in place a deep conflict in the circuits over whether the “knowing and voluntary” nature of a waiver made pursuant to an agreement between employer and employee should be judged (a) by a “totality of the circumstances” test that includes consideration of multiple factors relating to the conduct or characteristics of both employee and employer, or instead (b) under general principles of contract law. See Craig Senn, Knowing And Voluntary Waivers Of Federal Employment Claims: Replacing The Totality Of The Circumstances Test With A “Waiver Certainty” Test, 58 Fla. L. Rev. 305, 307-08, 311-31 (2006) . . . .

Partial Motion to Dismiss at 10, Burden v. Isonics Corp., No. 09-CV-01028-CMA-MJW (D. Colo. June 12, 2009), 2009 WL 2491490 at *10

The ADEA, as amended by the OWBPA, does not apply to a termination of employment itself by somehow requiring an employee be given 45 days notice prior to termination. Instead, 29 U.S.C. § 626(f)(1)(F)(ii) solely pertains to whether a given waiver of an ADEA claim is knowing and voluntary and thus effective and enforceable against that employee. Whitehead v. Oklahoma Gas & Elec. Co., 187 F.3d 1184, 1191 (10th Cir. 1999); Ellison v. Premier Salons Intern., Inc., 164 F.3d 1111, 1115 (8th Cir. 1999) (“[I]f the employee rejects or the employer revokes an offered agreement prior to its acceptance, then the OWBPA is not violated, because the employee has not waived any claims under the ADEA.”); see also Craig Robert Senn, Knowing and Voluntary Waivers of Federal Employment Claims: Replacing the Totality of Circumstances Test With a “Waiver Certainty”

, 58 U. FLA. L. REV. 305, 337 - 38 (April 2006)

Reply Brief of Appellant at 7, Landino v. Sapp, 520 F. App’x 195 (4th Cir. 2013), 2012

WL 5497794 at *7

Defendants urge this Court not to use the Cassiday framework. Def.Br. 42. In analyzing the validity of waivers of Title VII and similar claims, as of 2006 nine Federal Circuits-the First, Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh-used the “totality of circumstances” test. Craig Robert Senn, Knowing and Voluntary Waivers of Federal Employment Claims: Replacing the Totality of Circumstances Test with A “Waiver Certainty” Test, 58 Fla. L. Rev. 305, 307 (2006)

Martin v. District of Columbia, 78 F. Supp. 3d 279, 308 (D.D.C. Jan. 23, 2015)

To frame this analysis, the Court opts to proceed under the arguendo premise that Stewart was disabled. The resultant inquiry implicates an open question in the D.C. Circuit: Is evidence that the disabled plaintiff was rejected in favor of a non-disabled individual necessary to demonstrate that the plaintiff suffered the rejection “because of [her] disability” for purposes of her prima facie case? Swanks, 179 F 3d at 934.36 Most courts of appeals have answered in the negative—including the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. See Craig Robert Senn, Minimal Relevance: Non–Disabled Replacement Evidence in ADA Discrimination Cases, 66 Baylor L.Rev. 65, 82–88 (2014) (reviewing cases) 37

36 In requiring that the disabled plaintiff be rejected in favor of a non-disabled individual for ADA prima facie case purposes, another judge of this Court previously explained that “many other trial courts” had added this “fourth element” to the ADA prima facie case, and this decision was summarily affirmed on appeal in a four-sentence unpublished opinion . . . . Now, the majority of the courts of appeals have held that selection of a non-disabled individual is not required to make out a prima facie case under the ADA. See Craig Robert Senn, Minimal Relevance: Non–Disabled Replacement Evidence in ADA Discrimination Cases, 66 Baylor L.Rev. 65, 82–88 (2014) (reviewing cases).

37 The First and Fifth Circuits also arguably have not adopted such a requirement, given that they require only that a plaintiff “was replaced by a non-disabled person or was treated less favorably than non-disabled employees.” Senn, Minimal Relevance at 79 (citing Ansel v. Tex. Water Dev. Bd., 464 Fed.Appx. 395, 399 (5th Cir.2012)). However, in practice, the disjunctive construction is inconsequential, and cases often turn on

whether a non-disabled individual was in fact selected. See id. at 79–80.

A related question is whether evidence of non-disabled selection would be sufficient for showing that the adverse action resulted from the plaintiff's disability. See id. at 88–93.

In the Matter of A.S.V., Inc. A/K/A Terex and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO, 212 L.R.R.M. (BNA) 1133, 1140 (2018) (Board Member Kaplan, dissenting)

The judge's reliance on these provisions violates the Respondent's due process rights. To repeat: the facial legality of the severance and release agreements, or any provisions therein, was not challenged in the complaint.9 Moreover, prior to the judge's decision, the General Counsel did not rely on any of these provisions in arguing that the severance agreements should not bar litigation of the 8(a)(3) allegations. Thus, the Respondent had no notice that, in defending against these allegations, it should have proved the legality or enforceability of each of the three provisions,10 or argued that they are severable and that the remainder of the agreement should be deemed enforceable even if those provisions were not.11

11 The severability issue was also not raised. . . .Different considerations apply to a severance agreement that is executed in advance of the initiation of any litigation and is intended to avoid employment discrimination litigation altogether, not just under the Act we administer . . . . For a general review of the evidentiary variations in application of the knowing and voluntary standard, see generally Craig Robert Senn, Knowing and Voluntary Waivers of Federal Employment Claims: Replacing the Totality of Circumstances Test with a ‘Waiver Certainty’ Test, 58 Fla. L. Rev. 305, 307–308 (2006)

Original Brief for James Caplin, M.D., P.A., Defendant-Appellee at 13, 19, Garza v. Caplin, 745 F. App'x 230 (5th Cir. 2018), 2018 WL 3209980 at *13, *19

To establish a prima facie case of anti-retaliation, Ms. Garza had to show three elements:

1. She participated in an activity protected by ADEA, specifically opposing any practice deemed an unlawful employment practice,

2. She suffered an adverse employment action, and

3. There is a causal relationship between the protected activity and the adverse employment action.

Holt v. JTM Indus., 89 F.3d 1224, 1225-26 (5th Cir. 1996).1

1 The analysis of anti-retaliation claims is the same for ADEA claims as it is for Title VII claims. Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 fn 1 (5th Cir. 2003); . . . . See also, Craig Robert Senn, Redefining Protected “Opposition” Activity in Employment Retaliation Cases, 37 CARDOZO L. REV. 2035, 2037 (2016) (“The ADA and ADEA contain virtually identical antiretaliation provisions”).

This Circuit has not decided whether good faith is a requirement for an anti-retaliation claim, but this Court has acknowledged that other federal courts include this requirement. Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d at 1140, citing Monteiro v. Poole Silver Co., 615 F.2d 4, 8 (1st Cir. 1980); see also Senn, 37 CARDOZO L. REV. at 2045 n 29, for cases from other federal circuits imposing a “good faith” requirement.

Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law

State v. Eckel, 888 A.2d 1266, 1272 (N.J. 2006)

Those criticisms of Belton have been widely recapitulated in scholarly writings. In Pierce, we cited a number of them.5 Since Pierce the drumbeat of scholarly opposition to Belton has remained constant. See 3 Wayne R. LaFave, Search and Seizure § 7.1(c) at 527 (4th ed.2004)(stating that “[o]n balance . . . there is good reason to be critical of the Court's work in Belton ”); Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright Lines: Belton and Its Progeny, 79 Tul. L.Rev. 365, 399 (2004)(acknowledging Belton has “weak relation to its supporting Chimel rationales”); . . . .

Petition for a Writ of Certiorari at 15, Hrasky v. U.S., No. 06-827 (U.S. Dec. 12, 2006), 2006 WL 3694228 at *15

Leading commentators likewise have agreed that Justice Scalia's critique of Belton's rationale is “so compelling that it is hard to see how a majority of the Court, in a future case squarely presenting that issue, could conclude otherwise.” 3 LaFave, supra, at 531; see also Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright Lines: Belton and Its Progeny, 79 Tul. L. Rev. 365, 394-400 (2004).

State v. Rowell, 188 P.3d 95, 100 (N.M., 2008)

The Belton–Thornton approach has been described in the legal literature as

being both devoid of a reasoned basis in constitutional doctrine and lacking in reasonable guidance to police officers and courts who must apply it. See, e.g., 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.1(c), at 527 (4th ed.2004) (expressing concern that Belton creates a risk "that police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits"); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U. Pitt. L.Rev. 307, 325 (1982) (stating that "the Belton result does a disservice to the development of sound fourth amendment doctrine"); George Dery & Michael J. Hernandez, Turning a Government Search into a Permanent Power: Thornton v. United States and the "Progressive Distortion" of Search Incident to Arrest, 14 Wm. & Mary Bill Rts. J. 677, 696 (2005); Catherine Hancock, State Court Activism and Searches Incident to Arrest, 68 Va. L.Rev. 1085, 1131 (1982); Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright Lines: Belton and Its Progeny, 79 Tul. L. Rev. 365, 369 (2004); . . . .

Appellant's Brief and Appendix at 9, Hamel v. Maryland, 943 A.2d 686 (Md. Ct. App. 2008) (No. 2129), 2007 WL 626430 at *9

A locked glove box is much less readily accessible to the person being arrested than other parts of the passenger compartment, simply by virtue of its being locked. Gaining access to anything inside a locked glove box would require the arrested person to regain control over the keys, locate the proper key, and use it to unlock the glove box before it could be opened. These additional steps sufficiently attenuate the threat to officer safety or to the preservation of evidence to the point that the purposes behind the Chimel/Belton rule do not warrant its extension to locked glove boxes.5

5 See Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright Lines: Belton and its Progeny, 79 Tul. L. Rev. 365, text at n. 200 (2004)(“Given the over-generalization inherent in Belton's bright-line rule, the Court should fairly and honestly determine whether any extensions of the rule are supported by its underlying purposes. Extensions of an already over-generalized rule run a particular risk of impermissibly encroaching on Fourth Amendment values.”

Brief Of The Nat’l Ass’n Of Federal Defenders As Amicus Curiae In Support Of Petitioner at 5, Davis v. U.S., 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2010) (No. 09-11328), 2010 WL 5385330 at *5

The warning sounded in Thornton did not go unheard. After Thornton, the legal community was aware that the lower courts' broad interpretations of New York v.

Belton, 453 U.S. 454 (1981) stood on shaky ground. Defense attorneys began filing claims of error. See, e.g., Petition for Certiorari, Hrasky v. United States, 550 U.S. 903 (2007) (No. 06-827); United States v. Osife, 398 F.3d 1143 (9th Cir. 2005). Criminal defense organizations conducted seminars, encouraging practitioners to challenge over-expansive Belton searches. Law journals and treatises noted that change was afoot. See Wayne R. LaFave, 3 Search & Seizure, § 7.1(b) (4th ed. 2004); Carol A. Chase, Cars, Cops, and Crooks: A Reexamination of Belton and Carrol with an Eye Toward Restoring Fourth Amendment Privacy Protection to Automobiles, 85 Or. L. Rev. 913, 915 (2006); Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright Lines: Belton and Its Progeny, 79 Tul. L. Rev. 365, 395 (2004); . . . .

Appellant's Brief at 32, People of New York v. Saddiq Abdur-Rashid, 931 N.E.2d 70 (N.Y. 2010) (No. 2010-0092), 2010 WL 2585045 at *32

Indeed, of all areas of constitutional jurisprudence, search and seizure law has been widely recognized as confusing and often intellectually dishonest. See e.g., David Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U. Pa. J Const. L.581 (2008) (“The doctrinal incoherence of Fourth Amendment law disturbs many judges and scholars.”). This same view has been noted by the Supreme Court of New Mexico:

The Belton-Thornton approach has been described in the legal literature as being both devoid of a reasoned basis in constitutional doctrine and lacking in reasonable guidance to police officers and courts who must apply it. See, e.g., 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.1(c), at 527 (4th ed. 2004) (expressing concern that Belton creates a risk “that police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits”); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. L. Rev. 307, 325 (1982) (stating that “the Beiton result does a disservice to the development of sound fourth amendment doctrine”); George Dery & Michael J. Hernandez, Turning a Government Search into a Permanent Power: Thornton v. United States and the “Progressive Distortion” of Search Incident to Arrest, 14 Wm. & Mary Bill Rts. J. 677, 696 (2005); Catherine Hancock, State Court [*14] Activism and Searches Incident to Arrest, 68 Va. L. Rev. 1085, 1131 (1982); Leslie A. Lunney, The ( Inevitably Arbitrary) Placement of Bright Lines: Belton and Its Progeny, 79 Tul. L. Rev. 365, 369 (2004); . . . .

State of New Mexico v. Rowell, 188 P.3d 95 (2008). 100

Rivas v. State, Nos. 02–11–00203–CR, 02–11–00204–CR, 02–11–00205–CR, 2012 WL 5512450 at *5 (Tex. App., Nov. 15, 2012)

Notwithstanding the additional information provided to the police by Munchrath, it was not unreasonable for the magistrate to conclude that a “K-9” who conducted an “open air sniff” was trained to detect the smell of narcotics and that, from the K9's “alert,” the dog had experience with the odor-causing agent, even if the magistrate did not know that “NNDDA” is an acronym for National Narcotic Detector Dog Association. See Skaggs v. State, No. 11–10–00273–CR, 2012 WL 4849136, at *3 (Tex.App.—Eastland Oct. 11, 2012, no pet. h.) . . . ; see also . . .

Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L.Rev. 829, 835–36 (2009) (“[P]rivate vendors such as the U.S. Police Canine Association (USPCA), the National Narcotic Detector Dog Association (NNDDA), and the American Working Dog Association (AWDA) offer training classes for canine handlers, as well as certification of drug-detection dogs, based on each association's own internally generated certification standards.”).

Brief of Amici Curiae the National Ass’n of Criminal Def. Lawyers and the Florida Ass’n of Criminal Def. Lawyers in Support of Respondent at 12-13, 19, Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409,185 L. Ed. 2d 495 (2012) (No. 11-564), 2012 WL 2641848 at *1213, *19

Such false alerts can reveal legitimate private information about the home because dogs often identify narcotics by detecting the scent of a “contaminant or by-product in the drug” whose odor is more easily perceived than that of the pure form of the drug itself. Lunney, Has the Fourth Amendment Gone to the Dogs?, 88 Or. L. Rev. 829, 838 (2009).

Although methyl benzoate is frequently found in street cocaine, it is not contraband. Indeed, the FDA has approved its use as a synthetic flavoring substance, and it can be found in a number of common household items, including perfume, solvents, and insecticide. Lunney, supra, at 838-839

And trained narcotics-detection dogs are “sense enhancing” technology in the sense relevant to Kyllo: They are “not in general public use” and reveal “details of the home that would previously have been unknowable without physical intrusion.” 533 U.S. at 40; see also United States v. Jackson, 2004 WL 1784756, at *3 (S.D. Ind. Feb. 2, 2004) (finding “no constitutional distinction between the use of specially trained dogs and sophisticated electronics from outside a home to detect activities in or contents of the home's interior”).8

8 Indeed, the 2002 version of “the White House's Office of National Drug Control Policy discusses detection dogs and lists them as ‘Non-Intrusive Technology,’ and … the government describes detection dogs as ‘technology’ in other project materials as well.” Lunney, supra, at 893; see id. (describing the government's “intended goal of creating a ‘worldwide gene pool’ for substance-detection canines”).

Brief of the Rutherford Institute, Amicus Curiae in Support of Respondent at 8, Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409,185 L Ed. 2d 495 (2012) (No. 11-564), 2012 WL 2832440 at *8

There is no reported data concerning the reliability and accuracy of perimeter sniffs and alerts by drug detection dogs at private residences, specifically.15

15 See Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs? Unreasonable Expansion of Canine Sniff Doctrine To Include Sniffs of the Home, 88 Or. L. Rev. 829, 835-837 (2009) (“Lunney”).

Methyl benzoate dissipates quickly when it is exposed to air, and is reduced to low levels consistent with legal products commonly found in most American homes: solvents, insecticides, first aid kits and perfume.23

23 Lunney 829-39.

Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit at 18, Grupee v. U.S., 682 F.3d 143 (1st Cir. 2012), 2012 WL 5083407 at *18

The mechanics of the drug-sniffing dog lends to inaccuracy. Dogs alert not to the illegal drug itself, but to by-products in the drugs. With cocaine, for example, it appears that the dog alerts to methyl benzoate, a molecule commonly found in non-contraband products like solvents, insecticides, and perfumes. Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?, 88 Or. L. Rev. 829, 838 (2009)

Brief of Amici Curiae the National Ass’n of Criminal Def. Lawyers, the Florida Ass’n of Criminal Defense Lawyers, the American Civil Liberties Union, and the American Civil Liberties Union of Florida in Support of Respondent passim, Florida v. Harris, 568 U.S. 237, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013) (No. 11-817), 2012 WL 3875241 passim

False alerts also arise because narcotics-detection dogs can, and often do, alert to the presence of substances other than the contraband they were purportedly trained to detect. This phenomenon, known as “generalization,” can occur because

dogs frequently learn to identify narcotics by detecting the scent of a “contaminant or byproduct in the drug” whose odor is more easily perceived than that of the pure form of the drug itself. Lunney, Has the Fourth Amendment Gone to the Dogs?, 88 Or. L. Rev. 829, 838 (2009); . . . .

