PHILOSOPHY AND PURPOSES OF THE LOUISIANA STATE LAW
INSTITUTE
AS STATED BY PRESIDENT JOHN H. TUCKER, JR.
AT THE FIRST ANNUAL MEETING
HELD AT LOUISIANA STATE UNIVERSITY
MARCH
16, 1940
ORGANIZATION OF
LSLI
This organization originated
in a movement, initiated here at L.S.U. in 1933, to establish an institute dedicated to
law revision, law reform and legal research. Due to economic reasons that project was
postponed until April, 1938, when the Board of Supervisors authorized its revival, under
its present name. The Legislature, later in the year, chartered, created and organized it
as "an official, advisory law revision commission, law reform agency and legal
research agency of the State of Louisiana."
The purposes of the Institute are declared by the Legislature to be: "to promote and
encourage the clarification and simplification of the law of Louisiana and its better
adaptation to present social needs; to secure the better administration of justice and to
carry on scholarly legal research and scientific legal work."
This is the first time in the history of the State that legislative recognition has been
given to a long recognized need and an adequate organization
established to meet it.
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THE CIVIL CODE OF 1825
The great jurists who drafted
our Civil Code of 1825 appreciated the imperfections of their own work, and realized that
time would demonstrate its errors and inadequacies. Accordingly they recommended in, a
preliminary report to the general assembly that where the Code was silent, the judge
should decide as an amicable compounder, the decision to be reported to the Legislature,
and then to stand as a precedent only if adopted by the Legislature. They also proposed
that reports of ordinary cases of construction be reported to the Legislature by a
commissioned officer, to enable it to explain the ambiguities, supply deficiencies and
correct errors discovered by the test of experience in operation. By these means they
believed that:
"The whole body of our jurisprudence being brought under the inspection of the
general assembly, they will be enabled by a comprehensive view of the whole ground of
legislation, to avoid the inroads on the unity of its design which have been made by
statutes hastily passed for local or temporary purposes . . ."
This process of constant revision, through judicial reports and recommendations, failed
because no suitable organization was adopted to give it direction, and with respect to the
Civil Code that unity of design so earnestly sought by its drafters has been seriously
affected by hastily passed legislation without proper preparation.
Law reform and law revision should be the results of careful
preparation, based on adequate research, thorough study and impartial discussion. The
great civil law institutions have followed the same general pattern in their confection.
Familiar examples are the redaction of the Customs of France, the preparation and adoption
of the Code Napoleon, and the drafting and enactment of our own Civil Code.
That process has not been possible in Louisiana for many years, due to a lack of time, and
a proper forum where projets of laws may be examined and discussed by lawyers, scholars,
judges and legislators in the light of their knowledge and experience. Furthermore the
Legislature is not adequately, constitutionally organized for that purpose, since it meets
only biennially, exclusive of extraordinary sessions, and then for
only 60 days.
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ADVISOR TO THE
LEGISLATURE
This Institute is designed
then as an adjunct to the Legislature, but solely in an advisory capacity. Its duties in
that connection are specified in the act of its creation. It is explicitly required to
consider needed improvements in the law and to make recommendations concerning them; to
study the civil law with a view to discovering defects and inequities and recommending
needed reforms; to receive, consider and make recommendations concerning law reforms
proposed by associations and learned societies such as the American Law Institute and the
Bar Associations, to recommend from time to time such changes in the law as it deems
necessary to modify or eliminate antiquated and inequitable rules of law, and to bring the
law of the State of Louisiana, both civil and criminal, into harmony with modern
conditions. It is required to make biennial reports to the Legislature and if it deems
advisable, to accompany its reports with bills to carry out its recommendations.
In its relationship to the Legislature, then, this Institute acts solely and only in an
advisory capacity.
Its statutory duty is to recommend, when its own research, or the study of the proposals
of other kindred organizations, indicate such action.
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RESEARCH FOR THE
LEGISLATURE
In addition, it is
purposed to so develop the organization of the Institute that it may conduct special
research for the Legislature and its individual members, at their request, on matters of
legislative interest. In that respect, there is a great opportunity to render valuable
service. In the past, commissions have been appointed to draft Codes on special subjects,
such as the Criminal Code and the Mineral Code, neither of which was adopted. It may be
that hereafter the Legislature will intrust the preparation of the projets of such Codes
to the Institute. Its organization is designed for that purpose. The respect of the
Legislature for the work of the Institute must be earned, however, through the fidelity
with which it discharges the duties imposed upon it by statute, and its recommendations must always result from thorough study and research,
and full, free and non-partisan discussion.
