Commerce, Commonality, and Contract Law: Legal Reform in a Mixed Jurisdiction

• Author: Christopher K. Odinet
• Position: Assistant Professor of Law, Southern University Law Center. B.A., Louisiana State University A&M, 2007; J.D./D.C.L., Paul M. Hebert Law Center, Louisiana State University, 2010. The author thanks the helpful comments, suggestions, and edits of Professors Melissa Lonegrass, Andrea B. Carroll, Sally Brown Richardson, Ronald Scalise, Dian Tooley-...
• Pages: 741-799

Commerce, Commonality, and Contract Law: Legal

Reform in a Mixed Jurisdiction

Christopher K. Odinet*

TABLE OF CONTENTS

Introduction ..........................................................................742

I. America’s Lone Mixed Jurisdiction—Louisiana .................745

A. An Overview of Mixed Jurisdictions .............................745

B. The Louisiana Bijural Experience ..................................750

II. Anchoring the Law of Warranties of Condition ..................755

A. The Civil Law Doctrine: Warranty Against

Redhibitory Defects ........................................................757

1. History of the Doctrine .............................................758

2. Louisiana’s Incorporation of the Doctrine ...............759

B. The Common Law Doctrine: Warranty of Fitness .........760

1. History of the Doctrine .............................................761

2. Louisiana’s Incorporation of the Doctrine ...............764

C. Conflict Between the Two: Overlap and Confusion ......766

III. Anchoring the Law of Contractual Fairness ........................773

A. The Civil Law Doctrine: Lesion Beyond Moiety ...........775

1. History of the Doctrine .............................................777

2. Louisiana’s Incorporation of the Doctrine ...............778

B. The Common Law Doctrine: Unconscionability ...........780

1. History of the Doctrine .............................................781

2. Louisiana’s Incorporation of the Doctrine ...............783

Copyright 2015, by CHRISTOPHER K. ODINET.

* A ssistant Professor of Law, Southern Universit y Law Center. B.A.,

Louisiana State University A&M, 2007; J.D./D.C.L., Paul M. Hebert Law

Center, Louisiana State University, 2010. The author thanks the helpful

comments, suggestions, and edits of Professors Mel issa Lonegrass, Andrea B.

Carroll, Sally Brown Richardson, Ronald Scalise, Dian Tooley-Knoblett, John

Lovett, Michelle Ghetti, Vernon Valentine Palmer, and Alfreda Diamond. The

author further thanks Chancellor Freddie Pitcher of the Southern University Law

Center whose support for faculty scholarship helped make the researching and

writing of this article possible, as well as Mr. Harold Isadore for his helpful

research support. The views and conclusions contained herein and any errors are

the author’s alone.

742 LOUISIANA LAW REVIEW [Vol. 75

C. Conflict Between the Two: Obsolescence and

Opacity ...........................................................................786

IV. The Anchor Effect in Context: A Social Science

Perspective ...........................................................................790

A. Self-Preservation and the Resistance to Change ............791

B. History and Tradition in Decision-Making ....................793

C. Forging a Usable Past .....................................................795

Conclusion ...........................................................................796

INTRODUCTION

The struggle between making progress and preserving tradition

is as old as time.1 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.2 On the

other hand, tradition is what links society to its past, gives a sense

of history and roots, and creates a common culture that binds

everyone together.3 In the context of legal reform, how does one

move a legal system forward, yet still maintain the institutions that

make such a system so unique?

In many ways, tradition and reform are natural adversaries. The

former calls for a preservation of the known, of the familiar, and of

the steadfast, while the latter calls for a questioning of the status

quo and skepticism about the current state of affairs. A given

country’s long-standing legal institutions bring about a sense of

comfort and predictability and engender a feeling of expertise and

common knowledge. Often times these traditional legal concepts

come about due to the particular history, characteristics, and

experiences of the people who have lived in the locale over time.4

1. See generally Jiang Chang & Feng Jun, The Contemporary Conflict of

Values § 1 (Paideia Project, Twentieth World Cong. of Philosophy, Working

Paper, 1998), available at https://www.bu.edu/wcp/Papers/Valu/ValuChan.htm,

archived at https://perma.cc/X9SC-GDBG.

