"Cases? We ain’t got no cases..."
Every Louisiana lawyer knows one thing: We are a proudly civilian jurisdiction. We trace our legal lineage to the ancient Romans and the Emperor Napoleon (neither of whom get much press these days outside of the Pelican State). This is something we are as justly bigheaded about as our crawfish and oysters, our Saints and Tigers, and our jazz and zydeco. We are taught early in our legal education that Louisiana is different from (and certainly better than) the horde of the 49 common law states which are shackled by the musty old English tradition of “precedent” and “stare decisis.”
Our very first Civil Code article announces that “[t]he sources of law are legislation and custom.” Not case law (or even “caselaw”). The United States Fifth Circuit has reminded us that, unlike in common law systems, “[s]tare decisis is foreign to the Civil Law, including Louisiana.” Boyett v. Redland Ins. Co., 741 F.3d 604, 607-08 (5th Cir. 2014).
An older attorney I know and respect asked me recently why I care about collecting cases. After all, we are a civil law state. The ninth Civil Code article says that when a law is “clear and unambiguous” (aren’t most of them?) and “its application does not lead to absurd consequences” (never seen that happen), “the law shall be applied as written” and “no further interpretation” may be made “in search of the intent of the legislature.” Call the search off. No need for case law. Go straight to the statutes.
Our supreme legal leaders said as much more than three decades ago. At the risk of citing a case for the proposition that you shouldn’t cite cases, here goes:
In a civilian jurisdiction such as ours, in which courts are bound to follow the positive law, case law should not supplant legislative or constitutional authority.
DeBattista v. Argonaut-Sw. Ins. Co., 403 So. 2d 26, 33 (La. 1981).
That older and wiser lawyer might have paraphrased the Mexican bandit leader “Gold Hat,” speaking to Fred C. Dobbs (known in real life as Humphrey Bogart) in The Treasure of the Sierra Madre:
Cases? We ain’t got no cases. We don’t need no cases. I don’t have to show you any stinkin’ cases!
Or do we?
After musing about my elder’s reasonable question for a while (over a beer with smarter attorneys than I at my neighborhood pub), I (well we) came up with this list of a few reasons we can’t all just cancel our (reasonably-priced) subscriptions to Westlaw and Lexis, just yet.
1. United States Supreme Court decisions.
The Supremacy Clause of the U.S. Constitution, Art. VI, § 2, says that the laws of the United States (presumably including the case law of the Omnipotent Nine in D.C.) “shall be the supreme Law of the Land” and “the Judges in every State . . . shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
2. Jurisprudence constante.
When a series of decisions form “a constant stream of uniform and homogenous rulings having the same reasoning,” our home-grown doctrine of jurisprudence constante applies and operates with “considerable persuasive authority.” Borel v. Young, 2007-0419, pp. 21-22 (La. 11/27/07), 989 So. 2d 42, 65 (on reh’g).
3. Louisiana Supreme Court decisions.
Decisions of our own Supreme Seven are binding on Louisiana appellate and district courts. See La. Const. Art. V, § 5 (A); Oliver v. Magnolia Clinic, 2011-2132, p. 7 (La. 3/13/12), 85 So. 3d 39, 44; La. Electorate of Gays & Lesbians, Inc. v. State, 2001-2106, p. 4 (La. 3/28/02), 812 So. 2d 626, 629.
One appellate decision has even declared that the lower courts should give “serious consideration” to the Supreme Court’s “unnecessarily broad” musings (sometimes known as dicta). Laird v. Travelers Indem. Co., 236 So. 2d 561, 562-63 (La. App. 4 Cir. 1970).
And in diversity cases, under Erie, the federal courts must generally look first to decisions of the Louisiana Supreme Court in interpreting Louisiana substantive law. See, e.g., Boyett v. Redland Ins. Co., 741 F.3d at 607-08 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
4. Louisiana Courts of Appeal decisions.
Under the “law of the circuit” rule, the decisions of the Louisiana appellate courts are generally binding on other panels of the same court (unless overruled en banc). See In re Succession of LeBouef, 2013-0209, pp. 4-5, 5 n. 4 (La. App. 1 Cir. 9/9/14), 153 So. 3d 527, 531, 531 n. 4; Am. Med. Enters., Inc. v. Audubon Ins. Co., 2005-2006, p. 4 (La. App. 1 Cir. 6/8/07), 964 So. 2d 1022, 1024, writ denied, 2007-1405 (La. 10/26/07), 966 So. 2d 575; Patin v. Adm’rs of Tulane Educ. Fund, 2004-2040, p. 5 (La. App. 4 Cir. 6/15/05), 907 So. 2d 164, 167; Graves v. Businelle Towing Corp., 95-1999, p. 6 (La. App. 1 Cir. 4/30/96), 673 So. 2d 311, 315.
The Louisiana Supreme Court has often remanded a case to the appellate court for en banc consideration where the decision conflicted with another decision of the same court without distinguishing or overruling it. See Walker v Bossier Med. Ctr., 04-1780, 04-1797, p. 1 (La. 2/25/05), 894 So. 2d 1095, 1096; Banks v. New Orleans Police Dep't, 2002-1028, p. 1 (La. 6/21/02), 821 So. 2d 1292, 1292-93.
Louisiana appellate decisions are binding on the district courts within that circuit. See La. Const. Art. V, § 10 (A); In re Quirk, 97-1143, p. 13 n. 17 (La. 12/12/97), 705 So. 2d 172, 181 n. 17; Frank L. Maraist & Hon. Harry T. Lemmon, 1 La. Civ. L. Treatise, Civil Procedure § 14:15 n. 22 (2d ed. 2013).
In diversity cases, where the Louisiana Supreme Court has not “spoken,” the federal courts will make an “Erie guess” and can look to decisions of the Louisiana appellate courts for guidance in interpreting Louisiana law, particularly when “numerous decisions are in accord on a given issue.” See Boyett v. Redland Ins. Co., 741 F.3d at 607-08.
5. Non-Louisiana decisions.
Even within our citadel of civil law, decisions from other jurisdictions (even common law “sister states”!) may be persuasive authority. See Wainwright v. Fontenot, 2000-0492, p. 8 (La. 10/17/00), 774 So. 2d 70, 74-77; Pelican State Assocs., Inc. v. Winder, 253 La. 697, 706, 219 So. 2d 500, 503 (1969);Schrader v. Coleman E. Adler & Sons, Inc., 225 La. 352, 358, 72 So. 2d 872, 874 (1954).
In conclusion . . . .
So, it turns out we do need those cases, after all. How do we know? Because the courts have said so (in case law).
Bruce C. Dean
BRUCE C. DEAN, LLC
110 Veterans Memorial Blvd., Suite 360
Metairie, Louisiana 70005
(504) 202-7272 (Main)