The Legal Fiction of "Clear Text" in Willis-Knigthon v. Caddo-Shreveport Sales and Use Tax Comission

"[T]here is only one term that is appropriate for characterizing the usage that the so-called doctrine of 'clear sense of texts' makes of the notion of clarity . . . legal fiction."1

I. Introduction

Louisiana is unique from the rest of the United States in that it is a mixed jurisdiction whose private law is principally rooted in the civil law tradition.2 Hence, one would suppose that civilian hermeneutical methods are used by courts to interpret provisions of Louisiana's Civil Code. But are they? The recent Louisiana Supreme Court decision Willis-Knighton Medical Center v. Caddo-Shreveport Sales and Use Tax Commission,3 handed down on April 1, 2005, gives one cause to wonder. That decision constitutes a pivotal recent development in the exegesis of Louisiana Civil Code article 466, which enumerates the kinds of property considered to be "component parts" of buildings and other constructions. Justice Weimer, writing for the court, sets out what is touted as a civilian interpretation of article 466, basing his conclusion primarily on article 9 of the Civil Code: "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."4 In so doing, the court created a new interpretation of 466 that broke with the doctrinal and jurisprudential authority interpreting that article, as well as the legislative history, specifically, the predecessor articles to 466 in the pre-revision Code.5

This comment examines the implications of the Willis-Knighton court's assertions and assumptions regarding proper civilian methodology. By touting its opinion as the civilian interpretation of article 466, the Willis-Knighton court implied that the other interpretations of article 466 that have been proposed, interpretations premised in legislative history and doctrinal commentary, are not civilian. This comment disproves that erroneous implication.6 Part II begins by delving into what is included within traditional civilian interpretive methodology, in Louisiana and globally, with a focus on the methodologies whence the Louisiana civilian interpretive tradition emerged. Part III explains the interpretive approach taken by the Louisiana Supreme Court in Willis-Knighton, an approach that might be described as "literalist" or "textualist." Part IV unravels and refutes the court's notion that a literal, textualist interpretation in the analytical process of deciding Willis-Knighton is the sole proper civilian interpretation of article 466. Lastly, Part V illustrates an equally civilian, and, in the end, superior interpretation of article 466 that pays due homage to legislative history and doctrinal sources as applied to the facts of Willis-Knighton.7

II. Background on Civilian Methodology

Because Louisiana is the only state in this country with its private law firmly planted in the civilian tradition, it is an anomaly.8 Numerous authorities detail how the civilian tradition was funneled through the French and the Spanish legal systems to Louisiana.9 Though this tradition has, through the years, undergone something of a retreat, thanks to the incorporation into Louisiana law of rules and methods of Anglo-American law, the tradition is still very much alive. Further, there is a modern trend toward celebration of and emphasis on this tradition in Louisiana.10 To understand why the analytical framework in Willis-Knighton is deficient, in particular, why the court's implications and assertions that its interpretation is the only civilian interpretation are wrong, one must first understand what the term "civilian" means and in what respects the civilian tradition is distinctive.

A. What is "Civilian"?

This exploration into what is civilian begins with an understanding that "civil law" refers to the tradition of law that derives from Roman law, the jus civile.11 Originally, in the so-called formative and classical periods, the civil law consisted of Roman enacted or customary law.12 In the post-classical period, the civil law was associated with the various compilations of classical Roman law that were put together by Emperor Justinian-the Corpus Juris Civilis.13 In the middle ages, civil law referred to the law of the Corpus Juris Civilis as it had been interpreted, supplemented, and modified by the doctrine of the Glossators and Commentators.14 Thus, a so-called civilian jurisdiction in modern times refers to a state or country whose methodology and terminology have been decisively shaped by one or more of these various incarnations of Roman law.15

Law that is civilian is codif...

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