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The Law School of America podcast is designed for listeners who what to expand and enhance their understanding of the American legal system. It provides you with legal principles in small digestible bites to make learning easy. If you're willing to put in the time, The Law School of America podcasts can take you from novice to knowledgeable in a reasonable amount of time.
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2 days ago
Wills, trusts and estates: Wills: Lapse and anti-lapse + Ademption by extinction + Abatement of debts and legacies + Ademption by satisfaction + Acts of independent significance + Elective share
Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator (the writer of the will).
Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death. For a devise (bequest) of a specific item of property (a specific gift), such property is considered adeemed, and the gift fails. For example, if a will bequeathed the testator's car to a specific beneficiary, but the testator owned no car at the time of his or her death, the gift would be adeemed and the aforementioned beneficiary would receive no gift at all.
General bequests or general gifts - gifts of cash amounts - are never adeemed. If the cash in the testator's estate is not sufficient to satisfy the gift, then other assets in the residuary estate will need to be sold to raise the necessary cash.
Abatement of debts and legacies is a common law doctrine of wills that holds that when the equitable assets of a deceased person are not sufficient to satisfy fully all the creditors, their debts must abate proportionately, and they must accept a dividend.
In the case of legacies when the funds or assets out of which they are payable are not sufficient to pay them in full, the legacies abate in proportion, unless there is a priority given specially to any particular legacy. Annuities are also subject to the same rule as general legacies.
Ademption by satisfaction, also known as satisfaction of legacies, is a common law doctrine that determines the disposition of property under a will when the testator has made lifetime gifts to beneficiaries named in the will. Under the doctrine, a gift that the maker of the will (the testator) gives during his lifetime to a named beneficiary of the will is treated as an advance payment of that beneficiary's inheritance. If the probate court determines that the testator intended the lifetime gift to satisfy a bequest under the will, the amount of the lifetime gift is deducted from the amount that the beneficiary would have received under the will.
The doctrine of acts of independent significance at common law permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.
The doctrine is frequently applied under the following two circumstances:
1. The testator devises assets to a class of beneficiaries where the testator controls membership. For example, Joey leaves the contents of his bank account "to my employees." If Joey then fires some of the old employees and hires new ones, the new employees will inherit the contents of the bank account under this provision.
An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It may also be called a widow's share, statutory share, election against the will, or forced share. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
3 days ago
Criminal procedure law: Rights of the accused - Fair trial + Pre-trial
A trial which is observed by a trial judge without being partial is a fair trial. Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. There is no binding international law that defines what is not a fair trial; for example, the right to a jury trial and other important procedures vary from nation to nation.
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, which may occur before a judge, jury, or other designated trier of fact, aims to achieve a resolution to their dispute.
Types by finder of fact.
Where the trial is held before a group of members of the community, it is called a jury trial. Where the trial is held solely before a judge, it is called a bench trial.
Hearings before administrative bodies may have many of the features of a trial before a court, but are typically not referred to as trials.
An appellate proceeding is also generally not deemed a trial, because such proceedings are usually restricted to review of the evidence presented before the trial court, and do not permit the introduction of new evidence.
Types by dispute.
Trials can also be divided by the type of dispute at issue.
Criminal.
A criminal trial is designed to resolve accusations brought (usually by a government) against a person accused of a crime. In common law systems, most criminal defendants are entitled to a trial held before a jury. Because the state is attempting to use its power to deprive the accused of life, liberty, or property, the rights of the accused afforded to criminal defendants are typically broad. The rules of criminal procedure provide rules for criminal trials.
Civil.
A civil trial is generally held to settle lawsuits or civil claims—non-criminal disputes. In some countries, the government can both sue and be sued in a civil capacity. The rules of civil procedure provide rules for civil trials.
Administrative.
Although administrative hearings are not ordinarily considered trials, they retain many elements found in more "formal" trial settings. When the dispute goes to a judicial setting, it is called an administrative trial, to revise the administrative hearing, depending on the jurisdiction. The types of disputes handled in these hearings is governed by administrative law and auxiliary by the civil trial law.
Labor.
