Mirow on The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America @FIULaw

M. C. Mirow, Florida International University College of Law, has published The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America at 37 Emory Int'l L. Rev. 365 (2023). Here is the abstract.

The social function of property and the version of this idea expounded by French jurist Léon Duguit did not find a significant home in the Mexican Civil Code of 1928, and these ideas of property were only subsequently adopted as a guiding principles of Mexican property law. After the promulgation of the Code, private law jurists read the social function of property and Duguit’s work ahistorically into the property provisions of the Mexican Constitution of 1917 and the Civil Code of 1928. This intellectual work by jurists and commentators during and after the 1930s pulled European trends of the social function of property into the mainstream of Mexican legal thought. Thus, Mexican thinking on property joined this international trend and subsequently gained recognition as part of broader international developments in property theory. This concordance of Mexican property law with international trends was then mistakenly read back to place Mexico as the originator of the social function of property in Latin America. The Mexican incorporation of the social function of property is contrasted with related experiences of Chile in 1925, Colombia in 1936, Cuba in 1940, and Argentina in 1949.

Download the article from SSRN at the link.

Brostoff on The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808 @LSULawCenter

Seth Brostoff, Louisiana State University Law Center, is publishing The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808 in volume 13 of the Journal of Civil Law Studies. Here is the abstract.

This Article identifies nearly one hundred articles and provisions in Louisiana’s first civil code, the Digest of 1808, which were copied verbatim or almost verbatim (that is, literally or almost literally) from three French legal encyclopedias popular during the Ancien Régime: M. Lerasle’s Encyclopédie méthodique: Jurisprudence (8 vols., 1782-89), Jean-Baptiste Denisart’s Collection de décisions nouvelles (1st ed., 6 vols., 1754), and Joseph-Nicolas Guyot’s Répertoire de jurisprudence (2d ed., 17 vols., 1784-85). As the Appendix indicates, verbatim and almost verbatim extracts from Lerasle, Denisart, and Guyot constitute at least 4-5% of the Digest’s source material. This Article therefore serves as a supplement (and partial corrective) to Rodolfo Batiza’s 1971 and 1974 studies of the Digest’s “actual sources”. The present study argues that the Digest’s primary redactor, Louis Moreau Lislet, borrowed language from French legal encyclopedia entries largely for pedagogical purposes, including introducing into Louisiana’s new civil code civilian definitions and other material that would be useful for lawyers and judges trained in the common law. As a result, Louisiana’s first civil code possesses a didactic quality that is absent from its Napoleonic prototype. Equally important, this study suggests that earlier scholars’ assumptions that the Digest’s source material reflects Louisiana’s mixed Spanish-French legal history should be revisited: while discovery of a significant presence of French legal encyclopedic sources certainly reveals the drafter’s preference for, and familiarity with, ancien droit legal literature, it further undermines previous assumptions about the widespread indirect influence of Roman and Spanish-Castilian sources.

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Jukier on From La Beauce to Le Bayou @LawMcGill @JournalCivilLaw

Rosalie Jukier, McGill Faculty of Law, has published From La Beauce to Le Bayou: A Transsystemic Voyage at 12 Journal of Civil Law Studies 1 (2019). Here is the abstract.

This paper is an adaptation of the Tucker Lecture that I delivered in October of 2017. Its title depicts two iconic places, one in the Canadian province of Quebec, from where I hail, and the other in Louisiana, the locale of my audience. In this paper, I attempt to guide an allegorical voyage from la Beauce to le Bayou, from Quebec to Louisiana, from Montreal to Baton Rouge, from McGill to LSU, using a transsystemic itinerary. This voyage will showcase the unique way of teaching and thinking about law that has defined the program of legal education, and the imaginations of legal scholars, at McGill’s Faculty of Law for almost two decades. In addition to demystifying the elusive term “transsystemic,” and outlining the pedagogical and intellectual benefits of teaching and thinking about law in this way, this paper will focus on the increasing relevance of the transsystemic approach as a way of preparing jurists, wherever they may be, for the complexity and novelty of contemporary legal practice. By instilling creative, critical and flexible thinking skills, it enables jurists to deal with novel legal problems, to be more adept at envisaging a multiplicity of creative ways to solve legal problems through alternative methods of dispute resolution, and to keep pace with novel comparative judicial methodology. Just as la Beauce and le Bayou are different places with different geographical features, so too are Quebec and Louisiana different legal jurisdictions. However, they are, in many ways, sister jurisdictions, sharing a common mixity in their legal systems. This makes law schools in Louisiana a particularly fertile environment in which to showcase this unique itinerary in the hope that some of you will come along on this interesting voyage.

