01 August 2013
ARTICLE: Odinet on Contemporary Legal Reform, the Civil Law Tradition, and Changing Expectations
Christopher K Odinet has posted an article on Louisiana—‘The Anchor Effect: Contemporary Legal Reform, the Civil Law Tradition, and Changing Expectations’—on SSRN. The article is forthcoming in the (2014) 88 Tulane Law Review:
The struggle between making progress and preserving tradition is as old as time. On the one hand, progress is needed to move forward, to grow, to expand, to become more prosperous, and — perhaps most importantly — to prevent being left behind. On the other hand, tradition is what links us to our past, gives us a sense of history and roots, and creates a common culture that binds us all together. Louisiana law is no stranger to this struggle, and has been endeavoring to strike this perfect balance for much of its history.
A great deal of Louisiana law is historically derived from the civil law tradition, whereas the rest of the United States follows that of the common law. As such, Louisiana is often referred to as a civil law island floating in a sea of common law jurisdictions. Nonetheless, the civil law heritage holds a special place in what makes Louisiana so distinctive, and efforts have been made over time to preserve and develop these legal treasures.
However, while appreciating and preserving the tradition is praiseworthy, Louisiana also knows that in order for it to have an economy that can compete on the regional, national, and global stage, new ideas and reforms are necessary. Thus, Louisiana has at various times dipped its toes into the common law sea and slowly but surely co-opted or directly enacted various common law concepts and uniform statutory provisions to help facilitate the state’s desire for progress. However, sometimes, these new concepts are incompatible with Louisiana’s existing civil law institutions, and often these existing and historical frameworks will remain in place, despite the enactment of new provisions which address the same or similar topics. Because of this struggle — the enacting of new and mainstream laws in order to better compete on the national stage, while still maintaining current civil law institutions in order to preserve a sense of tradition and identity — many areas of Louisiana law have actually become less-competitive, less mainstream, and less in line with modern expectations. Lawyers and courts, in dealing with these conflicting and overlapping institutions, are often left confused as to which concept should govern and the result can be a conflation of different doctrines and laws so that the end result is anything but a more competitive, clear, and uniform legal system.
This Article attempts to shed light on this subtle, yet prevalent, legal struggle between the progress and tradition in Louisiana law. So named because of Louisiana’s unique status as a mixed jurisdiction, this struggle is so entitled herein as the Anchor Effect — the process of mooring oneself to existing institutions to such a degree that newly adopted institutions are rendered less effective and the law as a whole suffers. Through an understanding of these concepts and legal institutions — sometimes identical, other times opposing — and their interplay, we gain a better recognition and understanding of the Anchor Effect and its negative consequences on Louisiana law.