Labor law (also known as employment law) is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In Canada, employment laws related to unionized workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made. However, there are two broad categories of labor law. First, collective labor law relates to the tripartite relationship between employee, employer and union. Second, individual labor law concerns employees' rights at work and through the contract for work. The labor movement has been instrumental in the enacting of laws protecting labor rights in the 19th and 20th centuries. Labor rights have been integral to social and economic development since the industrial revolution. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
4 days ago
Constitutional law: Individual rights - Privacy laws
The privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into their private affairs, discloses their private information, publicizes them in a false light, or appropriates their name for personal gain.
The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.
Attempts to improve consumer privacy protections in the US in the wake of the May–July 2017 Equifax data breach, which affected 145.5 million US consumers, failed to pass in Congress. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
5 days ago
Evidence Law: Hearsay and exceptions - Hearsay
Hearsay is testimony from a witness under oath who is reciting an out-of-court statement that is being offered to prove the truth of the matter asserted.
The Federal Rules of Evidence prohibit introducing hearsay statements during applicable federal court proceedings, unless one of nearly thirty exemptions or exceptions applies. The Federal Rules of Evidence define hearsay as:
A statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. (F.R.E. 801(c)).
The "declarant" is the person who makes the out-of-court statement. (F.R.E. 801(b)).
The Federal Rules define a "statement" as "a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." (F.R.E. 801(a)). The Supreme Court has further clarified that a "statement" refers to "a single declaration or remark, rather than a report or narrative." Thus, a trial court must separately analyze each individual statement, "sentence-by-sentence," rather than analyzing the narrative as whole for hearsay content or exceptions.
"The truth of the matter asserted" means the statement itself is being used as evidence to prove the substance of that statement. For example, if a witness says, "Margot told me she loved Matt" to prove that Margot did in fact love Matt, the witness's statement is hearsay. Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay.
If a statement is being used to prove something other than the truth of what the statement asserts, it is not inadmissible because of the hearsay rule. A quintessential example is the U.S. Supreme Court case of Tennessee v Street (1985), in which a co-defendant's confession was properly admitted against the defendant—not for the hearsay purpose of directly proving that both men jointly committed a robbery and murder—but for the nonhearsay purpose of rebutting the defendant's claim that his own confession was elicited through the sheriff's coercive tactic of reading his co-defendant's confession to him.
In cases where a statement is being offered for a purpose other than the truth of what it asserts, trial judges have discretion to give the jury a limiting instruction, mandating the jury consider the evidence only for its intended, non-hearsay purpose.
Although the Federal Rules of Evidence govern federal proceedings only, 38 states have adopted the Uniform Rules of Evidence, which closely track the Federal Rules.
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6 days ago
Criminal law: Crimes against the public - Begging (aka panhandling)
Begging (also panhandling) is the practice of imploring others to grant a favor, often a gift of money, with little or no expectation of reciprocation. A person doing such is called a beggar or panhandler. Beggars may operate in public places such as transport routes, urban parks, and markets. Besides money, they may also ask for food, drink, cigarettes or other small items.
Internet begging is the modern practice of asking people to give money to others via the Internet, rather than in person. Internet begging may encompass requests for help meeting basic needs such as medical care and shelter, as well as requests for people to pay for vacations, school trips, and other things that the beggar wants but cannot comfortably afford.
Beggars differ from religious mendicants in that some mendicants do not ask for money. Their subsistence is reciprocated by providing society with various forms of religious service, moral education, and preservation of culture.
Legal restrictions.
Begging has been restricted or prohibited at various times and for various reasons, typically revolving around a desire to preserve public order or to induce people to work rather than to beg. Various European Poor Laws prohibited or regulated begging from the Renaissance to modern times, with varying levels of effectiveness and enforcement. Similar laws were adopted by many developing countries.
"Aggressive panhandling" has been specifically prohibited by law in various jurisdictions in the United States and Canada, typically defined as persistent or intimidating begging.
United States.
In parts of San Francisco, California, aggressive panhandling is prohibited.
In May 2010, police in the city of Boston started cracking down on panhandling in the streets downtown and were conducting an educational outreach to residents advising them not to give to panhandlers. The Boston police distinguished active solicitation, or aggressive panhandling, versus passive panhandling of which an example is opening doors at a store with a cup in hand but saying nothing.