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Delfini on Instances of the Civil Law in the North American Common Law Tradition

Newly published in the Italian Law Journal:

F. Delfini, Instances of Civil Law in North American Common Law Tradition: Cause and Consideration in Quebec and Louisiana Civil Codes, 2 Italian Law Journal 87 (2016).

More here.

Lovett on a Dispute Over Movables: The Professor Longhair Lawsuit

John A. Lovett, Loyola University New Orleans College of Law, is publishing Professor Longhair's Legacy: A Comparative Perspective on Revendicating Movables in Northern Lights: Essays in Honour of David Carey Miller (Douglas Bain, Roderick Paisley, and Andrew R. C. Simpson, eds.; Aberdeen University Press, 2016) (Forthcoming). Here is the abstract.

This essay addresses the problem of how an owner of a corporeal movable can recover possession of the movable from another person who detains or possesses it without right. It approaches this age-old problem through the lens of SongByrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, (5th Cir. 1997) and SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2d Cir. 2000). These two decisions addressed the claims of SongByrd, Inc., the successor in interest of the legendary, New Orleans, rhythm and blues pianist Henry Roeland Byrd, aka Professor Longhair, against the estate of the legendary, rock and roll producer Albert Grossman. SongByrd sought to recover possession of several master tapes made by Byrd and other New Orleans musicians in the early 1970s that later made their way into Grossman’s possession. Without the consent of Byrd or his heirs, Grossman’s estate eventually licensed these master tapes to two record companies. One of these companies eventually released an album that earned Byrd a posthumous Grammy Award. After providing biographical background on Byrd and Grossman and explaining how the master tapes ended up in Grossman’s possession, the essay examines the conceptual and pragmatic differences between Louisiana’s civil law response to SongByrd’s revendicatory action to recover the tapes and New York’s common law approach that framed the merits of the dispute in terms of when SongByrd’s claims for replevin and conversion began to accrue. In essence, the two SongByrd decisions illustrate the difference between a civil law acquisitive or positive prescription approach that asks whether a would-be adverse possessor has taken sufficient steps to begin to possess as owner and deserves to be awarded with ownership through prescription and a common law approach that focusses on whether the true owner has been inexcusably passive in pursuing claims to recover his property. The essay also addresses the long term impact of the respective decisions on the law of Louisiana and New York and how the controversy has been used by property law scholars in the United States to illustrate a statute of limitations/accrual approach to the claims of owners seeking to recover valuable personal property or movables.

Download the essay from SSRN at the link.

Comparing Western Legal Traditions: A New Book

Martin Vranken, University of Melbourne Law School, has published Western Legal Traditions: A Comparison of Civil Law and Common Law (Federation Press, 2015). Here is a description of the contents from the publisher's website.

The rule of law constitutes the hallmark of contemporary Western society. However, public perceptions and attitudes to the law can vary in space and time. This book explores legal solutions to selected problem scenarios in their broader historical, economic, political and societal context. The focus is on the legal traditions of civil law and common law. The book is premised on the assumption – indeed, the conviction – that use of the comparative method both facilitates and promotes a deeper understanding of the society in which we live and the rules by which it is shaped. Major ‘threads’ that run through the book are the relationship between law and morality, the role of the state in regulating human interaction, as well as the relationship between the state and the individual. As a practical matter, the text is divided into 3 Parts. A first Part provides various building blocks for a discussion of ‘the law in action’ in the second and main Part of the book. A final Part addresses the issue of regional globalisation and its impact on the traditional divide between civil law and common law. An Appendix contains the full text of the Charter of Fundamental Rights of the European Union.

European and U. S. Influences on Latin American Administrative Law

Ricardo Perlingeiro, Universidade Federal Fluniense (UFF), has published A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus US Influence. Here is the abstract.

From the perspective of US influence, this text analyses the history of administrative jurisdiction, starting from the 19th Century, in the 19 Latin American countries of Iberian origin (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). The analysis includes the US unified judicial system and procedural due process of law to decisions by the administrative authorities, the fertile field of primary jurisdiction, which is in conflict with the Continental European tradition firmly established in Latin American administrative law. While setting out the contradictions of administrative jurisdiction in Latin American countries that result from importing rules without putting them in the proper context, the text seeks to identify trends and create perspective to build a model of administrative justice specific to Latin America, drawing on the experiences acquired in the United States and Continental Europe.

