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Volume 76, Issue 4

 Complete Index of Volume 76, Issue 4


Articles

Levasseur, Legal Linguist

John Randall Trahan

This Article provides an exposé of the approach Professeur Levasseur has taken in his work as a “legal linguist”—to be more precise, his method of legal translation. The exposé begins by examining, if only briefly, what one might call the “backdrop” against which he has developed that method—his understanding of the relationship between “legal language,” on the one hand, and “legal culture,” on the other. Having done that, the exposé examines, in this order, Professor Levasseur’s understanding of what legal translation is, what its proper ends are, and what means should be used to attain those ends. Finally, the exposé presents a brief critical valuation of his method.


Classifying and Clarifying Contracts

Ronald J. Scalise, Jr. 

Doctrine in many instances has filled the legislative gaps and helped explain some of the confusion. With respect to the rules on classification of contracts, however, virtually no doctrine exists since the recodification of 1984. This Article hopes to fill that gap, beginning with a background of the Roman and French rules on classification of contracts to lay a foundation for understanding the rules specific in the Louisiana Civil Code. Although helpful, those Roman and French rules have not been well-understood and suffer from a number of defects or limitations. Subsequent revisions throughout the Louisiana Civil Code have proceeded without a firm foundation of this classification scheme, which has made harmonization and application of the existing scheme even more complex. Although the bulk of this Article is a critique of Louisiana law’s current classification of contracts, it is not dogmatic in its approach. The hope and purpose is to elucidate and clarify the current classificatory scheme for contracts in Louisiana while also demonstrating the imperfect nature of any scheme and the need for flexibility.


Keep Calm and Teach Gaius

Nicholas Kasirer

Total information in the digital age gives a picture of law that is distressingly unruly, but this is decidedly not so for the civil law taught in the universities. For centuries, civilian categories of thought have neatly organized the law across continents in a seemingly straight line, and none of the vagaries of human experience seem to deflect it from a Cartesian path. Following in those tracks would be one way to teach the civil law while others lose their way in the darkness brought on by too much law. Today’s students can swap their anxieties and their search engines for a pocket civil code. As for faculty, they would do well to stick to the well-trodden Professorenrecht. Keep calm and teach Gaius.


Civilian Statutes and Judicial Discretion

Symeon C. Symeonides

This Essay discusses whether and to what extent judges may deviate from the statutory text in a limited context by examining recent statutes in which the legislature itself authorizes such a deviation. The context is further limited to one particular legal field, which happens to be the Author’s specialty—private international law (“PIL”) or conflict of laws—and more specifically, the Essay focuses on PIL codifications enacted in the last 50 years. Part I enumerates the various grants of legislatively authorized discretion in these codifications. Part II then focuses on the most explicit of those grants—“escape clauses.” The Essay concludes by attempting to draw some conclusions about the evolving relationship between legislators and judges and the modern art and science of codification.


United States Discovery and Foreign Blocking Statutes

Vivian Grosswald Curran

The reality between discovery in the United States and the foreign blocking statutes that impede discovery in numerous civil law countries has been an uncomfortable mixture of resistance, insistence, and conflict for the nations involved. American courts grapple with the challenge of understanding why they should adhere to strictures that seem to compromise the fundamental rights of American plaintiffs, while French and German lawyers and judges struggle with the challenges that United States discovery rules pose to equally fundamental values in their legal systems. This Essay seeks to address these issues.


The French Reform of Contracts: An Opportunity to Tie Together the Community of Civil Lawyers

Michel Séjean

The first part of this Essay shows that it is clear, however, that the reception of the draft by foreigners shows that the quest for influence belongs to the past. In the second part, the Essay suggests a more beneficial consequence of the ongoing reform: the perspective of a soon-to-be enacted reform creates a unique opportunity to tie together the community of civil lawyers around the world through translation of the future law into an English language whose terminology reflects the peculiarities of civil law. As will be seen, Professor Levasseur is the mastermind behind this awareness of the English terminology of civil law.


