Despite the fundamental differences between the doctrines employed in common law and civil law (or mixed) jurisdictions when it comes to the respect paid to prior court decisions and their weight or value, United States courts that follow the common law doctrine of stare decisis have embraced some of the flexibility inherent in the civil law doctrine, and civil law and mixed jurisdictions throughout the world, including Louisiana, that use the doctrine of jurisprudence constante seem to have come to value the predictability and certainty that come with the common law doctrine. This Article suggests that Louisiana courts are striking the right balance between valuing the predictability and certainty of interpretation that comes with a healthy respect for precedent and maintaining the flexibility and adaptability of the law by not strictly considering precedent a source of law. This Article discusses the results of an ongoing examination of the sources of law and the value of precedent in Louisiana. The examination involves a study of Louisiana legislation, Louisiana courts’ writings about the sources of law and precedent, and a survey of Louisiana judges. Part of the examination included reviewing Louisiana judicial opinions on various issues to determine if there were differences in valuing precedent based on area of law or topic. It also included reviewing judicial opinions from the United States Supreme Court and New York state courts to compare these courts’ approaches to the use of precedent with those of the Louisiana courts. The article is based on a paper presented to the Third Congress of Mixed Jurisdiction Jurists, which was held in Jerusalem, Israel in June 2011, and the author’s prior writings on the subject.
Yiannopouolossupra note 11 at ¶¶ 22 34 51; Palmer supra note 11 at 54-55.
Yiannopouolossupra note 11 at ¶¶ 22 34 51; Palmer supra note 11 at 56-59.
La. Civ. Code Ann. art. 2 (2011) defines legislation as “a solemn expression of legislative will.” Louisiana legislation includes the Louisiana Constitution the Louisiana Civil Code the Louisiana Revised Statutes the Louisiana Code of Civil Procedure the Louisiana Code of Criminal Procedure the Louisiana Code of Evidence and the Louisiana Children’s Code.
Borel v. Young 2007-C-0419 p. 21(La. 11/27/07); 989 So. 2d 42 65; Doerr 774 So. 2d at 128-29; Johnson v. St. Paul Mercury Ins. Co. 236 So. 2d 216 218 (La. 1970) overruled on other grounds Jagers v. Royal Indem. Co. 276 So. 2d 309 312 (La. 1973).
Margolissupra note 34 at 912 918; Schauer supra note 34 at 1957-58 1960.
Margolissupra note 34 at 918.
Algerosupra note 6 at 816.
Palmersupra note 11 at 10-12 58-59 70-71 78-79; Shael Herman The Louisiana Civil Code: A European Legacy for the United States 28-32 (1993).
Palmersupra note 11 at 58-62 64; William Thomas Tete The Code Custom and the Courts: Notes Toward a Louisiana Theory of Precedent 48 Tul. L. Rev. 1 12 (1973).
Palmersupra note 11 at 67 & n.43.
Rubinsupra note 47 at 1371.
Lacabaratssupra note 5 at 80.
Lacabaratssupra note 5 at 80. See also Michel Troper & Christophe Grzegorczyk Precedent in Francein Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers eds. 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati La Jurisprudence Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.”); Catherine Valcke Quebec Civil Law and Canadian Federalism 21 Yale J. Int’l L. 67 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions and the highest court the Cour de cassation enjoys full power to renounce its own decisions.”). But see Lacabarats supra note 5 at 83 (recognizing that even though the decisions of the courts are not binding on other courts “in practice courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation to guarantee citizens a uniform application of the law.”).
Troper & Grzegorczyksupra note 50 at 115 117-19 (citing N.C.P.C. art. 455). The article provides the following: “The judgment must state succinctly the respective claims of the parties and their arguments (moyens); it must be reasoned (motive).” N.C.P.C. art. 455 (George A Bermann & Vivian Grosswald Curran trans. Juris Publishing Inc. 1998). See also C.C. art. 5 (George A. Bermann & Vivian Grosswald Curran trans. Juris Publishing Inc. 1998) (“Judges are forbidden to decide by way of a general and rule-making (réglementaire) decision the cases submitted to them.”).
Lacabaratssupra note 5 at 83-86 (discussing the value in fact of French decisions); Mazzotta supra note 44 at 137 141 153 (discussing the value in fact of Italian decisions); Miguel & Laporta supra note 52 at 274-75 288 (discussing the value in fact of Spanish decisions).