Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction

• Author: John A. Lovett
• Position: College of Law. This Article is based on a paper originally presented at the Third International Congress of the World Society of Mixed Jurisdiction Jurists, held at Hebrew University, June 21?24, 2011. The author gratefully acknowledges the helpful comments and suggestions of Kenneth Reid, Ron Scalise, Vernon Palmer, Nestor Davidson, Edward ...
• Pages: 923-998

Love, Loyalty and the Louisiana Civil Code: Rules, Standards

and Hybrid Discretion in a Mixed Jurisdiction

John A. Lovett∗

TABLE OF CONTENTS

Introduction ..........................................................................924

I. Preliminary Title: Thinking about Rules and Standards ......931

A. Rule Based Decision Making .........................................931

B. Standard Based Decision Making ..................................934

C. Rationales for Rules and Standards ...............................937

1. Justification #1: Fairness ..........................................937

2. Justification #2: Efficiency ......................................938

3. Justification #3: Promotion of Democratic

Governance ..............................................................939

II. Book One: Marriage and Divorce ........................................941

A. Entrance into Marriage...................................................941

B. Matrimonial Regimes and Community Property ...........943

C. Exit from Marriage ........................................................948

D. Community Property Partition .......................................951

E. Claims for Interim or Permanent Periodic Support

(Alimony) .......................................................................955

F. Claims for Contribution to Education and Training ......961

G. Child Custody ................................................................963

H. Child Support .................................................................968

I. A Final Marriage and Divorce Accounting ...................971

III. Book Two: Co-ownership Among Unmarried

Co-Habitants ........................................................................973

Copyright 2012, by JOHN A. LOVETT.

∗ De Van D. Daggett, Jr. Professor of Law, Loyola University New

Orleans College of Law. This Article is based on a paper originally presented at

the Third International Congress of the World Society of Mixed Jurisdiction

Jurists, held at Hebrew University, June 21–24, 2011. The author gratefully

acknowledges the helpful comments and suggestions of Kenneth Reid, Ron

Scalise, Vernon Palmer, Nestor Davidson, Edward Chase, Markus Puder,

Johanna Kalb, Monica Wallace, and Sandra Varnado, as well as the diligent

research assistance of Laken Davis. All errors are those of the author.

924 LOUISIANA LAW REVIEW [Vol. 72

IV. Book Three: From Forced Heirship to Undue Influence .....981

A. Claims Against Stepparents ...........................................987

B. Claims Against Everyone Else: Unmarried

Co-Habitants, Other Relatives, Caretakers

and Strangers ..................................................................990

C. An Undue Influence Final Accounting ..........................992

Conclusion ...........................................................................995

INTRODUCTION

Meet Esther and Louis. Esther is 25 years old. She is a recent

college graduate and works for a local non-profit organization

that operates farmers’ markets and supports sustainable farming

activities in southeastern Louisiana. Louis is 25 years old. He is a

sous-chef at a popular New Orleans restaurant. When Esther and

Louis met a year ago, their interests in local cuisine, the

indigenous culture of New Orleans, and outdoor recreation drew

them together quickly. They cooked dinners for each other. They

rode their bicycles across the city. They talked for hours into the

night. After three months, Esther and Louis moved into half of a

double shotgun house in the Bywater, a thriving Bohemian village

downriver from the French Quarter. Three months later, Louis and

Esther decided to marry.

In part, this is Esther and Louis’s story. But it is also the story

of how the law of the mixed jurisdiction in which they live—

Louisiana—governs their life plans and projects. By examining

moments when Esther and Louis are confronted with a particularly

significant legal choice and are therefore most likely to seek the

advice of lawyers, this Article seeks to shed some new light on an

old jurisprudential debate.

That jurisprudential debate is grounded in the recognition that

the legal directives that govern our lives function in different ways

depending on how those directives are designed.1 Some legal

1. In this Article, I draw principally on the following articulations and

critiques of the rules versus standards debate: FREDERICK SCHAUER, THINKING

LIKE A LAWYER: A NEW INTRODUCTION TO LEGAL REASONING 188–202 (2009);

Kathleen Sullivan, The Supreme Court, 1991 Term—Foreword: The Justices of

Rules and Standards, 106 HARV. L. REV. 22 (1992); Carol M. Rose, Crystals

and Mud in Property Law, 40 STAN. L. REV. 577 (1988); Frederick Schauer, The

Jurisprudence of Reasons, 85 MICH. L. REV. 847 (1987); P.S. Atiyah, From

Principles to Pragmatism: Changes in the Function of the Judicial Process and

2012] LOVE, LOYALTY AND THE LOUISIANA CIVIL CODE 925

directives—“laws” in more common parlance—take the form of

“rules.” A classic rule tells a decision maker to focus her decision-

making energy on a narrow set of facts; then, once a factual

conclusion has been drawn, the rule supplies a more or less

mechanical calculus yielding a particular result. Predictability,

certainty, and efficiency are supposed to be the hallmarks of rules.

When individuals like Esther and Louis encounter such a rule, their

legal advisors should, in theory, be able to assure them with

reasonable confidence of the likely consequences of their choices

or actions.

Other legal directives take the form of “standards.” A classic

standard gives a decision maker more discretion. It allows the

decision maker to examine all of the relevant facts and

circumstances in a given situation in light of a general policy goal

and then it directs the decision maker to fashion a remedy that does

substantive justice to the parties involved. When individuals like

Esther and Louis confront a classic legal standard, according to the

typical jurisprudential account, their legal advisors must confess

that the ultimate outcome of a dispute may be uncertain and that

their fate may depend to a considerable extent on the subjective

assessment of a particular judge or handful of judges.

The current version of the Louisiana Civil Code contains more

than 3,000 articles.2 Many of those articles provide classic,

mechanistic rules that control or reward individual behavior ex

ante and cabin judicial discretion. Others announce open-textured

standards—that is, general policies that a judge must attempt to

realize ex post by fashioning a remedy that achieves as much

substantive justice as possible given the particular facts and

circumstances of any case.

A good number of the Civil Code’s provisions also provide

opportunities for what I call “hybrid discretion.” On the spectrum

between classic rules and classic standards, these articles lie

somewhere in between. Sometimes they combine both rule-like

principles and standard-like norms in the same text. Sometimes

they consist of relatively flexible rules or more precisely tailored

the Law, 65 IOWA L. REV. 1249 (1980); Duncan Kennedy, Form and Substance

in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976).

2. In the 2011 version of the Louisiana Civil Code, there are 3556

numbered articles, but because a sizeable number of articles are in fact “blank,”

“reserved,” or “repealed,” the actual quantity of functioning articles is somewhat

smaller. For a discussion of why the revised Louisiana Civil Code contains these

anomalous gaps, see VERNON V. PALMER, THE LOUISIANA CIVILIAN

EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDIC TION 98 (2005).