A Translator ’s Toolbox: The Law, Moreau-Lislet’ s Library, and the Presence of Multilingual Dictionaries in Nineteenth-Century Louisiana

Agustín Parise

Part I of this Comment discusses both the use of noncompete agreements throughout the United States and the history and enforceability of noncompete agreements in Louisiana. Part II explores the doctrine of nullity and three remedies for null agreements under current Louisiana law. Specifically, this Part analyzes an action for damages under Louisiana Civil Code article 2033 as a remedy for absolutely null noncompete agreements and examines the appropriateness of reformation of overly broad noncompete agreements. Part III discusses how reformation leads to drafting overly broad agreements, which leaves both employers and employees uncertain about the enforceability of the agreement. This Part also addresses the problems of overuse of noncompete agreements in Louisiana caused by the lack of a requirement that employers demonstrate a protectable interest. Part IV offers both legislative and judicial solutions to address the pervasive problems in Louisiana’s noncompete statute and to stifle the overuse and overbreadth of noncompete agreements.


Abuse of Right in Quebec: Some 40 Years Later

Jean-Louis Baudouin

American common law jurisdictions have clearly influenced Louisiana private law. The situation in Quebec, however, has been slightly different. Due to the persistence of the use of the French language, the doctrinal and jurisprudential impact of continental law—particularly that of France—has always played an important role. Yet Louisiana, due to the existence of a civil code and a well-implanted Roman tradition, remains with Quebec and Haiti as one of the only continental-related jurisdictions in North America.

The purpose of this short Essay in honor of Professor Alain Levasseur is to show how not only the law but also the very concept of abuse of right in property and judicial areas have drastically changed over the years.


The General Principles of Contract Law in the “Ordonnance” on the Reform of Contract Law

Mustapha Mekki

Finally, the reform of contract law has taken place. After 10 years of waiting, Title III of Book III of the French Civil Code has been revised. The revision was done by “Ordonnance”—legislation developed without going through Parliament. The Ordonnance, which was published in February 2016, contains numerous changes to French contract law that are meant to better align the law with the economic and social realities of today. This Essay is not concerned with all of the intricacies of the reform, but rather will provide analysis of its general principles, namely “good faith” and “freedom of contract,” which are explicitly detailed in the proposal.


Rewards and Challenges of Teaching Comparative Law in the Commonwealth Caribbean

Asya Ostroukh

The need for comparative law in the age of globalization and internationalization of life in general, and legal development in particular, has been articulated in legal scholarship. The importance of comparative law for training modern lawyers has been emphasized as well. Nevertheless, these issues are still discussed mostly in relation to and in the context of larger countries and major legal systems, mostly Europe in whole, its largest countries (Germany, France, and the United Kingdom), and the United States. The importance of comparative law for small, marginal jurisdictions offers a fruitful field to explore.

This Essay discusses the Author’s personal experience of teaching the course of comparative law at the Faculty of Law at Cave Hill Campus of the University of the West Indies (Barbados), focusing on the benefits and challenges of this teaching in this particular region. The discussion also includes the history and current development of comparative law in this part of the world as well as future prospects of this field of knowledge


Comments

Equalizing the Threat of Noncompete Agreements: Solutions Beyond Louisiana ’s Tangled Web of Nullity

Kristen Amond

Part I of this Comment discusses both the use of noncompete agreements throughout the United States and the history and enforceability of noncompete agreements in Louisiana. Part II explores the doctrine of nullity and three remedies for null agreements under current Louisiana law. Specifically, this Part analyzes an action for damages under Louisiana Civil Code article 2033 as a remedy for absolutely null noncompete agreements and examines the appropriateness of reformation of overly broad noncompete agreements. Part III discusses how reformation leads to drafting overly broad agreements, which leaves both employers and employees uncertain about the enforceability of the agreement. This Part also addresses the problems of overuse of noncompete agreements in Louisiana caused by the lack of a requirement that employers demonstrate a protectable interest. Part IV offers both legislative and judicial solutions to address the pervasive problems in Louisiana’s noncompete statute and to stifle the overuse and overbreadth of noncompete agreements.

