Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Directives in a Mixed Jurisdiction

John A. Lovett, Loyola University New Orleans College of Law

Abstract

Meet Esther and Louis. Esther is a recent college graduate. She works for a local non-profit organization that runs farmers markets in New Orleans. Louis is a twenty-five years old sous-chef who dreams of opening his own restaurant one day. When Esther and Louis met a year ago, their interests in local cuisine, the indigenous culture of New Orleans and outdoor recreation drew them together quickly. They cooked dinners for each other. They rode their bicycles across the city. They talked for hours into the night. After three months, Esther and Louis moved into one half of a double shotgun house in the Bywater, a thriving Bohemian village downriver from the French Quarter. Three months later, Louis and Esther decided to marry.

This is Esther and Louis’ story. Or to put it more accurately, this is the story of how the law will intersect with their life plans and projects. This article focuses on the moments when the life choices of Esther and Louis are most decisively influenced by the legal regime in which they live—in this case the mixed jurisdiction of Louisiana. It draws attention to the moments when Esther and Louis are confronted with legal choices important and complex enough that they will seek the advice of lawyers.

In particular, this article distinguishes between two different kinds of legal situations: those when Esther and Louis’s legal advisors can assure them with reasonable confidence of the likely legal consequences of their choices because the governing legal directives are crystalline, “rule-like” rules; and those when their legal advisors must admit that the law does not provide a clear answer, that their fates will depend to a considerable extent on how judges interpret an open-textured standard or policy. In short, by following Esther and Louis’ lives as they interact with each other (and other family members and acquaintances), this paper will reflect on the extent to which Louisiana private law has been transformed from a system of predictable rules into a system of standard based judicial discretion.