U. S. Courts have repeatedly ruled that begging is protected by the First Amendment's free speech provisions. On August 14, 2013, the U S Court of Appeals struck down a Grand Rapids, Michigan anti-begging law on free speech grounds. An Arcata, California law banning panhandling within twenty feet of stores was struck down on similar grounds in 2012. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Apr 2, 2021
Wills, trusts and estates: Wills: Contest: Testamentary capacity + No-contest clause
In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory.
Presumption of capacity.
Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of his or her conduct when he or she executed the will.
Certain people, such as minors, are usually deemed to be conclusively incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions. In South Africa, however, one acquires testamentary capacity at the age of 16 years.
A no-contest clause, also called an in terrorem clause, is a clause in a legal document, such as a contract or a will, that is designed to threaten someone, usually with litigation or criminal prosecution, into acting, refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will that threatens to disinherit a beneficiary of the will if that beneficiary challenges the terms of the will in court. Many states in the United States hold a no-contest clause in a will to be unenforceable, so long as the person challenging the will has probable cause to do so.
No-contest clause in wills.
The Uniform Probate Code (UPC) §§ 2-517 and 3‑905 allow for no contest clauses so long as the person challenging the will doesn't have probable cause to do so. The full wording is:
A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
— UPC §§ 2-517 and 3‑905.
The UPC has been adopted in several smaller states, including Alaska, Idaho, Montana, and New Mexico, but also by Florida, one of the larger states in population.
Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests.
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Apr 1, 2021
Property law: Related topics - Security deposit + Blackacre + Lex loci rei sitae + Lateral and subjacent support + Riparian water rights
A security deposit is a sum of money held in trust either as an initial part-payment in a purchasing process (often used to prevent the seller selling an item to someone else during an agreed period of time while the buyer verifies the suitability of the item, or arranges finance) - also known as an earnest payment, or else, in the course of a rental agreement to ensure the property owner against default by the tenant and for the cost of repair in relation to any damage explicitly specified in the lease and that did in fact occur.
Blackacre, Whiteacre, Greenacre, Brownacre, and variations are the placeholder names used for fictitious estates in land.
The names are used by professors of law in common law jurisdictions, particularly in the area of real property and occasionally in contracts, to discuss the rights of various parties to a piece of land. A typical law school or bar exam question on real property might say:
Adam, owner of a fee simple in Blackacre, conveyed the property "to Bill for life, remainder to Charles, provided that if any person should consume alcohol on the property before the first born son of Charles turns twenty-one, then the property shall go to Dwight in fee simple." Assume that neither Bill, Charles, nor Dwight is an heir of Adam, and that Adam's only heir is his son, Edward. Discuss the ownership interests in Blackacre of Adam, Bill, Charles, Dwight and Edward.
Where more than one estate is needed to demonstrate a point – perhaps relating to a dispute over boundaries, easements or riparian rights – a second estate will usually be called Whiteacre, a third, Greenacre, and a fourth, Brownacre.
Lex loci rei sitae (Latin for "law of the place where the property is situated"), or simply lex situs, is the doctrine that the law governing the transfer of title to property is dependent upon and varies with the location of the property, for the purposes of the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element if a difference in result will occur, depending on which laws are applied.
Lateral and subjacent support, in the law of property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining land and underground structures. If a neighbor's excavation or excessive extraction of underground liquid deposits (crude oil or aquifers) causes subsidence, such as by causing the landowner's land to cave in, the neighbor will be subject to strict liability in a tort action. The neighbor will also be strictly liable for damage to buildings on the landowner's property if the landowner can show that the weight of the buildings did not contribute to the collapse of the land. If the landowner is unable to make such a showing, the neighbor must be shown to have been negligent in order for the landowner to recover damages.
Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, and states in the eastern United States.
Common land ownership can be organized into a partition unit, a corporation consisting of the landowners on the shore that formally owns the water area and determines its use. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Mar 31, 2021
Constitutional law: Individual rights - Criminal procedural rights
The United States Constitution contains several provisions regarding the law of criminal procedure.
Petit jury and venue provisions—both traceable to enumerated complaints in the Declaration of Independence—are included in Article Three of the United States Constitution. More criminal procedure provisions are contained in the United States Bill of Rights, specifically the Fifth, Sixth, and Eighth Amendments. With the exception of the Grand Jury Clause of the Fifth Amendment, the Vicinage Clause of the Sixth Amendment, and (maybe) the Excessive Bail Clause of the Eighth Amendment, all of the criminal procedure provisions of the Bill of Rights have been incorporated to apply to the state governments.
