The Anchor Effect: Contemporary Legal Reform, the Civil Law Tradition, and Changing Expectations
Christopher K. Odinet
Southern University Law Center
October 16, 2013
Tulane Law Review, Vol. 88, Spring 2014, Forthcoming
The struggle between making progress and preserving tradition is as old as time. 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. On the other hand, tradition is what links us to our past, gives us a sense of history and roots, and creates a common culture that binds us all together. Louisiana law is no stranger to this struggle, and has been endeavoring to strike a perfect balance between the two for much of its history.
A great deal of Louisiana law is historically derived from the civil law tradition, whereas the rest of the United States follows that of the common law. As such, Louisiana is often referred to as a civil law island floating in a sea of common law jurisdictions. Nonetheless, the civil law heritage holds a special place in what makes Louisiana so distinctive, and efforts have been made over time to preserve and develop these treasured institutions.
However, while appreciating the past is praiseworthy, Louisiana also knows that in order for it to have an economy that can compete on the regional and national stage, new ideas and reforms are necessary. Thus, Louisiana has at various times dipped its toes into the common law sea and slowly but surely co-opted various common law concepts and uniform statutory provisions into its laws to help facilitate the state’s desire for progress. Yet sometimes these new concepts are incompatible with Louisiana’s existing civil law institutions, and often these existing and historical frameworks will remain in place, despite the enactment of new provisions which address the same or similar topics. And this doubling-up will sometimes occur when existing institutions are already wholly sufficient to address contemporary concerns. Because of this struggle — the enacting of new and foreign laws in order to better compete on the national stage, while still maintaining current civil law institutions in order to preserve a sense of tradition and identity — many areas of Louisiana law have actually become less-competitive, less mainstream, and less in line with modern expectations. Lawyers and courts, in dealing with these conflicting and overlapping institutions, are often left confused as to which concept should govern and the result can be a conflation of different doctrines and laws so that the end result is anything but a more competitive, clear, and uniform legal system.
This Article attempts to shed light on the subtle, yet prevalent, legal struggle between progress and tradition in Louisiana law. The overall anchoring effect identified herein is born from the process of mooring oneself to existing institutions to such a degree that newly adopted institutions are rendered less effective and the law as a whole suffers. Through an understanding of these concepts and legal institutions — sometimes identical, other times opposing — and their interplay, we gain a better recognition and understanding of the anchor effect and its negative consequences on Louisiana law.
Number of Pages in PDF File: 61
Keywords: civil law, comparative law, mixed jurisdictions, Louisiana, Roman law, common law, Anglo-American law, French law, property law, commercial law, successions, estates, Uniform Commercial Code Article 2, warranties, unconscionability, contracts of adhesion, forced heirship, undue influence
JEL Classification: K10, K11, K12Accepted Paper Series
Date posted: July 12, 2013 ; Last revised: October 17, 2013
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