The article contents: Introduction. 1 Administrative jurisdiction: judicial, non-judicial and hybrid models. 1.1 Constitution of Cadiz of 1812. Junta Grande of 1811 (Argentina). Belgian Constitution of 1831. Reglamento para el Arreglo de la Autoridad Ejecutiva Provisoria de Chile (1811). Law of 16 and 24 August 1790. Ley de Santamaría Paredes. Administrative Court of the Land of Baden of 1863. 1.2 Lack of independence of French administrative litigation and the unified judicial system in Latin America in the 19th Century. La justice déléguée of 1872. 1.3 The unified judicial system in Latin America in the 19th Century and questions of governance. 1.4 The specialization of jurisdiction in Europe and the emergence of administrative law. 1.5 The evolution of the unified judicial system in the USA: Interstate Commerce Commission (ICC) of 1887. 1.6 Models of administrative jurisdiction in Latin America in the 19th and 20th Centuries. 1.6.1 Hybrid (judicial and non-judicial) administrative jurisdiction: Honduras, Brazil. 1.6.2 Non-judicial administrative jurisdiction: Bolivia, Panama, Dominican Republic, Colombia, Guatemala, Ecuador, Uruguay, Mexico. 1.6.3 Dualist judicial jurisdiction: Colombia, Nicaragua, Panama, Ecuador, Guatemala, Dominican Republic. 1.6.4 Monist judicial jurisdiction (uninterrupted period): Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Brazil. 1.6.5 Monist judicial jurisdiction (limited period): Colombia, Guatemala, Dominican Republic. 1.6.6 Monist judicial jurisdiction (intermittent periods): Nicaragua, Honduras, Ecuador, Panama, Bolivia. 1.6.7 Monist judicial jurisdiction (currently in effect and having specialized entities): Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Bolivia, Brazil, Panama, Nicaragua, Honduras and Ecuador. 1.7 Developmental and comparative framework of the independent administrative jurisdiction under the Latin American Constitutions. 2 Administrative decisions preceded by due process of law. 2.1 Signs of US due process of law in Latin America: The 5th (1791) and 14th (1868) Amendments of the US Constitution. 2.2 Origin of due process of law: Magna Carta of 1215, Liberty of Subject Act (28 Edward 3) of 1354, Observance of Due Process of Law Act (42 Edward 3) of 1368. 2.3 Right to a fair trial on the international scene: US Bill of Rights of 1789, Universal Declaration of Human Rights of 1948, European Human Rights Convention of 1950, International Covenant on Political and Civil Rights of 1966, African Charter on Human and Peoples’ Rights of 1981, Charter of Fundamental Rights of the European Union of 2000, American Convention on Human Rights of 1969. 2.4 Due process of law in Latin American laws and constitutions. 2.5 Case law of the European and Inter-American Courts of Human Rights: independence and impartiality in non-judicial administrative proceedings, and due process of law prior to administrative decisions. 2.6 Distinction between the judicial processo administrativo, non-judicial processo administrativo and procedimento administrativo. 2.7 Administrative due process prior to decisions by administrative authorities in Latin America. Closing considerations.

The full text is not available from SSRN. 

Influences on German Law

Andre Janssen, University of Muenster Faculty of Law; Centre for European Private Law, and Reiner Schulze have published Legal Cultures and Legal Transplants in Germany  at 2 European Review of Private Law 225 (2011). Here is the abstract.

At first glance, many jurists often perceive their own (Private) law to be somewhat hermetic in nature. Their law exists in its own self-contained cosmos, independent from others in the legal universe, yet its atmosphere is sometimes breached by the ‘meteorites’ of international and European law. The reasons for this perception are clear: it is often difficult to ascertain in ones own legal system the influences from foreign (or supranational) law and from foreign legal cultures. This is impeded further by most universities failing to approach this topic, except briefly in the context of international and European law. The following therefore shall attempt to at least attenuate this deficit by providing a ‘birds-eye view’ of German law. In doing so, not only shall the clear marks left in each legal area by foreign and supranational law be shown, but also how they continue to considerably impact upon the German legal landscape and legal culture.

Download the article from SSRN at the link.