DigitalCommons @ LSU Law Center

A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career

William R. Corbett — Fri, 07 Jun 2013 08:30:51 PDT

The Need for a Revitalized Common Law of the Workplace

William R. Corbett — Thu, 06 Jun 2013 10:14:32 PDT

The Narrowing of the National Labor Relations Act: Maintaining Workplace Decorum and Avoiding Liability

William R. Corbett — Thu, 30 May 2013 13:08:40 PDT

Waiting for the Labor Law of the Twenty-First Century: Everything Old Is New Again

William R. Corbett — Thu, 30 May 2013 08:49:00 PDT

An Allegory of the Cave and the Desert Palace

William R. Corbett — Wed, 29 May 2013 12:06:56 PDT

'Rogue States' Within American Borders: Remedying State Noncompliance with the International Covenant on Civil and Political Rights

Margaret S. Thomas — Fri, 24 May 2013 09:39:40 PDT

Nearly a decade after the United States ratified the International Covenant on Civil and Political Rights, the treaty's implementation is incomplete. A complex maze of reservations, understandings, and declarations has hindered domestic implementation, as has Congress 's failure to pass national implementing legislation. Almost every state in the Union has laws that violate the Covenant. For example, the treaty requires that in criminal matters, juveniles must be tried in a manner that takes account of their age. Nevertheless, California and many other states frequently treat minors as adults in such matters. Because the Senate declared the treaty to be non-self-executing, the question arises whether there is any legal remedy for state breaches of this U.S. treaty obligation.

The Supremacy Clause exclusively regulates the relationship between treaties and states. Nothing in the Supremacy Clause requires congressional implementation of a treaty in order for that treaty to supersede state law. Congress's failure to implement the treaty merely displaces the primary burden of enforcement to the states. The Senate's declaration that the Covenant shall not be self-executing in no way diminishes state courts' duty to enforce the treaty. Though the declaration may limit the federal courts' ability to recognize private rights of action based on the treaty, federal courts have demonstrated an increasing willingness to entertain claims to treaty rights asserted against the government. Both state and federal courts have the power to bring wayward state laws into compliance with the Covenant's obligation.

Faragher, Ellerth, and the Federal Law of Vicarious Liability for Sexual Harassment by Supervisors: Something Lost, Something Gained, and Something to Guard Against

William R. Corbett — Fri, 24 May 2013 09:33:48 PDT

In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort law, the result is appropriate given their different objectives. He further warns that, now that the ties between state tort law and Title VII have been severed, courts should not allow developments in sexual harassment cases to unduly influence state respondeat superior law.

The Ugly Truth About Appearance Discrimination and the Beauty of Our Employment Discrimination Law

William R. Corbett — Fri, 24 May 2013 09:06:47 PDT

Complete V.4 Number 1

Thu, 23 May 2013 06:10:37 PDT

Complete V.3

Thu, 23 May 2013 06:10:29 PDT

Complete V.2

Thu, 23 May 2013 06:10:19 PDT

Complete V.1

Thu, 23 May 2013 06:10:11 PDT

Complete V.5 Number 1

Thu, 23 May 2013 06:01:13 PDT

Complete V.4 Number 2

Thu, 23 May 2013 06:00:58 PDT

McDonnell Douglas, 1973-2003: May You Rest in Peace?

William Corbett — Mon, 20 May 2013 13:20:24 PDT

What We Talk About When We Talk About Exemption

Philip T. Hackney — Mon, 20 May 2013 11:14:23 PDT

Under the Internal Revenue Code, certain nonprofit organizations are granted exemption from federal income tax (“tax-exemption”). Most tax-exemption rationales assume tax-exemption is a subsidy for organizations such as charities that provide some underprovided good or service. These theories assume there should be a tax on the income of nonprofit organizations but provide no justification for this assumption. This article contributes to the literature by examining the corporate income tax rationales as a proxy for why we might tax nonprofit organizations. The primary two theories hold that the corporate tax is imposed to: (1) tax shareholders (“shareholder theory”), and (2) regulate corporate manager control over large sources of wealth (“regulatory theory”). The shareholder theory supports the basic tax-exemption organizational structure preventing the distribution of earnings to private shareholders. However, the shareholder theory does not support tax-exemption for mutual benefit organizations such as business leagues because their members are arguably the equivalent of shareholders. The regulatory theory highlights that exempting an organization from income tax removes a regulatory regime. As a result of tax-exemption, organizations become subject to another regulatory regime with some federal oversight of political activity and self-dealing transactions. This article makes some tentative steps towards determining when that substitution of a regulatory regime might be appropriate. The article concludes the regulatory regime imposed on charitable organizations is sufficient to substitute for the regulatory role of the corporate income tax, but concludes that the regulatory regime for mutual benefits is lacking. This article submits it is time to revamp our tax-exempt structure for mutual benefit tax-exempt organizations.

Choosing the Genetic Makeup of Children: Our Eugenics Past-Present, and Future?

Michael J. Malinowski — Mon, 20 May 2013 09:49:23 PDT

The Solution to the Real Blackmail Paradox: The Common Link Between Blackmail and Other Criminal Threats

Ken Levy — Thu, 16 May 2013 11:12:05 PDT

Disclosure of true but reputation-damaging information is generally legal. But threats to disclose true but reputation-damaging information unless payment is made are generally criminal. Most scholars think that this situation is paradoxical because it seems to involve illegality mysteriously arising out of legality, a criminal act mysteriously arising out of an independently legal threat to disclose conjoined with an independently legal demand for money. But this is not quite right. The real paradox raised by the different legal statuses of blackmail threats to disclose and disclosure itself involves a contradiction between our strong intuition that blackmail threats should be criminal and some equally strong arguments, all of which depend on the fact that disclosure is legal, that blackmail threats should be legal. So an adequate solution to the real Blackmail Paradox requires us either to drop the intuition or to refute the pro-legalization arguments. This Article will adopt the latter approach. It will explain why the six main arguments for legalizing blackmail threats all fail. In the course of refuting one of these arguments, it will also offer a novel positive justification for criminalizing blackmail threats. It will argue that they should be criminal for the same reason that menacing, harassment, and stalking are criminal-namely, because they involve the reasonable likelihood, and usually the intent, of putting the victim into a state of especially great fear and anxiety. Of course, one might object that disclosure itself is likely to have the same effect, if not malicious purpose. Yet, again, it is still legal. But this point shows only that we as a society value freedom of speech more than we value freedom from infliction of emotional injury. It does not show that we do not value freedom from infliction of emotional injury sufficiently to protect it when competing moral or institutional interests such as freedom of speech are not at stake.

Gonzales v. Oregon and Physician-Assisted Suicide: Ethical and Policy Issues

Ken Levy — Wed, 15 May 2013 07:25:42 PDT

Rethinking Treaty Interpretation

Scott M. Sullivan — Tue, 14 May 2013 09:07:35 PDT