Uncertain Land Titles in Louisiana's Formative Years: Colonial Grants, John Marshall's Foster Opinion, and Lauterpachtian Interplays between Private Law and International Law

Abstract

In his seminal dissertation for the doctorate, approved by the Faculty of Laws of the University of London in 1925 and published in 1927, Hersch Lauterpacht draws our attention to a trend in the science of international law of disparaging private law sources and analogies despite their saliency for international law doctrine and practice. However, his call to stem this development has not been heeded. While insisting domestic lawyers should know how international lawyers think and how international law works, international law scholars have continued to wall off “their” discipline of international law under the mantle of scientific autonomy. This campaign, which has been fueled by and advertised with the allure of self-sufficiency and modernity, has proliferated carefully branded and jealously guarded reservations of theory and expertise. Such club mentality, it is submitted, poses the great risk of puzzling and alienating the many who are not privy to membership. Even more significantly, it purports to expunge an entire methodology from the tableau of international law theory and practice in this country, despite having stood the test of time. Through a case study of the uncertainties surrounding land titles in Louisiana’s formative years and Chief Justice Marshall’s iconic Foster opinion of 1829, this article endeavors to revalidate Sir Hersch’s proposition of deploying private law methods and institutions to explain and shape international law questions. The article refers to these interactions as “Lauterpachtian nexi.”