DEL DUCA, Louis F., LEVASSEUR, Alain A., Impact of Legal Culture and Legal Transplants On The Evolution of The U.S. Legal System, 2010

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Citation: 58 Am. J. Comp. L. 1 2010
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LOUIS F. DEL DUCA* & ALAIN A. LEVASSEUR**
Impact of Legal Culture and Legal Transplants on the

Evolution of the U.S. Legal System***t
In this U.S. National Report to the 2010 International Congress

of Comparative Law Program on the Impact of Legal Culture and Le-
gal Transplants, we respond to the profound and pertinent questions
asked by our distinguishedgeneral reporter,ProfessorJorge Sanchez
Cordero. We first address the U.S. experience with legal transplantsat
criticaltimes in the evolution of its legal system in the seventeenth and
eighteenth century colonial and post revolutionary war eras, followed
by the nineteenth and twentieth century development of the national
marketplace and the post-World War II globalization high tech elec-
tronic era. We then, in particular,address the matrimoniallaw of the
community property regime of Texas and Louisiana,within the politi-
cal, social, philosophical,and linguistic contexts of those states.
I. LEGAL HISTORY AND ETHNOLOGY: LEGAL CULTURE AND LEGAL

TRANSPLANT-CAPACITY OF LEGAL CULTURES
TO ACCEPT LEGAL TRANSPLANTS
In order to succeed, a legal transplant must be acceptable to the

general and legal culture in which it is inserted. Berkowitz, Pistor,
and Richard cogently express this requirement as follows: "For the
law to be effective, it must be meaningful in the context in which it is
applied so citizens have an incentive to use the law and to demand
institutions that work to enforce and develop the law."1 This article
* Edward N. Polisher Distinguished Faculty Scholar and Professor of Law, the
Pennsylvania State University Dickinson School of Law. It is a pleasure to acknowl-
edge the able assistance of Kate A. Klunk, Stephanie Savino, Paul Van Fleet, and
Karen Wilson, J.D. Candidates, The Pennsylvania State University Dickinson School
of Law.
** Alain A. Levasseur is the Hermann Moyse, Sr. Professor of Law and the Di-
rector of European Studies Program at LSU Law Center. My most sincere thanks of
gratitude to Tiffany Garland for her meticulous research, her rigorous sense of organ-
ization, her delicate touch at editing and, most of all, her enthusiasm for the task.
*** This paper is based on the U.S. National Report to the 2010 International
Congress of Comparative Law. It contains an overview of the U.S. experience with
legal transplants and also specifically addresses transplant of the Spanish and
French community property regimes into the legal regimes of Texas and Louisiana.
t DOI 10.5131/ajcl.2009.0019.
1. Daniel Berkowitz, Katharina Pistor, & Jean-Francois Richard, The Trans-
plant Effect, 51 AM. J. CoMP. L. 163, 167 (2003). This article also states "that for law
THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58
supports this conclusion. The relationship between legal cultures and

legal transplants is the subject of extensive analysis by many distin-
guished scholars.
What is a "legal culture" and what is the concept supposed to do
for us? A sampling of scholarly sources assists us in answering these
questions. Friedman tells us that legal culture refers to "ideas, val-
ues, expectations, and attitudes towards law and legal institutions,
which some public or some part of the public holds" and is "an essen-
tial intervening variable in the process of producing legal stasis or
change." 2 Cotterrell tells us that culture is "a convenient concept with
which to refer provisionally to a general environment of social prac-
tices, traditions, understandings, and values in which the law
exists."3 Huntington tells us that culture "refer[s] to the overall way
of life of a people, . . . the 'values, norms, institutions, and modes of
thinking to which successive generations in a given society have at-
tached primary importance.' ' 4 Sacco notes that culture means "not
...only the totality of everyman's knowledge [but] also the totality of
the values, traditions, customs, beliefs and ways of thinking which
characterize every human community. '5 L~vy-Bruhl states: "There
exists a necessary harmony between legal facts and the facts of cul-
ture .... Culture has an impact on the law."6 Atias states that "Law
is a constant dialogue between human nature, technical, economic
and historical conditions of life in a society, legal dispositions and
7
court decisions."
II. THE COMMON LAW TRADITION IN THE UNITED STATES-IMPACT

OF STATUTES, CODES, AND TREATIES
A. Transplantationof English Common Law to the United States

1. Colonial Era-Early Acceptance of the English Common
Law Tradition
From its origins in colonial times through its founding and con-
tinuing into modern times, the United States experienced substantial
to be effective, a demand for law must exist so that the law on the books will actually
be used in practice and legal intermediaries responsible for developing the law are
responsive to this demand." Id. at 167-68.
2. Lawrence M. Friedman, The Concept of Legal Culture:A Reply, in COMPARING
LEGAL CULTURES 34 (David Nelken ed. 1997).
3. Roger Cotterrell, The Concept of Legal Culture, in COMPARING LEGAL CUL-
TURES 27 (David Nelken ed.1997).
4. SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF
WORLD ORDER 41 (2003).
5. RODOLFO SACCO, ANTHROPOLOGIE JURIDIQUE, APPORT A UNE MACRO-HISTOIRE
DU DROIT 3, 13 (Alain A. Levasseur trans., Dalloz 2008).
6. HENRI LtvY-BRUHL, SOCIOLOGIE DU DROIT, QUE SAIS-JE 83 (Alain A. Levasseur
trans.1981).
7. CHRISTIAN ATIAS, EPISTEMOLOGIE DU DROIT, QUE SAIS-JE 122, 131-32 (Alain A.
Levasseur trans. 1994).
2010] IMPACT OF LEGAL CULTURE AND LEGAL TRANSPLANTS 3
interaction of different cultures." The interaction of legal cultures

and traditions within the United States has not been nearly as exten-
sive. Much of the U.S. legal system is deeply rooted in the English
common law tradition. 9 In the colonial era, the English language and
culture strongly influenced colonial governments to adopt English
common law traditions. However, as Justice Story writes, "The com-
mon law of England is not to be taken in all respects to be that of
America. Our ancestors brought with them its general principles and
claimed it as their birthright; but they brought with them and
adopted only that portion which was applicable to their condition."' 0
Each English colony took elements of English common law and
adapted it to its particular needs. Some colonies experienced civil law
influences and made attempts at codifying English case law." For
example, in Plymouth, Massachusetts, early settlers established a
simple code in order to make basic legal issues easy to understand
and adjudicate. 12 Massachusetts also developed an early penal code,
The Laws and Liberties of Massachusetts (1648), which codified crim-
13
inal offenses.
During the early colonial era, English legal books were not read-4
ily available and there were a limited number of trained lawyers.'
Additionally, since many local judges were not legally trained, sev-
eral colonies adopted judicial systems with strong biblical roots that
focused on moral precepts of right and wrong. 15 Reverend Nathaniel
Ward drafted his Body of Liberties text in 1641, which was adopted
by the colony of Massachusetts and was inspired by Mosaic code prin-
ciples.' 6 Ward's text referenced the basic tenets of the Ten
Commandments, as well as biblical books from Deuteronomy, Exo-
dus, and Leviticus.' 7 Massachusetts' Body of Liberties adopted
8. See David Gruning, La lettre d'Amerique: Vive la difference? Why No Codifica-

tion of Private Law in the United States?, 39 R.J.T. 153, 155 (2005).
9. See FRANCIS R. AumANN,THE CHANGING AMERICAN LEGAL SYSTEM 3-6 (1969);
see also E. ALLAN FARNSWORTH, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE
UNITED STATES 6-7 (3d ed. 1996); Herbert Pope, The English Common Law in the
United States, 24 HARV. L. REV. 6 (1910).
10. Van Ness v. Pacard,27 U.S. 137, 144 (1829) (In this landlord-tenant case, the
Court looked to custom in areas in which the law was silent).
11. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 113-19 (3d ed.
2005) [hereinafter FRIEDMAN, HISTORY OF AMERICAN LAW]; see also AuMANN, supra
note 9, at 12-13, n. 44.
12. See AUMANN, supra note 9, at 12-13.
13. See FRIEDMAN, HISTORY OF AMERICAN LAW, supra note 11, at 32.
14. See William B. Stoebuck, Symposium on the 21st Century Lawyer: Back to the
Crib?, 69 WASH. L. REV. 665, 667 (1994).
15. See John W. Welch, Biblical Law in America: HistoricalPerspective and Po-
tentials for Reform, 2002 B.Y.U. L. REv. 611, 614 (2002).
16. See Massachusetts Body of Liberties (1641), available at http://www.bartleby.
com/43/8.htm; see also J. Nelson Happy & Samuel Pyeatt Menefee, Genesis!: Scrip-
tural Citation and the Lawyer's Bible Project, 9 REGENT U.L. REV. 89, 109 (1997).
17. See Massachusetts Liberties of Nathaniel Ward, available at http://faculty.
cua.edu/pennington/Law508/MassachusettsLibertiesl641.htm.
Ward's text by making it a crime to commit idolatry, murder, witch-

craft, or adultery.' 8 For example, Body of Liberties states "[I]f any
person commits any willful murder, which is manslaughter, commit-
ted upon premeditated malice, hatred, or cruelty, not in a man's
necessary and just defense, nor by mere casualty against his will, he
shall be put to death."19
Civil laws in Massachusetts further reveal biblical roots in
crimes of theft, which required "restitution to the owner, as the Court
considering all circumstances shall judge most agreeable to the word
of God." 20 Early New Hampshire laws also made it a crime to work,
play, or drink alcohol "on the Lords day." 2 ' In addition, Penn-
sylvania's Quaker-influenced laws prohibited swearing and gambling
22
and encouraged "kindness, goodness, and charity" to others.
New immigrants included English trained lawyers ready to capi-
talize on new colonial markets in bustling American cities. They
brought with them William Blackstone's Commentaries of the Laws
of England.23 These English trained lawyers began to utilize English
law in commercial domestic transactions within the colonies, as well
as in transactions with parties in England. 24 Blackstone's Commen-
taries served as the standard legal text during the Revolution and
early days of the new nation. 25 Even President Abraham Lincoln, in
his law practice days, used Blackstone's Commentaries.26 In an 1858
letter, Lincoln wrote, "The cheapest, quickest and best way" [to be-
come a lawyer is to] read Blackstone's Commentaries . . . get a
license, and go to the practice and still keep reading."2 7 David Grun-
ing notes that Blackstone's Commentaries was so popular that the
number of copies sold in American colonies equaled the number of
28
copies sold throughout England.
18. See id.

