Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction

Abstract:
This article examines the design of legal directives found in and surrounding the Louisiana Civil Code through the prism of the classic rules versus standards debate. The Preliminary Title portion of the article introduces the vocabulary, descriptions and justifications typically displayed in jurisprudential debates over the propriety of rules and standards. Books One, Two and Three of the article analyze the extent to which several significant legal regimes in the Louisiana Civil Code — regimes that are likely to affect individuals in moments of personal crisis, when they enter into and exit from intimate personal relationships and when their love and loyalty to one another and to other intimate associates is most severely tested — have incorporated open textured standards as a primary form of rule design, have resisted discretionary remedialism by remaining tethered to relatively crystalline rules or have produced models of hybrid discretion.

Although the author originally expected to discover that Louisiana private law had largely embraced discretionary decision making within the realm of the Civil Code, punctuated with occasional moments of discretion skepticism, just as Niall Whitty has observed occurring in Scotland, the article’s analysis reveals that Louisiana has not evolved so decisively in the direction of standard based decision making models. Indeed, in the particular areas of private law examined (family law, co-ownership, and the inter-relationship between forced heirship and undue influence claims challenging wills), the author finds that Louisiana’s private legal order has only been partially transformed by the general trend toward discretionary remedialism that scholars like Whitty have observed occurring in other legal regimes. The article concludes by pointing to a number of additional concerns that should inform further scholarship examining whether Louisiana has assembled the proper mix of rules and standards.

Lovett, John A., Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction (August 21, 2012). Louisiana Law Review, Vol. 72, No. 4, 2012; Loyola New Orleans Law Research Paper Series.

Comparative Family Law, Korean Family Law, and the Missing Definitions of Family

Abstract:
This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage.

This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear families deserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families.

The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families. These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair.

These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a “family” that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.

Partain, Roy Andrew, Comparative Family Law, Korean Family Law, and the Missing Definitions of Family (June 30, 2012). Roy Partain. "Comparative Family Law, Korean Family Law, and the Missing Definitions of Family" (HongIk University Journal of Law). June 2012. Vol. 13. No. 2.

Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives

Abstract:
It is argued, through the examination of two civil law jurisdictions – France and Italy, that there is room for the trust to be translated – not transplanted – into existing civil law institutions and practice. The extent to which this is the case and the most appropriate model for this introduction will be dependent on the cultural, historical and political background of each such jurisdiction.

Whilst Italy lacks a domestic trust law, it has taken advantage of the Hague Convention to develop a thriving local practice of using foreign law for Italian trusts. This effort, spearheaded by both doctrinal and jurisprudential support, has allowed the development of a consistent framework and the surmounting of the obstacles inherent in the civil law tradition. As a result of this process initiated nearly twenty years ago, these trusts can no longer be said to be ‘foreign.' A more accurate term would be ‘domesticated’ due to the distinctive features they have developed.

Whereas France has its fiducie, a sui generis institution introduced in 2007, which is structurally a trust in comparative law terms, it is, nonetheless, functionally neutered. Trusts can be based on civil institutions, as the examples of Panama and Quebec show, and it is to be hoped that the French fiducie represents such a first step and will, one day, play a similar role. In any case, recent reforms which have increased its flexibility both structurally and functionally are to be welcomed. In particular the decision, albeit unsuccessful, of the French legislature to introduce a concept of ‘economic ownership’ goes to show just how much the lines are blurring between civilian and common law traditions.

Koessler, James, Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives (March 1, 2012).