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instant motion, the parties focus on whether, in light of our
findings of fact, the Commissioner’s position had a reasonable
basis in law.
As a result of the parties’ limited arguments, we do not
attempt to explore what respondent knew of the facts at any
specific date and the consequences of knowing or not knowing any
specific fact; we thereby avoid entering what might have turned
out to be a Serbonian bog.7
In Downing I, we described the parties’ dispute as to the
requirements of Louisiana law, which both sides contended to be
controlling in the instant case, as follows:
We consider first whether a marriage
contract, which was properly filed for
registry in the parish in which petitioners
were domiciled at the time of this filing,
must also be filed for registry in a
different parish for the marriage contract to
be effective toward third persons as to
movables,13 if petitioners have in the
meanwhile become domiciled in that different
parish. [Fn. 14 reference omitted.]
13 Both sides treat the matter before us as being
controlled entirely by the rules as to movables; under
the circumstances, we limit our determinations to the
dispute that the parties present.
We noted in Downing I that both sides agreed that there were
no Louisiana court opinions resolving this matter. Both sides
directed our attention to a treatise on Louisiana community
7 For a recent review of “Serbonian bog” references in
American judicial opinions, see Potter, “Surveying the Serbonian
Bog: A Brief History of a Judicial Metaphor”, 28 Tul. Mar. L.J.
519 (2004).
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