19. See id.
20. See Welch, supra note 15, at 225-26. This language references Exodus 22:1-5,
regarding theft.
21. See FRIEDMAN, HISTORY OF AMERICAN LAw, supra note 11, at 35, n. 111.
22. See Mark McGarvie & Elizabeth Mensch, Law and Religion in Colonial
America, in THE CAMBRIDGE HISTORY OF LAW IN AMERICA, V. I, EARLY AMERICA (1580
- 1815) at 348-49, (Michael Grossberg & Christopher Tomlins, eds., 2008).
23. See Gruning, supra note 8, at 157-59.
24. See FRIEDMAN, HISTORY OF AMERICAN LAW, supra note 11, at 69-70; see also
Claire Priest, Currency Policiesand Legal Development in ColonialNew England,110
YALE L. J. 1303, 1308 (2001).
25. See FRIEDMAN, HISTORY OF AMERICAN LAw, supra note 11, at 463 n.1, (quoting
a letter from Lincoln, and citing Jack Nortrup, The Education of a Western Lawyer, 12
AM. J. LEGAL HIST. 294, 294 (1968)).
26. Id.
27. Id.
28. See Gruning, supra note. 23; AUMANN, supra note 9, at 30 n.68.
2. Post-Revolutionary War Adoption of the English Common

Law Tradition by State Constitutions, Statutes, or
Supreme Court Decisions-Limited Impact
of the French Civil Code Tradition
By 1776, each colony had some well-established and properly
prepared legal professionals trained in the English common law tra-
dition. 2 9 As each new state set out on the newly charted path of
independence from England, the need for English legal standards be-
came ever more apparent. After the Revolution, the states used
English law to fill gaps in their legal systems until they could estab-
lish their own legal norms by creating domestic case or statutory law.
Some states adopted English law by state constitution 30 or by stat-
ute,3 1 whereas other states adopted English law by judicial
29. See Stoebuck, supra note 14, at 668.

30. The language of adoption provisions in state constitutions varies. Some con-
stitutional provisions list specific dates for the adoption of English statutory law,
whereas other constitutional provisions adopt English common law generally. For ex-
ample, the Pennsylvania Constitution adopts "the common law and such of the
statutes of England as were in force in the Province of Pennsylvania on May 14, 1776,
and which were properly adapted to the circumstances of the inhabitants of this Com-
monwealth." 1 PA. CONS. STAT. § 1503 (2009). Some states, such as Delaware, have
adopted common law and statutes in effect during 1776. Del. Const. Schedule, § 18
(1831) (2009). For additional state constitutional provisions adopting English common
law, see Ky. CONST. § 233 (1792) (2009); MD. CONST. DEC. OF R., art.V (1867) (2009);
ALM Const. Pt. 2, Ch. VI, Art. VI (1780) (2005); MICH. CONST. art. III, § 7 (1908)
(2009); Miss. CONST. ANN. art. XV, § 274 (1892) (2008); N.H. CONST. pt. 2, art. 90
(1784) (2009); N.J. CONST. art. XI, § 1, 3 (1844) (2009); N.Y. CONST. art. I, §14 (1938)
(2009); OR. CONST. art. XVIII, §7 (1859) (2007); TENN. CONST. art. XI §1 (1870) (2009);
WIs. CONST. art. XIV, §13 (1848) (2008) (stating that the English common law is not
codified circa 1776, but is the starting point for continuing laws that may be abro-
gated by the Wisconsin courts).
31. Some adoption statutes list specific dates for the adoption of English statutory
law, whereas other statutes adopt English common law generally. For example, the
Rhode Island adoption statute incorporates English common law "introduced before
the Declaration of Independence." R.I. GEN. LAws § 43-3-1 (1896) (2009). However,
some states, such as Colorado, use more formal language and adopt English statutes
in existence "prior to the fourth year of James the First, excepting the second section
of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Eliza-
beth, and the ninth chapter of thirty-seventh Henry the Eighth." C. R. S.§2-4-211
(1876) (2008). For additional state constitutional provisions adopting English common
law, see ALA. CODE § 1-3-1 (1875) (2009); ALASKA STAT. § 01.10.010 (2009); ARK.CODE
ANN.§ 1-2-119 (1869) (2008); ARiz. REV. STAT. § 1-201 (1901) (2008); CAL.CIV. CODE
§ 22.2 (1850) (2008); C. R. S.§2-4-211 (1876) (2008) (accepted English common law by
legislative enactment and held until the adoption of the Colorado constitution); FLA.
STAT. § 2.01 (1829) (2009); O.C.G.A. §1-1-10(c)(1) (1784) (2009); IDAHO CODE § 73-116
(1845) (2008); 5 I. L. C. S.50/1 (1818) (2009) see 1-4 Powell on Real Property § 4.38
(stating that when Illinois became a state in 1818, the law included all enactments of
the Northwest Territory, including "the act of 1795 reviving the English common
law"); Burns IND. CODE ANN. § 1-1-2-1 (1807) (2009); KAN. STAT. ANN. § 77-109 (1816)
(2008); R. S. Mo. §1.010 (1821) (2009); MONT. CODE ANN. § 1-1-109 (1816) (2007); NEv.
REV. STAT. ANN. § 1.030 (1861) (2008); N.M. STAT. ANN.§ 38-1-3 (1876) (2008); N.C.
GEN. STAT. § 4-1 (1778) (2009); N.D. CENT. CODE § 1-01-03 (1816) (2009); OKL. STAT.
ANN. tit. 12, §2 (1866) (2009); S.C. CODE ANN. § 14-1-50 (1778) (2008); S.D. CODIFIED
LAWS § 1-1-23 (1889) (2009); TEX. Civ. PRAc. & REM. CODE ANN. § 5.001 (1836) (2009);
UTAH CODE ANN. § 68-3-1 (1895) (2009); VA. CODE ANN. § 1-200 (1776) (2009); 1 V.S.A
decisions. 32 Illustrative of adoption by judicial decisions is the lan-

guage of the Ohio Supreme Court in its 1854 opinion where it adopts
English common law by stating:
We profess to administer the common law of England, in so
far as its principles are not inconsistent with the genius and
spirit of our own institutions, or opposed to the settled hab-
its, customs, and policy of the people of this State, thereby
rendering it inapplicable to our situation and circumstances.
It has not been adopted by express legislative enactment,
but brought to the old States by our fathers, and constantly
claimed as their birthright. Its introduction here by their de-
scendants was almost a matter of course, and its terms and
foundation principles have been so interwoven with our con-
stitution and laws, so blended with the remedies we afford,
and so constantly enforced by our courts, that its implied
recognition by the government and the people, may be fairly
assumed; and if it cannot be said to be in force as the com-
mon law of England, it may not inaptly be termed the
33
common law of Ohio.
During the Revolution, and post-Revolution era, anti-British sen-
timent ran high. Some states, including New Jersey and Rhode
Island, adopted statutes prohibiting the use and transplantation of
English court decisions rendered after the date of the Declaration of
Independence in 1776. 34 The decrease of English influence after the
American Revolution, however, was not replaced by the newfound
friendship and influence of the French. Although French political phi-
losophy significantly influenced the American patriots, the French
legal system did not have the same impact on every-day Americans
and the American legal system. 3 5 Most Americans lacked the capac-
ity to speak, read, and write the French language at this time. A
majority of Americans traced their roots back to England and spoke
the English language. This made every-day access to the French Civil
§ 271 (1782) (2005); WASH. REV. CODE § 4.04.010 (1889) (2009); Wyo. STAT. ANN. § 8-
1-101 (1889) (2009). For an involved history of the reception statutes of the fifty
states, see Thomas, David A., Thompson on Real Property, 1-7 Thompson on Real
Property, Thomas Editions § 7.02 (2008).
32. See, e.g., Cleveland, Columbus & Cincinnati R.R. Co. v. Keary, 3 Ohio St. 201,
205-06 (1854) (A case involving common law of agency tort actions where a railroad
employee was injured as a result of the negligence of a railroad train conductor. Using
the principle of respondeat superior, the Ohio Supreme Court held that the railroad
was vicariously liable for its conductor's negligence.).
33. Id.
34. See Peter Stein, The Attraction of the Civil Law in Post-Revolutionary
America, 52 VA. L. REV., 403, 410 (1966); see also N.J. CONST. art. XI, §1, 3 (1844)
(2009); R.I. GEN. LAWS § 43-3-1 (1896) (2009).
35. See generally FARNSWORTH, supra note 9, at 9; see also Stein, supra note 34 at
432-33.
20101 IMPACT OF LEGAL CULTURE AND LEGAL TRANSPLANTS 7
Code impossible for most colonial Americans, and therefore, limited

