Civil Recodification in an Anglophone Mixed Jurisdiction: A Bricoleur’s Playbook

Abstract

The obligations titles of the Louisiana Civil Code have long figured among its most mysterious provisions. The titles have interested law students bent upon their mastery, an essential for successful civil practice. Having learned them, lawyers were reluctant to revise them, even though many of the rules had become outdated. The Civil Code’s revision program proceeded in fits and starts until the mid 1970s. At that time a new property revision encouraged a comprehensive reform of the obligations titles. From 1977-1984, the author served as a deputy reporter for the obligations revision. That post offered an enviable perch from which to witness the debates and drafting efforts that informed the obligations revision of 1984. As a close associate of the late Saul Litvinoff, the principal reporter for the revision, the author came to see in modern foreign and United States materials potential gap fillers and sources of solutions not solved by the obligations titles themselves. The author concludes that the resulting revision, while preserving the traditional mix of French and Spanish doctrine, now discloses an eclectic blend of American, continental and Argentine influences. This paper considers the new gap filling materials in light of particular needs confronted by the bench and bar in the legislation and one hundred fifty years of case law. To dispel some of the mystery surrounding the revision of the obligations titles, the paper also reflects upon political dynamics among academics, practitioners, judges and legislators, and issues likely to arise in evaluating the success or failure of the revision.