Although methyl benzoate is frequently found in street cocaine, it is not contraband. Indeed, the FDA has approved its use as a synthetic flavoring substance, and it can be found in a number of common household items, including perfume, solvents, and insecticide. Lunney 838-839.

b. Flawed training and certification procedures may encourage dogs to engage in generalization, thereby contributing to false alerts in the field. As discussed above, when trained to detect drugs laced with contaminants or byproducts, dogs may learn to alert to a noncontraband byproduct or contaminant rather than to the drug itself, which can lead to false alerts. See supra pp. 16-18; see also Lunney 838 (“Studies show that drug-detection dogs alert not to the illegal drug itself, but instead to a contaminant or by-product in the drug.”); . . . . Thus, for instance, a trainer who trains a dog to detect cocaine using impure samples of “street” cocaine, which contains more adulterants than does pharmaceutical-grade cocaine, may actually be rewarding the dog for detecting the scent of methyl benzoate or another contaminant rather than the cocaine itself, thereby reinforcing behavior likely to lead to false alerts. See Katz & Golembiewski 756 (noting the increased risk of “false[] alert[s] to many legal products” if trainers “train drug dogs to alert to low levels of methyl benzoate”); Sachs, The Fake Smell of Death (“A dog trained on street drugs can … get distracted by cutting agents, homing in on baking powder in the fridge and ignoring uncut cocaine in the pantry.”).11

11 Similarly, trainers using impure samples may unwittingly train a dog to alert to other legal substances associated with contraband because a dog may incorrectly believe during training that it is being rewarded for identifying those noncontraband substances. Instead of alerting to the drug itself, dogs may alert “to the presence of some chemical molecule that they have come to associate with a reward.” Myers, In the Wake of Caballes, Should We Let Sniffing Dogs Lie?, 20 Crim. Just. 4, 7 (Winter 2006). For example, a “dog might become fixated” on the smell of “Ziploc bags because the police stored drug training samples in them,” increasing the risk of false alerts to the presence of drugs when, in fact, no contraband is present. Derr, With Dog Detectives, Mistakes Can Happen; see also Lunney 837 n.31.

Trainers can minimize the risk of generalization by using purer samples of narcotics to prevent narcotics-detection dogs from learning to alert to the

contaminants or byproducts present in street drugs. See Lunney 837 n.31; Sachs, The Fake Smell of Death. Many training organizations, however, actively tout the fact that they use street drugs as samples during training exercises. Lunney 837 n.31

As a result, “drug-detection dogs are generally trained and certified by private vendors without the benefit of [uniform] standards for training and certification,” leading such organizations to employ training standards and methodology that vary dramatically in quality and effectiveness. Lunney 835

Brief for Respondent at 33-34, Florida v. Harris, 568 U.S. 237, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013) (No. 11-817), 2012 WL 3716865 at *33-34

Dogs trained for methamphetamine alert by detecting chemicals in amphetamine, which is the active ingredient in lawful drugs commonly used to treat Attention Deficit/ Hyperactivity Disorder. Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829, 874 n.214 (2009).

Defense Motion to Suppress Evidence at 10, State v. Espinoza, No. 12-1-01852-1 (Wash. Super. Jan. 25, 2013) 2013 WL 12303295 at *10

Drug-detection dogs do not alert specifically to the smell of illegal drugs, but to the scent of particular compounds emitted during the breakdown of products found in illegal drugs.

Scientific research establishes that instead of smelling cocaine, drug-detection dogs alert to methyl benzoate - an odor shared by snapdragons, petunias, perfumes and food additives. Instead of smelling heroin, drug-detection dogs alert to acetic acide - an odor shared by vinegar and aspirin that is past its prime. Instead of smelling MDMA (“Ecstacy”), drug-detection dogs alert to piperonal - an odor shared by soap, perfume, food additives and even lice repellant.

Leslie A. Shoebotham, Brief ofAmici Curiae Fourth Amendment Scholars In Support of Respondent, State of Florida v. Joelis Jardines, No. 11-564 (2012).

State v. Eichers, 853 N.W.2d 114, 126 (Minn. 2014)

A false alert on a mailed package would generally lead only to opening that package, which can be repackaged with minimal delay and burden to the owner, whereas a false alert on a person, storage unit, or apartment would lead to a much more involved and disruptive search. See Place, 462 U.S. 696 at 707, 103 S.Ct.

2637, 77 L.Ed.2d 110 (citing the lack of embarrassment and inconvenience to the owner as reasons why dog sniffs are unique investigative tools). But see, e.g., Doe v. Renfrow, 475 F.Supp. 1012 (N.D.Ind.1979) (false alert during a random dog sniff of students at a school that resulted in nude search of a 13–year–old girl), aff'd in part, rev'd in part, 631 F.2d 91 (7th Cir.1980); Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L.Rev. 829, 873–75 (2009) (arguing that dog-sniff searches of homes are distinguishable from sniffs of luggage or mail because “the search of a home on the basis of a positive canine sniff would be both probing and expansive”).

Opening Brief of Appellant Camacho at 18, State v. Camacho, No. 45491-2-II. (Wash. Ct. App. July 20, 2015), 2015 WL 11506553 at *18

But research has shown that a canine sniff is just as likely to reveal the presence of noncontraband as contraband. That is because drug detection dogs are not alerting to the illegal drugs. Rather, the dogs are alerting to particular compounds in the drugs, many of which are not illegal.

Scientific research establishes that instead of smelling cocaine, drugdetection dogs alert to methyl benzoate - an odor shared by snapdragons, petunias, perfumes and food additives. Instead of smelling heroin, drug-detection dogs alert to acetic acid - an odor shared by vinegar and aspirin that is past its prime. Instead of smelling MDMA (“Ecstasy”, drug-detection dogs alert to piperonal - an odor shared by soap, perfume, food additives and even lice repellant. Law enforcement is well-aware of this research and in fact uses these specific, noncontraband molecules and compounds to prepare pseudo drug training aids - devices which train drug-detection dogs and reinforce their field training -to alert to these precise substances, not a more complex odor signature for contraband. And because these shared smells - entirely-lawful odor constituents - are readily found in homes throughout the country, canine drug-detection sniffs may reveal lawful activity within the home.

Leslie A. Shoebotham, Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, State of Florida v. Jardines, 2012 WL 2641847 at 4 (U.S. 2012).

Brief and Appendix on Behalf of Defendant-Appellant at 35-36, State v. Hardley, No. A-004964-13T2 (N.J. Super. Ct. App. Div. Oct. 20, 2015), 2015 WL 13844051 at *35-36

Even when dogs correctly alert according to their training, they are often

actually alerting to compounds which are present in both contraband and not contraband substances, leading to the possibility of an accurate alert even when no contraband is present. When many dogs alert to cocaine, they are actually signaling the presence of methyl benzoate. M.S. Macias et al., A Comparison of Real Versus Simulated Contraband VOCs for Reliable Detector Dog Training Utilizing SPME-CG-MS, 40 Am. Lab. 16 (Jan. 2008). Methyl benzoate is present in many legal substances. Katz and P. Golembiewski, supra, at 755. Similarly, dogs typically alert to heroin by detecting acetic acid, a common substance used in pickles and certain glues; and to MDMA, or ecstasy, by detecting piperonal, which is found in flavorings, perfume, and mosquito repellant. Id. Dogs trained to alert to methamphetamine alert by detecting chemicals in amphetamine, which is the active ingredient in 34 lawful drugs commonly used to treat Attention Deficit/Hyperactivity Disorder. Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829, 874 n.214 (2009).

United States v. Beene, 818 F.3d 157, 174 (5th Cir. 2016)

Indeed, history is replete with examples of officials using trained dogs, sometimes in aid of state sanctioned violence, to intimidate or control American citizens.3

3 As one commentator observed:

Dogs were used to attack Native Americans and to chase down runaway slaves. During the Civil War, dogs were used to intimidate and injure African–American soldiers fighting for the North. Following Pearl Harbor, dogs were used to intimidate Japanese Americans residing in Hawaii. In more modern times, police dogs have been used for crowd control, even on nonviolent civil rights demonstrators.

Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of the Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L.Rev. 829, 882 (2009)

Respondent's Brief On Behalf of Defendant-Respondent at 19, State of New Jersey v. Dunbar, No. 077839 (Oct. 25, 2016), 2016 WL 9450675 at *19

Similarly, dogs typically alert to heroin by detecting acetic acid, a common substance used in pickles and certain glues; and to MDMA, or ecstasy, by detecting piperonal, which is found in flavorings, perfume, and mosquito repellant. Id. Dogs trained to alert to methamphetamine alert by detecting chemicals in amphetamine, which is the active ingredient in 34 lawful drugs commonly

used to treat Attention Deficit/Hyperactivity Disorder. Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829, 874 n.214 (2009).

Appellant's Reply Brief at 7, State v. Edstrom, No. A16-1382 (Minn. Ct. App. Apr. 27 2017), 2017 WL 8943833 at *7

The entire Court in Jardines ran away from the Caballes “contraband” exception when given the chance to apply it to the dog sniff of a home, described by the lower court as a “public spectacle enfolding in a residential neighborhood [that] will inevitably entail a degree of public opprobrium, humiliation and embarrassment for the resident.” Jardines v. State, 73 So.3d at 48.3

3 Even before Jardines, commentators criticized the extension of the “contraband” exception to dog sniffs of houses. See Timothy C. MacDonnell, “Orwellian Ramifications: The Contraband Exception to the Fourth Amendment,” 41 U. Mem. L. Rev. 299, 353 (2010) (“It is difficult not to see the potential of a surveillance state coming into being through the contraband exception.”; Leslie A. Lunney, “Has the Fourth Amendment Gone to the Dogs: Unreasonable Expansion of Canine Dog Sniff Doctrine to Include Sniffs of the Home,” 88 Ore. L. Rev. 829, 903 (2009) (“A canine sniff of a home is not the minimally intrusive law enforcement tool that a sniff of luggage at an airport or a lawfully stopped vehicle at the roadside would represent.”)

Brief in Support of Motion to Bar/Limit Evidence at 15, Tiencken v. Rosikiewicz, No. MRSL00255514 (N.J. Super. Ct. Law Div. May 9, 2018), 2018 WL 4468676 at *15

POINT III: THE PLAINTIFF'S EXPERT AND THE JCP&L CO-DEFENDANTS' EXPERT OPINIONS AS TO THE ALLEGED LIABILITY OF ALEXANDER ROSIKIEWICZ AND KATHLEEN ROSIKIEWICZ SHOULD BE BARRED AS NET OPINIONS.

Judge Learned Hand, in a 1901 article, identified the twin problems of expert witnesses: (i) venality; and (ii) authority. In essence, the lure of witness fees will attract a qualified expert willing to testify to almost anything; and the special qualifications and knowledge of the expert, as well as the trial judge's certification that the witness is an expert, may perhaps lend an undue “aura of mystic infallibility” to the expert's testimony.

Leslie A. Lunney, Protecting Juries From Themselves: Restricting the

Admission of Expert Testimony in Toxic Tort Cases, 48 SMU L. Rev. 103 (1994).

In re Amendments to Fla. Evidence Code, 278 So.3d 551, 571 (Fla. 2019) (Labarga, J., dissenting)

The Daubert amendment is no different than the statutes allowing victim impact evidence in death-penalty cases and hearsay reports in Jimmy Ryce Act cases. Section 90.702, like the other two statutes, establishes the right of parties to introduce evidence in our courts by abrogating the common law prohibition against such evidence. See Leslie A. Lunney, Protecting Juries from Themselves: Restricting the Admission of Expert Testimony in Toxic Tort Cases, 48 SMU L. Rev. 103, 105 (1994) (“Because of these risks, the common law imposed a number of constraints on the admissibility of expert witness testimony, thus limiting the issues and the bases on which an expert would be permitted to testify.”)

Brief in Support of Motion for Summary Judgment at 6, Alt v. Albabili, No. MRS-L-001682-17 (N.J. Super. Ct. Law Div. June 14, 2019), 2019 WL 7905404 at *6

In providing an opinion, an expert must “ ‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.’ ” Id., quoting Polzo v. Cnty of Essex, 196 N.J. 569, 582 (2008). Additionally, in giving the “the why and wherefore” of their opinions, an expert also establishes his or her requisite familiarity with the issues opined upon. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002).

Judge Learned Hand, in a 1901 article, identified the twin problems of expert witnesses: (i) venality; and (ii) authority. In essence, the lure of witness fees will attract a qualified expert willing to testify to almost anything; and the special qualifications and knowledge of the expert, as well as the trial judge's certification that the witness is an expert, may perhaps lend an undue “aura of mystic infallibility” to the expert's testimony.

Leslie A. Lunney, Protecting Juries From Themselves: Restricting the Admission of Expert Testimony in Toxic Tort Cases, 48 SMU L. Rev. 103 (1994)

Motion to Suppress Evidence and Request for Hearing at 19, U.S. v. Mahan, No. 1:19-cr-00233-DCN (D. Idaho, June 11, 2020), 2020 WL 13252394 at *19

When police enlist a drug-detection dog to establish probable cause for a

warrantless search of a vehicle, the government has the burden to show that the dog's alert was reliable. Florida v. Harris, 568 U.S. 237 (2013). Here, the government cannot meet its burden. Nothing in the discovery indicates how Jaco alerted in this case or if the alleged alert was consistent with Jaco's training or with past alerts in the field. These open questions require answers because drug-detection dogs are notoriously fallible. See, e.g , Illinois v. Caballes, 543 U.S. 405, 412, (2005) (Souter, J., dissenting); . . . . Ken Lammers, Canine Sniffs: The Search That Isn't, New York University Journal of Law and Liberty (June 2018); located at http://www.law.nyu.edu/sites/default/files/ECMPRO060918.pdf 3

3 See also . . . ; Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs, Leslie Shoebotham, 14 Loyola Univ. Journal of Public Interest Law 251 (Feb. 20, 2013), located at https://papers.ssrn. com/sol3/papers.cfm?abstract id=2201833; . . . .

Plaintiffs/Appellants' Consolidated Reply to the Briefs Amicus Curiae Filed in Support of the Defendant/Appellee at 21, Miller v. Johnson, No. 08-99818-AS (Kan. Ct. App. May 19, 2009), 2009 WL 2511242 at *21

Professor Silver and his colleagues share Professor Baker's conclusion. After systematically analyzing fifteen years of “closed” claims collected by the Texas Department of Insurance, they found no connection between medical malpractice claim outcomes and any medical liability insurance crisis.

This evidence suggests that no crisis involving malpractice claim outcomes occurred. It thus also suggests a weak connection between claims-related costs and short-to-medium-term fluctuations in insurance premiums . . . .

[T]he more likely explanation is that much of the rise in premiums reflects insurance market dynamics, not litigation dynamics.

Bernard Black, Charles Silver, et al., Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, 2 J. Empirical Legal Studies 207, 210 (2005). See also Douglas A. Kysar, Thomas O. McGarity, & Karen Sokol, Medical Malpractice Myths and Realities: Why an Insurance Crisis Is Not a Lawsuit Crisis, 39 LOY. L.A. L. REV. 785 (2006)

Dodson v. Ferrara, 491 S.W.3d 542, 572 (Mo. 2016)

A clear, cogent argument exists that this medical malpractice “crisis” was manufactured and continues to be exacerbated today by a special interest group that

Karen C. Sokol, William L. Crowe Sr. Distinguished Professor of Law

persistently labels, for shock value, and characterizes some jurisdictions as “judicial hellholes.” These characterizations and the underlying “support” for these characterizations have been criticized roundly. See e.g., Adam Liptak, The Worst Courts for Business? It's a Matter of Opinion, N.Y. TIMES, December 24, 2007, at A10; Douglas A. Kysar, Thomas O. McGarity, and Karen Sokol, Medical Malpractice Myths and Realities: Why an Insurance Crisis is not a Lawsuit Crisis, 39 Loy. L.A. L.Rev. 785, 804 (August 2006); . . . .

Brief of Plaintiff-Appellant (with Separate Appendices) at 24, Munn v. The Hotchkiss School, No. S.C. 19525 (Conn. Feb. 26, 2016) 2016 WL 9107314 at *24

There is no support for the frequently repeated mantra that “big verdicts = more lawsuits.” In Connecticut, the exact opposite is true. See Connecticut Judicial Branch, Civil Cases Added By Case Type, 1994/1995 through 2014/1015, available at www.jud.ct.gov/statistics/civil/civil casetypeAdd.pdf, A725- A728. These statistics show that the number of tort cases filed in Connecticut significantly decreased from 1995-2015, including not only the two years following the verdict in this case, but also the years following the substantial verdicts described by the District Court at A146-A147 (MOD at 82-83) of $50 million, $20 million, $16.5 million, and $15 million.8

8 The oft-repeated fear that damages awards will lead to an increase in insurance premiums and put insureds out of business also lacks evidentiary support. “The campaign for tort restrictionist laws is dressed up in the rhetoric of nonexistent litigation explosions, insurance crises, horrifying economic consequences, unconscionable jury awards and frivolous lawsuits. None of the justifications withstand scrutiny[.]” Robert S. Peck, Tort Reform's Threat to an Independent Judiciary, 33 Rutgers L.J. 835, 843-67 (2002) (citing multiple studies showing no litigation explosion, no insurance crisis, no negative impact on a state's economy due to the availability of tort remedies); see generally Douglas A. Kysar, Thomas v. McGarity & Karen Sokol, Medical Malpractice Myths and Realities: Why an Insurance Crisis Is Not A Lawsuit Crisis, 39 Loy. L.A.L. Rev. 785, 800 (2006) (explaining that there is no explosion of medical negligence filings and that medical negligence cases are not the reason for high physician insurance rates; stating that “[a]ccording to the most recent analysis by the Department of Justice's Bureau of Statistics, tort claims accounted for only 10% of civil filings in state courts in 1993 and have remained stable since 1986”)

Brief of Legal Scholars as Amici Curiae in Support of Plaintiffs-Appellees at 13-14, Honolulu v. Sunoco, LP, & County OF Maui v. Chevron USA Inc., Nos. 21-15313, 21-15318 (9th Cir. Sept. 24, 2021) 2021 WL 4507553 at *13-14

Defendants' unbounded theories of federal jurisdiction undercut federalism's respect for state courts. Defendants strategically seek shelter in the narrow jurisdiction of federal courts, under the untenable guise that holding tortfeasors liable for injuries caused by tortious marketing would supplant federal regulation of activities like oil production on outer continental shelves. Although fossil fuel companies might more judiciously avoid the costs of disinformation campaigns if those costs were internalized, this does not convert tortious marketing into a federally regulated act. To find otherwise would grant large, regulated corporations a segregated system of civil justice: a federal judiciary for large corporations that engage in some type of federally regulated activity, and a state judiciary for everyone else. This is not how federalism operates. Starting in the 1960s, “state courts throughout the nation began drawing on existing tort law principles in response to new types of business activities by large companies including mass-marketing of their products, engaging in misleading marketing strategies, and selling unsafe products with the potential to cause widespread and devastating harms.” Karen C. Sokol, Seeking (Some) Climate Justice in State Tort Law, 95 Wash. L. Rev. 1383, 1434 (2020).

