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
SUMMARY

Introduction. I. Preliminary Title: Thinking about Rules and Standards. A. Rule Based Decision Making. B. Standard Based Decision Making. C. Rationales for Rules and Standards. 1. Justification #1: Fairness. 2. Justification #2: Efficiency. 3. Justification #3: Promotion of Democratic Governance. II. Book One: Marriage and Divorce. A. Entrance into Marriage. B. Matrimonial Regimes and Community... (see full summary)

 
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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 2124, 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 188202 (2009);
Kathleen Sullivan, The Supreme Court, 1991 TermForeword: 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 parlancetake 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).

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