Laying to Rest an Ancien Régime: Antiquated Institutions in Louisiana Civil Law and Their Incompatibility with Modern Public Policies
34 Pages Posted: 23 Aug 2010 Last revised: 28 Aug 2010
Date Written: August 23, 2010
Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern-day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society alter, the law should be modified to encourage these changes.
Nowhere is the need for forward-thinking greater than in the state of Louisiana. Traditionally an agrarian society with a sparse population, Louisiana has historically followed a blind-eyed approach to economic development. State policymakers have emphasized a legal system that places land development above all other concerns since Louisiana joined the Union. This emphasis on land development is especially true with respect to Louisiana’s civilian legal institutions of conflicting possession, prohibited substitutions, and partition by co-owners; all of the institutions rest on former public policies that encourage the unsystematic development of land.
However, times have changed in Louisiana and so has public policy. The Louisiana institutions of conflicting possession, prohibited substitutions, and the restriction of partition by co-owners adhere to an archaic framework of pursing the development and commercialization of land. These institutions of Louisiana civil law, drawn largely from nineteenth century French sources, are not aligned with Louisiana’s twenty-first century policy goals. Louisiana is concerned today with preserving land and ensuring that over-commercialization does not result in the disappearance of vital coastal areas, the vanishing of the state’s lush vegetation and green spaces, and the transformation of its cities into crime-ridden and congested concrete jungles. Unfortunately, while Louisiana public policies have changed over the course of the last two-hundred years, its laws on land development are still anchored to principles dating back to France’s nineteenth century ancien régime.
This comment argues that the Louisiana civil law institutions of conflicting possession, prohibited substitutions, and partition by co-owners are in need of reexamination because they rest on antiquated public policies. Part I describes the current Louisiana rules on each of the institutions, explore their origins, and chronicle Louisiana’s experience with each. Part II analyzes the policy of commercial development that underpins each institution in light of the contemporary public policies of conserving coastal wetlands, cultivating green space, and combating urban sprawl through smart-growth planning. Part III concludes that the current development-intensive framework of each institution should be reevaluated in light of today’s competing policy considerations.
Keywords: property, French law, Roman law, Civil law, common law, conservation, preservation, wetlands, commerce, economic development, land use, land-use, property rights, public policy
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