Imre Szalai, Judge John D. Wessel Distinguished Professor of Social Justice

Brief of Appellants at 20, Rollins, Inc. v. Garrett, No. 05-14127-E (11th Cir. Sept. 7, 2005) 2005 WL 4780617 (C.A.11) at *20

Thus, on the substantive issue - whether the arbitration provision allowed for classwide arbitration - there was no majority opinion. Similarly, on the procedural issue - the correct decision-maker - there was no majority opinion. Thus, Bazzle does not preclude this Court from following the case law prior to 2003, as the Bazzle judgment was binding only on those parties involved in the Bazzle case. See Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 552 (6th Cir. 2001) (splintered decisions have “no precedential effect”). See also Imre S. Szalai, The New ADR: Aggregate Dispute Resolution and Green Tree Financial Corp. v. Bazzle, 41 Cal. W. L. Rev. 1 (Fall 2004).

Brief In Support of Application to Vacate Arbitration Award at 15, Petsch v. Orkin, Inc., No. 01-010121 (Fla. Cir. Ct. Nov. 28, 2005), 2005 WL 6143647 at *15

Thus, on the substantive issue - whether the arbitration provision allowed for classwide arbitration - there was no majority opinion. Similarly, on the

procedural issue - the correct decision-maker - there was no majority opinion. Thus, Bazzle does not preclude this Court from following the case law prior to 2003, as the Bazzle judgment was binding only on those parties involved in the Bazzle case. See Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 552 (6th Cir. 2001) (splintered decisions have “no precedential effect”). See also Imre S. Szalai, The New ADR: Aggregate Dispute Resolution and Green Tree Financial Corp. v. Bazzle, 41 Cal. W. L. Rev. 1 (Fall 2004).

Brief in Support of Application to Vacate Arbitration Award at 15, Rollins, Inc. v. Petsch, No. 05CV01835 (M.D. Fla. Sept. 30, 2005) 2005 WL 3878122 at *15

Thus, on the substantive issue - whether the arbitration provision allowed for classwide arbitration - there was no majority opinion. Similarly, on the procedural issue - the correct decision-maker - there was no majority opinion. Thus, Bazzle does not preclude this Court from following the case law prior to 2003, as the Bazzle judgment was binding only on those parties involved in the Bazzle case. See Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc, 240 F.3d 534, 552 (6th Cir. 2001) (splintered decisions have “no precedential effect”). See also Imre S. Szalai, The New ADR: Aggregate Dispute Resolution and Green Tree Financial Corp. v. Bazzle, 41 Cal. W. L. Rev. 1 (Fall 2004).

Brief and Required Short Appendix of Plaintiff-Appellant Employers Insurance Co. of Wausau at 31, Employers Insurance Co. of Wausau v. Century Indemnity Co., 443 F.3d 573 (7th Cir. 2006) (No. 05-3437), 2005 WL 3738633 at *31

In light of that belief, Justice Stevens' singular thought on the issue hardly was intended to transform Justice Breyer's opinion into binding precedent. See id. (“Arguably the interpretation of the parties' agreement should have been made in the first instance by the arbitrator, rather than the court.”) (emphasis added). Rather, because Justice Stevens recognized that, if he were “to adhere to [his] preferred disposition of the case, . . . there would be no controlling judgment of the Court,” his concurrence merely “avoid[ed] that outcome. . . .” Id.; see also Imre S. Szalai, The New ADR: Aggregate Dispute Resolution and Green Tree Financial Corp. v. Bazzle, 41 Cal. W.L. Rev. 1, 27 (2004) (“[Green Tree] did not establish any binding precedent regarding [the threshold issue of the correct decision-maker].”); . . . .

Answer and Supporting Brief of Plaintiffs/Respondents in Response to Defendants'/Petitioners' Petition for Writ of Prohibition or, in the Alternative, Writ of Mandamus at 27, Ex Parte Johnson, 993 So.2d 875 (Ala. 2008) (No. 1061760), 2007 WL 6714012 at *27

Thus, the Bazzle decision does not support Petitioners' contention that “the validity of Med Center Cars is questionable at best.” (Pet. at 15.)4 Bazzle stands only for the proposition that the decision as to whether class arbitration is permitted under an agreement that is silent on that point must be made pursuant to applicable state law.5

5 Courts and legal commentators alike have concluded that Bazzle does not stand for the broader proposition Petitioners attribute to it for this very reason. Employers Ins. Co. v. Century Indem. Co., 443 F.3d 573, 579-81 (7th Cir. 2006) (holding that Justice Stevens did not agree with the rationale of the other Justices in Bazzle, and therefore, under Marks, a court cannot rely on the remarks of the other Justices as controlling precedent);

Imre S. Szalai, The New ADR: Aggregate Dispute Resolution and Green Tree Financial Corp. v. Bazzle, 41 Cal. W. L. Rev. 1 (2004) (discussing the limited interpretation that should be accorded to Bazzle based on the Marks doctrine)

Petition for a Writ of Certiorari Before Judgment at 8, Cintas Corp. v. Abel, No. 07–1338 (Apr. 21, 2008), 2008 WL 1827443 at *8

Recent and thorough scholarship confirms the many reasons why that is so. See Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Neg. L. Rev. 319, 346 (2007) (“[T]he Supreme Court has expressly interpreted § 4 as providing for jurisdiction to compel arbitration when the district court would have jurisdiction over a suit on the underlying dispute to be arbitrated ….”)

Brief for Respondent at 17, Preston v. Ferrer, 552 U.S. 346, 128 S. Ct. 978, 169 L. Ed. 2d 917 (2008), 2007 WL 4287220 at *17

Enacted in 1925, the FAA was intended to overcome judicial resistance to arbitration, Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006), by, among other things, overruling the “ouster doctrine” that federal courts had invoked to disregard otherwise valid arbitration agreements, H.R. REP NO. 68-96, at 1-2 (1924); S. REP NO. 68-536, at 2 (1924).6

6 The ouster doctrine provided that “any agreement contained in an executory contract, ousting in advance all courts of every whit of jurisdiction to decide contests arising out of that contract, will not be enforced by the courts so ousted.” Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 HARV. NEGOT. L. REV. 319, 332 (2007) (citation omitted); . . . .

Brief of Law Professors as Amici Curiae in Support of Respondents passim, Vaden v. Discover Bank; Discover Financial Services, Inc., 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 (2008) (No. 07-773), 2008 WL 3539499 passim

Several FAA scholars have condemned Westmoreland's textual and historical interpretation of § 4 as “utterly unfounded,” “tortured,” “historically inaccurate,” “bizarre,” and as creating significant “adverse effects” that would undermine the entire FAA.7

7 See 1 Macneil, Speidel & Stipanowich, Federal Arbitration Law § 9.2.3.3 (1999); Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319 (2007); .

The need for the more descriptive “save for” clause in the FAA likely arises from the difference between the general jurisdiction of state courts and the limited jurisdiction of federal courts. Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv Negot. L. Rev. 319, 338-39 (2007). . . .

The Judicial Code set forth the original. jurisdiction of the federal courts, and when the FAA was enacted in 1925, the Judicial Code included federal question jurisdiction as well as diversity jurisdiction. Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319, 347-53 (2007).

The Westmoreland approach may be tantalizing to some opponents of arbitration because the Westmoreland approach limits the ability to enforce arbitration agreements in federal courts,18 and the consequences of denying a federal forum for the enforcement of arbitration agreements can be significant.

18 Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319, 323 n.15, 324 (2007)

Brief for Respondents at 16, 25-26, Vaden v. Discover Bank; Discover Financial Services, Inc., 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 (2008) (No. 07-773), 2008 WL 3153441 at *16, *25-26

That straightforward reading of “controversy between the parties” is confirmed elsewhere in the FAA. For example, in Section 2, Congress twice uses the same word “controversy” to refer to the dispute “arising out of [the parties'] contract or transaction,” and not the dispute about arbitrability. 9 U.S.C. § 2.7

7 See also Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319, 344-45 (2007) (“Sections 2 and 4 should be construed together, and the term ‘controversy’ in both sections should be read consistently to mean the underlying dispute to be arbitrated.”).

Neither these courts of appeals ( e.g , Westmoreland) nor petitioner offers any explanation for this disparity in treatment between diversity and federal-question jurisdiction, and the language of Section 4 supports none. See Szalai, supra at 362 (explaining that courts rejecting the look-through approach “do an about-face” when it comes to diversity jurisdiction).

Brief of Appellee at 43, Parham v. American Bankers Insurance Co. of Florida, 24 So.3d 1102 (Ala. 2009) (No. 1070717), 2008 WL 6481323 at *43

The Bazzle plurality found that where the parties' contract left all disputes relating to the contract to the arbitrator and did not expressly provide for class arbitration, the question of whether a class arbitration was or was not authorized by the contract is a question of contract interpretation to be decided in the first instance by the arbitrator in accordance with state contract law. Id.19

19 Bazzle was decided by a plurality of four justices, with whom Justice Stevens dissented in part but concurred in the judgment. Id. Federal Circuit Courts have been unable to agree that Bazzle announced “a single rationale endorsed by a majority of the Court.” Employers Ins. Co. of Wausau v. Century Indem. Co., 443 F.3d 573, 580 (7th Cir. 2006) (“The Justices' rationales do not overlap.”). . . . Since even the federal Circuits cannot agree that there is a single “position taken by [the Justices] who concurred in the judgments on the narrowest grounds,” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted), the “holding” of Bazzle is uncertain. See e.g., Imre S. Szalai, The New ADR: Aggregate Dispute Resolution And Green Tree Financial Corp. v. Bazzle, 41 Cal. W. L. Rev. 1, 27 (Fall 2004) (“Bazzle did not establish any binding precedent.”). The discussion of Bazzle here focuses on the plurality opinion because the holding of the case - to the extent there is one - must, of necessity, be part of the plurality opinion.

Petition for a Writ of Certiorari at 15, American Express Co. v. Italian Colors Restaurant, 554 F.3d 300 (2d Cir., 2009) (No. 08-1473), judgment vacated, and remanded to the U.S. Court of Appeals for the Second Circuit for further consideration in light of Stolt–Nielsen

S.A. v. Animal Feeds Int'l Corp., 559 U.S.662, 130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010); 559 U.S. 1103,130 S. Ct. 2401, 176 L. Ed. 2d 920 (2010), 2009 WL 1511739 at *15

Classwide arbitration was simply not contemplated by Congress at the time of the FAA's passage. See Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negot. L. Rev. 399, 433-434 (2008)

Brief of Appellant at 33-34, Switzer v. Credit Acceptance Corp., No. 10-1234 (4th Cir. Nov. 15, 2010), 2010 WL 4620149 at *33-34

The 68th Congress, which passed the FAA in 1925, was concerned about overcrowded federal court dockets. Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319, 369-72 (2007). There was a “docket crisis” in the federal courts. Alleviating the docket crisis was one of the FAA's objectives. Id. at 370-71

En Banc Reply Brief of Appellants at 18, 20, Community State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011) (No. 06-11582-FF), 2007 WL 5444826 at *18, *20

Finally, the fatal weakness of Strong's position is evidenced by his complete and utter failure to come to grips with the arguments set forth in Appellants' opening brief. Without belaboring the point, Appellants would simply observe the following:

! Strong does not deny that, throughout the FAA, the word “controversy” refers to the underlying dispute between the parties and not the arbitrability dispute. See Appellants' Brief at 12-13 (citing Sections 1, 2, 5, 10 and 11 of the FAA, 9 U.S.C. §§ 1, 2, 5, 10, 11; Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319 (2007) (hereinafter, “Szalai”), pp. 345).

! Strong makes no effort to explain why the state arbitration acts upon which the FAA was patterned required no analogue to Section 4 to the FAA in order to overturn the ouster doctrine, nor does he respond to the point that Section 4 was required in the FAA but not state arbitration acts because federal courts are courts of limited jurisdiction whereas state courts typically are not. See Appellants' Brief at 22-24 (citing 1 Ian R. Macneil, Speidel & Stipanowich, Federal Arbitration Law § 9.2.3; Szalai, 12 Harv. Negot. L. Rev. at 337-43, 353-57); . . . .

Cross-Appellants' Opening Brief at 38-39, Hill v. Garda CL Northwest, Inc., 308 P.3d 635 (Wash. 2012) (No. 66137–0–I), 2011 WL 10525724 at *38-39

Any determination in arbitration concerning Garda's wage practices would presumably apply to all employees, just as any determination in a class action applies to all class members. See Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negotiation L. Rev. 399, 407 (2008) (“Class arbitration shares a general similarity with labor arbitration in that both involve aggregate dispute resolution.”)

Petition for Review at 19, Hill v. Garda CL Northwest, Inc., 308 P.3d 635 (Wash. 2012) (No. 66137–0–I), 2012 WL 7763219 at *19

Any ruling in arbitration concerning Garda's wage practices would presumably apply to all employees, just as any determination in a class action applies to all class members.12

12 See Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 HARV. NEGOTIATION L. REV. 399, 407 (2008) (“Class arbitration shares a general similarity with labor arbitration in that both involve aggregate dispute resolution.”).

Plaintiff SEII's Reply in Support of Motion for Summary Judgment at 13, Service Employees International, Inc. v. Michael Pryor, No. 4:10-CV-01577 (S.D.Tex. Mar. 19, 2012), 2012 WL 6128976 at *13

This reversal was indeed a game changer for arbitration agreements (like the DRP) that were drafted before class arbitration became commonplace in the wake of Bazzle.10

10 See also Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negotiation L. Rev. 399, 405 (2008) (“Bazzle, despite being a heavily splintered opinion establishing no clear precedent, significantly opened the door for class arbitration.”); id. at 407 (referring to the “proliferation” and “advent of class arbitration in the wake of Bazzle”);

Brief for Scholars and Practitioners of Arbitration as Amici Curiae in Support Of Petitioner at 11, 12, Bakoss v. Certain Underwriters at Lloyd's of London Issuing Certificate No. 0510135, No. 12-1429 (U.S. July 11, 2013), 2013 WL 3527809 at *11, *12

This limited use of the word "settle" is consistent with the 1924 transcripts of subcommittee hearings on the FAA. In his testimony, Charles Bernheimer, the

"father of commercial arbitration" and "driving force" behind the FAA, described "four known methods" to resolve trade disputes: (1) "for the parties to settle between themselves," (2) "for the parties to settle by negotiation with the assistance of a third party," (3) "for the parties to enter into formal arbitration . . . arbitration which has legal sanction, so that the parties cannot . . . back out at the last moment when they see the case is going against them" and (4) litigation.” Joint Hearings before the Subcommittees of the Committees on the Judiciary, Congress of the United States, Sixty Eight Congress, First Session on S. 1005 and H.R. 646 at 7 (January 9, 1924) (emphasis added); Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013) (describing Bernheimer's instrumental role in the FAA's passage)

While non-binding processes were used in the 1920s, it is unclear whether Congress intended for the FAA to cover such processes. See Joint Hearings before the Subcomms. of the Comms. on the Judiciary, Cong, of the U.S., 68th Cong., First Session on S. 1005 and H.R. 646 at 8. Indeed, it was the judicial tendency to treat binding arbitration as a non-binding process that originally motivated Congress to pass the FAA. Kenneth F. Dunham, Sailing Around Erie: The Emergence of a Federal General Common Law of Arbitration, 6 Pepp. Disp. Resol. L J. 197, 203-204 (2006); Szalai at 9-10

Combined Respondents' Opposition Brief and Cross-Appellants' Opening Brief at 22, Merrill v. Acton Educational Services, Inc., No. B240202 (Cal. Ct. App., Mar. 8, 2013), 2013 WL 1438054 at *22

If courts were free to order classwide arbitration, even in the absence of any arbitration clause language expressly authorizing such procedures, companies would be faced with the very litigation burdens and acrimony they sought to avoid by introducing arbitration in the first place, thus undermining case law's longstanding policy objective to facilitate and promote bilateral arbitration. See Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negotiation L. Rev. 399, 428 (2008) (noting that “a lengthy, technical class procedure in arbitration would appear contrary to the understanding of arbitration”)

Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Petitioner at 19, Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) (No. 12–135), 2013 WL 416197 at *19

If courts or arbitrators were free to order classwide arbitration even in the absence of any language expressly authorizing such procedures, employers would be faced with the very litigation burdens and acrimony they sought to avoid by introducing arbitration in the first place, thus undermining the FAA's longstanding

policy objective to facilitate and promote bilateral arbitration. See Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negotiation L. Rev. 399, 428 (2008) (noting that “a lengthy, technical class procedure in arbitration would appear contrary to the understanding of arbitration as expressed in the FAA's legislative history”).

Reply Brief of Appellant at 9-10, Phillips v. Bestway Rental, Inc., 542 F. App’x 410 (5th Cir. 2013) (No. 13-60227), 2013 WL 5537556 at *9-10

As Bestway acknowledges (Appellee’s brief, p. 39, n. 12), such full judicial review is9, in fact, not available in light of Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576 (2008).

9 According to Professor Imre Szalai:

A party who is upset with an arbitrator's decision will have extremely limited rights to obtain an appeal or judicial review of the arbitrator's award. Courts have described the judicial review of arbitrator's awards as “one of the narrowest standards of judicial review in all of American jurisprudence.” and even if an arbitrator was wrong in interpreting or applying the law, the arbitrator's flawed award will still stand. However, in a formal court system, litigants generally have broader rights to obtain appellate review of a lower court's decision.

“Outsourcing Justice, The Rise of Modern Arbitration Laws in America,” p. 7, citing Nationwide Mut. Ins. Co. v. Home Ins. Co., 429 F.3d 640, 643 (6th Cir. 2005); and Widell v. Wolf, 43 F.3d 1150, 1151 (7th Cir. 1994) (“Over and over we have held that arbitrators' errorseven clear or gross errors, do not authorize courts to annul awards.”) (citation omitted).

