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54 La. L. Rev. 1 (1993-1994)
Interpretation and Application of the Civil Code and the Evaulation of Judicial Precedent

handle is hein.journals/louilr54 and id is 15 raw text is: Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent* James L. Dennis- In Louisiana, where the civil law meets the common, judges steeped in both traditions write opinions only in Anglo-American style, giving elaborate statements of facts and discussions of precedents--even when interpreting and applying the Civil Code. Although common-law methodology is not well suited to this civil-law purpose, our courts have not adequately developed distinct techniques for interpreting and applying the civil code and dealing with judicial precedent in that process. There appear to be at least two reasons for the lack of progress in our civil-law methodology. First, the civil-law sources from which a separate civilian judicial methodology could be fashioned are not easy to access or to adapt to our mixed civil/common-law system. In this lecture I will attempt to explain how the seminal works of French and German civil-law scholars could be drawn upon to further develop a Louisiana civil-law judicial technique. Further, although Louisiana judges are called upon to perform as civil-law jurists, and indeed must do so in order to be completely faithful to the Civil Code as substantive law, they also function as Anglo-American judges and share many attributes with their common-law colleagues. Their legal education includes, in addition to civil code subjects, common-law courses taught by the case method with emphasis on analysis of facts and policy. In the field of judicial process, they are exposed to little other than Anglo-American methodology. They are influenced by a system of reporting and digesting cases which mirrors and supports traditional common-law habits and thoughts about judicial process, as in the United States generally.' The system by which Louisiana judges are recruited-popular election from the ranks of practitioners and public officials-tends to produce judges with strong personalities and to encourage them to leave their mark on the law, following the example of great Anglo-American judges, rather than that of the more anonymous Continental jurists.2 Because little can or should be done to change these judicial characteristics, Louisiana jurists must be mindful of them and guard against allowing them to interfere with their duty to support the Civil Code as part of the law of the state. Copyright 1993, by LOUISIANA LAW REVIEW. * This article is reproduced from the 21st John H. Tucker, Jr. Lecture in Civil Law given by the author at the Paul M. Hebert Law Center on March 18, 1993 with minor changes to the text and the addition of referenced material. ** Justice, Louisiana Supreme Court; J.D., L.S.U., 1962; LL.M., U. Va., 1984. 1. Arthur T. von Mehren & James R. Gordley, The Civil Law System 1127-42 (2d ed. 1977): see also H.F. Jolowicz. Bech and Bar: The Civil Law in Louisiana, 29 Tul. L. Rev. 491 (1955). 2. See generally von Mehren & Gordley, supra note 1, at 1149-50.

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