Civil Law Commons^™

Revisiting The Genesis Of French Louisiana: It’S No Coincidence The Civil Code Was Adopted—We Ain’T Anglos!, Warren Perrin

Journal of Civil Law Studies

This article examines how Louisiana’s distinctive civil law tradition survived the Louisiana Purchase and became embedded in the state’s identity through the interaction of culture, migration, and political compromise. Tracing the development of French Louisiana from the Acadian diaspora to statehood, the article argues that the adoption and preservation of the civil code was not accidental, but rather the product of a deeply rooted Francophone and multicultural society resistant to Anglo-American common law traditions. The study highlights the influence of major historical figures including Thomas Jefferson, William C.C. Claiborne, Julien Poydras, Casa Calvo, and Edward Livingston, while also emphasizing the …

The Civil Law English Terminology (Civlet), A Louisiana Gift To The World, Olivier Moreteau

Journal of Civil Law Studies

In the early 19th century, Louisiana codified its civil law in French and in English. In the 20th century, it translated French civilian doctrine and then produced its own civilian literature in English. Over time, lawmakers and translators have crafted and refined new English legal terminology suited to expressing civilian concepts, thereby setting aside common law terminology. Quebec joined the process once Canada imposed bilingualism, while other English-speaking mixed jurisdictions also contributed. This article shows how, outside the common law English terminology (COMLET), a civil law English terminology (CIVLET) is developing, and is also enriched by a comparative law English …

The Dynamics Of The Louisiana Civil Codes, Olivier Moréteau

Journal of Civil Law Studies

This article presents a historical survey of the codification of Louisiana civil law from a dynamic perspective, aiming to identify why a digest was preferred over a code, only to be replaced by a code intended to be a better digest. Although attempts to codify Louisiana civil law reconnected it with French sources and methodology after the Spanish period and the United States' purchase, the local legal community resisted the force of codification. The abrogation of the ancient laws, a multilingual ius commune with which judges and lawyers were familiar, generated anxiety in a conservative and educated community. Additionally, a …

Pay-To-Play: Maine’S Unconstitutional Requirement For Indigent Defendants To Pay To Appeal Eviction Judgments, Shianne Bowlin, Fred Kerrigan, Alice Neal

Maine Law Review

Maine’s eviction appeal process imposes financial barriers that effectively condition appellate review on a tenant’s ability to pay. Under Maine law, tenants must pay rent or arrears—often in dispute—before filing an appeal. This “pay-to-play” requirement disproportionately harms low-income tenants, particularly those receiving public assistance, and violates constitutional due process and equal protection guarantees. Despite federal and state precedent rejecting financial barriers to appeals, Maine’s eviction appeal system continues to restrict access to justice for indigent tenants. This Article examines the legal and constitutional implications of these requirements, comparing Maine’s approach to eviction appeals with those of other states. It explores …

Tax As Hybrid Law: Borrowing And Convergences, Henry Ordower

All Faculty Scholarship

[This article argues that tax is a hybrid of civil and common law, public and private law, and is cross-disciplinary. It observes that tax law has become an all-purpose tool for legislators. It seeks to demonstrate how the U.S., a common law jurisdiction, has turned to civil law models for taxation while civil law jurisdictions and the European Union have sought common law models to combat tax avoidance. The ubiquity of tax and its public law influence on private law transactions, its cross disciplinary nature, and its deployment as a legislative tool to manage the economy make it a candidate …

The 2020 Revision Of The Puerto Rican Civil Code: A Brief Explanation Of Major Changes, Luis Muñiz-Argüelles

Journal of Civil Law Studies

Puerto Rico is with Louisiana one of the two United States jurisdictions having kept the civil law tradition as the bedrock of its private law. One of the last Spanish colonies, Puerto Rico became a US Territory in 1899. The Spanish Civil Code was replaced by a Puerto Rican Civil Code in 1930. A revision process spanned over a period of 23 years, ending with the adoption of a new Civil Code in 2020. After a presentation of the revision process, this report presents and discusses the changes and innovations in family law, property, contractual obligations, torts, and successions, also …

Perbandingan Pengaturan Dan Konsep Bentuk Hukum Partnership Di Negara Brunei Darussalam Dengan Indonesia Dikaitkan Dengan Hukum Perdata, Dewi Mega Victoria

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This study aims to find out and analyze the comparative legal form of the Partnership in Indonesia as stipulated in the Indonesian Civil Code Book with the State of Brunei Darussalam as stipulated in the Laws of Brunei, Chapter 106 Contracts. There are 5 points that can be examined from the rules in 2 countries relating to the Partnership, namely: Status of Legal Entity, Establishment of Partnership, Organ Partnership, Responsibility and Disbanding the Partnership. This is a reference to renew the Partnership regulations in Indonesia in the future with reference to the state regulation of Brunei Darussalam. This research is …

A Jurisprudential Quilt Of Tribal Civil Jurisdiction: An Analysis Of Tribal Court Approaches To Determining Civil Adjudicatory Jurisdiction, Jacob Maiman-Stadtmauer

American Indian Law Journal

There are hundreds of Native American Tribes with their own judicial systems and courts. Under the test first established in Montana v. United States, the Supreme Court of the United States has provided a single, nebulous standard for determining the limits of tribal courts’ jurisdiction over non-Indians. Scholars and federal jurists have long assumed that the Supreme Court's framework limiting tribal civil jurisdiction is essential to how tribal courts determine jurisdiction. This paper challenges that assumption. Through a first of its kind survey of tribal court decisions on civil jurisdiction, spanning 26 tribes and covering 71 decisions, this paper …

If The Government Says So, It Must Be Right: An Analysis On The Impact Of Government Issued Force Majeure Certificates, Verónica Orantes

University of Miami Inter-American Law Review

In March 2020, the world came to a halt with the beginning of the Covid–19 pandemic. The pandemic’s worldwide im-pact resulted in endless business transactions becoming im-possible or impracticable to perform. The China Council for the Promotion of International Trade issued force majeure certificates for its national business parties to excuse their performance under cross–border transactions. This note explores how the excuses for the performance of a contract work under Common Law and Civil Law systems and how each system would react to the parties invoking force majeure under a force majeure certificate issued by a government agency.