the influence of the French Civil Code tradition. 36 Additionally, most
37
judges were not trained in French or any other foreign languages.
In the early 1800s, Blackstone's Commentaries (published from
1765-1769) and James Kent's Commentaries on the Law (published in
1826) served as the basic legal texts for the U.S. legal system and
made the need for codification less necessary. 38 Blackstone's Com-
mentaries achieved wide spread use and availability throughout the
early 1800s. 3 9 In many frontier areas, Kent's Commentariesserved as
the only legal text available. 40 Kent's treatise was written in English
and served as an easily transportable legal pocket guide to assist
frontier territories in establishing an English-based common law le-
gal system. 4 1 Blackstone and Kent's books were staple legal texts in
the few formal legal education programs established at this time in
the new nation. 42 As of 1834, 43
only a limited number of formal legal
education programs existed.
As the new nation's commercial, industrial, and agricultural in- 44
dustries expanded, new legal norms were needed to settle disputes.
Domestic law in the areas of property, contracts, and torts began to
36. See Jeanne Louise Carriere, From Status to Peron In Book I, Title 1 of the
Civil Code, 73 TUL. L. REV. 1263, 1275 (1999).
37. See Mark L. Jones, FundamentalDimensions of Law and Legal Education:An
Historical Framework - A History of the U.S. Legal Education Phase I: From the
Founding of the Republic Until the 1860s, 39 J. MARSHALL L. REV. 1041, 1056-57
(2006).
38. See generally Daniel J. Hulsebosh, Empire: An Empire of Law: Chancellor
Kent and the Revolution of Books in the EarlyRepublic, 60 ALA. L. REv. 377 (2009); see
also Brian J. Moline, Early American Legal Education,42 WASHBURN L. J. 755 (2004);
see also Jones, supra note 37.
39. See generally Hulsebosh, supra note 38; see also Moline, supra note 38.
40. See David Gruning, supra note 8, at 171.
41. See id.
42. See Jones, supra note 37, at 1056, 1085. For a discussion regarding legal edu-
cation in the United States from the colonial era until the 1860s, see generally Jones,
supra note 37.
43. As of 1834, the following legal education programs, still in existence today,
were in place:
- William & Mary (1779) http://law.wm.edu/about/index.php
- Columbia Law School (1793) http://www.law.columbia.edu/jd-applicants/about
cls/ourhistory/beginnings
- Harvard Law School (1817) http://www.law.harvard.edu/about/history.html
- Virginia Law (1819) http://www.law.virginia.edu/html/about/about.htm
- Yale Law School (1824) http://www.law.yale.edu/about/historyofyls.asp
- University of Cincinnati College of Law (1833) http://www.law.uc.edu/about/
history/
- Penn State The Dickinson School of Law (1834) http://www.dsl.psu.edu/about/
historical.cfm.
44. See FARNSWORTH, supra note 9, at 10. (Farnsworth states, "The customs of
western farmers and gold miners formed the basis for water and mining law in some
of the western states. Some of the prairie states where cattle-raising was the means of
livelihood and wood for fences was scarce, changed the English rule that the owner of
cattle is liable without fault for damage that they may cause to a neighboring crop-
owner.").
45
grow out of local usages, customs, and the needs of local citizens.
Like the practicing bar, English speaking judges and state legislators
with limited legal training turned to English common law to develop
their local and state legal systems. 4 6 The compatibility of general le-
gal and cultural traditions between the colonial population and the
English along with the longstanding tradition of stare decisis in En-
glish and colonial America facilitated the expansion of English
47
common law into the legal system of the United States.
French Civil Law influence and codification efforts in the United
States only began to take hold after the colonial era on the perimeters
of its territories in areas like Louisiana, Florida, and Texas. 48 Louisi-
ana's legal system benefited from both French and Spanish
influences. 4 9 French and Spanish culture, religion, monarchical gov-
ernment, and legal traditions were both very similar and made it
easier for the two influences to blend to create the Louisiana legal
system.5 0 Louisianans feared implementation of English common
law, since many did not understand the English language, U.S. cul-
ture, and with their monarchical tradition, also did not understand
the U.S. democratic governing system. 5 1 French cultural and lan-
guage predominance greatly influenced the creation of Louisiana's
First Constitution in 1812, which was written in French and pre-
served the civil law system. 52 As the years passed, French culture
and language remained predominant in Louisiana. Within this ambi-
ence, the codification movement remained strong even after the
53
French political presence ceased to exist.
B. The Field Codes

In 1839, David Dudley Field, a New York attorney, 54 began his
efforts to codify and reform civil and criminal procedure in New
45. See id.

46. See James A Henretta, Magistrates, Common Law Lawyers, Legislators, in
THE CAMBRIDGE HISTORY OF LAW IN AMERICA, VOLUME I, EARLY AMERICA (1580 -
1815) at 587, (Michael Grossberg & Christopher Tomlins, eds., 2008).
47. See id.
48. The influence of the French and Spanish civil code tradition in Texas and Lou-
isiana, particularly in the area of community property, is discussed infra Part III of
this article. See also Roger K. Ward, Note, The French Language in Louisiana Law
and Legal Education:A Requiem, 57 LA. L. REV. 1283, 1289 (1997).
49. See generally James T. McHugh, On the Dominant Ideology of the Louisiana
Constitution, 59 ALB. L. REV. 1579 (1996).
50. See id. at 1584.
51. See Ward, supra note 48, at 1290-92.
52. See generally McHugh, supra note 49.
53. See Ward, supra note 48, at 1293-94.
54. See id. at 68-69. David Dudley Field was born on February 13, 1805. HENRY
M. FIELD, THE LIFE OF DAVID DUDLEY FIELD 15 (1898). He attended Williams College
in Massachusetts and then moved to New York "to make himself master of the law."
Id. at 38. When Field's wife passed away in 1836, he crossed the sea to Europe for the
first time. Id. at 39-41. Upon his return to America in 1837, the country was suffering
56
York. 55 Field's efforts at codification were distinctively American.
The civil law tradition had limited influence on his work. 57 His main
purpose was to make the law simple, clear, concise,55 and more acces-
sible and understandable to the common man.5 9 His most sweeping
and revolutionary proposal was entitled "The Codification of the
Common Law." 60 Field's ideal had two elements: "first, that the law,
as enacted by human governments, should be founded in natural jus-
tice; and second, that it should be set forth in the simplest and
clearest language, so that it should be 'understanded of the peo-
ple."' 6 1 He did not intend to destroy the common law; rather, Field
wanted to preserve and exalt it "by cutting off its excrescences, and
by translating it into the language of the people, so as to make it
worthy, not only of the free States of America, but of all English-
speaking peoples on the habitable globe." 62 Over thirty states
from a financial collapse. Id. at 41. Field's law practice grew rapidly because people
needed "the ablest and most trusted legal advisers" during this critical time. Id. As he
worked, Field realized that he was interested in reforming the law to improve it and
to make it ideal for future generations. See id.
55. Field's first effort at reforming the law was in 1839, when in a letter to a
friend he wrote on the "Reform of our Judicial System." Id. at 46. That same year,
Field addressed a committee of the state legislature on the topic of reform. Id. The
Judiciary Committee did not adopt Field's legislative proposals. Id. However, he pub-
lished a series of articles in the Evening Post on "The Reorganization of the
Judiciary," which were collected in a pamphlet and widely circulated in 1846. Id. at
46-47. Field also spoke about his views to members of the New York Constitutional
Convention, and he continued to publish articles in the Evening Post. Id. at 47. The
Convention adopted a provision that "contained two law reforming provisions-one in
the first article, aiming at a general Code; and the other in the sixth article, aiming at
the Reform of the Practice." Id. These provisions "owed their existence very much to
[Field's] voice and pen." Id. In 1847, Field published a thirty-five page treatise enti-
tled, "What shall be done with the Practice of the Courts? Shall it be wholly reformed?
Questions addressed to lawyers." Id. He then composed a Memorial to the Legisla-
ture, which was signed by more than fifty members of the New York state bar. Id. at
48. The memorial stated that "a radical reform of legal procedure in all its depart-
ments is demanded by the interests of justice and by the voice of people." Id. By 1848,
a fragmentary Code of Procedure had been adopted in New York. Id. at 69. The state
legislature then passed an act to appoint a commission ("Code Commission") to codify
the whole substantive law. Id. Field was not a member of the Code Commission. See
id. After two years, the members of the Code Commission reported on only a small
fragment of law, which they did not recommend for adoption. Id. As a result, the
legislature decided to repeal the act that had established the Code Commission. Id.
Although the repeal felt like a fatal blow to Field, he never lost hope. Id. He pleaded
his cause in a series of Law Reform Tracts. Id.
56. See Gruning, supra note 8 at 177.
57. See id.
58. See Stephen N. Subrin, David Dudley Field and the Field Code: A Historical
Analysis of an EarlierProcedural Vision, 6 L. & HIST. REV. 311 (1988).
59. See id. at 319.
60. Field, supra note 54, at 70.
61. Id. at 44. The phrase "understanded of the people" is the actual early nine-
teenth century language used by Field.
62. Id. at 73-74.
adopted or based codes on Dudley Field's

64
Codes and the New York
civil63 and criminal codes of procedure.
Ultimately, the Field Codes "served as a kind of catalytic agent"
for reforms to state civil and criminal codes across the United
States. 65 Although Field submitted the Code of Criminal Procedure
to the New York state legislature in 1850, it was not adopted until
1882.66 Field's Code of Civil Procedure was defeated by the New York
State Senate. 6 7 A different Code of Civil Procedure, which was pre-
pared by M.H. Throop, though mainly founded upon Field's Code,
was adopted in segments between 1876 and 1880.68 The Codes for
New York are contained in five volumes. 69 Two of them-the Code of
Civil Procedure and the Code of Criminal Procedure- prescribed the
practice of courts and defined their jurisdiction. 70 Three of them-the
Civil Code, the Penal Code, and the Political Code (which was a com-
pilation of existing statutes that related to the government of the
state and the functions of its public officers)-addressed the substan-
7
tive law. '
C. Development of the National Marketplace-Evolutionof

Uniform Laws and the Uniform Commercial Code-
Limited Impact of Transplants
Development of the mass production/mass consumption national
marketplace with changes in the commercial, agricultural, and in-
dustrial landscape involving new ways of doing business and new
types of legal relationships created new legal needs including the
need for harmonized commercial law. This new body of harmonized
commercial law developed in the United States substantially inde-
pendently of transplants from other legal systems.
Commercial law in the United States developed primarily by
case law until the late nineteenth and early twentieth centuries. To-
day, the Uniform Commercial Code (UCC) replaces and augments the
uniform statutes prepared by the National Conference of Commis-
sioners on Uniform State Laws (NCCUSL)7 2 and enacted by state
63. See generally Stephen N. Subrin, How Equity Conquered Common Law: The
Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909
(1987).
64. See FARNSWORTH, supra note 9, at 68-69.
65. See FRIEDMAN, HISTORY OF AMERICAN LAW, supra note 11, at 293 (citing DUAN
VAN EE, DAVID DUDLEY FIELD AND THE RECONSTRUCTION OF THE LAW (1986)).
66. FIELD, supra note 54, at 87.
67. Id.
68. Id.
69. Id. at 81.
70. Id. at 82.
71. FIELD, supra note 54, at 81-82.
72. The organization has been known as the National Conference of Commission-
ers on Uniform State Laws, NCCUSL, since 1915 (when the name was changed from
"Commissioners on Uniform State Laws"). In the early 1970s, the Public Information
legislatures beginning at the turn of the ninteenth century and dur-