Several of these rights regulate pre-trial procedure: access to a non-excessive bail, the right to indictment by a grand jury, the right to an information (charging document), the right to a speedy trial, and the right to be tried in a specific venue. Several of these rights are trial rights: the right to compulsory process for obtaining witnesses at trial, the right to confront witnesses at trial, the right to a public trial, the right to a trial by an impartial petit jury selected from a specific geography, and the right not to be compelled to testify against oneself. Others, such as the assistance of counsel and due process rights, have application throughout the proceeding.
If a defendant is convicted, the usual remedy for a violation of one of these provisions is reversal of the conviction or modification of the defendant's sentence. With the exception of structural errors (such as the total denial of counsel), constitutional errors are subject to harmless error analysis, although they must be harmless beyond a reasonable doubt. With the exception of a Double Jeopardy or Speedy Trial violation, the government will usually be permitted to retry the defendant. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), these provisions are the source of nearly all reviewable errors in federal habeas review of state convictions. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Mar 30, 2021
Evidence Law: Witnesses: Hearsay evidence + Recorded recollection + Dead man's statute
Hearsay evidence, in a legal forum, is testimony from a witness under oath who is reciting an out-of-court statement, content of which is being offered to prove the truth of the matter asserted.
In most courts, hearsay evidence is inadmissible (the "Hearsay Evidence Rule") unless an exception to the Hearsay Rule applies.
For example, to prove that Tom was in town, the attorney asks a witness, "What did Susan tell you about Tom being in town?" Since the witness's answer will rely on an out-of-court statement that Susan made, if Susan is unavailable for cross-examination, the answer is hearsay. A justification for the objection is that the person who made the statement is not in court and thus is insulated from cross-examination. Note, however, that if the attorney asking the same question is not trying to prove the truth of the assertion about Tom being in town but the fact that Susan said the specific words, it may be acceptable. For example, it would be acceptable to ask a witness what Susan told them about Tom in a defamation case against Susan because now the witness is asked about the opposing party's statement that constitutes a verbal act.
The hearsay rule does not exclude the evidence if it is an operative fact. Language of commercial offer and acceptance is also admissible over a hearsay exception because the statements have independent legal significance.
Double hearsay is a hearsay statement that contains another hearsay statement itself. For example, a witness wants to testify that "a very reliable man informed me that Wools-Sampson told him". The statements of the very reliable man and Wools-Sampson are both hearsay submissions on the part of the witness, and the second hearsay (the statement of Wools-Sampson) depends on the first (the statement of the very reliable man). In a court, both layers of hearsay must be found separately admissible. In this example, the first hearsay also comes from an anonymous source, and the admissibility of an anonymous statement depends upon the discharge of an additional legal burden of proof.
Many jurisdictions that generally disallow hearsay evidence in courts permit the more widespread use of hearsay in non-judicial hearings.
A recorded recollection (sometimes referred to as a prior recollection recorded), in the law of evidence, is an exception to the hearsay rule which allows witnesses to testify to the accuracy of a recording or documentation of their own out-of-court statement based on their recollection of the circumstances under which the statement was recorded or documented - even though the witness does not remember the events attested to in the statement. It is sufficient that the witness is able to testify to having made the recording, and to having written an accurate statement at that time.
A dead man's statute, also known as a dead man act or dead man's rule, is a statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person (a "decedent") against the decedent unless there is a waiver.
This prohibition applies only against a witness who has an interest in the outcome of the case and applies only where that witness is testifying for his own interests and against the interests of the decedent. Furthermore, the restriction only exists in civil cases, never in criminal cases. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Mar 29, 2021
Criminal Law: Crimes against justice – Obstruction of justice + Perverting the course of justice + Misprision of felony
Obstruction of justice, in United States jurisdictions, is a crime consisting of obstructing prosecutors, investigators, or other government officials. Common law jurisdictions other than the United States tend to use the wider offense of perverting the course of justice.
Obstruction is a broad crime that may include acts such as perjury, making false statements to officials, witness tampering, jury tampering, destruction of evidence, and many others. Obstruction also applies to overt coercion of court or government officials via the means of threats or actual physical harm, and also applying to deliberate sedition against a court official to undermine the appearance of legitimate authority.
