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Publications
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. 536 (2005)
Louisiana
Professional Responsibility Law and Practice (Dane S. Ciolino, ed., 2004)
Dane S. Ciolino,
Redefining Professionalism as
Seeking, 49 Loy. L. Rev. 229 (2003).
Dane S. Ciolino & Erin A.
Donelon,
Questioning Strict Liability in Copyright,
54 Rutgers L. Rev.
351 (2002)
Dane S. Ciolino, How
Copyrights Became Community Property (Sort Of): A Look Through the Looking Glass of Rodrigue
v. Rodrigue, 47 Loyola L. Rev. 631 (2001)
Dane S. Ciolino, Why
Copyrights Are Not Community Property, 60 La. L. Rev. 127 (1999)
Dane S. Ciolino, Reconsidering
Restitution in Copyright, 48 Emory L.J. 1 (1999)
Dane S. Ciolino, Rethinking
the Compatibility of Moral Rights and Fair Use, 54 Wash. & Lee L. Rev. 33
(1997)
Dane S. Ciolino, The
Mental Element of Louisiana Crimes: It Doesn't Matter What You Think, 70 Tul. L.
Rev. 855 (1996)
Dane S. Ciolino, Moral
Rights and Real Obligations: A Property-Law Framework for the Protection of Authors' Moral
Rights, 69 Tul. L. Rev. 935 (1995)
Dane S. Ciolino & Gary R. Roberts, The Missing Direct-Tender Option in Federal Third-Party Practice:
A Procedural and Jurisdictional Analysis, 68 N.C.L. Rev. 423 (1990)
Dane S. Ciolino, Casenote, Lafleur v. John Deere Co.:
Recovery of Nonpecuniary Damages in Redhibitory Actions, 61 Tul. L. Rev. 704 (1987)
Abstracts of Articles
Lawyer Ethics Reform in Perspective: A Look at the Louisiana Rules of
Professional Conduct Before and After Ethics 2000, 65 La. L.
Rev., Issue 2 (Winter 2005)
This Article surveys and critiques the 2004
revisions to the Louisiana Rules of Professional Conduct. After considering the
history of Louisiana’s regulation of lawyers, it evaluates the recent amendments
to the Louisiana Rules adopted by the Louisiana Supreme Court during the Ethics
2000 revision process. In so doing, it discusses the substance of each amended
rule and contrasts the rule as revised with its Louisiana predecessor and its
Model Rule counterpart. Concluding that the revised rules are a marked
improvement over what came before, the Article nonetheless calls for the
on-going reevaluation of the principles, norms and rules of lawyering in
Louisiana.
The "professionalism"
movement in the American legal profession has foundered because
no lawyer, judge or academician is capable of stating
definitively what is or is not "professional."
Professor Ciolino argues that what constitutes "professional" conduct is
something upon which the profession will never agree
Indeed, professional norms as to which there is consensus are simply not the
stuff of the current "professionalism" debate. They are, rather, the stuff of
disciplinary codes–or "legal ethics." As a result, Professor
Ciolino argues that the legal profession
redefine "professionalism" as seeking.
Professionalism-as-seeking simply implores
lawyers to examine–in themselves
and in their colleagues at the bench, bar and
academy–the norms, values and assumptions that guide professional conduct.
Copyright is a strict liability regime under
which any infringer, whether innocent or intentional, is liable for
infringement. In this article, the authors argue that strict liability is
neither justified nor necessary in copyright law, but rather is rooted in deeply
flawed historical, conceptual and economic misconceptions about intellectual
property in general and copyright in particular. Worse, strict liability is
affirmatively harmful to copyright's utilitarian goals of
providing incentives to authors to create, and providing greater public access
to works of authorship. For these reasons, the authors call for Congress to
abolish copyright's harsh strict liability regime and to substitute in its stead
a liability regime that fairly accounts for the culpability of infringers.
This Article argues that copyrights created
during the legal regime of community property are the separate property of the
author-spouse. Although community property law purports to vest ownership of all
property–including copyrights–in the community, federal copyright law vests
ownership of copyrights solely in the author. Given this conflict, federal law
preempts state community property law on the issue of initial vesting of
copyright ownership. Furthermore, no provision of state community property law
purports to transfer vested copyrights from the author to the community. Indeed,
no state law could do so given that federal law prohibits most involuntary
copyright transfers. Arguing that federal classification of copyrights as the
separate property of the author-spouse is fair, this Article concludes that such
classification is essential not only to further important interests advanced by
community property law, but also to comply with the Copyright Clause of the
Constitution.
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The Copyright Act authorizes courts to compel copyright
infringers to destroy all infringing goods and to disgorge any profits attributable to
their unlawful appropriation of a copyrighted work. Restitutionary in nature, these
gain-based remedies purportedly exist to prevent the unjust enrichment of infringers.
However, these remedies are not only practically and conceptually problematic in action,
but they also lack a sound theoretical footing in either the law of restitution or the law
of copyright. This Article reconsiders restitution in copyright. After surveying the role
of restitutionary remedies in copyright’s remedial scheme, it traces the problems
associated with these remedies to fundamental misunderstandings of both restitution law
and copyright law. Concluding that copyright’s restitutionary remedies should be
rectified, this Article proposes a number of alternatives for judicial or legislative
reform.
