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Two of my colleagues on the Florida A&M College of Law faculty have contributed to a special series of columns in FindLaw's Writ addressing legal issues relating to Hurricane Katrina.Professor Lundy Langston adds a new dimension to the debate over looting in New Orleans by pointing out that actions taken out of necessity can be legally justified. Read her essay, "Why Hurricane Katrina’s
So-Called Looters Were Not Lawless: They Are Entitled to the Well-Established Defense of Necessity” here.
Professor Barbara Bernier argues that unless black residents return, New Orleans could lose its rich cultural and historic heritage. Read her essay, “Including African-Americans in the Rebuilding of New Orleans: Minority-Owned Businesses and Minority Employees Should Be Recruited, And Use of the Eminent Domain Power Must Be Scrutinized” here.
And if you agree or disagree, leave a comment here.
posted by Jacqueline Dowd @ 5:42 PM
6 Comments:
Professor Langston's article is deficient of adequate legal research. Ms. Langston's position is sorely uninformed and misguided opinion. Her argument lacks logical legal analysis. Langston states, "The defense of necessity is the law and I am only stating what the law allows." However, the article makes no reference to the Louisiana Criminial Code or to its unique terminology (justification). A basic perusal of La. Crim. Code Arts. 18-21 and Comments would have unearthed the following:
Justification; general provisions
LA R.S. 14:18
The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(1) When the offender's conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or
(2) When the offender's conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or
(3) When for any reason the offender's conduct is authorized by law; or
(4) When the offender's conduct is reasonable discipline of minors by their parents, tutors or teachers; or
(5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or
(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or
(7) When the offender's conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.
Thanks for the comment. I know Louisiana law is different, with its base in Napoleonic Code instead of English common law, but it's good to have info from someone who can cite Louisiana law.
Law professors have a special responsibility to encourage the free pursuit of learning in their students. They owe a debt to impressionable students (soon to be lawyers) to be objective and to refrain from broad generalizations. It is imperative that they present quality scholarly standards. Strong personal opinions must never seriously hamper or compromise honest academic conduct.
Did Professor Langston pay attention in her Jurisprudence classes? Forgot I.R.A.C.? Disregarded basic critical analysis from high school-explandums and explanans, hypotheses and theorems, corollaries and conclusions? As a poor attempt at affording the reader a synoptic view of a well established legal defense, Langston's article lacks depth and is void of any analytical intention. The theoretical justification for Langston's argument rests on very simple assumptions. Under any conception of necessity (justification per LA law), the defense is available when the legislature says so. The LA statute obviously says so. End of story. Langston never articulates sound reasons for her position and resorts to incogitant verbosity. There was no need for Langston to go on and on with the prolonged discourse: "We have watched, night after night ... footage of the plight of the citizens in New Orleans." Yada, yada, yada. Blah, blah, blah. Langston could have even discussed the possibility of the broad equitable discretion of the LA courts to tailor injunctive relief for necessity (justification), irrespective of whether there is a legal defense of necessity (justification)in any LA statute. Law professors like Langston should not stoop to spinning platitudes and refrain from regurgitating the banal remarks spoken by the bobbleheads on CNN and Fox News. In order to initiate and facilitate rational academic discussions, one must engage in scholarship that is thoroughly researched. Langston fails to demonstrate her capacity to properly discuss issues with sound legal authority. Langston's article is inexcusable sophomoric chit chat. It is academically dishonest.
Did Professor Langston pay attention in her Jurisprudence classes? Forgot I.R.A.C.? Disregarded basic critical analysis from high school-explandums and explanans, hypotheses and theorems, corollaries and conclusions? As a poor attempt at affording the reader a synoptic view of a well established legal defense, Langston's article lacks depth and is void of any analytical intention. The theoretical justification for Langston's argument rests on very simple assumptions. Under any conception of necessity (justification per LA law), the defense is available when the legislature says so. The LA statute obviously says so. End of story. Langston never articulates sound reasons for her position and resorts to incogitant verbosity. There was no need for Langston to go on and on with the prolonged discourse: "We have watched, night after night ... footage of the plight of the citizens in New Orleans." Yada, yada, yada. Blah, blah, blah. Langston could have even discussed the possibility of the broad equitable discretion of the LA courts to tailor injunctive relief for necessity (justification), irrespective of whether there is a legal defense of necessity (justification)in any LA statute. Law professors like Langston should not stoop to spinning platitudes and refrain from regurgitating the banal remarks spoken by the bobbleheads on CNN and Fox News. In order to initiate and facilitate rational academic discussions, one must engage in scholarship that is thoroughly researched. Langston fails to demonstrate her capacity to properly discuss issues with sound legal authority. Langston's article is inexcusable sophomoric chit chat. It is academically dishonest.
I agree irresponsible sophomoric chit chat. The classic cases of Queen v. Dudley & Stephens and United States v. Holmes are not even mentioned in Langston's article (We all remember Queen v. Dudley from Philosophy 101). Then there's the classic 1L case, Vincent v. Lake Erie Trans. Co. (Torts) and the Model Penal Code that expressly discuss necessity, both from legal and a moral points of view. In discussing the defense of necessity Langston should have done a bit of research & read the works of legal scholars like Jules Coleman, Joel Feinberg, Judith Jarvis Thomson, George Christie, etc. The scope of the defense of necessity is widely examined in a variety of legal and philosophical discussions. There is more than enough material to present a comprehensive legal analysis of the situations presented as a result of Hurricane Katrina. Although she touts in her article, "The defense of necessity is the law and I am only stating what the law allows," Langston failed to USE THE LAW to explain and justify her conclusions.
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