Legal overview.
Obstruction of justice is an umbrella term covering a variety of specific crimes. Black's Law Dictionary defines it as any "interference with the orderly administration of law and justice". Obstruction has been categorized by various sources as a process crime, a public-order crime, or a white-collar crime.
Obstruction can include crimes committed by judges, prosecutors, attorneys general, and elected officials in general.
Federal law.
In federal law, crimes constituting obstruction of justice are defined primarily in Chapter 73 of Title 18 of the United States Code. This chapter contains provisions covering various specific crimes such as witness tampering and retaliation, jury tampering, destruction of evidence, assault on a process server, and theft of court records. It also includes more general sections covering obstruction of proceedings in federal courts, Congress, and federal executive agencies. One of the broadest provisions in the chapter, known as the Omnibus Clause, states that anyone who "corruptly... endeavors to influence, obstruct, or impede, the due administration of justice" in connection with a pending court proceeding is subject to punishment.
Statistics regarding the frequency of obstruction of justice prosecutions are unclear. In 2004, federal agencies arrested 446 people for obstruction, representing 0.3 percent of all federal arrests. This does not include, however, people who were charged with obstruction in addition to a more serious underlying crime.
Misprision of felony is a form of misprision, and an offence under the common law of England that is no longer active in many common law countries. Where it was or is active, it is classified as a misdemeanor. It consists of failing to report knowledge of a felony to the appropriate authorities. Exceptions were made for close family members of the felon and where the disclosure would tend to incriminate him of that offence or another.
Perverting the course of justice is an offence committed when a person prevents justice from being served on him/herself or on another party. In England and Wales it is a common law offence, carrying a maximum sentence of life imprisonment. Statutory versions of the offence exist in Australia, Canada, Hong Kong, Ireland, and New Zealand. The Scottish equivalent is defeating the ends of justice, while the South African counterpart is defeating or obstructing the course of justice. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Mar 26, 2021
Wills, trusts and estates: Wills - Holographic will
A holographic will, or olographic testament, is a will and testament which is a holographic document, for example, it has been entirely handwritten and signed by the testator. Traditionally, a will had to be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts, or other methods.
The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.
Holographic wills are common and are also often created in emergency situatio…
Mar 25, 2021
Property law: Related topics - Prior appropriation water rights + Nemo dat quod non habet + Quicquid plantatur solo
Prior appropriation water rights is the legal doctrine that the first person to take a quantity of water from a water source for "beneficial use" (agricultural, industrial or household) has the right to continue to use that quantity of water for that purpose.
Subsequent users can take the remaining water for their own beneficial use if they do not impinge on the rights of previous users.
The doctrine developed in the Western United States and is different from riparian water rights, which are applied in the rest of the United States. Water is very scarce in the West and so must be allocated sparingly, based on the productivity of its use. The right is also allotted to those who are "first in time of use."
water appropriation problems to light. Matthew Irwin diverted a stream for his mining operation. Shortly afterward, Robert Phillips started a mining operation downstream and eventually tried to divert the water back to its original streambed. The case was taken all the way to the C…
Mar 24, 2021
Constitutional law: Individual rights - Right to a trial by jury
A citizen’s right to a trial by jury is a central feature of the United States Constitution. It is considered a fundamental principle of the American legal system.
Laws and regulations governing jury selection and conviction/acquittal requirements vary from state to state (and are not available in courts of American Samoa), but the fundamental right itself is mentioned five times in the Constitution: Once in the original text (Article III Section 2) and four times in the Bill of Rights (Fifth, the Sixth, and the Seventh Amendments).
The American system utilizes three types of juries: Investigative grand juries, charged with determining whether enough evidence exists to warrant a criminal indictment; petit juries (also known as a trial jury), which listen to evidence presented during the course of a criminal trial and are charged with determining the guilt or innocence of the accused party; and civil juries, which are charged with evaluating civil lawsuits.
The most outstanding fea…
Mar 23, 2021
Evidence Law: Witnesses: Expert witness
An expert witness, particularly in common law countries such as the United Kingdom, Australia, and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as an expert. The judge may consider the witness's specialized (scientific, technical or other) opinion about evidence or about facts before the court within the expert's area of expertise, to be referred to as an "expert opinion". Expert witnesses may also deliver "expert evidence" within the area of their expertise. Their testimony may be rebutted by testimony from other experts or by other evidence or facts.