Brief of Appellant at 6, 17, Smith v. Express Check Advance of Mississippi, LLC, No. 2013-TS-369 (Miss. Oct. 15, 2013), 2013 WL 9947447 at *6, *17

Nevertheless, in a strained interpretation, the United States Supreme Court has held that the Federal Arbitration Act does apply to employment contracts and preempts any state law to the contrary. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001).3

3 Professor Imre Stephen Szalai, in his definitive text, "Outsourcing Justice, The Rise of Modern Arbitration Laws in America," following a detailed study of the history of the Federal Arbitration Act, concludes:

In Circuit City Stores v. Adams, the Supreme Court held that the Federal Arbitration Act covers arbitration agreements in employment contracts. In light of the history of the arbitration reform movement, the Circuit City decision is fundamentally flawed. Although Bernheimer (drafter of the Federal Arbitration Act) desired the Federal Arbitration Act to cover labor disputes . . . Bernheimer explained that because of concerns raised by labor, “all industrial questions have been eliminated” by amending the draft federal bill to exclude workers involved in interstate commerce.

p.191

Professor Imre Stephen Szalai, in “Outsourcing Justice, The Rise of Modern Arbitration Laws in America,” p. 6, has persuasively noted the United States Supreme Court committed serious error when it applied arbitration agreements to employment contracts, since “the law was never intended to apply in the employment context.” Based on this error, Professor Szalai notes that, “America has become an ‘arbitration nation,’ with an increasing number of disputes being taken away from the traditional, open court system and relegated to a private, secretive system of justice.” Id. p. 9.

Nevertheless, since it is quite plain that the state courts determine whether agreements to arbitrate are void for violation of general state law contract principles, see East Ford, Inc. v. Taylor, 826 So.2d at 712 (Miss. 2002)6 , Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 281 (1995), this Court should hold that agreements to arbitrate signed as a condition of obtaining or keeping a job are unconscionable under state law.

6 It is quite interesting that the automotive dealer in East Ford was insisting upon arbitration of his agreements with a consumer . . . . These statutes, of course, do not address extension of the arbitration laws to employment contracts, which has been characterized as “one of the greatest constitutional errors ever made by the court.” Imre Stephen Szalai, “Outsourcing Justice, The Rise of Modern Arbitration Laws in America,” p. 11

Supplemental Brief of Petitioners at 19, Wise v. Garda CL Northwest, 308 P.3d 635 (Wash. 2013), 2013 WL 1316600 at *19

And, as a practical matter, any arbitral ruling concerning Garda's wage practices would naturally apply to all employees, just as any determination in a class action

applies to all class members.10

10 See Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negotiation L. Rev. 399, 407 (2008) (“Class arbitration shares a general similarity with labor arbitration in that both involve aggregate dispute resolution.”).

Brief of Law Professors as Amici Curiae in Support of Respondents at 35-36, DirectTV Inc. v. Imburgia, No. 14-462 (U.S. July 24, 2015), 2015 WL 4572521 at *35-36

Merchants during the early 1900s developed and lobbied for the FAA because they desired a binding way to resolve future commercial disputes outside of court, particularly in light of a changing and growing national economy in a pre-International Shoe era. Imre S. Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America 98-99, 176-77 (2013). The quintessential type of dispute covered by the FAA involved contractual, not statutory, claims regarding the quality of goods shipped from one state to another.4 Also, the enactment of the FAA was part of a broader movement for procedural reform. Szalai, supra, at 166-73; see also Hiro N. Aragaki, The Federal Arbitration Act as Procedural Reform, 89 N.Y.U. L. Rev. 1939 (2014). Business interests turned to arbitration because of frustrations with the delays and technicalities of an overly-complex, overburdened judicial system of the early 1900s. Szalai, supra, at 166-73. Both the FAA and the Rules Enabling Act of 1934, which, of course, led to the establishment of a nationally-uniform set of procedural rules for the federal courts, were landmark procedural reforms which grew out of this same environment of frustration with the complex, existing judicial system. Id

Brief for the Business Roundtable as Amicus Curiae Supporting Epic Systems Corp., Ernst & Young LLP, and Murphy Oil USA, Inc. at 17, Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612, 200 L. Ed. 2d 889 (2018), 2017 WL 2664998 at *17

The bargain of bilateral arbitration is straightforward: “parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” Stolt-Nielsen, 559 U.S. at 685. Administering arbitral disputes on an individual basis is the only way of accomplishing the objectives of the FAA: the “quick, simple, and inexpensive” resolution of disputes. Imre S. Szalai, Aggregate Dispute Resolution: Class and Labor Arbitration, 13 Harv. Negot. L. Rev. 399, 433 (2008).

Plaintiff's Opposition to Defendants' Motion to Compel Arbitration at 19, Henry v. New Orleans Louisiana Saints, LLC No. 15-CV-5971 (E.D. La. Mar. 1, 2016) 2016 WL 2605152 at *19

Mr. Henry believes that he is not required to arbitrate his claims based on current law and the circumstances of the instant case. As a separate and distinct argument, however, Mr. Henry also submits that the Supreme Court's holding in Circuit City Stores, Inc. v. Adams, 532 U.S.105 (2001) was wrongly decided and should be overturned. Fed. R. Civ. P. 11(b)(2). Although the Circuit City Court held that the Federal Arbitration Act (“FAA”) covers employment disputes, more recent, extensive, historical research regarding the enactment of the FAA confirms that Circuit City was wrongly decided. The FAA was never intended to cover employment disputes. See generally Imre S. Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013) (exploring previously-untapped archival materials from the FAA's drafters in depth and telling the full story of the FAA's enactment, including new evidence why the drafters excluded all employment disputes from the FAA's coverage).

Response to Petition for Review at 12, Parallel Networks, LLC v. Jenner & Block LLP, No. 16-0080 (Tex. Apr. 18, 2016), 2016 WL 1599470 at *12

Parallel's cases are inapposite. Parallel does not, and cannot, cite a single Texas federal or state case holding that public policy remains a valid ground for vacatur under the FAA after Hall Street. Instead, Parallel relies on Texas cases interpreting the TAA instead of the FAA, federal cases applying labor arbitration statutes, pre-Hall Street Fifth Circuit cases that were expressly overruled by Bacon, 562 F.3d at 358, Fourth Circuit and Ninth Circuit cases that conflict with Fifth Circuit precedent,5 cases from foreign state and federal district courts, and secondary sources (see generally Pet. at 9-12) - essentially, everything but relevant Fifth Circuit and Texas state FAA cases.6

6 In the absence of persuasive legal authority, Parallel cites inapposite law review articles and seeks support in the form of an amicus brief from a law professor with a well-known hostility toward the U.S. Supreme Court's arbitration jurisprudence. See, e.g., Posting of Imre Szalai to Congress Blog (published by The Hill), http://thehill.com/blogs/congress-blog/ judicial/259311-american-hustle-the-constitutionality-of-forced-arbitra tion (Nov. 6, 2015: 1:00pm EST) (calling the Court's arbitration jurisprudence “tortured, flawed readings of the federal law” and accusing the Court and corporate America of “perpetrat[ing] one of the greatest cons on the American people.”)

Brief of the Main Street Alliance, the American Sustainable Business Council, and Nick Hanauer as Amici Curiae in Support of Respondents in Nos. 16-285 & 16-300, and of Petitioner in No. 16-307 at 20, 23, Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612, 200 L. Ed. 2d 889 (2018), 2017 WL 3588730 at *20, *23

Class arbitration is efficient, informal, and expeditious, with a history going back a century See, e.g., Imre S. Szalai, Aggregate Dispute Resolution: Class & Labor Arbitration, 13 Harv. Negot. L. Rev. 399 (2008) (tracing the development of representative relief in arbitration from the National War Labor Board during World War I through present day class arbitration)

Finally, class arbitration allows for innovation and development of new and efficient procedures. “There is a flexibility that is possible in connection with private class arbitration that may not be possible in connection with traditional class actions[.]” Szalai, supra, at 477 (2008); . . . .

Brief of Arbitration Scholar Imre S. Szalai as Amicus Curiae in Support of Respondents at 10, Kindred Nursing Centers Limited Partnership v. Clark, No. 16-32 (U.S., Jan. 13, 2017), 2017 WL 345126 at *10

As evidenced above, the FAA was developed for business interests desiring a quick, efficient way to resolve “everyday trade disputes” and “business differences” arising from the interstate shipment of goods in the growing national economy of the early 1900s, not personal-injury claims. See generally Imre S. Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013).

Petition for Writ of Certiorari at 26, MacPherson v. Manorcare of Yeadon PA, LLC, No. 16-1175 (U.S. Mar. 24, 2017), 2017 WL 1207892 at *26

Having received little guidance on how to resolve the conflict between Section 2 and recent FAA jurisprudence, courts are erring on the side of enforcement - regardless of the inequities.33

33 See Imre S. Szalai, DirecTV, Inc. v. Imburgia: How the Supreme Court used a Jedi Mind Trick to Turn Arbitration Law Upside Down, 32 Ohio St. J. on Disp. Resol. 75, 108 (2017) (“The combined effect of recent Supreme Court decisions like DIRECTV is that it is harder for courts to monitor, review, and strike down unfair arbitration” agreements).

Abdullayeva v. Attending Homecare Servs., LLC., No. 17-CV-5951, 2018 WL 1181644, at *7 (E.D.N.Y. Mar. 5, 2018), rev’d, 928 F.3d 218 (2d Cir. 2019)

Through the enactment of Section 2, “Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” Perry v. Thomas, 482 U.S. 483, 489 (1987) (internal quotation marks omitted). Over a number of years, through numerous opinions, the FAA’s reach has expanded to permit or require arbitration of many federal and state claims. See generally Imre Stephen Szalai, More Than Class Action Killers: The Impact of Concepcion and American Express on Employment Arbitration, 35 Berkeley J. Emp. & Lab. L. 31 (2014).

Brief of the American Association for Justice as Amicus Curiae in Support of Plaintiffs-Appellees and Affirmance at 19, Gibbs v. Haynes Investments, LLC, No. 19-1434 (4th Cir. Nov. 26, 2019), 2019 WL 6359468 at *19

The use of forced arbitration agreements has become almost ubiquitous. It is very conservatively estimated that more than 800 million arbitration provisions permeate our everyday lives. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019).

Brief of Amici Curiae Historians in Support of Respondent at 10, New Prime, Inc. v. Oliveira, 586 U.S. ___, 139 S. Ct. 532, 202 L. Ed. 2d 536 (2019), 2018 WL 3621472 at *10

A few months after the strike ended, the FAA's reference to “railroad employees” appeared as part of proposed changes to FAA bills introduced into the 67th Congress in December 1922, see 64 Cong. Rec. 797 (1922) (H.R. 13522); 64 Cong. Rec. 732 (1922) (S. 4214). By letter, dated January 31, 1923, Commerce Secretary Herbert Hoover, who months earlier had met with railroad executives and their financiers to resolve the shopmen's strike, see Davis, supra at 107 - 09, wrote to the Senate Judiciary subcommittee then holding hearings on the Senate bill (S. 4214) to express support and suggest an amendment: “If objection appears to the inclusion of workers' contracts in the law's scheme, it might be well amended by stating ‘but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.’ ” Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S. 4214 Before a Subcomm. of the S. Comm. on the Judiciary, 67th Cong., 4th Sess. 14 (1923) (hereinafter “Hearing on S. 4213”) (reprinting letter).2

In that hearing, South Dakota Senator Sterling referred to a letter “from a constituent of mine, Mr. CO. Bailey, a lawyer at Sioux Falls.” Hearing on S. 4213, supra at 9. Bailey was a prominent South Dakota lawyer and his firm, Bailey & Voorhees, had some large railroads as clients. See Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America 133 (2013). Before the hearing, Senator Sterling had sent Bailey's letter to Charles Bernheimer, President of the New York State Chamber of Commerce's Arbitration Committee and the principal booster of the FAA.

Id In turn, Bernheimer asked Chamber counsel Julius Cohen to respond to Bailey's concerns, which included how the proposed FAA would apply to workers engaged in interstate commerce. Id. at 133-34. Following Bailey's suggestion, Cohen proposed an FAA exemption identical to Hoover's proposed “workers' contracts” exemption, which Bernheimer then forwarded to Senator Sterling Id. at 135. Bernheimer later suggested that he had solicited or encouraged Hoover's letter to the Senate subcommittee. See id. at 145.

Brief of Appellant Shannon Thomas at 15-16, Thomas v. Hyundai of Bedford, No. CA-19-108212 (Ohio Ct. App. Apr. 16, 2019), 2019 WL 5901642 at *15-16

The pre-1938 era in federal courts created a backlogged docket, expensive litigation, frustrated practitioners, and calls for practical solutions. It took actions outside of Congress from organizations like the American Bar Association (ABA) and the New York Chamber of Commerce to bring the FAA to fruition. See generally, Imre Stephen Szalai, Exploring the Federal Arbitration Act through the Lens of History Symposium, 2016 J. Disp. Resol. (2016).

Brief of the American Association for Justice as Amicus Curiae in Support of Plaintiffs-Appellees and Affirmance at 28, Solomon v. American Web Loan, Inc., Nos. 19-1258(L), 19-1267(L) (4th Cir. Oct. 28, 2019), 2019 WL 5789878 at *28

The use of forced arbitration agreements has become almost ubiquitous. It is very conservatively estimated that more than 800 million arbitration provisions permeate our everyday lives. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019)

Brief of the Online Lenders Alliance as Amicus Curiae in Support of Appellants and Reversal at 11, Solomon v. American Web Loan, Nos. 19-1258 (L), 19-1267 (4th Cir. Aug. 26, 2019), 2019 WL 4054776 at *11

Arbitration is extensively used to resolve consumer financial services disputes, and consumer disputes more generally. A recent study of Fortune 100

companies showed that 81 of them -- including the country's four biggest banks, and several other prominent financial services firms -- employed consumer arbitration.24

24 See Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 248-253 (2019).

Brief of the American Association for Justice as Amicus Curiae in Support of Plaintiffs-Appellees and Affirmance at 24, Williams v. Medley Opportunity Fund II, LP, Nos. 19-2058, 19-2082 (3d Cir., Nov. 15, 2019), 2019 WL 6114821 (C.A.3) at *24

The use of forced arbitration agreements has become almost ubiquitous. It is very conservatively estimated that more than 800 million arbitration provisions permeate our everyday lives. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019).

Brief of the Online Lenders Alliance as Amicus Curiae in Support of Appellants and Reversal at 5, Williams v. Medley Opportunity Fund II, LP, Nos. 19-2082, 19-2058 (L) (C.A.3 Sept. 16, 2019), 2019 WL 4511789 at *5

Arbitration is extensively used to resolve consumer financial services disputes, and consumer disputes more generally. A recent study of Fortune 100 companies showed that 81 of them -- including the country's four biggest banks, and several other prominent financial services firms -- employed consumer arbitration.3

3 See Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 248-253 (2019).

Brief of Amici Curiae the Civil Justice Association of California and the Association of Southern California Defense Counsel in Support of Petitioner at 13, Winston & Strawn, LLP v. Ramos, No. 18-1437 (U.S. June 17, 2019), 2019 WL 2563183 at *13

Scholarly legal commentaries concur with federal and state court opinions underscoring the fundamental contradiction between the Armendariz “fairness factors” essential for the validity of arbitration agreements and Concepcion's broad preemptive sweep favoring arbitration: “State-specific standards developed specifically for arbitration agreements - like the Discover Bank rule in Concepcion and the Armendariz fairness factors for employment arbitrationseem doomed under Concepcion's broad preemption analysis.” Imre Stephen

Szalai, More than Class Action Killers: the Impact of Concepcion and American Express on Employment Arbitration, 35 Berkeley J. Emp. & Lab. L. 31, 48 (2014).

Memorandum in Support of Jurisdiction of Plaintiff-Appellant, Renard Smith at 4, Smith v. Nationwide Mutual Insurance Co., 2019-0010 (Ohio Jan. 3, 2019), 2019 WL 202836 at *4

According to the Employee Rights Advocacy Institute, since 2010, 80 percent of Fortune 100 companies (e.g., Nationwide) have used arbitration clauses in contracts with workers.2

2 Imre S. Szalai & John D. Wessel, The Employee Rights Advocacy Institute for Law & Policy, “The Widespread Use of Workplace Arbitration Among America's Top 100 Companies” (2018), pp. 3, 7, available at: http://employeerightsadvocacy.org/wp-content/ uploads/2018/03/NELA-Institute-Report-Widespread-Use-of-Workpla ce-Arbitration-March-2018.pdf.

Petition for a Writ of Certiorari at 21, Winston & Strawn LLP v. Ramos, No. 18-1437 (U.S. May 14, 2019), 2019 WL 2140500 at *21

It is no surprise, then, that lower courts throughout the country,1 as well as commentators,2 have recognized that the Armendariz “minimum requirements” cannot survive preemption.

2 See, e.g., Imre Stephen Szalai, More Than Class Action Killers: The Impact of Concepcion and American Express on Employment Arbitration, 35 Berkeley J. Emp. & Lab. L. 31, 48 (2014) (“State-specific standards developed specifically for arbitration agreements - like … the Armendariz fairness factors for employment arbitration - seem doomed under Concepcion's broad preemption analysis.”) . . . .

Chen-Oster v. Goldman, Sachs & Co., 449 F. Supp. 3d 216, 241 (S.D.N.Y. 2020)

Ultimately, a court faced with a motion under FAA § 3 and FAA § 4 must determine whether “there is a valid contract to arbitrate between the [parties],” and whether the parties' dispute “is covered by the contract.” Unique Woodworking, Inc. v. New York City District Council of Carpenters' Pension Fund, No. 07 Civ. 1951, 2007 WL 4267632, at *4 (S.D.N.Y. Nov. 30, 2007). If so, “the role of the court ends and the matter is one for arbitration.”17 Id. 127

17

In recent years, scholars have raised concerns about the collateral consequences of compelling arbitration of discrimination claims. See, e.g., Jean R. Sternlight, Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where To, #MeToo?, 54 HARVARD CIV

RIGHTS-CIV. LIBERTIES L. REV. 155 (2019), Imre S. Szalai, A New Legal Framework for Employee and Consumer Arbitration Agreements, 19 Cardozo J. Conflict Resol. 653 (2018); . . . .

