Featured | Louisiana Law Review | Page 2
Posted on June 1, 2019 by acrayd1	
Fairness and the Putative Spouse
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Forcing the Issue: It’s Time for the Legislature to Clarify what art. 1493(E)Legitime-tely Means
by Bill Milburn, Senior Associate
John Doe has twins, Jane and John Jr. John is an oil tycoon who always fancied himself as a sort of renaissance man. In order to emboss his name in history, he draws up a testament leaving everything he owns to his state’s flagship university. Jane and John Jr. are deeply hurt and quickly challenge the testament under the laws of forced heirship. Jane and John Jr. are both 30 years old and afflicted with mental illnesses. Jane currently works as a file clerk for a local law firm, but she struggles to keep a job because of her bi-polar disorder, which she likely inherited from her father, that renders her bedridden once every 6–12 months. John Jr. is a war veteran who suffers from Post-Traumatic Stress Disorder (“PTSD”). Similar to Jane, he struggles to sustain employment due to bouts of permanent incapacitation relating to his PTSD. Jane and John Jr. have the same fundamental problem: their mental illnesses prevent them from effectively taking care of themselves and administering their estates.[1] A layperson applying common sense may very well believe that no matter what the law of forced heirship is, it likely treats both Jane and John Jr. the same—either they are both forced heirs, or neither is a forced heir. Sadly, this is not the case. In the eyes of the law, only Jane is a forced heir. Why? Not because she needs the assistance more than her brother, but merely because her mental illness is inherited.[2] Continue reading →
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Registering To Do Business At The Price Of General Jurisdiction
by Justin DiCharia, Senior Associate
To be sued for any reason, by any person, within a state where a corporation is not incorporated or headquartered seems an absurd fantasy following the United States Supreme Court decisions in both Goodyear Dunlop Tires Operations, S.A. v. Brown[1] and Daimler AG v. Bauman.[2] Such a fantasy drifts into the realm of reality, however, in courts where the ghost of Justice Oliver Wendell Holmes’ opinions in Pennsylvania Fire[3] and Robert Mitchell[4] live on. The 1917 Pennsylvania Fire ruling allowed an Arizona corporation to sue a Pennsylvania company in Missouri on a personal jurisdiction theory that would today equate to general jurisdiction.[5] Because the Pennsylvania corporation registered to do business within Missouri—a common statutory prerequisite to conducting business in most states—which required the corporation to appoint an agent for service for “all proceedings that may be instituted against such company in any court of this state,”[6] the Court found that the corporation took on the risk that Missouri may interpret the statute as allowing service, and then jurisdiction, for suits not arising out of contacts within the state.[7] Four years following Pennsylvania Fire, Justice Holmes wrote the majority opinion in Robert Mitchell and found that “[u]nless the state law [requiring appointment of a statutory agent] either expressly or by local construction gives to the appointment a larger scope, we should not construe it to extend to suits in respect of business transacted by the foreign corporation elsewhere.”[8] If Pennsylvania Fire and Robert Mitchell remain good law, as some courts believe,[9] statutes requiring corporations to register to do business by appointing an agent for service or explicitly requiring consent to general jurisdiction are constitutional. There is, however, substantial concern among federal and state courts over the constitutionality of these statutes following Goodyear and Daimler.[10]
Louisiana’s Lorax: The Timber Trespass Statute
by Kyle Townsley, Senior Associate
Two neighbors share a property line that is demarcated by a line of trees, bushes, and other foliage. The neighbors live at peace until one day when one neighbor (“Neighbor A”) clears the trees, bushes, and other foliage located on the property line without giving notice or obtaining permission from the other neighbor (“Neighbor B”). As one might imagine, Neighbor B was taken by surprise and upset about the removal of the natural barrier separating his property from that of his neighbor. Neighbor B measures his property and has it surveyed. Neighbor B determines that portions of the natural barrier of trees and bushes that Neighbor A cut were located within the boundaries of his property. Out of Neighbor B’s animosity toward Neighbor A, Neighbor B files a lawsuit against Neighbor A for the clearing of the natural property barrier. Unbeknownst to Neighbor A, he may be liable for triple the amount of damages typically associated with cutting such foliage and attorneys’ fees because of the Louisiana Timber Trespass Statute (“Timber Statute” or “the statute”).[2] At the conclusion of the lawsuit, Neighbor A is held liable for treble damages for the foliage that he destroyed.[3]
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Get Ready for an Intervention: Expanding the Right to Intervene in Proceedings to Terminate Parental Rights
by Emily Gauthier & Henry S. Rauschenberger
Introduction: One of Many
When he was only eight years old, the State of Louisiana placed Rashaad Piper in foster care, removing him from an abusive home. From age 8 to 18, Rashaad remained under the care of multiple foster parents until he aged out of the foster care program. Rashaad is one of many Louisiana children who suffer abuse at the hands of his parents before the State is able to bring an action to terminate the parents’ rights.[1] But, what if the State was not the party to bring the action to terminate parental rights? If Rashaad’s foster parents were the party to bring the original action, could the State intervene in the case as an interested party?