History.
The forensic expert practice is an ancient profession. For example, in ancient Babylonia, midwives were used as experts in determining pregnancy, virginity and female fertility. Similarly, the Roman Empire recognized midwives, handwriting experts and land surveyors as legal experts. The codified use of expert witnesses and the admis…
Mar 22, 2021
Criminal Law: Crimes against justice – Perjury
Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. In some jurisdictions, contrary to popular misconception, no crime has occurred when a false statement is (intentionally or unintentionally) made while under oath or subject to penalty. Instead, criminal culpability attaches only at the instant the declarant falsely asserts the truth of statements (made or to be made) that are material to the outcome of the proceeding. For example, it is not perjury to lie about one's age except if age is a fact material to influencing the legal result, such as eligibility for old age retirement benefits or whether a person was of an age to have legal capacity.
Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice. In the United States, for example, the general perjury statute under federal…
Mar 19, 2021
Wills, trusts and estates: Wills - Will contest
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will) or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
Courts and legislation generally feel a strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it".
A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. Such no-contest clauses are permitte…
Mar 18, 2021
Property law: Related topics - Assignment
An assignment is a legal term used in the context of the law of contract and of property. In both instances, assignment is the process whereby a person, the assignor, transfers rights or benefits to another, the assignee. An assignment may not transfer a duty, burden or detriment without the express agreement of the assignee. The right or benefit being assigned may be a gift (such as a waiver) or it may be paid for with a contractual consideration such as money.
The rights may be vested or contingent, and may include an equitable interest. Mortgages and loans are relatively straightforward and amenable to assignment. An assignor may assign rights, such as a mortgage note issued by a third party borrower, and this would require the latter to make repayments to the assignee.
A related concept of assignment is novation wherein, by agreement with all parties, one contracting party is replaced by a new party. While novation requires the consent of all parties, assignment needs no consent…
Mar 17, 2021
Constitutional law: Individual rights - Right to keep and bear arms
The right to keep and bear arms in the United States is a fundamental right protected by the Second Amendment to the United States Constitution, part of the Bill of Rights, and by the constitutions of most U.S. states. The Second Amendment declares:
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
In the United States, which has an English common law tradition, the concept of a right to keep and bear arms was recognized prior to the creation of a written national constitution. When colonists in the Thirteen Colonies rebelled against British control during the American Revolution they cited the 1689 English Bill of Rights as an example.
English precedent.
The American understanding of the right to keep and bear arms was influenced by the 1689 English Bill of Rights, an Act of Parliament, which also dealt with personal defense by Protestant English subjects.
The Bill of Rights did not cr…
Mar 16, 2021
Evidence Law: Witnesses: Witness impeachment + Direct examination + Cross-examination + Redirect examination + Privilege
Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial. The Federal Rules of Evidence contain the rules governing impeachment in US federal courts.
The direct examination or examination-in-chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the party who called him or her, in a trial. Direct examination is usually performed to elicit evidence in support of facts which will satisfy a required element of a party's claim or defense.
In direct examination, one is generally prohibited from asking leading questions. This prevents a lawyer from feeding answers to a favorable witness. An exception to this rule occurs if one side has called a witness, but it is either understood or becomes clear that the witness is hostile to the questioner's side of the controversy. The lawyer may then ask the cour…
Mar 15, 2021
Criminal Law: Crimes against property – Miscarriage of justice, + Compounding a felony
A miscarriage of justice, also known as a failure of justice, occurs when a person is convicted and punished for a crime that they did not commit. It is seldom used as a legal defense in criminal and deportation proceedings. The term also applies to errors in the other direction—"errors of impunity", or to any clearly unjust outcome in any civil case. Every "miscarriage of justice" in turn is a "manifest injustice." Most criminal justice systems have some means to overturn or quash a wrongful conviction, but this is often difficult to achieve. In some instances a wrongful conviction is not overturned for several decades, or until after the innocent person has been executed, released from custody, or has died.