ing the first half of the twentieth century. Work on these uniform
statutes served as a prelude to the preparation of the UCC. A series
of uniform laws responding seriatim and individually with a statute
addressing each newly recognized need for uniformity was prepared
by the 73NCCUSL on individual 'types of transactions governing
"sales," "negotiable instruments , 74 "conditional sales,"7 5 "trust re-
ceipts,"76 "warehouse receipts,"7 7 "bills of lading,"7 8 and "stock
transfers."7 9 The lack of coherence among these individual uniform
acts, each dealing with its own discreet subject matter, and the need
for a single uniform commercial code to integrate the individual uni-
form acts was recognized in the early 1940s, when the
Commissioners initially met for the sole purpose of updating and
modernizing the Uniform Sales Act.8 0
During the more than decade-long preparation of the UCC be-
tween 1940 and 1952, there was relatively little use of comparative
research in the legislative drafting process. Consequently, the use of
transplants was limited. Commenting on this lack of interaction, Eric
Committee looked at the full title and recommended "ULC" as an all purpose acronym
but did not try to establish a single title. The current Public Information Committee,
at its October 2006 meeting, recommended shortening the Conference's name for PR
purposes. A motion was made and approved to use the name "Uniform Law Commis-
sion" (also "ULC") in all of our communications. The committee did not recommend
changing the legal name of NCCUSL but thought it important to adopt a consistent
"brand name." http://www.nccusl.org/nccusl/newsletters/UniformActivities/Uniform
Activities-print Nov07.pdf.
73. Uniform Sales Act (promulgated 1906, currently addressed in U.C.C. art. 2).
74. Uniform Negotiable Instruments Law (promulgated 1896, currently ad-
dressed in U.C.C. art. 3).
75. Uniform Conditional Sales Act (promulgated 1918, currently addressed in
U.C.C. art. 9).
76. Uniform Trust Receipts Act (promulgated 1933, currently addressed in U.C.C.
art. 9).
77. Uniform Warehouse Receipts Act (promulgated 1906, currently addressed in
U.C.C. art. 7).
78. Uniform Bills of Lading Act (promulgated 1909, currently addressed in U.C.C.
art. 7).
79. Uniform Stock Transfer Act (promulgated 1909, currently addressed in
U.C.C. art. 8).
80. See Robert Braucher, The Legislative History of the Uniform Commercial
Code, 58 COLUM. L. REV. 798 (1958); see also Handbook of the National Conference of
Commissioners on Uniform State Laws and Proceedings 144 (1944). For additional
information on the legislative history of the UCC, see generally Charles W. Mooney,
Jr., Survey: Uniform Commercial Code, 41 Bus. LAw. 1343, n. 4 (1986). Years later, in
1958, commenting on the Massachusetts experience with the earlier uniform acts and
subsequent enactment of the Uniform Commercial code, Walter Malcolm, a distin-
guished former president of the NCCUSL, noted the sequential evolution of the
various types of secured transactions laws in the United States and the need for a
uniform commercial code which would integrate these laws. See Walter Malcolm, The
Uniform Commercial Code as Enacted in Massachusetts,13 Bus. LAw. 490 (1958).
Stein, in his essay On Uses and "Nonuses" of Comparative Law In

Law Making,8 1 stated:
The ... Uniform Commercial Code, clearly the most success-
ful instance of American legal unification, was elaborated
jointly by the American Law Institute8 2 and the National
Conference of Commissioners on Uniform State Laws. The
preparatory working papers contain scattered references to
foreign-mostly British-law,8 3 and some of the Reporters
brought their comparative skills to bear on the text ....
D. Transplantationof SupranationalNorms via the Supremacy

and Treaty Clauses of the United States Constitution
Development of the post World War II global marketplace has
produced pressures for creation of new legal norms and harmonized
law.8 4 Major actors in this process on a global basis include The
Hague Conference on Private International Law, UNIDROIT, UNCI-
TRAL, and the International Chamber of Commerce, and on a
regional basis include the European Community, the Council of Eu-
rope, and the Organization of American States.8 5 These
organizations utilize a variety of instruments to meet these needs,
such as conventions (treaties), model laws, guidelines, "soft law"
(which contracting parties may voluntarily incorporate into their con-
tracts if they so desire) such as the UNIDROIT Principles of
InternationalCommercial Contracts and the International Chamber
of Commerce Incoterms.s 6 Transplantation of supranational legal
norms into the legal system of states of the United States via the
Supremacy and Treaty Clauses of the U.S. Constitution may create
difficulties. This is illustrated by U.S. case law implementing the
81. Eric Stein, On Uses and "Nonuses" of Comparative Law In Law Making, 72
Nw. U. L. REV. 211, 198 (1977).
82. The American Law Institute (ALI) is the leading independent organization in
the United States producing scholarly work to clarify, modernize, and otherwise im-
prove the law. The Institute consists of lawyers, judges, and law professors who draft,
discuss, revise, and publish Restatements of the Law, model statutes, and principles
of law that are enormously influential in the courts and legislatures, as well as in
legal scholarship and education. ALI has long been influential internationally and, in
recent years, more of its work has become international in scope.
83. Stein stated that these scattered references were to U.C.C. art. 3 § 1, com-
ment at 7 (Tent. Draft No. 1, 1946); U.C.C. art. 3, § 1, Comment at 4 (Tent. Draft No.
3, 1947). See also U.C.C. § 3-410, Comment 3 (1972) (citing English Bills of Exchange
Act); id. at § 3-347, Comment 4, in which the case of Price v. Neal, 3 Burr. 1354 (K.B.
1762), is discussed." Stein, supra note 81 at 198
84. See Louis F. Del Duca, Developing Global TransnationalHarmonizationPro-
cedures for the Twenty-First Century: The Accelerating Pace of Common and Civil
Law Convergence, 42 TEX. INT'L. L. J. 625 (2007).
85. See id. at 627.
86. See id. at 655-56.
87
Convention on the International Sale of Goods (hereafter CISG)
and the limited use of the CISG by the practicing bar in the United
States.
The Supremacy Clause of the U.S. Constitution in part provides
that "This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof: and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme law of the land... ."88 The Treaty Clause of the U.S. Consti-
tution in part provides that the President "shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties, pro-
vided two-thirds of the Senators present concur .... "89
While similarities exist between the results reached under the
CISG and Article 2 (Sales) of the UCC, significant differences also
exist. For example, UCC § 2-201 requires contracts for the sale of
goods over $500 to be in writing, 90 whereas the CISG does not require
87. The CISG became applicable in the United States effective January 1, 1988.
Currently, seventy-four nations have adopted the CISG. See Status - 1980 - United
Nations Convention on the Contracts for the Sale of International Goods, http://www.
uncitral.org/uncitral/en/uncitral-texts/sale-goods/1980CISG_status.html (last visited
Sept. 22, 2009). For a lengthy inclusive bibliography of the voluminous literature on
the CISG, see Electronic Library on International Commercial Law and the CISG,
http://www.cisg.law.pace.edu/cisg/bibliofbiblio.html (last visited Sept. 29, 2009).
88. U.S. CONST. art. 6 (emphasis added).
89. U.S. CONST. art. II, § 2. Missouri v. Holland, 252 U.S. 416, (1920), illustrates
transplant of a supranational norm into domestic law of a state which creates imple-
mentation problems where the legal culture and law already in existence in the
receiving state differs from that of the global environment from which the transplant
originates. Id. at 434. In Missouri, the Court held that treaties duly entered into by
the United States and legislation enacted by Congress to implement the treaty are
supreme over conflicting legislation enacted by a state even though the legislation
pertains to a power reserved to the states under the 10th Amendment and not
granted to the federal government by the Constitution. Id. at 434. Assertion of this
supremacy evolved out of a confrontation between the U.S. Congress and state gov-
ernments on the issue of whether the states or the national government had the
power to regulate the hunting of migratory birds. Id. at 430-32. The Congress had
initially passed laws limiting the hunting of migratory birds on the theory that their
migration across state and national borders empowered the Congress to enact such
legislation. Id. at 431-32. Arguing (within the 1920 concept of what constitutes the
Interstate Commerce Clause) that since the Constitution did not give Congress an
enumerated power to regulate hunting of migratory birds and that the power to do so
was therefore reserved to the states under the 10th Amendment, the states success-
fully attacked this theory. Id. at 432. The federal government then entered into a
1916 Treaty with Great Britain (which at that time still was in control of foreign
affairs for Canada) which required the federal government to enact any laws regulat-
ing the hunting of migratory birds. Id. at 431; see also Convention Between the
United States and Great Britain for the Protection of Migratory Birds, U.S.-Gr.
Brit., Aug. 16, 1916, 39 Stat. 1702. Congress subsequently enacted the Migratory Bird
Treaty Act of 1918 prohibiting the hunting of migratory birds. Missouri, 25 U.S. at
431. Applying the 1916 Treaty, the Migratory Bird Treaty Act of 1918, and the
Supremacy Clause of the Constitution, the Court in Missouri held invalid a law en-
acted by the state of Missouri authorizing hunting of birds migrating from Canada
through the United States. Id. at 434.
90. U.C.C. § 2-201 (2001).
a sales contract to be in writing.9 1 Furthermore, § 2-202 of the UCC

