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
 
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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 INTL 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. INTL 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.

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