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92 Tul. L. Rev. 219 (2017-2018)

handle is hein.journals/tulr92 and id is 239 raw text is: 








           Privacy and Spouses in Louisiana:

   The Community Property Conundrum and

                      Proposals for Reform


                        Sally  Brown Richardson*


      Since Warren and Brandeis first expounded on the right ofprivacy in 1890, individuals'
legal ability to protect themselves from unreasonable intrusions upon their seclusion has grown
through both jurisprudence and statutes. While privacy rights on a national level have
developed, community property laws in Louisiana have  not evolved to ensure similar
protections for intra-spousal privacy rights. One reason Louisiana law has not progressed in
this respect is because privacy rights create a conundrum for community property: How can
spouses share property with one another as part of the community, yet still retain a right of
privacy from one another in that property?
      Community  property ownership, management, and debt rules cause consternation for
Louisiana courts considering an individual spouse's right of privacy. Two Louisiana courts
have held that community property rules trump a spouse's right ofprivacy. Thus, while intra-
spousal privacy rights have developed on a national level, an individual spouse's privacy
rights in Louisiana have remained stagnant. This Article seeks to provide guidance to the
Louisiana legislature and courts as to how to amend current community property law so as to
give spouses a reasonable right ofprivacy from one another in community property.


I.    INTRODUCTION...........................................220
II.   INTRA-SPouSAL RIGHTS OF PRIVACY IN LOUISIANA AND
      ELSEWHERE...........................................224
      A.    Common Law Right ofPrivacy              ...........          .....225
             1.   Development of Common Law Right of
                  Privacy       ...............     .....      ............... 225


     *    C  2017 Sally Brown Richardson. Charles E. Lugenbuhl Associate Professor of
Law,  Tulane University Law School.  The author thanks Kenneth P. Barczak, Howard
Erlanger, Lila Tritico Hogan, Cynthia A. Samuel, Ronald J. Scalise Jr., and Katherine Spaht
for offering helpful critiques of this Article. Earlier drafts of this Article have been presented
in workshops at Tulane University Law School and Southern University Law School, and at
a meeting of American  College of Trusts and Estate Counsel. The  author thanks all
participants for their helpful input. The author also thanks Marie Elizabeth Evans for her
invaluable research assistance. All views and any errors herein are solely attributable to the
author.
     This Article, like all of this Volume, is dedicated to my colleague, mentor, and good
friend, A.N. Thanassi Yiannopoulos. Thanassi served as the Reporter for the Community
Property Committee of the Louisiana State Law Institute in the late 1980s. Throughout our
friendship, Thanassi and I regularly debated the merits of the community property system.
We  did not always agree, but the academic rigor with which Thanassi approached his
arguments and required of his intellectual opponents made us all better scholars, legislative
drafters, and professors. He made an enormous impact on Louisiana law and on so many
lawyers, myself included. I remain forever grateful for all Thanassi did for me.
                                      219

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