contains a parol evidence rule, 92 whereas Article 8(3) of the CISG dis-
93
places the parol evidence rule.
As indicated, Article 11 of the CISG displaces domestic statute of
frauds provisions requiring contracts of a certain monetary amount
to be evidenced by a writing in order to be enforceable. 94 It is not
surprising that implementation of Article 11 has been much
smoother in countries where the national law, like Article 11, abol-
ishes the writing requirement. However, in countries such as the
United States where a domestic statute of frauds provision for the
sale of goods transactions still exists, implementation of Article 11
was initially marred by non-application of the CISG. 9 5 Case law in
the United States initially also failed to apply Article 8(3) of the CISG
which abolishes the parol evidence rule by providing that in deter-
mining the intent of the party due consideration is to be given "to all
relevant circumstances of the case including the negotiations .... ,,96
As lawyers and judges became more familiar with the CISG these
errors were corrected in subsequent CISG cases in the United
97
States.
As comparativists, we can understand the phenomena of delay
and resistance in applying the new norms transplanted into a legal
system with a different legal culture. 98 The legal tradition, history,
and culture relating to use of juries in the United States is in sharp
contrast to the limited use of juries in the tradition, history, and cul-
91. CISG art. 11, 1489 U.N.T.S. 61, 19 I.L.M. 674, available at http://www.unci-
tral.org/pdf/englishtexts/sales/cisg/CISG.pdf.
92. U.C.C. § 2-202 (2001).
93. CISG art. 8(3).
94. CISG art. 11, 1489 U.N.T.S. 61, 19 I.L.M. 674.
95. See Louis F. Del Duca, Implementation of Contract Formation Statute of
Frauds,Parol Evidence, and Battle of the Forms CISG Provisions in Civil and Com-
mon Law Countries, 38 UCC L. J. 55 (2005). In GPL Treatment, LTD v. Louisiana-
Pacific Corporation,323 Or. 116, 118, 914 P.2d 682 (1996), the court ignored Article
11 of the CISG, which provides that "a contract of sale need not be concluded in or
evidenced by a writing and is not subject to any other requirement as to form." GPL
Treatment, LTD v. Louisiana-PacificCorporation;CISG art. 11, 1489 U.N.T.S. 61, 19
I.L.M. 674.
96. Del Duca supra note 95. The parol evidence issue was erroneously addressed
in the case of Beijing Metals & Minerals Import/Export Corp. v. American Business
Center, Inc. 993 F.2d 1178, (5th Cir. 1993). In Beijing, the court somewhat cavalierly
states that "[w]e need not resolve [the] choice of law issue [of whether Texas or the
CISG is applicable], because our discussion is limited to application of the parol evi-
dence rule (which applies regardless)."Id. at 1183 n.9 (emphasis added).
97. Del Duca supra note 95. In sharp contrast to the murky decision in GPL, the
court in Calzaturificio Claudias.n.c. v. Olivieri Footwear Ltd. No. 96 Civ. 8052 (HB)
(THK), 1998 WL 164824, at *3 (S.D.N.Y. Apr. 7, 1998) correctly applied Article 11 of
the CISG.
In MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.P.A., 144
F.3d 1384, 1392-393 (11th Cir. 1998), CLOUT Case No. 222, the court correctly ap-
plied Article 8(3) of the CISG, which in effect abolishes the parol evidence rule.
98. Del Duca supra note 95.
ture of most civil law countries. The statute of frauds and parol
evidence exclusionary rules in countries like the United States facili-
tate fact finding by juries composed of lay persons untrained in the
law. These laypersons may only on one or two occasions in a lifetime
be called on to serve as jurors to make findings of fact in litigated
cases.
The process in the civil law tradition is fundamentally different.
Most civil law countries assign fact finding to professional career
judges. These judges, with their legal training and extensive experi-
ence presumably do not need the protection of statute of frauds and
parol evidence exclusionary rules in performing their fact finding-
function. Therefore, it is not surprising that in some early U.S. court
decisions involving applications of the CISG, the courts failed to ap-
ply the statute of frauds and parol evidence provisions of the CISG.
The impact of differences in legal culture on the extent to which
transplants can be successfully incorporated into the law of the re-
ceiving state is further illustrated by the inclination of U.S. lawyers
to utilize the opt out provision of Article 6 of the CISG. 99 Article 6
permits parties to a contract otherwise subject to the CISG to opt out
of the CISG in its entirety or in part by merely including in their
contract a provision to that effect. 10 0 U.S. lawyers are not currently
utilizing the opt out provision as frequently as they did in the period
immediately following ratification of the CISG by the United States.
This may be due to a number of reasons. For instance, the develop-
ment of a substantial body of case law interpreting the CISG provides
more predictability for contracting parties as the number of cases in-
terpreting the CISG expands. 10 1 In addition, the inclusion of CISG
courses in law school curriculums, the increasing number of CISG
continuing legal education programs, and the development of excel-
lent websites like the CISG Database at the Pace University School
of Law, 10 2 Unilex,' 0 3 and Clout, 10 4 which make the CISG literature
99. Article 6 states that "the parties may exclude the application of this Conven-
tion or, subject to Article 12, derogate from or vary the effect of any of its provisions."
CISG art. 6, 1489 U.N.T.S. 60, 19 I.L.M. 673.
100. Id.
101. The CISG Database at the Institute of International Commercial Law at Pace
University Law School reports over 2,000 cases on the CISG. As part of its efforts to
foster a globaljuris consultorium contemplated by Article 7(1) of the CISG, the Insti-
tute also initiated a case translation program, and to date has translated over 1,500
cases. The CISG Database is accessed by persons from 160 countries. For a compre-
hensive library of CISG materials, see the CISG Database at www.cisg.law.pace.edu.
For an example of the comity that CISG 7(1) contemplates, see the Italian judgment
Rheinland Versicherungen v. Atlarex S.r.i, July 12, 2000 (http://www.cisg.law.pace.
edulcases/000712i3.html). This is a ruling of the Tribunale di Vigevano in which the
judge evaluates American, Austrian, Dutch, French, German, Italian and Swiss court
rulings as well as arbitral awards in reasoning through the CISG issues he addresses,
drawing on national reporters, texts and Internet websites for his case data.
102. See Electronic Library on International Commercial Law and the CISG, http:/
/www.cisg.law.pace.edu/ (last visited Sept. 22, 2009).
and case law readily available, is sensitizing the practicing bar to

possibilities for using the CISG to the advantage of clients. These ed-
ucational programs and facilities slowly develop a culture which is
receptive to the transplanted legal norm. The result is that use of the
opt out provision of Article 6 of the CISG is not the pro-forma choice
which it used to be when the CISG first became law in the United
States.
E. Conclusion
Dominance of English culture and language in the pre-revolu-

tionary colonial era and in the newly independent states during the
post revolutionary era facilitated reception of the English common
law tradition. However, development and enactment of uniform laws
in the late nineteenth century and the first half of the twentieth cen-
tury occurred substantially independently of impact of foreign law.
This was also true of the drafting and enactment by the states of the
Uniform Commercial Code during the period 1940-1968.
"[T]he beginning of full United States participation in interna-
tional efforts to unify private international law" occurred in 1964 10 5
with U.S. involvement in the final drafting stages of the CISG.
Ratification by the United States of the CISG in 1986 became effec-
tive on January 1, 1988.106 This ratification involved transplant of
some supranational legal norms pertaining to topics such as the stat-
ute of frauds and parol evidence rules into the legal system of states
of the United States via the Supremacy and Treaty Clauses of the
U.S. Constitution. Because of differences between the legal tradition,
history, and culture of the common law ambience of the states and
the legal tradition, history, and culture of the predominantly civil law
ambience in which the CISG was drafted, difficulties occurred in im-
plementation of these provisions in the early U.S. cases interpreting
103. See UNILEX on CISG & UNIDROIT Principles, http://www.unilex.info/ (last

visited Sept. 22, 2009).
104. See Case Law on UNICTRAL Text (CLOUT), http://www.uncitral.org/unci-
trallen/caselaw.html?lf=899&lng=en (last visited Sept. 22, 2009).
105. Peter H. Pfund & George Taft, Congress'Rolein the InternationalUnification
of Private Law, 16 GA. J. INT'L & CoMP. L. at 671, (1986). This was only six years
before the final text of the CISG was adopted at the 1970 Vienna Diplomatic Confer-
ence, that a United States delegation became involved in the drafting process. The
inclusion in the United States delegation of leaders of the United States legal commu-
nity like Soia Mentschikoff, John Honnold, and Alan Farnsworth was helpful in
producing a final text, which while often different in terminology, nevertheless in
most instances produces substantially similar final results on its application to spe-
cific cases. For a detailed history of the creation of the CISG, see JOHN HONNOLD,
DOCUMENTARY HISTORY OF THE UNIFORM LAW FOR INTERNATIONAL SALES (Kluwer)
(1989).
106. See supra note 87.
the CISG. These difficulties0 7were resolved in later CISG cases de-
cided in the United States.
Several occurrences are facilitating the development of a culture
in which U.S. lawyers are becoming better informed and therefore
more receptive to the CISG. These include the development of:
- a transnational body of case law decided by courts in each of
the countries which have ratified the CISG;
- reliable, electronic reporting of cases and scholarly commen-
tary now readily accessible around the world from systems
like the CISG Database at Pace University School of Law,' 0 8
Unilex, 10 9 and Clout websites; 110 and
- the inclusion of CISG subject matter in law school curricu-
lums and continuing legal education programs.
The result is that use of the opt out provision of Article 6 of the
CISG is no longer the pro-forma choice which it used to be when the
CISG first became law in the United States.
Because of the supremacy of provisions in a ratified treaty over
conflicting provisions of state law in the United States federal sys-
tem,1 1 ' proponents of a "cooperative federalism" are calling for
involvement of representatives of the states from the very beginning
of a treaty drafting process, and if the particular treaty is not self
executing and therefore requires implementation, they are also call-
ing for inclusion of representatives of the point of view of the states
11 2
from the outset of the implementation process.
Participation by the United States in the work of organizations
like The Hague Conference on Private International Law,
UNIDROIT, UNCITRAL, and the Organization of American States
continues.113

112. See Amelia H. Boss, The Future of the Uniform Commercial Code Process in
an IncreasinglyInternationalWorld, 68 OHIO ST. L. J. 349, 357, n. 34; 401 (2007); see
also Policy Position on International Activities, Uniform Activities eNewsletter (Na-
tional Conference of Commissioners on Uniform State Laws), May 2006, at 6, http://
www.nccusl.org/nccusl/newslettersfUniformActivities[UniformActivities-long-May
06.htm (last visited Sept. 22, 2009); NCCUSL, Sub- Committee Report Regarding Cri-
teria NCCUSL Involvement in International Legal Developments, http://www.nccusl.
org/nccusllDocs/Criteria IntlProjects.pdf (last visited Sept. 22, 2009); Sub- Committee
Report Regarding Criteria for Determining Possible NCCUSL Involvement in Inter-
national Legal Developments, http://www.nccusl.org/nccus/Docs/RptCriteria%20for
%20NCCUSL%20lnvolvement_072405.pdf (last visited Sept. 22, 2009).
113. Professor Boss notes that the United States only ratified three of the eight
conventions produced by UNCITRAL (Recognition and Enforcement of Foreign Arbi-
tral Awards; United Nations Convention on Contracts for the International Sale of
Goods - in part; and, the Convention of the Limitation Period in the International
Sale of Goods), one of twenty-seven proposed by UNIDROIT (Cape Town Convention
on International Interests in Mobile Equipment), and became a party to only five of
III. TEXAS AND LOUISIANA PERSPECTIVE
The two neighboring states of Texas and Louisiana have had, for
many decades, the same political history shaped by two major foreign
powers of the time, France and Spain. As a result, much of the centu-
ries old cultural heritage of these two Nations has inspired and
nourished, for many decades in the case of Texas and still today in
the case of Louisiana, very unique legal cultures which, besides other
ties, fashion and feed a close understanding between these two
states. These legal cultures are still, in this century, living illustra-
tions, more or less pronounced over the decades, of their sources and
foundations which can be traced to the philosophies, ideologies, reli-
gions, sociological models, and languages of the civil law systems of
the two sovereign powers that held sway, at one time or another, over
these two states.
A. Texas and Louisiana: Legal History