Coping with the Death of the Bargain Without Burying the Spirit of the Law: A “Foundational” Approach to Comparative Law and Its Application to Adhesion Contracts in Louisiana

Parker Smith

Part I of this Comment illustrates the first step in the foundational approach, which is to identify and articulate the nature of a “legal problem.” This Part argues that the proliferation of adhesion contracts results in the death of the bargain in consumer contracts and strips away significant evidentiary and theoretical justifications for the enforcement of contracts generally, undermining the legitimacy of contract law in both the common law legal system and Louisiana’s civil law legal system. Part II illustrates the second step in the foundational approach, which is to account for a proposed solution to the legal problem presented in the first step as well as to determine the guiding principles of that solution. This Part focuses on a proposed solution to the problems associated with adhesion contracts from the common law—the doctrine of unconscionability. Part III illustrates the third step in the foundational approach, which is to use the “foundational method” to test whether proposed solutions to legal problems are coherent with the legal systems under consideration. Utilizing social contract theory, this Part argues that two “perspectives” on the social contract—the “meansfocused” perspective and the “ends-focused” perspective—can act as philosophical foundations of the common law legal system and Louisiana’s civil law legal system, respectively. These philosophical foundations can be used to deduce general principles of each legal system, which can be compared with the guiding principles of the doctrine of unconscionability to determine the doctrine’s coherency with each legal system. Part IV illustrates the fourth step in the foundational approach, which is to conduct “secondary inquiries” in light of the coherency of the proposed solution. After determining that the doctrine of unconscionability is readily coherent with the common law but leaves something wanting in Louisiana’s civil law, this Part argues that Louisiana courts should focus more attention on the cause requirement of contract as a means of policing adhesion contracts. This Comment concludes by suggesting that—in addition to being “conscionable”—adhesion contracts in Louisiana must be “sociable,” reflecting the importance of a cause that is consistent with public policy.

Mirror, Mirror: Amending Louisiana ’s LLC Statutes Related to Personal Liability of Members to Reflect Corporate Counterparts After Ogea v. Merritt

Thomas Bourgeois

This Comment will explain the problems with Revised Statutes section 12:1320 and how the statute led to the Court’s unfortunate decision in Ogea. Part I will provide a brief history of LLCs and explain the advantages they provide to members. This Part will illustrate how the limited liability shield typically protects members in certain scenarios. Part II describes the Louisiana LLC and corporate statutes that determine personal liability of owners of those respective business entities. Part III will first explain how Louisiana courts wrestled with the language in Revised Statutes section 12:1320 before the Supreme Court’s first examination of limited liability in relation to LLCs in Ogea v. Merritt. This Part will then analyze the Court’s landmark holding in Ogea. Part IV provides an in-depth analysis of how Revised Statutes section 12:1320 led to the Supreme Court’s ambiguous and “all-encompassing” test, including potential ramifications of the decision. Part V argues that, to cure the uncertainty that the Louisiana Legislature and the Louisiana Supreme Court in Ogea created, the legislature should amend Revised Statutes section 12:1320 to mirror its corporate counterpart.

From Wedding Bells to Working Women: Unmasking the Sexism Resulting from “Illicit Concubinage” in Louisiana ’s Jurisprudence

Brittanie Wagnon

Part I demonstrates that the significant number of cohabiting couples creates a need for the legislature to act, and also explores who engages in cohabitation and why the practice has become so popular. Part II describes the evolution of cohabitants’ rights in the American courts and legislatures. This Part also surveys the various approaches in the United States, New Zealand, and France to afford rights to cohabitants. Part III explains Louisiana’s archaic views regarding unmarried cohabitation and why the State chooses to cling to this reasoning. Part IV scrutinizes the sexist biases in Louisiana’s jurisprudence and argues that Louisiana can no longer justify discriminating against cohabitants. This Part also proposes a solution that will fix the frequent inequity in Louisiana and calls for the change women deserve—the ability to decide for themselves whether marriage is indeed the best option by which to transfer property rights.