Compounding a felony was an offence under the common law of England and was classified as a misdemeanor. It consisted of a prosecutor or victim of an offence accepting anything of value under an agreement not to prosecute, or to hamper the prosecution of, a felony. To "compound…
Mar 12, 2021
Wills, Trusts and Estates: Holographic will + Oral will + Attestation clause + Residuary estate + Incorporation by reference
A holographic will, or olographic testament, is a will and testament which is a holographic document, i.e., it has been entirely handwritten and signed by the testator. Traditionally, a will had to be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts, or other methods.
The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.
An oral will (or nuncupative will) is a will that has been delivered orally (that is,…
Mar 11, 2021
Property law: Related topics - Property rights + Water rights
Property rights are basic human rights, grounded in current Human Rights law as found in article 17 of The Universal Declaration of Human Rights and theoretical constructs in economics for determining how a resource or economic good is used and owned. This idea of ownership must be constrained from the views of absolute ownership to a right to use the good within its expected scope of use. Ownership goes beyond the basic notions of property rights to this idea of viewing the ability to own as one of the most basic human rights. Resources can be owned by (and hence be the property of) individuals, associations, collectives, or governments. Property rights can be viewed as an attribute of an economic good. This attribute has four broad components and is often referred to as a bundle of rights:
1. the right to use the good.
2. the right to earn income from the good.
3. the right to transfer the good to others, alter it, abandon it, or destroy it (the right to ownership cessation).
4.…
Mar 10, 2021
Constitutional law: Individual rights - Freedom of the press + Freedom of assembly + Right to petition
Freedom of the press in the United States is legally protected by the First Amendment to the United States Constitution.
Nevertheless, freedom of the press in the United States is subject to certain restrictions, such as defamation law, a lack of protection for whistleblowers, barriers to information access and constraints caused by public and government hostility to journalists.
History.
Thirteen Colonies.
In the Thirteen Colonies before the signing of the Declaration of Independence, the media was subject to a series of regulations. British authorities attempted to prohibit the publication and circulation of information of which they did not approve.
One of the earliest cases concerning freedom of the press occurred in 1734. In a libel case against The New York Weekly Journal publisher John Peter Zenger by British governor William Cosby, Zenger was acquitted, and the publication continued until 1751. At that time, there were only two newspapers in New York City and the second…
Mar 9, 2021
Evidence Law: Relevance: Competence + Character + Habit + Similar fact
In United States and Canadian law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts. Competence is an attribute that is decision specific. Depending on various factors which typically revolve around mental function integrity, an individual may or may not be competent to make a particular medical decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a will having certain terms.
Depending on the state, a guardian or conservator may be appointed by a court for a person who satisfies the state's tests for general incompetence, and the guardian or conservator exercises the incompetent's rights for the incompetent. Defendants who do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testif…
Mar 8, 2021
Criminal Law: Crimes against property – Vandalism + Malfeasance in office
Vandalism is the action involving deliberate destruction of or damage to public or private property. The term includes property damage, such as graffiti and defacement directed towards any property without permission of the owner. The term finds its roots in an Enlightenment view that the Germanic Vandals were a uniquely destructive people.
Malfeasance in office is often grounds for a just cause removal of an elected official by statute or recall election. Malfeasance in office contrasts with "misfeasance in office", which is the commission of a lawful act, done in an official capacity, that improperly causes harm; and "nonfeasance in office," which is the failure to perform an official duty.
An exact definition of malfeasance in office is difficult: many highly regarded secondary sources (such as books and commentaries) compete over its established elements based on reported cases. This confusion has arisen from the courts where no single consensus definition has arisen from the rel…
Mar 5, 2021
Wills, Trusts and Estates: Joint wills and mutual wills + will contract + codicil
Joint wills and mutual wills are closely related terms used in the law of wills to describe two types of testamentary writing that may be executed by a married couple to ensure that their property is disposed of identically. Neither should be confused with mirror wills which means two separate, identical wills, which may or may not also be mutual wills.
Joint wills.