The States of Texas and Louisiana, having been governed in the
course of their histories by the same two European sovereign powers,
their legal histories have had much in common until the beginning of
the nineteenth century. This commonality of the two legal systems
lies essentially in the many identical sources of law then enforced by
Spain. Sometime into the nineteenth century, Texas and Louisiana
parted ways under the influence and pressure of different internal
cultural forces identified mainly with the country or countries of ori-
gin and of migration of their own population and the language spoken
by the majority of their respective population.
1. Spanish Sources of Law in Texas

There were many different compilations of the laws of the king-
dom of Castille, often inappropriately referred to as 'Spanish law',
which were implemented in the colonies of the kingdom. Among the
most important, by their content and their form, were Las Siete Par-
tidas and the Recopilaci6n de las Leyes de Indias. 1 14 As we shall see
below, they had much of an impact on the private law of both Texas
and Louisiana.
Las Siete Partidas were compiled in the thirteenth century but
not promulgated until 1348. Much Roman law and many concepts of
canon law were incorporated in Las Siete Partidas. In 1530, many
sections of the Partidas became the law of the colonies through their
insertion into the Recopilaci6n de Las Leyes de Indias or the laws of
the twenty-seven conventions of the Hague Conference on Private International Law

(Abolition of Legalisation - Apostille; Service Abroad; International Child Abduction;
and, Intercountry Adoption - Co-operation). See Boss, supra note 112, at 366.
114. On the Recopilacion, see Henry P. Dart, The Colonial Legal Systems of Arkan-
sas, Louisianaand Texas, 12 A.B.A. 645, (1926).
the Indies. Since Spanish law was the law of the land still in the
1830s and 1840s, it is rather common to find decisions of Texas courts
which build their legal reasoning on such Spanish sources. In the
case of Scott and Solomon vs. Maynard et uxor.,11 5 the court stated
that "the question next in order is as to the validity of a verbal sale
under the laws of Spain. In the fifth Partida, tit.5, law 6, it is said
that sale and purchase may be affected in two ways, etc." The court
went on to cite two Louisiana cases to the effect that "by the Spanish
laws, parol evidence was admissible to establish the alienation or ac-
116
quisition of immovable property. . ." Likewise, in Garretvs. Nash,
the Texas Supreme Court answered the question of whether in the
case of "the impoverishment of the widow, she was entitled to the
fourth part of her deceased husband's estate, notwithstanding her re-
marriage within the period of twelve months after his death" by re-
ferring to the Partidas and to the Spanish commentator Febrero.
In 1836, Texas adopted a constitution similar to that of the
United States but nevertheless reflecting "the two concepts that per-
meate the body of Texas law-dependence on the common law, plus a
recognition that in some respects the Spanish system is to be pre-
ferred. '1 17 In 1840, an act was passed marking the reception of the
common law, "but excepting from its coverage all land grants, min-
eral rights, and marital-property concepts. In these areas ... the civil
law prevailed." 1 18 On the whole, however, "[t]he civil law of Spain,
with its mass of legislation and codification and its body of abstract
principles, was not to come within the cultural knowledge of the An-
glo-American colonists to any extent. Their own deep-rooted
convictions of the traditions of the common law were to emerge." 1 19
2. French and Spanish Sources of Law in Louisiana
The most reliable account on the French and Spanish sources of

the Louisiana civil law system has been written by one of the three
drafters of the Louisiana civil Code of 1825, Louis Casimir Moreau
Lislet, who had also been the principal drafter of the first Louisiana
Civil Code of 1808.120 In the "Translators' Preface" of "The Laws of
Las Siete Partidas which are still in force in the state of Louisiana,
Moreau Lislet and Henry Carleton explained why the laws of Spain
115. Dallum 548, 551 (Tex. Sup. Ct. 1843).

116. Dallum 497, 498 (Tex. Sup. Ct. 1843).
117. MARIAN BONER, A REFERENCE GUIDE To TExAS LAW & LEGAL HISTORY 9
(1976).
118. Id. at 10.
119. Clody, Frances Spears. Facets of Texas Legal History, 52 SMU L. Rev. 1653,
1665 (1999).
120. The second drafter of the 1808 Civil Code was James Brown; the other two
drafters of the Civil Code of 1825 were Pierre Derbigny and Edward Livingston.
were still in force in Louisiana at, and after, its transfer to the United
States:
The customs of Paris and the ordinance of the kingdom,
were observed in Louisiana while it remained under the do-
minion of France ... This state of things, existed until the
month of August 1769, when count O'Reilly took possession
of that country in the name of the king of Spain . .. [and]
abolish[ed] the authority of the French laws .... substituting
those of Spain in their stead .... The return of Louisiana
under the dominion of France, and its transfer to the United
States did not for a moment, weaken the Spanish laws in
that province. The French, during the short continuation of
their power, from the 30th November to the 20th December
1803, made no alteration in the jurisprudence of the country;
and the government of the United States left the task of leg-
islation to the people of Louisiana themselves...,,121
By the Act of March 26, 1804, the U.S. Congress provided that
"The laws in force in the said territory (of Orleans), at the commence-
ment of this act, and not inconsistent with the provisions thereof,
shall continue in force, until altered, modified, or repealed by the leg-
islature." Subsequently, the Territory of Orleans Legislative Council
adopted an Act, in May 1806,
declaring ... that the laws which remain in force,...
are the laws and authorities following, to wit: 1. The roman
Civil code, as being the foundation of the spanish law, by
which this country was governed before its cession to France
and to the United States ... ; 2. The Spanish law, consisting
of the books of the recopilation de Castilla and autos
acordados... ; the seven parts or partidas of the king Don
Alphonse the learned... ; the [fueroreal] ... ; the recopila-
tion de Indias... the laws of Toro .... ; the whole aided by
the authority of the reputable commentators admitted in the
courts of Justice...122
One will have noticed the close resemblance, not to say the glar-
ing identity in the Spanish sources of the legal systems of Texas and
Louisiana up to the 1800s. Thereafter, Louisiana would continue on
its own path in preserving its legal heritage and formalizing it in
adopting civil codes. Still, we can find in some legal institutions of the
legal systems of Texas and Louisiana many common traces of their
121. The Laws of LAS SIETE PARTIDAS which are still in force in the State of
Louisiana, translated by L.Moreau Lislet & Henry Carleton,Vol.1, 1820.
122. ALAIN LEVASSEUR, MOREAU LISLET: THE MAN BEHIND THE DIGEST OF 1808, at
48, 54-56 (2008).
"civil law" legal heritage. We have selected to look at the status of

women as spouses in the family and the legal regimes of successions
as institutions that most likely reflect the incorporation of endoge-
nous cultural traits or ideologies or legal mechanisms identifiable
with one active and radiating societal group12as they are transplanted
3
into a passive and recipient societal group.
B. Status of Women as "Wives": Texas and Louisiana

1. Family Property Rights in the Southwestern States
Spanish law has left a permanent imprint on the matri-

monial property law of the Southwestern and Western
States... [and] has had more staying power than Spanish
civil law generally. . . [which] could not . . . survive the
wholesale reception of the common law .... The ganancial
system of matrimonial property was readily accepted by the
settlers as best designed for local conditions, and it has sur-
vived because, with appropriate modifications, it is even
today demonstrably superior to any other. Forced heirship,
however, rapidly succumbed to the individualistic spirit of
124
Anglo-American law.
As this excerpt indicates, a clear divide emerged between the col-
onies or states of the northern part of the United States and the
states of Texas and Louisiana, which adopted divergent legal solu-
tions than the other states regarding the rights of wives on the
property of the marriage. Over the decades, the rights of a wife on the
property of the marriage became equal to those of a husband as justi-
fied by moral and human values, as well as by sociological and
economic considerations. These values and considerations merged
into constitutional principles and gave the latter an 'aggressive'
destiny. These principles of individualism, autonomy, equality, and
liberty fostered major and rapid changes in all human relationships
and transformed the economic and financial relationship between
spouses and the rights of children to claim a share in the succession
12 5
of their parents.
2. Property Rights of 'Wives' in Texas: Community Property
Spanish marital property law differentiated ownership

from control. Though husband and wife owned the commu-
123. MARYLYNN SALMON, WOMEN AND THE LAW OF PROPERTY IN EARLY AMERICA
(1986).
124. Hans W. Baade, The Form of Marriage in Spanish North America, 61 COR-
NELL L. REV. 1, 3-4 (1975). See also, Henry P. Dart, Marriage Contracts of French
Colonial Louisiana, 17 LouisINA HISTORICAL QUARTERLY, 229-241 (1934).
125. U.S. CONST. amend. 19 §1; INT'L. DEC. of HUM. RTS. art. 17.
nity property together, the husband alone disposed of it...