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RECOMMEND NEEDED REFORMS
The Institute is likewise
required to study the jurisprudence, along with the statutes, with a view to recommending
needed reforms. Much hastily considered legislation heretofore has resulted from attempts
to correct defects or imperfections brought to light in contested cases. This organization
should be able to approach the solution of such problems with method and precision and
weigh them in the light of the experience and knowledge of its members.
In time it may come to perform the functions of a judicial council, and be of material
assistance to the courts by the preparation of scientific and
orderly studies of procedure and the work of the courts.
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TRANSLATE CIVIL LAW
MATERIALS
The Act likewise makes it
a duty of the Institute to make available translations of civil law materials and
commentaries and to provide by studies and doctrinal writings, materials for the better
understanding of the civil law of Louisiana and the philosophy upon which it is based.
Of all the civil law institutions, the Civil Code of Louisiana is the only one which has
not been largely developed and expanded by the writings of eminent legal scholars and
jurists, generally referred to as "doctrine." An eminent French professor has
said that doctrine plays the same role in law that public opinion does in politics. Here
in Louisiana, generally speaking, we have no doctrine except that to be found in the
Tulane Law Review started several years ago, and the Louisiana Law Review, now in its
second year.
In France, the modern commentaries on the Code Napoleon, such as Baudry-Lacantinerie and
Planiol and Ripert, are not individual products, but are the result of the organized
efforts of several co-authors. The field is too large to be tilled by one man. Therefore,
this Institute will seek to organize the work of the law faculties and of the bench and
bar to the end that we shall some day have our own Louisiana doctrine, contained in
commentaries comparable to those of France.
Some of the materials with which we must work are contained in our own books, some of
which are so rare as to be generally inaccessible. Many, of course, are in other languages
of which no translations are available. Already much work has been done to remedy some of
these difficulties. Special reports will be made later today concerning these projects.
The organization of the Institute is planned to facilitate the performance of its duties,
and the accomplishment of its purposes, in the spirit of its
planning.
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LSLI GOVERNING BODY
The governing body is the
Council consisting of ex-officio members and elected members. It is representative of all
branches of the state government, and of the entire legal profession. The executive is
represented by the Attorney General and the executive counsel to the Governor, and the
Legislature is represented by the chairman of each judiciary committee of both the House
and the Senate, who serve ex-officio.
The Judiciary is represented by one Justice of the Supreme Court, one judge from the
Courts of Appeal, one district judge, and one federal judge residing in Louisiana, all of
whom are elected members.
Organizations are represented by the presidents of the Louisiana State Bar Association and
the State Bar of Louisiana, and any Louisiana members on the Council of the American Law
Institute who are ex-officio members.
The Law Schools are represented by their deans, who are ex-officio members, and three
members from each faculty, who are elected members.
The Bar is represented by eleven practicing members, who are
elected members.
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ADOPTION OF BY-LAWS
The Council has the authority
under the Act to provide rules for the organization, government and operation of the
Institute, and to determine and elect officers. That it has done by the adoption of
By-Laws. It has adopted a plan of membership which in terms of the Act, it believes to be
"so designed as to encourage and unite the cooperation of all members of the legal
profession in the work of the Institute."
The By-Laws provide for 150 members, in addition to the Council, nominated by the
Membership Committee, and elected by the Council. All judges of the District Courts and
Courts of Appeal, all federal judges in Louisiana, and all Justices of the Supreme Court
are associate members, as are all members of the Legislature who are lawyers.
The past year has not been without its difficulties. I must acknowledge that they have
been largely overcome and that the work achieved has been accomplished only because of the
unselfish, wholehearted and thoughtful cooperation of all concerned with the organization
and work of the Institute.
The Louisiana State Law Institute is one of the very first organizations of its kind in
this country. It is conceived in a spirit of cooperation, and is dedicated to public
service. It is chartered by the Legislature, in terms which must challenge the interest of
the entire legal profession of the State. May its achievements be equal to its
opportunities and its obligations.
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