Louisiana My Home Sweet Home: Decodifying Domicile
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LOUISIANA MY HOME SWEET HOME:** DECODIFYING DOMICILE Nikolaos A. Davrados* I. INTRODUCTION ...................................................................... 288 II. HISTORICAL FOUNDATIONS OF DOMICILE .................. 294 III. COMMON LAW OF DOMICILE ........................................... 297 A. ENGLISH MODEL .............................................................. 298 B. AMERICAN MODEL ........................................................... 303 IV. CIVIL LAW OF DOMICILE ................................................... 310 V. HABITUAL RESIDENCE AS A MODERN CONNECTING FACTOR ............................................................................... 324 VI. LOUISIANA LAW OF DOMICILE........................................ 331 A. EXTERNAL DOMICILE ....................................................... 331 B. INTERNAL DOMICILE........................................................ 337 1. DESCRIPTION AND DEFINITION................................ 338 2. DOMICILE OF ORIGIN................................................ 342 3. DOMICILE OF CHOICE ............................................... 343 4. DOMICILE BY OPERATION OF LAW ........................... 350 5. RESIDENCE ............................................................... 353 a. Louisiana Civil Code—Less than Domicile ..... 354 b. Candidates for Public Office—More than Domicile? ............................................................ 356 Copyright 2018, by NIKOLAOS A. DAVRADOS, PhD. * Assistant Professor of Law, Loyola University New Orleans College of Law. The Author wishes to thank Deans Symeon Symeonides and Madeleine Landrieu; Associate Dean Mary Garvey Algero; Professors Ana Grammaticaki-Alexiou, David Gruning, Monica Hof Wallace, Blaine LeCesne, John Lovett, Lawrence Moore, S.J., María Pabón, Craig Senn, Dian Tooley-Knoblett, Sandi Varnado, and James Étienne Viator; research assistant Tobie Lynn Tranchina, J.D.; and the editors of the Loyola Law Review. Any mistakes and omissions are attributable solely to the Author. In memoriam A.N. Yiannopoulos: eminent jurist, aesthetic philosopher, loyal friend, and citizen of the world. Ἀνδρῶν γὰρ ἐπιφανῶν πᾶσα γῆ τάφος. See infra note 440. ** LA. STAT. ANN. § 49:155.1 (2018) (“There shall be, and is, hereby adopted and established as the official state march song for the state of Louisiana, a musical composition, with lyrics by Sammie McKenzie and Lou Levoy and music by Castro Carazo, and entitled, Louisiana My Home Sweet Home.”) (emphasis added). 287 288 Loyola Law Review [Vol. 64 VII. CONCLUSION ....................................................................... 363 I. INTRODUCTION Articles 38 through 46 of the Louisiana Civil Code on domicile were revised in 2008.1 These relatively new provisions codify a concept that is ancient but still useful.2 The concept of domicile traces its roots to Greco-Roman sources.3 It is based on the idea that every individual has a personal and persistent relationship with a specific location—one’s home. “That is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.”4 1. Act No. 801 § 1, 2008 La. Acts 3046. The Domicile Committee of the Louisiana State Law Institute, chaired by Professor A.N. Yiannopoulos, prepared the initial draft of these revised articles. Professor Yiannopoulos also chaired the committees that revised other titles of Book I of the Louisiana Civil Code. See Jeanne Louise Carriere, From Status to Person in Book I, Title 1 of the Civil Code, 73 TUL. L. REV. 1263 (1999) (commenting on Prof. Yiannopoulos’s work in revising Book I of the Louisiana Civil Code); see also A.N. YIANNOPOULOS, CIVIL LAW SYSTEM: LOUISIANA AND COMPARATIVE LAW 76–80 (2d ed. 1999) (discussing the ongoing revision of the Louisiana Civil Code of 1870). 2. See PETER HAY, PATRICK J. BORCHERS & SYMEON C. SYMEONIDES, CONFLICT OF LAWS §§ 4.1–4.3 (5th ed. 2010); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS § 2.1 (6th ed. 2010); Peter M. North, Reform, but not Revolution: General Course on Private International Law, in 220 RECUEIL DES COURS 26, 141 (1990); ANASTASIA GRAMMATICAKI-ALEXIOU, E KATOIKIA TOU FYSIKOU PROSOPOU STO IDIOTIKO DIETHNES DIKAIO [DOMICILE OF THE NATURAL PERSON IN PRIVATE INTERNATIONAL LAW] 17–18 (1980) (Greece). 3. See FRIEDRICH CARL VON SAVIGNY, PRIVATE INTERNATIONAL LAW AND THE RETROSPECTIVE OPERATION OF STATUTES § 350 (William Guthrie trans., T. & T. Clark 2d ed. 1880) (English translation of 8 FRIEDRICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS (1849)). 4. JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, No. 41 (8th ed. 1883). See also 1 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS § 9.5 (1935); RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 11–12 (AM. LAW INST. 1971). Justice Story’s definition conveys the meaning of the classical Roman definition of domicile. CODE JUST. 10.39.7 (Diocletian & Maximian 290/293) (“There is no doubt that individuals have their domicile where they have placed their household goods and the greater part of their property and fortunes, and no one shall depart from this place unless something requires him to do so, and whenever he does leave the place, he is considered to be on a journey, and when he returns, to have completed it.”). Translated texts from the Digest of Justinian are taken from THE DIGEST OF JUSTINIAN (Theodor Mommsen et al. eds., 1985). Translated texts from Justinian’s Code are taken from SAMUEL P. SCOTT, THE CIVIL LAW (1932). Bracketed terms are additions by the Author. Translations from the original texts in French, German, and Greek are by the Author. 2018] Decodifying Domicile 289 Traditional doctrine has identified two elements of domicile: actual residence in a place (corpus)5 and requisite intent to reside there indefinitely (animus),6 that is, the desire to make this place the center of one’s life,7 one’s home.8 Domicile is a useful concept because it performs two key functions.9 First, domicile serves as a connecting factor in the 5. See HAY, BORCHERS & SYMEONIDES, supra note 2, §§ 4.18–4.19. 6. See HAY, BORCHERS & SYMEONIDES, supra note 2, § 4.20. Although the traditional definition speaks of “permanent home,” an indefinite intent to reside will also suffice. See SAVIGNY, supra note 3, § 353, at 97 (“The term permanent abode, however, excludes neither a temporary absence nor a future change, the reservation of which faculty is plainly implied; it is only meant that the intention of mere transitory residence must not at present exist.”); see also WEINTRAUB, supra note 2, § 2.4 (arguing that domicile does not require intent to reside permanently); RESTATEMENT (THIRD) OF CONFLICT OF LAWS § 2.03 cmt. c (AM. LAW. INST., Preliminary Draft No. 2, 2016) (“To establish domicile, one does not need to establish the intent to make the place the center of one’s life for a minimum period of time. Because the act of making a place the center of one’s life suggests some degree of concerted action, the intent to do so includes the expectation that one will in fact stay in the place for a significant period.”); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 18 (AM. LAW INST. 1971) (“To acquire a domicil of choice in a place, a person must intend to make that place his home for the time at least.”). 7. DIG. 50.1.27.2 (Ulpian, Ad Edictum 2) (explaining that a person has his domicile in the municipality where this person “sells, buys and contracts there, frequents the forum, bath and entertainments there, celebrates festivals there, in fact enjoys all the facilities of [that] municipality . .”); DIG. 50.16.239.2 (Pomponius, Enchiridion) (defining domiciliaries of a city (incolae) as those who “establish themselves there as if in a fixed abode”); DIG. 50.16.203 (Alfenus Varus, Digesta 7) (“[T]he home of each one of us must be regarded as being where one has one’s residence and keeps one’s accounts and organizes one’s affairs.”). 8. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 12 (AM. LAW INST. 1971) (“Home is the place where a person dwells and which is the center of his domestic, social and civil life.”). This notion of “home” is also conveyed in the definition of domicile offered by Judge—later Justice—Holmes in Bergner & Engel Brewing Co. v. Dreyfus, 172 Mass. 154, 157 (1898) (“[W]hat the law means by domicile is the one technically pre-eminent headquarters, which, as a result either of fact or of fiction, every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined.”). For other common law definitions of domicile, see ALBERT FARNSWORTH, THE RESIDENCE AND DOMICILE OF CORPORATIONS 34–36 (1939). For other uses of the term “home,” see generally LORNA FOX, CONCEPTUALIZING HOME: THEORIES, LAWS AND POLICIES (2007). 9. Cf. David F. Cavers, “Habitual Residence”: A Useful Concept?, 21 AM. U. L. REV. 475, 482–84 (1972) (discussing two functions of territorial links); 1 GEORGIOS MARIDAKIS, IDIOTIKON DIETHNES DIKAION [PRIVATE INTERNATIONAL LAW] 258 (2d ed. 1967) (Greece) (noting the distinction between domicile for domestic purposes and domicile for choice-of-law purposes); 1 BERNARD WINDSCHEID, LEHRBUCH DES PANDEKTENRECHTS, ALLGEMEINER TEIL § 36 (Theodor Kipp ed., 8th ed. 1900) (identifying two main functions of domicile: one for choice of law, and one for domestic law). 290 Loyola Law Review [Vol. 64 choice-of-law process for determining what law decides a variety of issues, such