He managed the community property and could transfer the
property in his name only. . A wife had control of the com-
munity property provided her husband consented .... The
law presumed that the husband's control was for the benefit
of both [spouses] .... In recognizing married women as prop-
erty owners, the Spanish law sharply differed from the
common law. Unlike the English common law, the Spanish
law offered married women a distinct legal identity ....
Soon after Mexico had achieved independence from Spain,
Anglo-Americans began migrating to the Texas territory ....
When Texas disgorged Mexican authority, what remained
was a mix of cultures, each accustomed to the laws of its par-
ent country. Anglo-Americans were accustomed to the
common law, while the old French and Spanish inhabitants
were familiar only with the civil law. Rather than adopt one
system over the other, the young republic chose from each
custom those laws that best suited its needs .... As early as
1835, Texas began to build its legal system through hybridi-
zation and improvisation . . . . [In] 1836, the provisional
government declared that the laws of Louisiana would con-
trol all proceedings with respect to successions, probate
matters, and the like. There was, however, a proclivity to an-
glicize the law as much as possible. . . During this time
Texas formulated its first marital property statute . . . [In]
1840, the Texas legislature . . . adopted the common law of
England, repealed specific Mexican laws, and defined mari-
tal property rights... [by] defin[ing] a wife's paraphernalia
according to the English common law and simultaneously
embrac[ing] the Spanish principles of community prop-
erty .... Despite the infiltration of Anglo-Americans, the
Spanish influence on marital property laws had.. . "remark-
able staying power". . . . In a most fundamental way, the
married women's property acts of Texas represented the col-
lective solutions of a frontier community ...deviat[ing] from
the Anglo-European tradition which held an individual re-
sponsible for his or her own calamities . . . [An] 1848 act
expanded a husband's powers over his wife's property ...
declared the husband sole manager of all her separate prop-
erty ... and sole administrator of the community property
... [An] 1856 law . . . protect[ed] a wife's interests in the
community by protecting her heirs and her creditors ....
[and in] 1913 . . . a comparatively major change in marital
property rights occur which inaugurated a new phase in the
development of Texas marital property law. That year, mar-
ried women received partial control of their separate
20101 IMPACT OF LEGAL CULTURE AND LEGAL TRANSPLANTS 23
property and control of a segment of the community

12 6
property.
From... [1913] until 1967, various attempts were made
to clarify the law concerning management and control. To
generalize, community property was divided into two catego-
ries: special and community property. The wife managed and
controlled the special community (community property de-
rived from her income and from rents and revenues from
separate property) and the husband managed and controlled
the remaining or general community property .... Amend-
ments to the Texas Family Code in 1967 and 1969 granted
each spouse "the sole management, control, and disposition
of his or her separate property." As regards the community
property, 'during marriage, each spouse has the sole man-
agement, control, and disposition of the community property
that he or she would have owned if single ... The distinction
between control and ownership must be kept in mind when
dealing with community property. Each spouse owns a one-
half interest in all community funds regardless of which
spouse has management and control .... As a general rule,
the personal liability of the spouses and the corresponding
property liability of their estates follow the rules governing
spousal ownership and control rights. Each spouse is there-
fore personally liable for any breach of a contractual
127
obligation or for injuries caused to others.
Some judicial decisions illustrate how the borrowings from an en-
dogenous and long established legal culture can be fashioned and
"transfused," in whole or in part, under some "exportable format" to
accommodate and provide solutions to legal issues that are identical
in an importing and passive legal culture. To follow up on the doctri-
nal excerpts given above on the status of "wives" in the context of the
family's property, we have chosen to give here extracts of a few deci-
sions of Texas courts on the same issue to ascertain whether there
were differences between the "formal" sources of law and their "appli-
cation" by judges.
In the case of Edringtonv. Mayfield (1849) we read the following:
At common law [the wife] had no separate estate. Her
capacity to hold property in her own separate right and even
her legal existence were merged by the coverture in that of
the husband. But these principles and rules of law . . . are
126. This long excerpt is from KATHLEEN E. LAzARou, CONCEALED UNDER PET-
TICOATS: MARRIED WOMEN'S PROPERTY AND THE LAW OF TExAS 1840-1913, at 47-62, 75-
79, and 81-82 (1986).
127. GAYLORD A. JENTZ, TExAs FAMILY LAW 51-54 (7th ed. 1992).
not only disregarded, but totally expunged from our code of

jurisprudence .... [A wife's] capacity to hold property sepa-
rate and apart from her husband is as complete and perfect
as that of the husband to hold in his own right separate and
apart from his wife . . . It is true that . . . certain onerous
restrictions [are] imposed upon her ability to deal with her
estate as a feme sole. But this does not affect her right to
hold the property, but rather the reverse. They were de-
signed to protect that right, and to preserve the wife from
yielding to undue influences in the voluntary alienation of
her property .... This provision of the Constitution and the
previous statute had abolished all the rules of the common
law . .128
In Andrew J. Yates v. Sam Houston129 one question was whether
land granted under the colonization law of 1823 should be regarded
as community property, and thus subject to division between the sur-
vivor and the heirs of the deceased spouse. The Court wrote:
In "El Dictionario de Legislacion" [community property]
is defined to be such as the husband and wife, or either of
them, during the matrimony shall acquire by purchase, or by
their labor and industry .... This definition is founded upon
the laws in title 4, lib.X, Novissima Recopilacion .... It can
not be supposed that a legislator, under the Spanish system,
would intend that in a grant to be made to a family... [and]
that the rights of the wife as partner in the conjugal society
128. Edrington v. Mayfield, 5 Tex. 363, 365-368 (1849). In the same year, in the
case of McIntyre v. Chappell, 4 Tex.187, 198-199 (1849), we read:
In Louisiana it is held that by the Spanish law, on the dissolution of mar-
riage, everything holden by the husband and wife is presumed to be common
property .... The Supreme Court of that State have [sic] said that by the
Spanish laws everything purchased during the marriage fell into the com-
mon stock of gains ... ; but that to this rule there were many exceptions.
129. 3 Tex. 433, (1848). In the 1882 case Elizabeth Routh v.W.A.Routh, the court
stated:
The law of our state then impresses upon the marriage relation inflexible
and continuous durability, and at its formation, ipso facto, establishes a com-
munity of interest in all property that may be thereafter acquired by either of
the matrimonial partners, except that acquired by gift, grant or descent.
Under our law it may be said, as it is expressed by the Louisiana civil code,
that every marriage superinduces, of right, partnership or community in all
acquisitions. This conjugal partnership is not established upon the basis of
equality of contribution of labor or capital by the parties to it, and it exists
and is enforced under principles which recognize perfect union and equality
of enjoyment of gains, and the division thereof, regardless of all inequalities
induced by accident, misfortune, disease, idleness, or even wasteful habits of
one or the other of the spouses. Such was the attribute assigned to this sys-
tem by the Spanish civil law.
57 Tex. 589 (1882).
should be disregarded. The presumptions of law strongly

favor the rights of the community...130
3. Property Rights of "Wives" in Louisiana: Community

Property
In its 1806 Resolution, the Legislative Council empha-

sized that "every one knows . . . how successions are
transferred, what is the power of parents over their children
and the amount of property of which they can dispose to
their prejudice, what are the rights which result from mar-
riages .. .and the manner in which one can dispose by will
. .." The principles underlying the laws that govern each of
these activities are shaped by the civilian concept of the
"family." In the civil law, "the family is the basic social
group" serving as the basis for all groups but is the most im-
portant of them . . . .The concept of the family and the
corresponding recognition of the need to protect familial
bonds lies at the heart of one of the most praised of all civil-
1 31
ian institutions-the community property regime.
The "community property" regime of the Louisiana civil law
dates back to the Custom of Paris 132 and to the Spanish law "prevail-
1 33
ing at the time .... Louisiana was ceded to the United States."
The community property regime, or "community of acquets or gains"
130. Id. at 452-456.

131. Neely S. Griffith, When Civilian PrinciplesClash with the Federal Law: An
Examination of the InterplayBetween Louisiana'sFamily Law and FederalStatutory
and Constitutionallaw, 76 TuL. L. REV. 519, 521-522 (2001).
132. Henry P. Dart writes that "under Art.220 of the Custom of Paris ...a mar-
riage in Louisiana without a marriage contract established a legal community, but
the Contract was necessary if other agreements were needed-agreements that would
render certain the rights of the respective parties . . . ." supra note 14, at 239-240.
133. Nina Pugh, Spanish Community of Gains, 30 LA. L. REV. 1, 2 (1969).
In Spanish legal concept the spouses were deemed to have formed a partner-
ship by their marriage, the capital of which was represented by their
separate patrimonies and energies ...In the words of Matienzo the partner-
ship was based on "the fact of their undivided habit of life ordained by both
natural and divine law, the fact of the mutual love between husband and
wife, which should be encouraged...
Nina Pugh, note 22 supra at p. 3-4.
Whereas the wife owned equally with her husband, he, as "business man-
ager" of the partnership, actually administered the community of gains. For
this reason the husband of ancient Spain and the sociedad were identical in
the eyes of all third persons ...In the Spanish concept the wife "had" (Span-
ish "ayan" from the Latin "habere") the ganancialesin the sense of owning
and possessing them; but she did not "hold" (Spanish "tiene" from the Latin
"tenere") them. The husband, who was said "to have and to hold" the
ganancialeswas empowered to act in regard to them.
Id. at 12.
was known in Spanish law as "sociedad de gananciales.' u 34 By com-