The Oslo Accords: A Modern-Day Story Of Occupation Told Through Violations Of The Right To Freedom Of Privacy, Catherine Demetrovich

Indiana Law Journal

The Israeli-Palestinian conflict began in the early 1900s when the disputed land, what is now the West Bank and the Gaza Strip, fell under British rule. After the Six- Day War in 1967, Israel took control of the West Bank, Golan Heights, and the Gaza Strip. Since then, tensions between Israel and Palestine have continued to grow. This Note explores a modern-day occupation question: Israel’s control over Palestine’s information and communication technology (ICT) sector. Along with privacy and human rights violations, Israel’s control is in direct violation of the Oslo Accords— guaranteeing Palestinians limited self-governance in Gaza and the West …

The Temptation Of Cosmic Private Law Theory, Nathan B. Oman

Faculty Publications

It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …

How Do You Know It Was Me? A Case Comment On Cobbler Nevada, Llc V. Gonzales, David T. Frankel

Cardozo Law Review

No abstract provided.

A Comparative Legal Study Within A Civil Law Framework, Saleh Ahmed Al-Luhaibi

UAEU Law Journal

The Exit Contract is considered as one of the fields that did not receive sufficient legal research within the scope of civil law. Most legal studies have focused on civil status. Therefore, the researcher chose this aspect and treated it in terms of civil law as it is a well-known fact that the Exit Contract is the first contract carrier of property. That is why it must be studied in this regard with a focus on the contract in terms of its foundations and the conditions of its most important provisions that differentiate it from the rest of the contract …

The Morality Of Fiduciary Law, Paul B. Miller

William & Mary Law Review

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or should, fiduciary law prove responsive to them?

While in other areas of private law theory—notably, tort theory— pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional in the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of …

Pernicious Loyalty, Andrew S. Gold

William & Mary Law Review

Fiduciary loyalty is generally considered valuable, and in the usual case it is. Yet some of the very features of loyalty that make it valuable also encourage behaviors harmful to beneficiaries, third parties, or society as a whole. Examples include the corporate director whose concern with shareholder wealth maximization leads to considerable environmental harm and the skillful attorney whose zealous representation undermines justice between the parties. In short, actions that are motivated by good-faith fiduciary loyalty may be undesirable in individual cases. I will describe such cases as cases of pernicious loyalty. Outside the law, pernicious loyalty is often limited …

Mcnamee V. Eighth Judicial District Court, 135 Nev. Adv. Op. 52 (Oct. 17, 2019), Alfa Alemayehu

Nevada Supreme Court Summaries

The Court overruled Barto v. Weishaar, partly granted the petitioner’s writ of mandamus, and held that if a suggestion of death is properly served, the 90-day deadline to file a motion to substitute is triggered regardless of which party files it and whether it identifies the deceased party’s successor or representative.

Legal Education And The Civil Law System, Rodrigo Sadi

NYLS Law Review

No abstract provided.

Forty-Eight States Are Probably Not Wrong: An Argument For Modernizing Georgia’S Legal Malpractice Statute Of Limitations, Ben Rosichan

Georgia State University Law Review

The legal profession is largely self-regulated, and each state has a bar association charged with creating and enforcing basic standards of professionalism and competence for attorneys. Unfortunately, attorneys do not always adhere to these standards. In Georgia, the State Bar can address attorney misconduct through remedial measures up to and including disbarment. The State Bar cannot, however, compensate wronged clients through monetary damages.Thus, some wronged clients must resort to a lawsuit for legal malpractice where a financial recovery is necessary to make the client whole again.

The statute of limitations for legal malpractice claims should not be so restrictive that …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …

A Theory Of Civil Liability, Nathan B. Oman

Faculty Publications

No abstract provided.

Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity …

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Faculty Publications

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

Penalty Clauses As Remedies: Exploring Comparative Approaches To Enforceability, Jack Graves

Touro Law Review

No abstract provided.

Fugitives In Immigration: A Call For Legislative Guidelines On Disentitlement, Kiran H. Griffith

Seattle University Law Review

In light of Supreme Court jurisprudence regarding the fugitive disentitlement doctrine, the circuit courts of appeal have readily expanded the doctrine’s use to civil matters, as well as immigration. But the Supreme Court’s nuanced treatment of the rationales underlying this doctrine, specifically in Ortega-Rodriguez v. United States and Degen v. United States, has led to inconsistent application across the circuits. Specifically, a split has arisen among the Second, Fifth, Seventh, and Ninth Circuits as to whether these rationales support invocation of the fugitive disentitlement doctrine to find fugitivity and dismiss an alien’s petition for review when an alien fails to …

The Right To Publicity After Death: Postmortem Personality Rights In The Wake Of Experiencehendrix V. Hendrixlicensing.Com, Aubrie Hicks

Seattle University Law Review

While the states are fairly consistent in protecting the rights of living individuals, the level of protection for deceased celebrities varies among the states. Some states allow the right to extend beyond death, while others refuse to recognize a postmortem right of publicity. Even among states that do recognize a postmortem right of publicity, the right is protected to varying degrees, with some states providing explicit statutory protections and others providing only common law protections. Given the inconsistencies among the states, the continuing right to publicity after death has been the subject of much litigation over the last few years, …

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

Promise And Private Law, Nathan B. Oman

Faculty Publications

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.