60 Tul. L. Rev. 1165 (1985-1986)
Fixed Rules and Discretion in Contemporary Family Law and Succession Law

handle is hein.journals/tulr60 and id is 1185 raw text is: FIXED RULES AND DISCRETION IN
CONTEMPORARY FAMILY LAW AND SUCCESSION
LAW
MARY ANN GLENDON*
I. INTRODUCTION
Participants in this Colloquium devoted to Reflections on
the Civil Law Tradition in Louisiana were advised in their let-
ters of invitation of the fact that Louisiana is currently engaged
in a comprehensive revision of its venerable Civil Code. Profes-
sor Osakwe also informed us that he hoped our contributions,
which deal with several important questions in contemporary
civil law, would be of some assistance to those who are engaged
in the monumental task of code revision. The terms of the invi-
tation thus permitted me to hope that a paper devoted to an
essentially legislative problem, that of finding the optimum bal-
ance between fixed rules and discretion, would be considered ap-
propriate for the occasion.
Code revision not only permits, but would seem to require,
that drafters examine the current state of the working partner-
ship that exists between courts and legislatures with respect to
every piece of legislation. As we all know, in recent generations
the nature of this partnership has gradually changed in very sig-
nificant ways. The problem of the choice between fixed rules and
discretion, although rightly characterized by Kenneth Culp
Davis as a central problem in our entire legal system,' is but
one of a large complex of issues concerning institutional func-
tions and relationships. The way that we think about the prob-
lem today necessarily is affected by the fact that open judicial
discretion has come to play an even larger part in our law,
whether pursuant to express legislative grants of authority or be-
cause the courts simply have assumed wider powers. Many
* Professor of Law, Harvard Law School. B.A. 1959, J.D. 1961, M.C.L. 1963, Uni-
versity of Chicago Law School. I am grateful to Harry D. Krause, John H. Langbein,
Edward R. Lev, W.D. Macdonald, and Cynthia Samuel for helpful comments and
suggestions.
1. K. DAVIS, ADMINISTRATIVE LAW TEXT § 1.08, at 24 (3d ed. 1972).

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