Capitant Lecture

• Author: James L. Dennis
• Position: Circuit Judge, United States Court of Appeal for the Fifth Circuit

Circuit Judge, United States Court of Appeal for the Fifth Circuit; B.S., Louisiana Tech University; J.D., Louisiana State University Law Center; LL.M., University of Virginia School of Law. The author acknowledges with gratitude the helpful assistance of his law clerks, Vijay Padmanabhan and Tom Owen.

I Introduction: The Role Of The Louisiana Judge

In commemoration of Louisiana's fusion of legal cultures, I will discuss briefly how the integration of those cultures shapes, affects, and challenges Louisiana courts. As might have been predicted, given Louisiana's Spanish and French heritage and its national union with Anglo-American sister states, Louisiana became a mixed jurisdiction, which has received basic characteristics from both civil and common law.

With the transfer of sovereignty over the Louisiana territory by France to the United States two hundred years ago, the United States Constitution and federal laws became automatically supreme, bringing with them admiralty, bankruptcy, copyright, patent, and other federal statutes.¹ But through two statutes in 1803 and 1804, Congress expressly retained the existing French and Spanish laws in all other areas, with the exception of introducing the writ of habeas corpus and trial by jury.² By preserving some aspects of Louisiana's civilian heritage, while introducing some common law concepts, the federal government left the new territory the complex challenge of integrating its French and Spanish legal origins into a union whose legal roots were firmly based in English common law.

At first it appeared Louisiana would simply convert to a common law system, for in 1805, the Legislative Council of the Territory of Orleans (which comprised the present State of Louisiana) enacted a system of written pleading similar to the common law of New York and a general criminal statute in conformity with the common law of England.³ But the French-speaking and French-trained lawyers, especially in the city of New Orleans, resisted efforts by the Territorial Governor, W. C. C. Claiborne, and the common-law trained immigrants, to implant further substantive or procedural common law.⁴ In 1808, the Territorial Legislature adopted a Digest of the Civil Laws then in force, which was a compilation of laws based on one of the projets of the French Civil Code, as well as many provisions of the Spanish law of Louisiana.⁵ Subsequently, the Legislature approved the Civil Code of 1825, which was based in large part on the French Civil Code, with adaptations derived from the works of Pothier and Toullier, as well as Spanish legal principles.⁶Finally, in 1870, a revised Civil Code was adopted, following substantially the prior Code, but eliminating all articles relating to slavery.⁷

Despite the adoption of the Civil Code that comprises the private law, the influence of the common law increased in areas of the law where civilian thought had not been legislatively established. A code of commerce was prepared but the project was rejected by the Legislature.⁸ Instead, the problems of trade between Louisiana and other states were resolved jurisprudentially under the common law standards of mercantile law and by the adoption of various Uniform Acts.⁹ Although the merchant community at first opposed the reception of the law merchant of the United States, eventually they were won over by the economic benefits of conforming to nationwide commercial usages.¹⁰

Moreover, the Digest and Codes have each empowered judges to fill gaps in the Code, thereby recognizing that the Code is not a complete legal instrument.¹¹ The Digest, in its Article 21, declared: In civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably an appeal is to be made to natural law and reason, or received usages, where positive law is silent.¹²The substance of Article 21 was retained in each of the Civil Codes including the present revised Code. Perhaps because of this provision, the Louisiana courts early on developed the practice of borrowing judicial solutions from the common law, especially in the area of torts, as well as the custom of citing and relying on judicial precedents.¹³

Nevertheless, our Civil Code endures and generally governs the all important area of Louisiana's private law, including the law of persons, family, property, successions, obligations, offenses and quasi-offenses, matrimonial regimes, leases, sales, privileges, mortgages, and prescription.¹⁴ The 1870 Civil Code has now been revised with the hope that it will be an authoritative statement of the civilian tradition of the state within the scheme of a modern, scientific, comprehensive organization. Thus, the tradition of codified laws is firmly established in Louisiana.¹⁵

Because of this mixed legal heritage, the role of judges in Louisiana is unique, different from both their civilian and common law counterparts. Dean and Professor Symeonides, in speaking on how Louisiana judges have interacted with their mixed legal system, observed:From day one, the Louisiana judge was expected to undertake, and in any event asserted, a much more active role in the shaping of the law and a much more prominent role in the state's governance than his French counterpart. This was particularly true during the formative years of the Louisiana legal system and remains largely true today.¹⁶In most respects, its judges behave and look like common law judges, but when they decide cases under the Louisiana Civil Code they are expected to adhere to the discipline of civil law jurists. In some respects, even when they consider cases outside the Code, they are still influenced by civil law traditions.

Due to their cross-training, Louisiana judges are knowledgeable in both civil and common law and are capable of operating with ease in both systems.¹⁷ There is a learning curve in this judicial switch-hitting program, however, that can throw a judge off in writing or interpreting an appellate opinion. Although they understand well how precedents, ratio decidendi, and holdings work in the common law, Louisiana judges, despite considerable effort over the years, still do not seem to understand fully whether or how their common law style opinions should be treated in later cases to be decided under the Civil Code.¹⁸ Jurists agree that jurisprudence must have a different role and impact on the civil and common law sides of our legal system. But there has not yet been sufficient articulation and agreement upon a theory or methodology that a judge should use to determine how influential a previously decided case ought to be in deciding a subsequent case under the Civil Code.

I have previously attempted to outline a theory of how the decisions of our appellate courts that interpret and apply the Civil Code should be used in subsequent civil law cases.¹⁹ The basic idea is that a previously decided case under the Civil Code, even though contained in a common-law type opinion, means something different than the case would in a common law system because under civil law methodology, the Civil Code, not judicial precedent, is the primary source of law.

In the common law, judicial precedent plays a leading role and serves as both a source of law and an example of a prior judge's methodology in reasoning from the case-law materials.²⁰ It is "a process . . . in which a proposition descriptive of the first case is made into a rule of law and then applied to a similar situation."²¹ Under the common law theory of precedent, courts in the controversy before it have much flexibility in deciding which previous case is sufficiently similar to be chosen as a precedent and in formulating a rule based upon the material facts of the precedent case. Paradoxically, however, in some common law systems, especially the federal court system, a case interpreting a statute enjoys a super-strong stare decisis effect or presumption of correctness and will be reexamined and overruled only under the most compelling circumstances.²²

But under civil law methodology, judicial precedent plays only a supporting role. The Civil Code is the primary source of law, and precedent is only an example of a prior judge's interpretation and application of legislated law.²³ For a case based on the Civil Code to serve as a good example or precedent it must illustrate that the judge followed sound civil law methodology when he or she interpreted the Code and applied it to the case. Thus, a subsequent court is free to evaluate the precedent and give it more or less persuasive value according to the quality of the prior court's performance within the context of the Civil Code.

Given our hybrid legal system, Louisiana judges must always be alert to whether, in a particular case, they are operating as civil or common law jurists. A judge who mistakenly treats a Civil Code case like a common law precedent by extracting a ratione decidendi from its material facts, or by distinguishing or drawing an analogy from such a ratione, probably will seriously misuse the Code provisions that should govern the case. If a judge blindly follows a previous civil law interpretation without analyzing its application of the Code, the judge may perpetuate errors damaging to the civil law system. Even if the facts of the prior case are identical to the present case, the judge must still ascertain whether the decision was properly supported by the applicable Code provisions before following it. By the same token, civil law opinion writers should take care to show clearly their interpretation and application of the code provisions upon which their decisions are based.

Fortunately, Louisiana judges have available to them excellent doctrinal writings in many areas of the Civil Code to help...