Brief of Arbitrators, Arbitration Practitioners, and Arbitration Scholars as Amici Curiae in Support of Respondent at 25, 30, Henry Schein, Inc. v. Archer and White Sales, Inc., No. 19-963 (U.S. 2020), 2020 WL 6273641 at *25, *30

Section 4 of the FAA provides, without any exception, that a court determines whether the parties have a binding agreement to arbitrate a particular dispute.8

8 Textually, section 4 does not allow for delegation of arbitrability matters to an arbitrator. But, as succinctly observed by the Court, “that ship has sailed.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019) . . . . Also, there is much evidence that the FAA was never intended to apply to employment disputes or in state court. See generally Imre S. Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013); . . . .

Sophisticated parties may perhaps understand the “arcane” issue of who decides threshold arbitrability matters. First Options, 514 U.S. at 945. Or if sophisticated parties cannot understand, they may have access to specialized arbitration counsel who could explain this hypertechnical issue of arbitration law. However, the ruling in this case may impact hundreds of millions of arbitration agreements involving unsophisticated small businesses, consumers, and employees.9

9 Imre S. Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233 (2019) (81% of America's largest companies have used arbitration agreements for consumer transactions, and by conservative estimates, there are more than 826 million consumer arbitration agreements in America); Imre S. Szalai, The Emp. Rts. Advoc. Inst., The Widespread Use of Workplace Arbitration Among America's Top 100 Companies (Mar. 2018) (80% of America's largest companies have used arbitration agreements for employment disputes); . . . .

Brief of Professors Daniel D. Barnhizer, Jeffrey L. Harrison, David Horton, Lee Kovarsky, Stephen I. Vladeck, and Ernest A. Young as Amici Curiae in Support of Respondent at 26, Henry Schein, Inc. v. Archer and White Sales, Inc., No. 19-963 (U.S. Oct. 20, 2020) 2020 WL 6273642 at *26

Unsurprisingly, the shaky consensus among circuits does not appear to have fostered certainty about implied delegation among practitioners who write arbitration clauses or the many U.S. businesses that use them. See, e.g., Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. DAVIS L. REV. ONLINE 233, 234 (2019) (noting that 81 Fortune 100 companies utilize arbitration agreements and, “[i]n 2018, at least 826,537,000 consumer arbitration agreements were in force”).

Brief for Amici Curiae Massachusetts Academy of Trial Attorneys and American Association for Justice in Support of Plaintiffs-Appellees at 42, Kauders v. Uber Technologies, Inc., No. SJC-12883 (Mass. Apr. 17, 2020), 2020 WL 4932266 at *42

The use of forced arbitration agreements has become almost ubiquitous. Conservative estimates are that more than 800 million arbitration provisions permeate our everyday lives. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019)

Plaintiff-Respondent's Reply Brief to Amicus Curiae Brief for Chamber of Commerce of The United States of America at 12, Skuse v. Pfizer, Inc., 236 A.3d 939 (N.J. 2020) (No. 082509), 2019 WL 10783831 at *12

For every study cited by the Chamber, there are a dozen that demonstrate why forced arbitration favors employers and harms employees. To cite just a few recent articles rebutting the Chamber's claims: Elizabeth Colman, “How America's Wealthiest, Most Powerful Companies Use Fine Print to Subvert Employee Rights,” http://employeerightsadvocacy org/wp-content/ uploads/2018/08/NELA -Institute-Report_Forced-Arbitration_A-Race-To-The-Bottom.pdf (2018); Professor Imre S. Szalai, “The Widespread Use of Workplace Arbitration Among America's Top 100 Companies,” http://employeerightsadvocacy.org/ wp-content/uploads/2018/03/NELA-Institute-Report-Widespread-Use-of-Wor kplace-Arbitration-March-2 018.pdf; . . . .

Brief in Opposition to Petition for a Writ of Certiorari at 25, Sterling Jewelers, Inc. v. Jock, No. 19-1382 (U.S. Aug. 17, 2020), 2020 WL 4904852 at *25

Even more to the point, companies like Sterling are free to require class action

waivers as part of their arbitration agreements. This Court has broadly approved of these waivers in both consumer and employment contracts. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). Studies show their use is common.5

5 E.g., Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019) (finding that 78 companies in the Fortune 100 have consumer arbitration agreements with class action waivers); . . . .

Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Compel Arbitration at 5, Butler v. ATS, Inc., No. 20-CV-01631 (D. Minn. Nov. 24, 2020), 2020 WL 7684912 at *5

Nevertheless, the Supreme Court's FAA jurisprudence in tandem with bedrock principles governing the ability of states to regulate the procedures of federal courts makes clear that the states cannot fashion arbitration rules which are applicable in federal court and used to divest litigants of their right to bring their federal claims created by federal statutes in a federal court. See New Prime Inc., 139 S. Ct. at 544-548; Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 203 (1956); Imre S. Szalai, The Supreme Court's Landmark Decision in New Prime Inc. v. Oliveira: A Panoptic View of America's Civil Justice System and Arbitration, 68 Emory L.J. Online 1059, 1079–80 (2019)

Memorandum of Law in Opposition to Defendant ABM's Motion to Compel Arbitration and Dismiss or Stay Action at 3, Mancilla v. ABM Industries, Inc., No. 1:20-cv-01330-KPF (S.D.N.Y. Mar. 11, 2020) 2020 WL 11736322 at *3

Now, after years of battling its victims in court, ABM's strategy is to sweep them under the rug of arbitration. An aberration of the judicial system,2 arbitration lurks in the shadows as a refuge for corporations that seek to mitigate the risk of their tortious actions by avoiding public scrutiny in court.

2 Enacted in 1925, “The FAA was originally intended to provide a framework for federal courts to support a limited, modest system of private dispute resolution for commercial disputes.” Imre Stephen Szalai, Exploring the Federal Arbitration Act through the Lens of History Symposium, 2016, Journal of Dispute Resolution, Vol. 2016, Issue 1, Article 9, page 3.

Plaintiff's Opposition to Defendant's Motion to Compel Individual Arbitration and Stay Proceedings Pending Arbitration at 28, Osvatics v. Lyft, Inc., No. 1:20-CV-01426-KBJ (D.D.C. July 14, 2020), 2020 WL 7041431 at *28

The District of Columbia has a developing - but strongly articulatedpolicy against the enforcement of adhesive arbitration agreements that companies impose on individuals without opportunity to negotiate, especially when they contain class waivers . . . .This “concern” is equally applicable to consumers and workers in this context. See, e.g., RUAA Committee Report at 159 (testimony discussing concerns of “consumers and employees” as the same).21

21 Courts, commentators, and policymakers also have long treated the concerns of workers and consumers faced with mandatory arbitration as the same. See, e.g., Rickard v. Teynor's Homes, Inc., 279 F. Supp. 2d 910, 918 n.8 (N.D. Ohio 2003) . . . Imre S. Szalai, A New Legal Framework for Employee and Consumer Arbitration Agreements, 19 Cardozo J. Conflict Resol. 653 (2018) . . . .

Joint Petition for a Writ of Certiorari at 19, SFR Investments Pool 1, LLC v. Federal Home Loan Mortgage Corp. v. Wells Fargo Bank, No. 20-907 (U.S. Dec. 31, 2020), 2020 WL 7975938 at *19

This changes the burden from the more open discovery and requirements in a civil case to one more akin to fraud, but without access to any facts. This is not what is meant by giving a party “a full and fair opportunity to develop and present facts and legal argument in support of its position.” Wander v. United Ben. Life Ins. Co., 905 F.2d 1541 (9th Cir. 1990); see also Imre Stephen Szalai, A Constitutional Right to Discovery? Creating and Reinforcing Due Process Norms Through the Procedural Laboratory of Arbitration, 15 Pepp. Disp. Resol. L.J. 337, 369 n.139 and accompanying text (2015)

Statement of Points and Authorities in Support of Motion to Dismiss at 28, Weissman v. National Railroad Passenger Corp., No. 1:20-cv-28-TJK (D.D.C. Feb. 26, 2020), 2020 WL 8816737 at *28

Taken to their logical conclusion, Plaintiffs' constitutional rationales could strike down the sorts of contractual provisions used by more than eighty percent of the Fortune 100 companies, and which cover over sixty percent of all retail e-commerce sales. See Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019). This Court should reject Plaintiffs' gambit, which defies both decades of jurisprudence and Congress's decision to adopt a “liberal federal policy favoring arbitration.” Concepcion, 563 U.S. at 339 (citation omitted).

Amicus Curiae Brief of Arbitration Scholar Imre Stephen Szalai in Support of Appellants passim, 350 WSJ LLC v. Winchester Plaza on the Row, LLC, No. H049212 (Cal. Ct. App. 28, 2021) 2021 WL 6498102 passim

Since the 1980s, the United States Supreme Court has expanded the scope of the FAA in a series of landmark cases. In 1984, the Court held that the FAA governs in state court and preempts contrary state law,1 even though the FAA was never intended to govern in state courts.2 In 1991, the Court began applying the FAA to workplace disputes,3 even though the FAA was never intended to cover workplace disputes.4

4 See generally Imre S. Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013) (exploring the history and original intent of the FAA and similar state arbitration statutes).

If you have ever bought something online or through an app for Walmart or Target,23 rented a vacation home through Airbnb,24 used Uber for a car ride,25 paid for something through PayPal,26 or engaged in any oneof numerous other daily transactions, you are probably bound by an arbitration clause hidden in the fine print. Based on conservative estimates, there were at least 826 million consumer arbitration agreements in the United States in 2018, while the entire population of the United States was only about 330 million people.27 Eighty-one percent of America's largest companies have used arbitration agreements for consumer transactions.28

In addition to consumer transactions, the use of arbitration clauses has also exploded in the employment context. By one estimate, more than sixty million American workers are covered by individual arbitration agreements, and eighty percent of America's largest companies use arbitration clauses for workplace-related disputes.29

27 Imre S. Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233 (2019)

28 Id.

29 Alexander J.S. Colvin, Economic Policy Institute, The Growing Use of Mandatory Arbitration (2018) (more than 60 million American workers are bound by arbitration agreements); Imre S. Szalai, The Emp. Rts. Advoc. Inst., The Widespread Use of Workplace Arbitration Among America's Top 100 Companies (Mar. 2018) (80% of America's largest companies have used arbitration agreements for employment disputes).

In light of the above policies and concerns, it should come as no surprise that multiple sources of law and “soft law” have recognized the right to hire counsel in connection with arbitration proceedings. For example, although the FAA is silent about the right to counsel during arbitration,44 state statutes and courts around the country have recognized such a right.

44 Why does the FAA not explicitly recognize the right to counsel? The FAA's drafters were mainly merchants who drafted the FAA for contractual disputes involving interstate shipments, and these disputes were to be resolved by non-attorney merchants serving as arbitrators. These merchants were fleeing the technicalities of the law and desired their contractual shipping disputes to be resolved by other merchants using industry or business customs. See generally Szalai, Outsourcing Justice, supra note 4.

Brief of Arbitration Scholar Imre Stephen Szalai as Amicus Curiae in Support of Respondents passim, Badgerow v. Walters, 596 U.S. ___, 142 S.Ct. 1310, 212 L.Ed.2d 355 (2022), 2021 WL 4296020 passim

Professor Szalai is a leading scholar in the field of arbitration law, and he actively serves as a commercial arbitrator. He is the author of two books about the development and enactment of the Federal Arbitration Act (FAA): Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013), which sets forth a comprehensive history, based on previously untapped archival materials, regarding the enactment of the FAA and similar state arbitration statutes during the 1920s; and An Annotated Legislative Record of the Federal Arbitration Act (2020), which sets forth the full legislative history of the FAA, with detailed annotations and explanations.

Petitioner suggests that the Congress of 1924 prioritized Section 4 of the FAA over and above the statute's other provisions, and Congress somehow intended for states to lift the burden of enforcing the remainder of the FAA. Id. However, Petitioner's arguments regarding the FAA's history and purpose are flawed.2

2 Under normal circumstances, it is challenging to attribute an intent to Congress. Lawson v. FMR LLC, 571 U.S. 429,460 (2014) (Scalia, J., joined by Thomas, J., concurring) (“congressional ‘intent’ apart from enacted text is fiction to begin with”). However, trying to ascertain Congressional intent regarding the FAA is even more challenging because business interests working together with the American Bar Association conceived, developed, and drafted the bills that would become the FAA before presenting the bills to Congress. See generally Imre S. Szalai, Outsourcing Justice: The Rise

of Modern Arbitration Laws in America 2013)

An order of specific performance through Section 4 was not Congress's one and only concern when enacting the FAA, although a concern about specific enforcement of arbitration agreements was, without a doubt, a motivating factor prompting the FAA's enactment.3

3 Prior to the FAA's enactment, federal courts generally refused to compel parties to honor agreements to arbitrate . . . . The enactment of the FAA involved a multi-year lobbying campaign, and the desire for specific performance of arbitration agreements was undoubtedly a driving force for this movement to enact modern arbitration laws during the 1920s. See generally Szalai, Outsourcing Justice, supra. However, the FAA is a comprehensive statute going far beyond the provision of an order of specific performance under Section 4. Furthermore, multiple different factors ultimately contributed to the FAA's enactment, such as the growth of interstate trade and an overburdened federal court system. Szalai, Outsourcing Justice, supra

During joint hearings on the proposed bills that would become the FAA, Julius Henry Cohen, who was the FAA's principal drafter,4 was careful to showcase the FAA as an all-inclusive statute covering multiple facets of an arbitration, from beginning to end.

4 See generally Szalai, Outsourcing Justice, supra.

The earliest drafts of the FAA did not contain this worker exemption.17 There was no need for the exemption because the FAA was drafted and intended for use in contractual disputes between merchants involved with interstate shipments.

17 Szalai, Outsourcing Justice, supra, at 132-35, 142-45

The Court's decisions applying the FAA to employment disputes, like Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), are deeply flawed, and unfortunately, millions of workers have lost access to the robust procedural protections available in court as a result of the Court's error in expanding the FAA to cover employment disputes.20

20 Imre S. Szalai, The Emp. Rts. Advoc. Inst., The Widespread Use of Workplace Arbitration Among America's Top 100 Companies (Mar. 2018) (80% of America's largest companies have used arbitration agreements for employment disputes)

Based on the text and original understanding of the FAA, the FAA would not govern this case at all. However, this ship has long sailed,21 and the FAA is now an “edifice of [the Court's] own creation.”22 This monstrosity of an edifice embodies an expansive, broad framework supporting hundreds of millions of arbitration agreements covering virtually every possible type of dispute in American society.23

23 Imre S. Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233 (2019) (by conservative estimates, there were more than 826 million consumer arbitration agreements in America in 2018).

Brief for Respondents at 22-23, Badgerow v. Walters, 596 U.S. ___, 142 S.Ct. 1310, 212

L.Ed.2d 355 (2022), 2021 WL 4173468 at *22-23

Other contemporaneous interpretations of the FAA bolster this reading Julius Cohen, the statute's principal drafter, explained: “The Federal courts are given jurisdiction to enforce such agreements whenever under the Judicial Code they would have had jurisdiction of an action or proceeding arising out of the controversy between the parties.” Julius Henry Cohen & Kenneth Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 265, 267 (1926); see also Imre S. Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Negot. L. Rev. 319, 341 (2007) (recounting history)

Class Action Plaintiff's Response in Opposition to Defendant's Motion to Compel Arbitration and Stay Proceedings - Claim of Unconstitutionality at 9, Nicholson v. Tracfone Wireless, Inc. No. 1:21-CV-22213-CMA (S.D. Fla. Sept. 8, 2021), 2021 WL 9059805 at *9

“Today, forced arbitration bestrides the legal landscape like a colossus, effectively stamping out the individual's statutory rights wherever inconvenient to the businesses which impose them. [...] Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so -- rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights.” In re Nexium (Esomeprazole) Antitrust Litig., 309 F.R.D. 107, 146-48 (D. Mass. 2015). “Colossus” might be an understatement, as it has been estimated that “in 2018, at least 826,537,000 consumer arbitration agreements were in force [although t]he actual number of consumer arbitration agreements is likely higher.” Szalai, Imre S., The Prevalence of Consumer Arbitration Agreements by America's Top Companies (January 29, 2019). 52 U.C. Davis L. Rev. Online 233, 234 (2019), available at

SSRN: https://ssrn.com/abstract=3362049 (last visited July 7, 2020)

“As a result, the availability of class proceedings has been shrinking, and without such proceedings, it may not be feasible for an injured victim to bring a small-dollar claim at all because the costs of litigating an individual claim likely outweigh the small recovery.” Szalai, Imre S., The Supreme Court's Lamps Plus Arbitration Decision: A Fading Light for Class Actions (September 4, 2020). 25 Harv. Negot. L. Rev. 1 (2019), Loyola University New Orleans College of Law Research Paper No. 2020-08, available at SSRN: https://ssrn.com/abstract=3711137 or http://dx.doi.org/10.2139/ssrn.3711137.

Brief of Amici Curiae the Missouri Association of Trial Attorneys and American Association for Justice in Support of Respondents at 25, Bridgecrest Acceptance Corp. v. Donaldson, No. SC99269 (Mo. Jan. 26, 2022), 2022 WL 619607 at *26

The most revealing aspect of the AAA/JAMS is how few consumers are actually able to even attempt arbitration of their claims, much less prevail. Forced arbitration provisions are almost ubiquitous in consumer contracts. It is conservatively estimated that more than 800 million arbitration provisions permeate our everyday lives. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019)

Reply Brief for Petitioners at 11, Doe v. AirBnB, Inc. No. 22-102 (U.S. Nov. 10, 2022), 2022 WL 16964115 at *11

As shown in the Petition (at 36), the issue presented here affects most Americans. In the United States, hundreds of millions of consumer arbitration agreements are currently in force. See Imre S. Szalai, The Prevalence of ConsumerArbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019).