paring the pertinent articles of the first Louisiana civil Code, the
Code of 1808,135 and the civil Code in force today in Louisiana,1 36 one
can identify the major changes that occurred in the legal status of a
"wife" married under the community property regime and, by con-
trast, the loss of the privileged status that the "husband"
1 37
had enjoyed
under the original "community of acquets or gains."
In the 1800s, the Louisiana family was not only a social
institution, but also the most important unit of production in
the countryside. At that time in the United States, family
and marriage were directly related to social standing and ec-
onomic status. Wealth was primarily in the form of land, and
there was a belief that such wealth should stay within the
bonds of blood ...The law, as reflected in the Louisiana Di-
gest of 1808, promoted . . . the "family of the Civil 38Code,"
similar to that contemplated by the Code Napol6on.'
The community property regime is based on the "ideal of
mutuality." Unlike common law systems where the 'chattel
theory' of the wife often prevailed, civilians viewed the insti-
tution of marriage as a "civil contract" or a "partnership"
where the labor of each spouse, even the non employed
39
spouse, is recognized and protected.'
134. Id. See also "A Digest of the Civil Laws now in force in the Territory of Orle-
ans (1808), The de la Vergne manuscript, A reprint of Moreau Lislet's Copy of (1968).
135. See Louisiana Civil Code of 1808: Section V. Book 3,Tit.5.Ch.2. "Of the Part-
nership or Community of Acquets or Gains."
Art. 63. Every marriage contracted within this territory, superinduces of
right, partnership or community of acquets or gains. This community or part-
nership of gains takes place whether there be a marriage contract between
the parties or not...
Art. 64. This partnership or community consists of the profits of all the
effects of which the husband has the administration and enjoyment; of the
produce of the reciprocal labor and industry of both husband and wife; and of
the estates which they may acquire during the marriage...
Art. 66. The husband is the head and master of the partnership or com-
munity of gains; he administers said effects; disposes of the revenues ....
and may sell and even give away the same without the consent and permis-
sion of his wife, because she has no sort of right in them until her husband be
dead....
Art.71. It is understood that in the partition of the effects of the partner-
ship or community of gains, both husband and wife are to be equally liable
for their share of the debts contracted during the marriage...
136. See LA. CIV. CODE Arts. 2334-2369.8.
137. In the 1808 Code, one will note the use of "or" in between "acquets or gains."
Therefore, "acquets" were the same thing as "gains"; two words meaning the same
thing. However, in the 2009 version of the Louisiana Civil Code the "or" has been
replaced by "and": "The Legal Regime of Community of Acquets and Gains". [LA. Civ.
CODE Arts. 2334-2369.8].
138. Kathryn Venturatos Lorio, The Changing Concept of Family and its Effect on
Louisiana Succession Law, 63 LA. L. REV. 1163 (2003).
139. Griffith, supra note 131, at 523.
The Articles of the Digest on the community property regime

were carried over in the Louisiana civil Codes of 1825 and 1870 and
much elaborated upon by the jurisprudence. Two cases illustrate the
"historical" approach taken by the majority of cases without reading
the relevant Code Articles in light of the then existing circumstances
of the 19th and 20th centuries and the major achievements towards
equality made by women and wives ever since the law of Spain had
become the law of Louisiana.
In the 1847 case Guice v. Lawrence, the court said that:
The laws of Louisiana have never recognized a title in
the wife during marriage, to one-half of the acquets and
gains. The rule of the Spanish law . . . [as] laid down by
Febrero... [is that] [t]he ownership of the wife.., is revoca-
ble and fictitious during marriage. As long as the husband
lives and the marriage is not dissolved, the wife must not say
that she has gananciales,nor is she to prevent the husband
from using them, under the pretext that the law gives her
one-half. But, soluto matrimonio, she becomes irrevocably
the owner of one undivided half ... The husband is, during
marriage, real y verdadero dueno de todos, y tiene en el
efecto de su dominio irrevocable. Febrero... The provisions
of our Code on the same subject are the embodiment of those
140
of the spanish law, without any change.
In the 1973 case Neva F. Chreech v. Capitol Mack, Inc., Justice
Barham, writing for the majority, conducted an extensive research in
the many varied and relevant Spanish and French sources and their
interpretation by Louisiana courts and scholars. The majority stated
that:
Our Court has previously held that Spanish law is the
source for Civil Code Article 2403, which . . . is an almost
verbatim translation of Fuero Real (1255), Book 3.... The
wife ... owns an interest in the community but the owner-
ship of that interest does not consist of ownership of
particular assets ... [T]he husband owns one-half of the in-
dividual assets of the community in perfect ownership ...
[and] also ha[s] the administration(use and enjoyment) of
the other one-half with power of alienation. The wife owns
one-half of the individual assets of the community in imper-
fect ownership ... 1 [which] becomes perfect on dissolution of
14
the community.
140. 2 La. Ann. 226, at 228 (La. 1847).

141. 287 So. 2d 497, 504-508 (La. 1973), cert. den., 299 So. 2d 802 (La. 1974). To the
contrary, see Dixon v. Dixon's Executors, 4 La. 188 (1832); United States Fidelity and
Guaranty Company, 252 La.227, 210 So.2d 328 (1968).
The role, or the lack thereof, of women who would take on the
legal status of "wives" when marrying under the community property
regime, came under severe and justified criticism in the 1970s and
80s, when legislators, judges and scholars acknowledged and decided
to confront the glaring reality of the prominent role that women con-
tributed to the social and economic life of the state of Louisiana. As
one commentator noted at the time,
the role of the married woman is not what it was when
the Louisiana Civil Code was drafted, even in its most recent
revision of 1870. Today the wife, in many families, is an im-
portant contributor to the family's income... Although she is
still fighting for equal pay to her male counterpart, the im-
portance of the working wife's contribution to her family's
income is considerable . . . The old patriarchal view of mar-
riage is being replaced by the view that equality in decision-
making fosters healthier relationships . . . [T]he Louisiana
system may be unconstitutional because sex-based differen-
tiations are essential to that system as presently structured.
The current standard of review of sex-based discrimination
under the equal protection clause, as articulated in Reed v.
14 2
Reed, is the reasonableness test.
A major challenge to the Louisiana "head and master" status
given the husband under the matrimonial regime of the community
property came in the 1979 case Kirchberg v. Feenstra.14 3 The court
held that the pertinent article of the Louisiana Civil Code (Art. 2404)
established a gender-based classification that violated the equal pro-
tection clause of the fourteenth amendment. Under the Supreme
Court's jurisprudence, Louisiana failed to show that "the selection of
the husband as the manager of the community estate.., is substan-
tially related to achieving [an important governmental] objective,"
and that Article 2404 "bears a closer or more substantial relationship
to [that] objective ... than would a gender-neutral method of select-
ing the community manager."
While Kirchberg was pending, the Louisiana legislature
amended the Civil Code articles on the community property regime
by an Act of 1979. Under the new law, married women were given "a
greater share in the management of the community of gains... [and]
assumed a far greater financial responsibility at the expense of cer-
tain privileges and protection formerly accorded them in regard to
1 44
their property rights."
142. Cynthia Shoss Wall, Management of the Louisiana Community Property Sys-
tem: The Need for Reform, 48 TUL. L. REV. 591, 591-593 (1974).
143. 609 F.2d 727, 734-735 (5th Cir. 1979).
144. Nina Nichols Pugh, The Evolving Role of Women in the LouisianaLaw: Recent
Legislative and Judicial Changes, 42 La. L. Rev. 1571, 1586, 1596 (1982); see Robert
As society changed in the twentieth century, so did the

concept of family. As Louisiana became less agrarian, as the
number of women in the work force increased dramatically,
as divorce became not only possible, but a usual occurrence,
the precepts of the 'family of the Civil Code' were viewed as
less relevant .... This changed family is not unique to Loui-
siana or even to the United States ... The legal response to
this different concept of family is observable in the changes
in Louisiana succession laws that were significantly influ-
enced by Louisiana's common law neighbors who
emphasized personal autonomy in dealing with one's
1 45
estate.
It is, therefore, no surprise that the provisions of today's Louisi-
ana Civil Code on the community of property regime reflect the
influence, not to say the pressure, of these creative forces of a socio-
logical and economic nature, as well as the imprint of contemporary
philosophical theories combined with the binding nature of constitu-
14 6
tional law pronouncements issued by federal courts.
A. Pascal, Louisiana's 1978 Matrimonial Regimes Legislation, 53 Tul. L. Rev.105

(1978).
145. Lorio, supra note 138 at 1164-1165.
146. Articles 2336, 2338, 2346, 2347, 2353, 2354, 2360, 2369, 2369.1, 2369.2 of the
2009 Louisiana Civil Code illustrate the new concept of community property.
30 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 58

DEL DUCA, Louis F., LEVASSEUR, Alain A., Impact of Legal Culture and Legal Transplants On The Evolution of The U.S. Legal System, 2010

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Impact of Legal Culture and Legal Transplants on the

In this U.S. National Report to the 2010 International Congress

I. LEGAL HISTORY AND ETHNOLOGY: LEGAL CULTURE AND LEGAL

In order to succeed, a legal transplant must be acceptable to the

supports this conclusion. The relationship between legal cultures and

II. THE COMMON LAW TRADITION IN THE UNITED STATES-IMPACT

A. Transplantationof English Common Law to the United States

interaction of different cultures." The interaction of legal cultures

8. See David Gruning, La lettre d'Amerique: Vive la difference? Why No Codifica-

Ward's text by making it a crime to commit idolatry, murder, witch-

18. See id.

2. Post-Revolutionary War Adoption of the English Common

29. See Stoebuck, supra note 14, at 668.

decisions. 32 Illustrative of adoption by judicial decisions is the lan-

Code impossible for most colonial Americans, and therefore, limited

B. The Field Codes

45. See id.

adopted or based codes on Dudley Field's

C. Development of the National Marketplace-Evolutionof

legislatures beginning at the turn of the ninteenth century and dur-

Stein, in his essay On Uses and "Nonuses" of Comparative Law In

D. Transplantationof SupranationalNorms via the Supremacy

a sales contract to be in writing.9 1 Furthermore, § 2-202 of the UCC

and case law readily available, is sensitizing the practicing bar to

Dominance of English culture and language in the pre-revolu-

103. See UNILEX on CISG & UNIDROIT Principles, http://www.unilex.info/ (last

107. See supra note 95.

III. TEXAS AND LOUISIANA PERSPECTIVE

A. Texas and Louisiana: Legal History

1. Spanish Sources of Law in Texas

the twenty-seven conventions of the Hague Conference on Private International Law

2. French and Spanish Sources of Law in Louisiana

The most reliable account on the French and Spanish sources of

115. Dallum 548, 551 (Tex. Sup. Ct. 1843).

"civil law" legal heritage. We have selected to look at the status of

B. Status of Women as "Wives": Texas and Louisiana

Spanish law has left a permanent imprint on the matri-

2. Property Rights of 'Wives' in Texas: Community Property

Spanish marital property law differentiated ownership

nity property together, the husband alone disposed of it...

property and control of a segment of the community

not only disregarded, but totally expunged from our code of

should be disregarded. The presumptions of law strongly

3. Property Rights of "Wives" in Louisiana: Community

In its 1806 Resolution, the Legislative Council empha-

130. Id. at 452-456.

was known in Spanish law as "sociedad de gananciales.' u 34 By com-

The Articles of the Digest on the community property regime

140. 2 La. Ann. 226, at 228 (La. 1847).

As society changed in the twentieth century, so did the

A. Pascal, Louisiana's 1978 Matrimonial Regimes Legislation, 53 Tul. L. Rev.105

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