Legal Transplants Under the Magnifying Glass: A Bridging Study from Louisiana to Germany and Back

Abstract

The theory of legal transplants posits the technical transfer of legal conceptions, rules and institutions from one legal order to another. The academic debates about the comparative viability of legal transplants, however, have largely remained in the theoretical and methodological realms, with a divide among interlocutors as to the perspective that should guide the analysis: the recipient system undertaking the borrowing, the donor system where the model resides, or the expertise of a third person who could not be neatly attributed to either side? Yet the crucial question of whether it might be desirable or beneficial to keep the umbilical cord between the recipient and donor systems intact as a live conduit for informing the operations of the transplant, even long after the transfer has been confected, has not received much scholarly attention. This Article tells the story of a specific legal transplant borrowed by Louisiana from Germany: the limited personal servitude of right of use. Triggered by Louisiana litigation over the scope and extent of such a servitude, this Article describes the author’s project of reconnecting discussions in the recipient system with the practical operations of the transplant in the donor system. It addresses several questions posed with regard to construing the German model. Was its English translation before the Louisiana drafters accurate? What is the nature of the law borrowed from Germany? What is the framework of analysis developed by German doctrine and courts? How have the courts in Germany decided comparable cases? What lessons, if any, can be learnt from how the transplant is construed in Germany? The Article concludes with recommendations for what the author calls “transplant care”.