Brief of Minnesota, Maryland, Alaska, Colorado, The District of Columbia, Delaware, Idaho, Illinois, Iowa, Maine, Massachusetts, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington as Amici Curiae in Support of Petitioner at 1, Morgan v. Sundance, Inc., No. 21-328 (U.S. Jan. 6, 2022), 2022 WL 123245 at *1

Amici States are home to millions of residents subject to agreements containing arbitration provisions. One study found that, as recently as 2018, more than 800 million consumer arbitration agreements were in force nationally, and possibly as many as two-thirds of American households were subject to these largely “nonnegotiable, adhesionary contracts.”1

1 Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234, 236 (2019).

Brief of Amicus Curiae American Association for Justice in Support of Respondent passim, Southwest Airlines v. Saxon, No. 21-309 (U.S. Mar. 3, 2022) 2022 WL 685190 passim

The Congressional bill that would become the FAA was drafted by Julius Cohen and reviewed by the American Bar Association's Committee on Commerce, Trade and Commercial Law.6 The drafting process began at the ABA's annual meeting in 1920.7

7 43 A.B.A. REP. 75 (1920); see also Imre Szalai, OUTSOURCING

JUSTICE: THE RISE OF MODERN ARBITRATION LAWS IN AMERICA 104 (2013)

Seamen's Union president Andrew Furuseth saw the bill as a mechanism for the “reintroduction of forced involuntary labor.” He felt that the bill “would bring about compulsory labor for seamen, railroad workers and all engaged in interstate commerce, and would jeopardize the existence of labor and other organizations formed by workingmen ...”12

12 “Seamen Condemn Arbitration Bill,” N.Y. TIMES, Jan. 14, 1923, at 21; Szalai, supra, at 132; Matthew W. Finkin, ‘‘Workers' Contracts” Under the United States Arbitration Act: An Essay in Historical Clarification, 17 BERKELEY J. EMP. & LAB. L. 282, 284 (1996).

Later in 1923 the ABA Committee made Hoover's change to the draft bill,20 inserting in Section 1 the exemption language: “but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”21

21 Id.; 46 A.B.A. REP 287 (1923); In its report, the Committee stated that this change was made “[i]n order to eliminate th[e] opposition” of the International Seamen's Union. 46 A.B.A. REP. 287 (1923). Indeed, after the exemption was inserted in 1923, one of the leading proponents of the bill, Charles Bernheimer, stated that “we are not ... convinced that it would not be in the interests of labor to have them included.” Even so, he conceded that “all industrial questions have been eliminated” in order to appease labor's concerns. Szalai, supra, at 153.

On February 12, 1925, President Coolidge signed the bill into law after it passed through Congress without opposition. The only objection ever raised to the Act was that it should not cover workers. Julius Henry Cohen, the FAA's principal drafter, described the added amendment as having the effect of “leav [ing] out labor disputes,” but he did not view the amendment as materially altering the bill in any way. 23

23 Szalai, supra, at 134-35.

Brief of Amici Curiae Historians In Support of Respondent at 19, Southwest Airlines v. Saxon, No. 21-309 (U.S. Mar. 2, 2022), 2022 WL 673154 at *19

A few months after the shopmen's strike ended, the FAA's reference to “railroad employees” appeared as part of bills introduced into the 67th Congress in December 1922, see 64 Cong. Rec. 797 (1922) (H.R. 13522); 64 Cong. Rec. 732 (1922) (S. 4214). Commerce Secretary Herbert Hoover, who months earlier had met with railroad executives and their financiers to resolve the shopmen's strike, see Davis, supra at 107-09, wrote to the Senate Judiciary subcommittee then holding hearings on the Senate bill (S. 4214) to express support and suggest an exemption: “If objection appears to the inclusion of workers' contracts in the law's scheme, it might be well amended by stating ‘but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.”’ Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S. 4214 Before a Subcomm. of the S. Comm. on the Judiciary, 67th Cong., 4th Sess. 14 (1923) (reprinting letter) (hereinafter “Hearing on S. 4213”).3

3 In that hearing, South Dakota Senator Sterling referred to a letter “from a constituent of mine, Mr. C.O. Bailey, a lawyer at Sioux Falls.” Hearing on S. 4213, supra at 9. Bailey was a prominent South Dakota lawyer and his firm, Bailey & Voorhees, had some large railroads as clients. See Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America 133 (2013)

Petitioner's Reply Brief at 7, Houston AN USA, LLC v. Shattenkirk, No. 22-0214 (Tex 2022), 2022 WL 17370047 at *7

The Supreme Court's narrow construction of the effective-vindication exception in American Express, coupled with its hesitation to apply the exception at all, have led to questions about whether the Court would ever apply the exception to invalidate an arbitration agreement that did not prospectively eliminate a federal statutory right.3 See Imre S. Szalai, A New Legal Framework for Employee and Consumer Arbitration Agreements, 19 Cardozo J. of Conflict

Resol. 653, 705 (2018) (stating that, in the wake of American Express, “lower courts have begun rejecting application of the effective vindication doctrine”);

Brief of Respondent at 5, Southwest Airlines v. Saxon, No. 21-309 (U.S. Feb. 24, 2022), 2022 WL 598174 at *5

History shows just how essential. The compromise reflected in the transportation-worker exception came in direct response to vociferous criticism from labor unions, led by the International Seamen's Union, that surfaced immediately after the FAA was introduced. See Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America 131-45 (2013) (recounting this history)

Brief of Arbitration Scholar Imre S. Szalai as Amicus Curiae in Support of Respondent at 19, Viking River Cruises, Inc. v. Moriana, No. 20-1573 (U.S. 2022), 2022 WL 768655 at *19

The current case does not involve an adjudication of the substantive contractual rights or contractual obligations of a worker or private party; such a dispute can generally be subject to a broad, pre-dispute arbitration clause. Instead, this case involves the collection, on behalf of the State of California, of civil penalties that are mainly paid to the State's treasury for violations of statutory duties,8 . . . .

8 The FAA should not even cover statutory disputes; instead, the FAA was designed to cover contractual, commercial disputes. . . . Furthermore, historical, archival materials demonstrate that the FAA was never intended to govern employment contracts at all, and the Court's decision in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), is incorrect. Imre S. Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America 191-92 (2013).

Petition for Writ of Certiorari at 36, Doe v. AirBnB, Inc. No. 22-102 (U.S. July. 29, 2022), 2022 WL 3107655 at *36

All of this adds up to a staggering number of arbitration agreements. “In 2018, at least 826,537,000 consumer arbitration agreements were in force, based on estimates from just a few companies for which information was readily available ... For a point of comparison, the U.S. population is about 328,000,000.” Imre S. Szalai, The Prevalence of Consumer Arbitration Agreements by America's Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019).

Dian Tooley-Knoblett, Jones Walker Distinguished Professor of Law

De Montluzin v. Martinez, 652 So. 2d 71, 74 (La. Ct. App. 1995)

The Jackson case is the only reported case in Louisiana that applies the Sims formula in compliance with the illustration of the application of the formula in Appendix A of Sims by dividing money (portion of the pension attributable to creditable service during existence of community) by money (pension attributable to total creditable service). Thereafter, all the Louisiana circuit courts of appeal have applied the Sims formula by dividing time (number of years of creditable service during the existence of the community) by time (total number of years of creditable service). See, for example, the following cases . . . . Nowhere in any of the cases interpreting the “Sims formula” or in any of the numerous law review articles on the division of retirement and pension plans is this inconsistency noted or explained. See, e.g., Dian T. Arruebarrena, Applying Louisiana's Community Property Principles to Pensions, 33 Loy.L.Rev. 241 (1987); . . . .

Blanchard v. Blanchard, 697 So. 2d 275, 277 (La. Ct. App. 1997)

Historically, the courts have wrestled with the problem of how and when to partition the spouses' respective rights to a pension plan acquired either in whole or in part during the marriage. See Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir.1975); Lynch v. Lawrence, 293 So.2d 598 (La.App. 4th Cir.1974), writs denied, 295 So.2d 809, 814 (La.1974); Langlinais v. David, 289 So.2d 343 (La.App. 3rd Cir.1974); Hamilton v. Hamilton, 258 So.2d 661 (La.App. 3rd Cir.1972); Laffitte v. Laffitte, 253 So.2d 120 (La.App. 2nd Cir.1971) and Laffitte v. Laffitte, 232 So.2d 92 (La.App. 2nd Cir.1970).2

2 For an excellent overview and analysis of the history, as well as the possible future, of partitioning the community interest in a pension plan, see Katherine Shaw Spaht, To Divide or Not to Divide the Community Interest in an Unmatured Pension: Present Cash Value Versus Fixed Percentage, 53 La. L.Rev. 753 (1993) and Dian Tooley Arruebarrena, Applying Louisiana's Community Property Principles to Pensions, 33 Loy. L.Rev. 241 (1987)

Appellant, Clarence Barrow, JR's Appeal Brief from the Judgment of Judge Mary Hotard Becnel of the Fortieth Judicial District Court at 3-4, Legaux-Barrow v. Barrow, 8 So. 3d 87 (2008), 2008 WL 4176801 at *3-4

A pension plan is a program established and maintained by an employer to provide retirement income to its employees. Dian Tooley Arruebarrena, Applying Louisiana's Community Property Principles To Pensions, 33 Loy. L.

Rev. 241, 242 (1987) Pension plans can be noncontributory or contributory. Noncontributory plans are funded by the employer exclusively with no employee contributions. Id. at 243. Contributory plans permit or require the employees to chip in. Id. In the present case, appellant, Clarence Barrow, Jr.'s, pension account is considered a contributory plan since he is required to make contributions to fund his pension.

Additionally, pensions can be classified as either defined benefit plans or defined contribution plans. In the present case, this category is critical as it demonstrates the speculative nature of appellant, Clarence Barrow, Jr.'s, pension plan. A defined benefit plan is one in which the employer obligates itself to pay to participants specific benefits upon retirement. Id. at 243. With defined benefit plans, the employer promises that upon retirement an employee will receive a fixed level of retirement benefits calculated according to a benefit formula. Id. (emphasis added).

By contrast, appellant, Clarence Barrow, Jr.'s, pension plan is a defined contribution plan. Employers make no commitments to the ultimate benefit an employee will receive from a defined contribution plan. Id.

Joe Hand Promotions, Inc. v. Ashby, No. 13–4747, 2014 WL 1330027 at *4 (E.D. La. Apr. 2, 2014)

Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing juridical personality.” La. Civ.Code. art. 473. “All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.” La. Civ.Code art. 475. Thus, in Louisiana, “the category of movables is residual,” meaning that “anything not classified as immovable is movable.” 24 Diane Tooley–Knoblett & David Gruning, Louisiana Civil Law Treatise, Sales § 6:5 (2013).

Pitre v. Yamaha Motor Co., 51 F. Supp. 3d 644, 669 (E.D. La. 2014)

Addressing express warranties, La. Civ.Code art. 2520 comment (b) provides that “the presence of an express warranty in the sale does not convert the action for redhibition into an action for breach of contract,” a statement one treatise has interpreted to mean that “the seller's providing a detailed, express warranty is not sufficient to constitute a waiver of the warranty against redhibitory defects.”157

157Dian Tooley–Knoblett & David Gruning, 24 Louisiana Civil Law Treatise § 11.34 (2013).

425 Notre Dame, LLC v. Kolbe & Kolbe Mill Work Co., 151 F. Supp. 3d 715, 723 (E.D. La. 2015)

The warranty of fitness is closely related to the warranty against redhibitory defects. See 24 Dian Tooley-Knoblett & David Gruning, La. Civ. L. Treatise, Sales § 11:44. The Civil Code simply provides, “The thing sold must be reasonably fit for its ordinary use.” La. Civ. Code art. 2524. The general rules of obligations govern a breach of this warranty. Id.

Swire Oilfield Services, LLC v. Gator Rigging, Inspection, Testing, and Supply, LLC, No. 15–971, 2015 WL 4635577, at *6-7 (E.D. La. Aug. 3, 2015)

Moreover, the Code provides for situations when a seller cannot repair or fails to repair the defective thing:

A seller who did not know that the thing sold had a defect is only bound to repair, remedy, or correct the defect. If he is unable or fails so to do, he is then bound to return the price to the buyer with interest . . . and to reimburse him for the reasonable expenses occasioned by the sale . . . .

La. Civ.Code art. 2531 (emphasis added). As the Louisiana Civil Law Treatise explains,

The buyer, however, may forgo the repair step, if the buyer is confident that the defect is one that cannot be remedied at all. In such a case, the buyer may choose not to give the seller notice of the defect. Such a buyer risks, of course, that a court will disagree with his assessment that the defect could not be fixed.

24 Dian Tooley–Knoblett & David Grunning, Louisiana Civil Law Treatise, Sales § 11.12 (2012).

Prevo v. State, 187 So.3d 395, 403 (2015)

The doctrine of contra non valentem is a jurisprudentially created exception to the ordinary operation of liberative prescription and should only be applied by courts in exceptional circumstances. Its applicability is highly limited; in fact, the text of neither the current Louisiana Civil Code nor the Civil Code of 1870 provides for it. Current La. C.C. 3467 reads: “Prescription runs against all persons unless exception is established by legislation.” Comment (d) to this article acknowledges that cases interpreting the predecessor of this article, La. C.C. art. 3521, “in exceptional circumstances . . . resorted to the maxim.” And the comment concludes, “This jurisprudence continues to be relevant.” Thus, the revision of the

law of prescription acknowledges ambivalently that the courts may apply the maxim.1

1 See generally, 24 Dian Tooley–Knoblett & David Gruning, Louisiana Civil Law Treatise § 11:41 (2014).

Robar v. Jones, 176 So. 3d 1087, 1090, 1093 (Ct. App. La. 2015)

In addition, we refer to the discussion of Professors Dian Tooley–Knoblett and David Gruning pertaining to earnest money, which explains:

Though the Civil Code's provision on earnest money has always been clear as to the legal effects of earnest, it did not originally provide criteria by which to determine whether an amount given by the buyer to the seller in connection with a contract to sell should be classified as earnest money or as a true deposit. The 1995 sales revision filled this legislative gap by providing that any sum given by the buyer to the seller in connection with a contract to sell will be considered earnest money only if the parties have expressly provided. The Code now makes clear the parties are required to opt into earnest money. If the parties have not expressly stipulated that a sum given by the buyer to the seller is earnest money, it is not considered earnest money, but a true deposit. The adoption of this rule in the 1995 sales revision was intended to legislatively overrule contrary pre-revision jurisprudence that had treated any amount given by the buyer to the seller as earnest money, unless the parties had expressly reserved their right to specific performance . . . . Since 1995, any amount given to the seller by the buyer in connection with a contract to sell is merely a deposit which neither negates the availability of specific performance nor fixes the amount of damages that might be recovered from a party who has breached the contract.

24 D. Tooley–Knoblett & D. Gruning, Louisiana Civil Law Treatise: Sales § 5:11 (2014) (footnotes omitted) (emphasis added).

However, the parties may negate the availability of specific performance by contracting that money paid in connection with such a contract is earnest money Professors Tooley–Knoblett and Gruning further explain:

Louisiana's earnest money provision imparts two principles. First, earnest money serves to quantify the liability of a party who recedes from a contract to sell. Second, earnest money implicitly negates the availability of specific performance by designating (and assessing)

damages as the liability of the party who recedes. Since earnest money fixes the quantum of damages owed by the party who recedes from a contract to sell, it functions in the same manner as stipulated damages. . . .

The 1995 sales revision treats any sum given to the seller by the buyer in connection with a contract to sell as a deposit. Under this suppletive or default scheme, an aggrieved party may seek either specific performance or dissolution upon the other party's breach. If the aggrieved party elects dissolution, then that party may seek compensatory damages. The claimant must prove that he has sustained damages which are recoverable in accordance with general contract principles.

24 D. Tooley–Knoblett & D. Gruning, Louisiana Civil Law Treatise: Sales § 5:11 (2014)(footnotes omitted)(emphasis added).

Succession of Sylvester, 181 So. 3d 250, 259 (La. Ct. All 2015)

Like the Second Circuit in Duke, we find La. C.C. art. 3525 does not apply in those situations where foreign immovable property is jointly acquired by the spouses. La. C.C. art. 3525 is designed to protect the interests of a party whose spouse purchases out-of-state immovable property on his own while using community funds. However, we do not find the residual provision of La. C.C. art. 3515 to be applicable in this case. La. C.C. art. 3515 applies only in those cases where there are no other conflict of law provisions in the code which address the issue. In this instance, since the conflict of law provisions governing marital property are inapplicable, we turn to the conflict of law provisions which govern successions.14

14 See Dian Tooley–Knoblett, Article: A Step by Step Guide to Louisiana's Choice of Law Provisions on Marital Property, 52 Loy.L.Rev. 759, 792

Whatley v. Smart, 174 So.3d 1273, 1775 (La. Ct. App. 2015)

Article 3527 is an exception to the general rule that Louisiana law will govern the rights and obligations of spouses with regard to immovables situated in this state. LSA–C.C. art. 3524. Pursuant to Article 3527, the surviving spouse is entitled to receive the monetary value of any rights that would have been provided by the law of the state in which the acquiring spouse was domiciled at the time of death. See Dian Tooley–Knoblett, A Step By Step Guide to Louisiana's Choice of Law Provisions on Marital Property, 52 Loy. L.Rev. 759, 786–87 (2006).

Atain Specialty Insurance Co. v. VIG II, LLC, No. CV 15-6499, 2017 WL 3867672, at *7 (E.D. La. Feb. 9, 2017)

A final concern is that the CGL policies' definition of “Your Product” excludes real property 38 “Under Louisiana law, ‘immovable property’ is real property.” In re Hari Aum, LLC, 714 F.3d 274, 283 n.7 (5th Cir. 2013); see also La. Stat. Ann. § 10:9-102 (defining “[r]eal property” as “immovable property and real rights therein....”); 24 Diane Tooley–Knoblett & David Gruning, Louisiana Civil Law Treatise, Sales § 6:5 (2016) (“Louisiana, like other civil law systems, divides things into movables and immovables, categories that correspond generally to personal property and real property in common law jurisdictions.”)

