07 September 2010

NOTICE: Janke and Licari on France and Louisiana

Two new articles co-written by Benjamin West Janke (Baker, Donelson, Bearman, Caldwell & Berkowitz, PC) and François-Xavier Licari (University of Metz (Paul-Verlaine), Faculty of Law) have been posted on the SSRN. Each explores legal connections between France and Louisiana:

'Contra Non Valentem in France and Louisiana: Revealing the Parenthood, Breaking a Myth' (forthcoming, Louisiana Law Review)

In this essay, François-Xavier Licari and Benjamin W. Janke will show that the relationship between Louisiana and France is not limited to written law; it also exists in one important extra-codal and equitable principle of prescription law: contra non valentem agere non currit praescriptio. In this regard, the juridical parenthood is tight. They will show that contra non valentem in Louisiana is the fruit of French doctrine and jurisprudence. Furthermore, they will bring to light the noticeable similarity of the maxim’s fate in France and Louisiana. Courts in both jurisdictions proclaimed it as dead, but despite the antagonism it faced, contra non valentem evolved as a major component of prescription’s institution. Finally, they will dispel a deep-rooted myth that contra non valentem does not apply to the domain of acquisitive prescription and reveal another strong convergence between Louisiana and France.

'The French Revision of Prescription: A Model for Louisiana?' (forthcoming, Tulane Law Review)

Though the draftsmanship of the French and Louisiana Civil Codes is generally celebrated, prescription in both Codes is notoriously defective. Located at the end of both Codes as almost an afterthought, the titles of prescription do not share the same general, relative style contained elsewhere. Part of the cause of the prescription title’s shortcoming is attributable to the content.

The provisions that ring loudest are spelled out in numbers rather than letters. Numbers are blind, arbitrary, cold, and inanimate - ace of society accelerates, prescription becomes anachronistic. It is worth questioning whether the very nature of prescription eludes the capacity for codification.

Prescription’s inherent difficulties have created turmoil for both the French and Louisiana civilian systems. Both have struggled with the arbitrariness of any one particular prescriptive period, attempting to balance objectivism against subjectivism, relativity against certainty, and generality against particularity. Though both France and Louisiana began with what might be considered excessively long general periods of prescription, the French and Louisiana legislatures either whittled down the general period or chiseled out particular actions from it. Over time, these piecemeal amendments eviscerated the core components of the doctrine, causing a desperate need for substantial revision.

In 2008, the French legislature took the necessary step and drastically reformed prescription. The general period is now shorter and unified (five years); there are new grounds for suspension (including codified contra non valentem); and a long-stop period is introduced. Louisiana has yet to make any substantial reform to prescription, and revision is long overdue.

This essay will outline the faults in Louisiana and France’s original prescriptive regimes and identify the main innovative trends in the French revision. It then will offer a critical appraisal of the French revision, endorse it as a basis for a Louisiana revision, and discuss how Louisiana jurisprudence is uniquely positioned to integrate the revision in French law. We offer the following as a true dialogue from both the French and Louisiana perspectives about the continuing influence of the French Civil Code in Louisiana, the nature of prescription and its placement in a Civil Code, and the unique opportunity for the Louisiana experience to influence the interpretation of the French revision.

Note, too, that Professor Licari also has another article, 'Taking punitive damages seriously: why a French court did not recognize an American decision awarding punitive damages and why it should have', coming out in the Journal du Droit International. The abstract, also on the SSRN, reads:

Recently, a French Court of Appeal (cour d’appel) refused to recognize a California judgment (to grant an “exequatur”) that awarded punitive damages to American citizens in a breach of contract case involving the sale of a ship from French sellers. The French Court gave several reasons in refusing to grant the exequatur, particularly: French law only allows for compensatory damages and considers the principle of full compensation as fundamental; punitive damages create an unjust enrichment (a windfall) for the plaintiff. In effect, the punitive damages given by the California court were disproportionate to the actual damages. In sum, punitive damages hurt French public policy (l’ordre public international français). The author contends that none of these arguments stand up to an objective examination. For example, a close look at French case law shows the principle of full compensation has never been considered as belonging to the ordre public in the international sense of the notion. Furthermore, French private law knows “private penalties” (peines privées), and some of them resemble American punitive damages. Last but not least, two recent law reform proposals militate in favor of the introduction of punitive damages to the French Civil Code. This essay advocates for a better understanding of the notion of punitive damages and their role in American law, and urges French courts to give effect to reasonable punitive damage awards.

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