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 In 1990, Congress
amended the Copyright Act to recognize limited federal moral rights of integrity and
attribution. Under this legislation, American visual artists can prevent others from
misattributing their works of art and from altering such works under certain
circumstances.
These moral rights, however, are expressly limited by copyright's
fair-use doctrine, a doctrine that permits the otherwise unauthorized use of a copyrighted
work for socially desirable purposes such as criticism, comment, news reporting, teaching,
research, or parody. This Article argues that the fair-use doctrine is inherently
incompatible with federal moral rights. Particularly, federal moral rights and fair use
affect different types of property; federal moral rights and fair-use relate to different
types of rights; federal moral rights and fair-use are supported by different moral
justifications. For these reasons and others, this Article calls for courts to decline
Congress's statutory invitation to apply the fair-use doctrine as a limitation on artists'
federal moral rights.
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Most crimes require
culpability--proof that the offender committed a prohibited act with a specified
blameworthy state of mind. Anglo-American criminal law generally recognizes two distinct
classes of culpability: culpability premised on subjective wrongdoing and culpability
premised on objective wrongdoing. Crimes requiring subjective wrongdoing typically require
proof of "intent, " "purpose," "knowledge," or
"recklessness," while crimes requiring only objective wrongdoing require proof
of "negligence."
The Louisiana Criminal Code appears to recognize this significant
distinction by requiring proof of "criminal intent" for some crimes while
requiring proof only "negligence" for others. Under Louisiana criminal law,
however, criminal intent can be proved with evidence of mere negligence.
This Article critically evaluates Louisiana culpability doctrine. After
summarizing the historical and philosophical bases of culpability, it considers
Louisiana's anomalous statutory approach to culpability, an approach that applies an
objective standard of conduct to crimes nominally requiring criminal intent. Finally, it
calls for a fundamental revision of several culpability-related provisions of the
Louisiana Criminal Code.
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From the moment an author or
artist creates a work he has various rights in it under traditional property law and
intellectual-property law. The author typically owns the copyright in the work and, as a
result, can preclude others from, among other things copying, publicly displaying or
publicly performing the work. Moreover, the author typically owns the chattel that
embodies the work, such as the physical sculpture, painting, manuscript, videotape or
audiotape. Under property law, he can prevent others from using or altering the work while
it belongs to him. Once the work is sold, however, the author's right to control the work
is diminished if not lost. As a result, a purchaser of a work of art is normally free to
do with it as he wishes; he may even destroy, deface, or mutilate the author's creation
with impunity.
Moral rights permit the author of a work to protect it even after the
work has been sold to another. While the particular rights included within the general
category of "moral rights" vary from jurisdiction to jurisdiction, the following
have most often been recognized: (1) the right of attribution, (2) the right of integrity,
(3) the right of divulgation, and (4) the rights of withdrawal and modification. The right
of attribution gives the author the right to force any possessor of a work created by the
author to attribute the work to him. The right of integrity gives the author the right to
prevent others from defacing or mutilating his work. The right of divulgation gives the
author the right to decide when a work of art is completed and whether it should be
published. Finally, the rights of withdrawal and modification give the author the right to
remove his work from the public or to modify it upon payment of indemnity to the owner of
the work.
As they originated and developed in Europe, particularly in France,
moral rights were considered to be a component of the author's right of personality.
Because an artist's creation was believed to be an outgrowth of his soul, his artwork was
thought to embody his self and to constitute his "spiritual child". As a result,
the moral-rights doctrine developed to protect the author's personality rights in his
work. It did not develop within the law of property. Indeed, the French believed that
artwork was "different from other forms of property."
Despite this developmental history, property law provides fertile ground
for the germination of property rights analogous, but not identical, to traditional
European moral rights. This Article first considers the development, general
characteristics, and sources of traditional moral rights. Using the Louisiana Civil Code
as a model, it then evaluates two alternative bases for the recognition of moral right,
one grounded in tort and the other in property law. Finally, it concludes that traditional
moral rights are functionally similar to certain property rights and can be given
practical effect as such.
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 Under the present Federal Rules of Civil
Procedure, third-party practice under Rule 14 in nonadmiralty cases is limited to
"indemnity impleader." Thus, a defendant in a civil action may not implead a
third party unless the defendant has a right of indemnity or contribution against that
third party for all or part of the plaintiff's claim. By contrast, a defendant in an
admiralty action may also implead third parties who may be liable to the plaintiff
directly. The authors refer to admiralty's more liberal third-party practice as
"tendered-defendant impleader."
In this article, Mr. Ciolino and Professor Roberts explain the
historical reasons for the divergence between civil and admiralty third-party practices.
They discuss the practical advantages and policy objectives achieved by direct-tender
practice and conclude that the Federal Rules should retain admiralty's tendered-defendant
impleader and adopt it for all civil cases.
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Louisiana
Professional Responsibility Law and Practice (Dane S. Ciolino, ed., 2007)
This single-volume reference contains all relevant standards
governing lawyer and judicial conduct in Louisiana. In addition, this handy
reference contains extensive annotations to the Louisiana Rules of Professional
Conduct. To
purchase a copy, visit the Louisiana State Bar Association Web Site. |