2. See, e.g., Progress and Tradition Struggle to Mix in Cambodia,

BLOOMBERG BUS. (Jan. 2, 2013), http://www.bloomberg.com/news/videos/b

/14f3128f-837b-44f3-b5db-88f520c50f10, archived at http://perma.cc/3X4K-

3QWU.

3. See YVES CONGAR, THE MEANING OF TRADITION 8–9 (A.N. Woodrow

trans., Hawthorn Books 1964); PASCAL BOYER, TRADITION AS TRUTH AND

COMMUNICATION: A COGNITIVE DESCRIPTION OF TRADITIONAL DISCOURSE 3–6

(1990).

4. See Patrick J. Charles, History in Law, Mythmaking, and Constitutional

Legitimacy, 63 CLEV. ST. L. REV. 23, 27 (2014) (describing the influence of

2015] LEGAL REFORM IN A MIXED JURISDICTION 743

As such, the legal tradition of a place is intimately bound up in the

very culture and spirit of its people. Historical laws create a sense of

community such that those who belong to the community may be

readily identified, and those who are outsiders are disadvantaged

and kept at a distance.

Legal reform, on the other hand, plays quite the opposite role.

It challenges the historical and the traditional in a quest to find the

new and the better. Reform is often undertaken when traditional

institutions prove to be out-muted or inefficient in the face of

changing economic, cultural, or political forces.5 Further, reform

often accompanies larger regional or global movements toward

uniformity or harmony among various laws—particularly in the

commercial context.6 As such, legal reform seeks not to maintain

the divide between those on the inside and those on the outside, but

rather to break down barriers such that persons have equal

opportunities and a level playing field from which to operate and

interact.7

But legal reform never happens in a vacuum.8 As lawmakers

engage in the process of revising, amending, or completely

overhauling a given set of laws, the process is heavily influenced

by psychological and sociological undercurrents, which can

frequently operate at a subconscious level.9 While the intent may

be to replace or supplant a given area of the law with a completely

new system, the innate pull of the past and the powerful influence

history in the interpretation of American constitutional principles); see also

Stuart Banner, Legal History and Legal Scholarship, 76 WASH. U. L.Q. 37, 42–

44 (1998).

5. See, e.g., Robert F. Williams, Is the Wisco nsin State Constitution

Obsolete? Toward a Twenty-First Century, Functionalist Assessment, 90 MARQ.

L. REV. 425, 425–26 (2007).

6. See generally Franco Ferrari, General Principles and International

Uniform Commercial Law Conventions: A Study of the 1980 Vienna Sales

Convention and the 1988 Unidroit Conventions on International Factoring and

Leasing, 10 PACE INT’L L. REV. 157 (1998); see also Scott J. Burnham,

Perspectives on the Uniform Laws Revision Process, 52 HASTINGS L.J. 603,

604–05 (2001).

7. See John McClaugherty, The Uniform Law Process: Lessons for a New

Millennium, 27 OKLA. CITY U. L. REV. 535, 539–40 (2002); see also John

Linarelli, The Economics of Uniform Laws and Uniform Lawmaking, 48 WAYNE

L. REV. 1387, 1394–96 (2003); Neil B. Cohen, Harmonizing the Law Governing

Secured Credit: The Next Frontier, 33 TEX. INT’L L. J. 173, 176–77 (1998).

8. See generally Frank M. Coffin, The Problem of Obsolete Statutes: A

New Role for Courts?, 91 YALE L.J. 827 (1982) (discussing the role of judges in

reforming outmoded statutes).

9. See infra Part IV.A–B and accompanying discussion.