Appellees' Brief at 24-25, In the Matter of: Goodrich Petroleum Corp., No. 17-20278 (5th Cir. July 28, 2017), 2017 WL 3263570 at *24-25

Indeed, “[t]he adoption of C.C. art. 3339 was specifically intended to legislatively resolve a conflict in the courts of appeal over whether a lessee's exercise of the option to renew a lease must be recorded to bind third persons.” 24 Dian Tooley--Knoblett & David Gruning, Louisiana Civil Law Treatise: Louisiana Sales Law § 4:14 n.10 (2016) . . . .

Double NRJ Trucking, Inc. v. Johnson, 247 So.3d 1125, 1131 (La. Ct. App. 2018)

Although no valid written agreement exists between the parties, the evidence and testimony in the record demonstrates that the parties intended to enter into an agreement. And that agreement, regardless of whether the parties intended it to be a sale or a lease of the vehicle, may be made orally See La. C.C. art. 2681 (“A lease may be made orally or in writing”); 24 Dian Tooley–Knoblett & David Gruning, Louisiana Civil Law Treatise, Sales, § 6:3, at 302–03 (2012) (“[A]n oral sale of a registered movable is valid between the parties[.]”).

Matter of Goodrich Petroleum Corp., 894 F.3d 192, 201 (5th Cir. 2018)

Under longstanding Louisiana legal principles, “[n]either fraud, nor want of consideration, nor secret equities between the parties, who have placed on the public records a title valid upon its face, can be urged against the bona fide purchaser for value, who has acted on the faith of such recorded title.”35

35 Schwing Lumber & Shingle Co. v. Ark. Nat. Gas Co., 166 La. 201, 116 So. 851, 852 (1928) (quoting Cole v. Richmond, 156 La. 262, 100 So. 418, 423 (1924) ); see also DIAN TOOLEY–KNOBLETT & DAVID GRUNING, 24 LA. CIV. TREATISE, SALES § 15:12 (2017)

Naz, LLC v. Philips Healthcare, NO. 17-2882, 2018 WL 1202570 at *10, (E.D. La. Mar. 8, 2018)

Any incidental obligations to do (e.g., to service and install the thing) do not extricate the contract from Louisiana sales law. See Mouton, 14-350 at pp. 12-13; 152 So. 3d at 994; La. C.C. art. 1756; 24 Dian Tooley-Knoblett & David Gruning, La. Civil Law Treatise, Sales § 1:10 (Supp. 2017).

Brief of Appellees, Helmerich & Payne International Drilling Co. & BHP Billiton Petroleum (Txla Operating) Co. at 24, Mabry v. Petrohawk Energy Corp., No. 17-41013

(5th. Cir. Mar. 23, 2018), 2018 WL 1468534 at *24

Louisiana's choice-of-law analysis mirrors that of Texas. Article 3540 of the Civil Code provides “[a]ll other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable.”55

55 La. Civ. Code Ann. art. 3540 (1991) (emphasis added); see David Gruning, General Choice-of-Law Principle for Contracts--Party Autonomy in Contracts, 24 LA. CIV. L. TREATISE, SALES § 1:18 (2017).

Defendant's Memorandum in Support of Its Motion for Summary Judgment Regarding Prescription of LPLA Claim at 8, NAZ, LLC v. Philips Healthcare, No. 2:17-CV-02882

(E.D. La Aug 21, 2018), 018 WL 11431682 at *8

If the fundamental obligation of a contract is a sale (where the parties consent to transfer ownership of a thing for a price in money), the contract is governed by the law of sale, and therefore, redhibition. See Mouton, 14-350 at pp. 12-13; 152 So. 3d at 994; La. Civ. Code arts. 2439, 2520, et seq. Any incidental obligations to do (e.g., to service and install the thing) do not extricate the contract from Louisiana sales law. See Mouton, 14-350 at pp. 12-13; 152 So. 3d at 994; La. Civ. Code art. 1756; 24 Dian Tooley-Knoblett & David Gruning, La. Civil Law Treatise, Sales § 1:10 (Supp. 2017)

Defendant's Memorandum in Support of Its Motion for Summary Judgment Regarding Prescription of Plaintiffs' Redhibition Claims at 11, NAZ, LLC v. Philips Healthcare, No. 2:17-CV-02882 (E.D. La Aug. 31, 2018), 2018 WL 11431680 at *11

If the fundamental obligation of a contract is a sale (where the parties consent to transfer ownership of a thing for a price in money), the contract is governed by the law of sale, and therefore, redhibition. See Mouton, 14-350 at pp. 12-13; 152 So. 3d at 994; La. Civ. Code arts. 2439, 2520, et seq. Any incidental obligations to do

(e.g., to service and install the thing) do not extricate the contract from Louisiana sales law. See Mouton, 14-350 at pp. 12-13; 152 So. 3d at 994; La. Civ. Code art. 1756; 24 Dian Tooley-Knoblett & David Gruning, La. Civil Law Treatise, Sales § 1:10 (Supp. 2017)

The application of contra non valentum in the context of redhibition claims is discussed in the Louisiana Civil Law Treatise on Sales, which recognizes: “Only rarely have courts applied contra non valentum to redhibition claims.” 72

72 24 DIAN TOOLEY-KNOBLETT & DAVID GRUNING, LA. CIVIL LAW TREATISE, SALES § 11:41 (Supp. 2017).

Collins v. Hill, 265 So. 3d 1202, 1210 (La. Ct. App. 2019)

When the seller dissolves the sale for nonpayment of the price, he must return to the buyer all money received from him, with interest. In addition, the seller must pay for the improvements made upon the property by the buyer. Dian Tooley-Knoblett and David Gruning, Sales, § 15:22 in 24 Louisiana Civil Law Treatise (2012).

Matter of Goodrich Petroleum Corp., 894 F.3d 192, 201 (5th Cir. 2018)

Under longstanding Louisiana legal principles, “[n]either fraud, nor want of consideration, nor secret equities between the parties, who have placed on the public records a title valid upon its face, can be urged against the bona fide purchaser for value, who has acted on the faith of such recorded title.”35

35 Schwing Lumber & Shingle Co. v. Ark. Nat. Gas Co., 166 La. 201, 116 So. 851, 852 (1928) (quoting Cole v. Richmond, 156 La. 262, 100 So. 418, 423 (1924) ); see also DIAN TOOLEY–KNOBLETT & DAVID GRUNING, 24 LA. CIV. TREATISE, SALES § 15:12 (2017).

Mack Energy Co. v. Red Stick Energy, LLC, No. CV 16-1696, 2019 WL 2060948, at *5 (W.D. La. Apr. 3, 2019)

The right of litigious redemption existed in both French and Roman law and appeared early in the Louisiana Civil Code.57

5724 DIAN TOOLEY-KNOBLETT & DAVID GRUNING, LOUISIANA CIVIL LAW TREATISE, SALES § 14:4.

The purpose of litigious redemption is to discourage unnecessary

litigation61 and “discourage speculators from buying lawsuits in which they had no true interest.”62

62 TOOLEY-KNOBLETT & GRUNING, LOUISIANA CIVIL LAW TREATISE, SALES § 14:4.

Original Brief of Plaintiff/Appellant Gaubert Oil Co., Inc. at 16, Gaubert Oil Co., Inc. v. Bayou Fuel Marine and Hardware Supplies, Inc., 280 So.3d 1013 (La. Ct. App. 2019) (No. 19-CA-120), 2019 WL 10945253 at *16

In 1909, the Louisiana Supreme Court articulated the public records doctrine in the case of McDuffie v. Walker. See generally, McDuffie v. Walker, 125 La. 152, 51 So. 100 (La. 1909). The public records doctrine does not create rights. DIAN TOOLEY-KNOBLETT AND DAVID GRUNNING, SALES § 8:2, in 24 LOUISIANA CIVIL LAW TREATISE (2d ed. 2018).

Memorandum in Support of Motion for Summary Judgment at 14, Renton Properties, LLC v. 213 Upland, LLC, No. 775357 (La. Dist. Ct. Dec. 9, 2019), 2019 WL 13195821 at *14

The Louisiana Civil Law Treatise also has recognized the need to record a purchase agreement, and absent recordation, an aggrieved party does not have a cause of action against the purchaser of the property, but rather against the seller with whom the party had contracted in a purchase agreement:

Since a promise of sale does not create, establish, or relate to a mortgage or privilege, it must be recorded in the conveyance records of the parish in which the immovable is located. As now expressly provided in the Code, a promise of sale affecting immovable property becomes effective against third persons when it has been filed for registry. Absent compliance of Louisiana's registry laws, the only remedy available to aggrieved buyer in a promise of sale would be an award of damages against his seller if the remedy of specific performance is not available due to the superior rights of the third party entitled to protection under the public records doctrine. 75

75 Dian Tooley-Knoblett & David Gruning, 24 La. Civ. L. Treatise, Sales § 5.38 (2017)

Principal Brief of Appellees at 22, Billiot v. Multifamily Management, Inc., No. 20-30197 (5th Cir. July 24, 2020), 2020 WL 4480772 at *22

Moreover, one state's laws do not violate another state's public policy just because the two statutes conflict. Cherokee, 38 F.3d at 252. Instead,

“something more must be shown” to be deemed “public policy.”14

14 “After all, if the parties are arguing over the validity of a choice-of-law clause, it is because the law of the two jurisdictions are different and will yield different outcomes.” Dian Tooley-Knoblett & David Gruning, Sales § 1:18, in Louisiana Civil Law Treatise 571 (2019).

Broyles v. Ducote, 343 So.3d 902, 910 (La. Ct. App. 2022)

Duress may be considered to encompass economic duress to property and reputation for some purposes. See Dian Tooley-Knoblett and David Gruning, 24 La. Civ. L. Treatise, Sales § 7:8 (2021). 3

3 Economic duress occurs in the particular way in which an economic interest is threatened since economic integrity is an interest threatened more or less constantly by any player at any level in a market economy. An archetypical example of such duress is where one engaged in an enterprise of constructing an ocean-going vessel makes hundreds of contracts with numerous third parties to supply components of the vessel. All suppliers make their offers and set their prices at the beginning of the process when no single supplier is crucial. At the end of the process, the supplier of the final, key component threatens not to perform unless his price is tripled for no other reason than that his performance is vastly more valuable at this moment than it was at the outset. If the vessel constructor meets the demand by paying triple the originally-set amount, and the vessel is, thereby, completed, the supplier would not be permitted to retain his excess price based on a finding of economic duress. Although Louisiana jurisprudence has reached the stage of considering claims of economic duress, it has not yet ruled in favor of one making such a claim. See 24 La. Civ. L. Treatise, Sales § 7:8.

Sandi S. Varnado, Kathryn Venturatos Lorio Professor in Civil Law

Crockett v. Prantner, No. COA11–1565, 2012 WL 4076463, at *8 (N.C. App. Sept. 18, 2012)

It is merely and simply because the plaintiffs in such suits do not deserve to recover for the loss of or injury to ‘property’ which they do not, and cannot, own.”). Likewise, the Supreme Court of Iowa abrogated the tort of criminal conversation in 1978. See Bearbower v. Merry, 266 N.W.2d 128 (1978).2

2 In addressing the causes of action for alienation of affections and criminal

conversation, we are cognizant of their controversial nature. One scholar has noted that, as of 2011, “[o]nly seven states continue to recognize any form of [cause of action for] alienation of affections.” Sandi S. Varnado, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DePaul L.Rev. 113, 144 (2011). “These seven states are Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. See, e.g., Hunt v. Chang, 594 P.2d 118, 123 (Haw.1979); Schroeder v. Winyard, 873 N.E.2d 35, 40 (Ill.App.Ct.2007); Fitch v. Valentine, 959 So.2d 1012, 1025 (Miss.2007); Thompson v. Chapman, 600 P.2d 302, 304 (N.M.Ct.App.1979); Heller v. Somdahl, 696 S.E.2d 857, 860–61 (N.C.Ct.App.2010); Hershey v. Hershey, 467 N.W.2d 484, 488 (S.D.1991); Heiner v. Simpson, 23 P.3d 1041, 1043 (Utah 2001).” Id., n.197.

Petition for Writ of Mandamus at 12, In re Eddins, No. 17-0461 (Tex. June 12, 2017), 2017 WL 2620630 at *12

Parental alienation, also known as “psychological kidnapping,” is a broad term that refers to a wide scope of behavior. See Sandi S. Varnado, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DEPAUL L. REV. 113, 120 (2011)

Indeed, Judge Rankin may have concluded that Jalane, as an alienator par-ent, poses a serious risk to the children. Most scholars believe that parental alienation is caused by a deficiency in the alienator parent's psychological makeup. Varnado, 61 DEPAUL L.R. at 122. Some scholars believe that alien-ators are sociopaths, while others believe they suffer from personality disor-ders, mental illness, or an inability to “individuate” themselves from the child. Id. at 122-23.

Amarreh v. Amarreh, 918 N.W.2d 228, 232 (Minn. Ct. App. 2018)

Interference with a parent-child relationship, or parental alienation, is sometimes referred to as “psychological kidnapping,” and means “any constellation of behaviors by a parent, whether conscious or unconscious, that could evoke a disturbance in the relationship between a child and the targeted parent.” Sandi S. Varnado, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DePaul L. Rev. 113, 120–21 (Fall 2011) (quotation omitted) (listing parental alienation techniques, including “cutting off the other parent’s access to information about the child[ren], ... denying him information about the children’s activities, or access to the child’s medical or school records,” and limiting “the other

parent’s contact with the child by refusing to allow telephone conversations or visits” (quotation omitted) ).

Luis v. Zang, No. 1:12-CV-629, 2018 WL 1724898, at *14 (S.D. Ohio Apr. 6, 2018)

Based on this deposition testimony, the undersigned will assume that the subject matter of at least a portion of the messages sent to Catherine Zang and retrieved by WebWatcher were of a sufficiently “private” nature that intrusion into those conversations could be actionable.19

19 There is no dispute that Luis and Catherine Zang never met in person until well after their on-line correspondence had been discovered. The cultural implications of “online infidelity” well exceed the scope of this Court’s limited legal opinion. But see generally Sandi Varnado, Avatars, Scarlet “A”s, and Adultery in the Technological Age, 55 Ariz. L. Rev. 371 (Summer 2013).

Child Custody Fast Track Reply at 12, Harrison v. Harrison, No. 72880 (Nev. Apr. 18, 2018) 2018 WL 2412677 at *12

We know what happened in this case. Kirk's relationship with Brooke was destroyed by the teenage discretion provision.5 As a foreseeable consequence, Kirk may never see Brooke again and will likely not have a relationship with Brooke for the rest of his life.6 Although the sole consideration for the court is, appropriately, the best interests of the children, the adverse impact upon the parents who are and will be foreseeably alienated by the use of teenage discretion provisions cannot be overstated – it is devastating.7

7 Rejection by a child can cause extreme emotional distress to the alienated parent, similar to loss of a child by death (and in some ways even worse). Sandi S. Varnado, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DePaul L. Rev. 113, 125 (2011)

Vidro Martinez v. Collazo Vega, No. ISCI201601125, 2019 WL 3388903, at *21 (P.R. Ct. App. May 31, 2019)

Así pues, la alienación parental ocurre cuando uno de los padres realiza expresiones carentes de verdad, y con marcada animosidad, o lleva a cabo actuaciones con la intención de perjudicar y trastocar la imagen del padre contra el que se hacen, procurando alejar al menor de éste. Lourdes L. Vallejo Ayala, Op. Cit. Es por ello por lo que se suele hacer referencia a este tipo de conductas como un “psychological kidnaping”. Sandi S. Varnado, Inappropiate Parental

Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DePaul L.Rev. 113, Fall 2011.

Robert R. M. Verchick, Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law

Sierra Club's Motion to Intervene at 3, Nat’l Solid Wastes Management Ass’n v. Granholm, 344 F. Supp. 2d 559 (E.D. Mich. 2004) (No. 04-71271), 2004 WL 3333926 at *3

Moreover, everyday consumer-items such as batteries and fluorescent lights, when dumped at common landfills, can leach mercury and a variety of other toxins into the Surrounding soils, air and water. See Robert R.M. Verchick, “The Commerce Clause, Environmental Justice, and the Interstate Garbage Wars,” 70 S. Cal. L.R. 1239, 1247 n.28 (1997).

Brief of Public Law Scholars as Amici Curiae in Support of Respondents at 13, Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 133 S. Ct. 2466, 186 L. Ed.2d 607 (2013) (No. 12-142), 2013 WL 749936 at *13

This Court has long suggested that the primary institutional safeguard for state autonomy in our system derives from the states' representation in the national political process. See San Antonio Metro. Transit Auth. v. Garcia, 469 U.S. 528 (1985). The importance of that representation undergirds this Court's oft-stated rule that “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, 518 U.S. at 485. It also supports Rice's presumption, because “a presumption against preemption promotes legislative deliberation” about the impact of proposed federal statute on state law. Robert R. M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 13, 23 (William W. Buzbee ed. 2009)

Amicus Curiae Brief and Addendum on Behalf of the Lawyers' Committee for Civil Rights and Economic Justice at 4, City of Brockton v. Energy Facilities Siting Board, 14 N.E.3d 167 (Mass. 2014) (SJC–11406), 2014 WL 814711 at *4

For decades, environmental justice proponents have noted that procedural safeguards alone are often insufficient to protect groups that are already disenfranchised: “In the last 15-20 years, communities of color, tribes and indigenous peoples, poor communities, and all of the organizations representing them, have persistently challenged disparities resulting from the current system, often working in regulatory processes where influential groups have significant advantages.” Eileen Gauna, Sheila Foster, Carmen

Gonzalez, Lisa Heinzerling, Catherine O'Neill, Clifford Rechtschaffen, and Robert R.M. Verchick, CPR Perspective: Environmental Justice at Stake, Center for Progressive Reform, available at www.progressivereform .org/persp-EnvironJustice.cfm.

Motion for Leave to File and Brief of Law Professors as Amici Curiae in Support of Petitioners passim Board of Com'rs of the Southeast Louisiana Flood Protection Authority

- East v. Tennessee Gas Pipeline Co., LLC, No. 17-99 (U.S. Aug 18, 2017), 2017 WL 3669444 passim

Coastal wetlands include “salt marshes, bottomland hardwood swamps, fresh marshes, mangrove swamps, and shrubby depressions …, many of which are present in Louisiana.” Coastal Wetlands, Wetlands Protection and Restoration, U.S. EPA, http://www.epa.gov/wetlands/coastal-wetlands (last visited Aug. 9, 2017). “Louisiana's coastal plain hosts an extraordinary diversity of coastal habitats, ranging from natural levees and beach ridges to large swaths of forested swamps, to freshwater, intermediate, brackish, and saline marshes.”

ROBERT R.M. VERCHICK, FACING CATASTROPHE: ENVIRONMENTAL ACTION FOR A POST-KATRINA WORLD 18 (Harvard Univ. Press 2010) (hereinafter “VERCHICK, FACING CATASTROPHE”).

The U.S. Environmental Protection Agency has estimated that “[c]oastal wetlands cover about 40 million acres and make up 38 percent of the total wetland acreage in the conterminous United States. 81 percent of coastal wetlands in the conterminous United States are located in the southeast.” Coastal Wetlands, Wetlands Protection and Restoration, U.S. EPA, available at www.epa.gov/wetlands/coastal-wetlands (last visited Aug. 9, 2017). Louisiana is the home to a quarter of all of these coastal wetlands.3 Verchick, Facing Catastrophe at 17 & n.15; . . . .

3 Legal scholars have noted that the coastal wetlands in Louisiana are so vast that if the Florida Everglades were dropped into the Louisiana swamps, they would never be found. Verchick, Facing Catastrophe at 17-18.

This wildlife provides aesthetic, recreational, and commercial benefits, i.e., services, to Louisiana. Louisianans experience and enjoy the swamps through “consumptive uses,” such as fishing and hunting Louisiana's natural resources also provide “non-consumptive uses,” such as bird watching and boating See Master Plan at 24; VERCHICK, FACING CATASTROPHE at 12-15.

Louisiana's commercial fishing industry produces more shrimp, oyster, blue crabs, crawfish, and alligators than any other state in the country. Louisiana seafood accounts for 25 percent of all of the seafood in the United States. Master Plan at ES-13, 24; Verchick, Facing Catastrophe at 17. Coastal lands and waters support

and protect five of the top twelve ports (by cargo volume) in the United States. See Master Plan at ES-2, ES-13, 26; VERCHICK, FACING CATASTROPHE at 18.

Maybe most importantly, Louisiana's coastal wetlands provide a buffer against hurricanes and other storms. Louisiana's coastal wetlands protect the State against storms and flooding by acting as a giant sponge, “absorbing billions of gallons of rainfall and shielding people and property from storms.” VERCHICK, FACING

CATASTROPHE at 18; . . . . The marshes similarly act to purify water by filtering out various pollutants from incoming water bodies. VERCHICK, FACING

CATASTROPHE at 19

Brief of Public Law Scholars as Amici Curiae in Support of Petitioners at 5, Deutsche Bank Trust Co. Americas v. Robert R. McCormick Foundation, No. 20-8 (U.S. Aug. 10, 2020), 2020 WL 4730587 at *5

Two primary structural constraints check preemption's scope. First, this Court has long suggested that the principal institutional safeguard for state autonomy derives from the States' representation in the national political process. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). That is why Congress's purpose must be “the ultimate touchstone” of preemption analysis. Medtronic, 518 U.S. at 485. It also supports Rice's presumption, because “a presumption against preemption promotes legislative deliberation” about a proposed federal statute's impact on state law.7

7 Robert R. M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION (William W. Buzbee ed., 2009)

Brief for Amici Curiae Public Law Scholars in Support of Plaintiff-Appellee at 25, Hardeman v. Monsanto, Nos. 19-16636, 19-16708 (9th Cir. Mar. 23, 2020), 2020 WL 1557570 at *25

Two primary structural constraints check the scope of federal preemption. First, the Supreme Court has long suggested that the principal institutional safeguard for state autonomy in our system derives from the States' representation in the national political process. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). The importance of that representation undergirds the oft-stated rule that “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, 518 U.S. at 485. It also supports Rice's presumption, because “a presumption against preemption promotes legislative deliberation” about the impact of proposed federal statute on state law. Robert R. M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in PREEMPTION

CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION

(William W. Buzbee ed., 2009).

Brief for Amici Curiae Public Law Scholars in Support of Plaintiff-Appellant at 26, No. 21-10994-E (11th Cir. May 12, 2021), Carson v. Monsanto Co., 2021 WL 1961428 at *26

Two primary structural constraints check the scope of federal preemption. First, the Supreme Court has long suggested that our system's principal institutional safeguard for state autonomy derives from the States' representation in the national political process. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). The importance of that representation undergirds the oft-stated rule that “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, 518 U.S. at 485. It also supports Rice's presumption, because “a presumption against preemption promotes legislative deliberation” about the impact of proposed federal statutes on state law. Robert R. M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION (William W. Buzbee ed., 2009)

Brief of Amici Curiae Water Resource Management Organizations in Support of Respondents at 7, Sackett v. EPA, No. 21-454 (U.S. June 17, 2022), 2022 WL 2238828 at

In some regions, these requirements would exclude the vast majority of waters: 80-90% of streams in the West flow only seasonally or after a hard rain, Robert R.M. Verchick, Toward Normative Rules for Agency Interpretation: Defining Jurisdiction Under the Clean Water Act, 55 ALA. L. REV. 845, 875 (2004), and 88% of the wetlands in a major region of the Upper Midwest are geographically isolated. T.E. Dahl, Status and Trends of Wetlands in the Conterminous United States 1997-2009, U.S. FISH & WILDLIFE SERV., at 20 (2014), https://bit.ly/3aqDdLB

James Etienne Viator, Adams & Reese Distinguished Professor of Law

Jackson v. Ray Kruse Const. Co., 708 S.W.2d 664, 673 (Mo. 1986) (Welliver, J., dissenting), overruled by Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993)

The concept of causation has evoked considerable controversy among the scholars during the last sixty years.3

3 See generally A. Becht & F. Miller, The Test of Factual Causation (1961); . . . Comment, When Cause-In-Fact is More Than A Fact: The

Malone-Green Debate on the Role of Policy in Determining Factual Causation in Tort Law, 44 La.L.Rev. 1519 (1984).

In re Legislative Districting of State, 805 A.2d 292, 339 (Md. 2002)

In the context of redistricting, § 2 raises questions about how and when state governments must create districts that provide minority voters with an effective opportunity to elect candidates of their choice. See Hebert, supra, at 434. In order to raise successfully a VRA challenge to a redistricting plan, petitioners must demonstrate the existence of three factors: (1) that the minority group is sufficiently large and geographically compact to constitute a majority in the district; (2) that the minority group is politically cohesive; and (3) that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority group's preferred candidate. See Growe v. Emison, 507 U.S. 25, 39-40, 113 S.Ct. 1075, 1084, 122 L Ed.2d 388 (1993); Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766, 92 L.Ed.2d 25 (1986).15

15 Numerous empirical studies demonstrate both a general cohesiveness of black political preferences and voting behavior and significant differences from white preferences and behavior, as well as white bloc voting, which excludes black Americans from the fair and equal representation required by § 2 of the VRA. See DAVID A. BOSITIS, JOINT CENTER FOR POLITICAL AND ECONOMIC STUDIES, 1996 NATIONAL OPINION POLL: POLITICAL ATTITUDES (1996); . . . James Etienne Viator, The Losers Know Best the Meaning of the Game: What the Anti-Federalists Can Teach Us About Race Based Congressional Districts, 1 LOY. J. PUB. INT. L. 1, 24 n. 99 (2000)

Appellee Focus Design Builders' Brief at 31, Thompson v. Southland Constructors, Inc. No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Apr. 23, 2020), 2020 WL 2497795 at *31

Appellant's reliance on W. Jonathan Cardi, Purging Foreseeability the New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739, 741 (2005), Dan B. Dobbs, The Law of Torts § 114, at 269 (2000); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30, at 163-64 (5th ed. 1984), Leon Green, Judge & Jury 66 (1930), Leon Green, Rationale of Proximate Cause 76 (1927); Galligan, supra note 3, at 1513-14; Patrick J. Kelley, Proximate Cause in Negligence Law: History, Theory, and the Present Darkness, 69 Wash. U. L.Q. 49, 89 (1991), and See James E. Viator, When Cause-in-Fact Is More than a Fact: The Malone-Green Debate on the Role of Policy in Determining Factual Causation in Tort Law, 44 La. L. Rev. 1519, 1523 (1984) are misplaced because this case was not dismissed based upon

proximate cause.

Monica Hof Wallace, Dean Marcel Garsaud Distinguished Professor of Law

Appellant's Opening Brief at 28, In re the Chao-Te and Liu Jui-Kwa Chen Trust, No. 63189, (Nev. Jan. 28, 2014), 2014 WL 10680148 at *28

Courts confronted with a putative spouse have taken various approaches to the division of property between them. Under the so-called “modern rule,” for example, community property does not accumulate when spouses are living separate and apart. See Casey Faucon, Living “Separate and Apart”: Solving the Problem of Putative Community Property in Louisiana, 85 Tul. L. Rev. 771 (Feb. 2011); In re Estate of Hersh, 477 A2d 1286 (N.J. Super. Ct. App. Div. 1984) (finding that putative spouse would take “surviving spouse” elective share of property where decedent and lawful wife, who had been separated for over 30 years, would have been eligible for no-fault divorce on ground of separation); In re Marriage of Fong, 589 P.2d 1330 (Ariz. Ct. App. 1978) (finding that property acquired subsequent to spouses entry into a second marriage would not go to prior wife); Aetna Life Ins. Co. v. Bunt, 754 P.2d 993, 996 (Wash. 1988) (finding the marital community became defunct and denying spouse's claim to community property; see also Monica Hof Wallace, The Pitfalls of a Putative Marriage and the Call for a Putative Divorce, 64 La. L. Rev. 71, 111 (2003). (stating that the concept of community property is dependent on the active participation of two partners joined in a vital relationship, not the formality of marriage between two partners); . . . .

In re Guardianship of K.B., 233 A.3d 328, 331 (N.H. 2019)

“[T]he UCCJEA establishes the criteria for deciding which state's courts have subject matter jurisdiction to make a child custody decision involving interstate custody disputes.” Harshberger v. Harshberger, 724 N.W.2d 148, 153 (N.D. 2006). It has been adopted in all fifty states. Monica Hof Wallace, A Primer on Child Custody in Louisiana, 65 Loy. L. Rev. 1, 158 (2019)

Brief of the Appellant Rosemary A. Aulds at 46, Yakich v. Aulds, 155 N.E.3d 1093 (Ill. 2019), 2018 WL 10217026 at *46

Most importantly, in 2014, states that had post-secondary education laws had a college participation rate 7.6% higher than those that did not8. Various law review articles have looked at different aspects of post-secondary education laws and found that children of parents who are divorced, separated, or never married receive less parental support during young adulthood than their peers whose parents are married to each other.9 10 11 12

11 Wallace, Monica Hof, A Federal Referendum: Extending Child Support for Higher Education, University of Kansas Law Review, Vol. 58, Issue 665 (March 2010)

Succession of Liner, 285 So.3d 63, 66 (La. Ct. App. 2019)

When a testator does not know how to or is unable to read, he cannot assure for himself that the document accurately reflects his desires. Succession of Malone, 509 So. 2d 659, 662 (La. App. 3 Cir. 1987). The requirements of La. R.S. 9:2443 (current article La. C.C. art. 1579)5 provide a procedure which, if followed, gives the illiterate or sight-impaired testator reasonable assurance that his desires are in fact reflected in the document he is declaring to be his last will. Id.

5 In re Succession of Theriot, 08-1233 (La. App. 1 Cir. 12/23/08), 4 So. 3d 878, 880 fn. 1, the requirements of a notarial testament executed under La. C.C. arts. 1574-1580.1 are essentially the same as those of the prior statutory testament under La. R.S. 9:2442-2444. See also, Kathryn Venturatos Lorio & Monica Wallace, 10 La. Civ. L. Treatise, Successions and Donations, § 12.4 (2d ed.)

Council v. Livingston, No. 2019-CA-1049 at 10, 2020 WL 1231392, at 10* (La. Ct. App. Mar. 13, 2020)

The argument that Mr. Council raises here—that the Article 134 Factors are exclusive and must be considered by the trial court—has been uniformly rejected by the jurisprudence. Alfonso, supra. It is well-settled that the trial court is “not required to analyze mechanically all of the [fourteen]16 factors; rather the court should balance and weigh the factors in view of the evidence presented.” Id.

16 From 1993 to 2018, the Article 134 Factors remained the same. “In 2018, Act 412 was passed, which added two additional factors and expounded on two existing factors, all with a focus on potential abuse that could affect a child. Best interest is now defined in fourteen, rather than twelve, factors, but the factors remain illustrative, so any fact having a bearing on the child should be considered in the court's analysis.” Monica Hof Wallace, A Primer on Child Custody in Louisiana, 65 LOY. L. REV. 1, 82 (2019) (footnote omitted); . . . .

Succession of Burns, 331 So.3d 1062, 1068, 1069 (La. Ct. App. 2021)

Third, she contends that despite the law of La. C.C. art. 96, Prince v. Hopson, Succession of Gordon, and Succession of Chavis, supra, the court should

apply a theory of “putative divorce,” whereby if the parties think they are divorced, and act accordingly (by marrying other people), the law should deem them divorced from that moment, effectively constructing two community regimes. In support, she cites a law review article, Monica Hof Wallace, The Pitfalls of a Putative Marriage and The Call for a Putative Divorce, 64 La. L. Rev. 71 (Fall 2003). . . .

Annie strongly argues that we should apply the concept of “putative divorce,” whereby if the parties think they are divorced, and act accordingly (by entering later marriages), then the law should deem them divorced, from that time, effectively constructing two communities. In support, she cites Professor Wallace's law review article, The Pitfalls of a Putative Marriage and The Call for a Putative Divorce, supra, and stresses the inequity of giving the legal wife an equal share of the putative community, to which she never contributed anything This court is aware of the occasional, yet vocal, scholarship that has criticized Prince v. Hopson and its progeny 5

5 See, e.g., Robert A. Pascal, Putative Marriage and Community Property, 17 La. L. Rev. 303 (1957); Fred R. Godwin, Community Property –Distribution of Property Acquired During Existence of a Putative Marriage, 17 La. L. Rev. 489 (1957); Casey E. Faucon, “Living Separate and Apart”: Solving the Problem of Putative Community Property in La., 85 Tul. L. Rev. 771 (Feb. 2011); Monica Hof Wallace, A Primer on Marriage in La., 64 Loyola L. Rev. 557 (Fall 2018), 601.

Brief of Amicus Curiae Amanda Ziglar, Individually and on Behalf of the Estate of Gary Bruney at 5, Rismiller v. Gemini Insurance Co., No. 2020-CA-0313 (La. Feb. 2021), vacated, 330 So.3d 145 (La 2021), 2021 WL 2594884 at *5

Through the 1870 revision of our Civil Code, adoption was formally recognized in La. C.C. art. 214. Kathryn Venturatos Lorio and Monica Hof Wallace, 10 La. Civ. L. Treatise Successions and Donations § 10.3 (2d ed. 2020)

Benoit v. Benoit, 341 So.3d 573, 577 (La. Ct. App. 2022)

The Louisiana State Legislature adopted the Covenant Marriage Act (“the Act”) in 1997. La. R.S. 9:272, et seq. “Covenant marriage exists as an alternative to traditional marriage and requires the parties to obtain premarital counseling and to express their intent to enter into covenant marriage when they apply for a marriage license.” Monica Hof Wallace, A Primer on Divorce in Louisiana, 64 Loy. L. Rev. 617, 649 (2018) (footnote omitted).

Original Brief on Behalf Of Denise Villeré Schimek, Plauche Francois Villeré, and Ray Alan Schimek, the Independent, Duly Authorized Co-Executors of the Succession of Robert Alfred Schimek, Sr., as Appellants at 9, Succession of Schimek, No. 2019-CA-1069 (La. Ct. App. Jan. 6, 2020), 2020 WL 13564820 at *8

It is black letter law in Louisiana that gratuitous transfers upon death (donations mortis causa) must comply with strict formalities. See generally Kathryn Venturatos Lorio & Monica Hof Wallace, Louisiana Civil Law Treatise: Successions and Donations § 12:1 (2d ed. 2018) (explaining that, “[i]f the testamentary formalities are not sufficient for any of the accepted will forms, the entire testament will fall”) (citing La. Civ. Code art. 1573; Soileau v. Ortego, 180 So. 496, 497 (La. 1938); Succession of Dubuisson, 378 So. 2d 1049, 1050 (La. App. 2d Cir. 1979)).

Original Brief on Behalf of Applicants, Sharon Burns Woods, Estelle Green Burns and Annie Lee Bradley Burns at 6-7, Succession of Burns, No. 2022-C-00263 (La. May 23, 2022), 2022 WL 11197835 at *6-7

That the old decisions were gender biased is not subject to much doubt - at least one commentator has recognized the same, while criticizing the rule in Prince, and calling for a change in the methods of allocation. See Faucon, Living Separate and Apart: Solving the Problem of Putative Community Property in Louisiana, 85 Tul.L Rev. 771, 791 (2010). That same commentator suggests certain solutions which could be adopted by the courts to fix the inherent problems identified by that author and by Monica Hoff Wallace. See Wallace, The Pitfalls of a Putative Marriage and the Call for a Putative Divorce, 64 La.L.Rev. 71 (2003).

Robert L. Derosa's Original Appellant Brief at 24, West v. Derosa, No. 2022-CA-0570 (La. Ct. App. Sept. 29, 2022), 2022 WL 6789493 at *24

It was in anticipation of the decision in Succession of Brown and in response to the frequent constitutional challenges to laws surrounding the rights of “illegitimate” children that the Louisiana Legislature enacted La. Civ. Code art. 209.65

65 Kathryn Venturatos Lorio & Monica Hof Wallace, Louisiana successions, Donations, and Trusts: Cases and Materials, 3-3 (3d ed. 2015).