A joint will is a single document executed by more than one person (typically between spouses), making which has effect in relation to each signatory's property on his or her death (unless he or she revokes (cancels) the will during his or her lifetime). Although a single document, the joint will is a separate distribution of property by each executor (signatory) and will be treated as such on admission to probate. Mutual wills are any two (or more) wills which are mutually binding, such that following the first death the survivor is constrained in his or her ability to dispose of his or her property by the agreement he o…
Mar 4, 2021
Property law: Related topics - Mineral rights
Mineral rights are property rights to exploit an area for the minerals it harbors. Mineral rights can be separate from property ownership. Mineral rights can refer to sedentary minerals that do not move below the Earth's surface or fluid minerals such as oil or natural gas. There are three major types of mineral property; unified estate, severed or split estate, and fractional ownership of minerals.
Mineral estate.
Owning mineral rights (often referred to as a "mineral interest" or a "mineral estate") gives the owner the right to exploit, mine, and/or produce any or all minerals they own. Minerals can refer to oil, gas, coal, metal ores, stones, sands, or salts. An owner of mineral rights may sell, lease, or donate those minerals to any person or company as they see fit. Mineral interests can be owned by private landowners, private companies, or federal, state, or local governments. Sorting these rights are a large part of mineral exploration. A brief outline of rights and responsibi…
Mar 3, 2021
Constitutional law: Individual rights - Freedom of speech and expression
In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the United States Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or busi…
Mar 2, 2021
Evidence Law: Relevance: Foundation + Materiality + Public policy doctrines + Tampering with evidence
In common law, a foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits or testimony of witnesses. Material evidence is important evidence that may serve to determine the outcome of a case. Exhibits include real evidence, illustrative evidence, demonstrative evidence, and documentary evidence. The type of preliminary evidence necessary to lay the proper foundation depends on the form and type of material evidence offered.
The lack of foundation is a valid objection that an adverse party may raise during trial.
Materiality is the significance of facts to the matter at hand.
In the law of evidence.
An item of evidence is said to be material if it has some logical connection to a fact of consequence to the outcome of a case. Materiality, along with probative value, is one of two characteristics that make a given item of evidence relevant. This largely depends on the elements of the cause of action…
Mar 1, 2021
Criminal Law: Crimes against property – Theft
Theft is the taking of another person's property or services or scrap money without that person's permission or consent with the intent to deprive the rightful owner of it. The word theft is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, library theft or fraud. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny. Someone who carries out an act of or makes a career out of theft is known as a thief.
Theft is the name of a statutory offence in California, Canada, England and Wales, Hong Kong, Northern Ireland, the Republic of Ireland, and the Australian states of South Australia and Victoria.
Elements.
The actus reus of theft is usually defined as an unauthorized taking, keeping, or using of another's property which must be accompanied by a mens rea of dishonesty and the intent to permanently deprive the owner or rightful posse…
Feb 26, 2021
Wills, Trusts and Estates: Wills (A history)
Wills have a lengthy history.
Ancient Greece.
The Ancient Greek practice concerning wills was not the same in all places; some states permitted men to dispose of their estates, others wholly deprived them of that privilege. According to Plutarch, Solon "is much commended for his law concerning wills; for before his time no man was allowed to make any, but all the wealth of deceased persons belonged to their families; but he permitted them to bestow it on whom they pleased, esteeming friendship a stronger tie than kindred, and affection than necessity, and thus put every man's estate in the disposal of the possessor; yet he allowed not all sorts of wills, but required the following conditions in all persons that made them:
1. That they must be citizens of Athens, not slaves, or foreigners, for then their estates were confiscated for the public use.
2. That they must be men who have arrived at twenty years of age, for women and men under that age were not permitted to dispose by will…
Feb 25, 2021
Property law: Related topics - Partition + Waste
A partition is a term used in the law of real property to describe an act, by a court order or otherwise, to divide up a concurrent estate into separate portions representing the proportionate interests of the owners of property. It is sometimes described as a forced sale. Under the common law, any owner of property who owns an undivided concurrent interest in land can seek such a division. In some cases, the parties agree to a specific division of the land; if they are unable to do so, the court will determine an appropriate division. A sole owner, or several owners, of a piece of land may partition their land by entering a deed poll (sometimes referred to as "carving out").
Waste is a term used in property law to describe a cause of action that can be brought in court to address a change in condition of real property brought about by a current tenant that damages or destroys the value of that property. A lawsuit for waste can be brought against a life tenant or lessee of a leasehold…
Feb 24, 2021
Constitutional law: Individual rights - Freedom of religion
In the United States, freedom of religion is a constitutionally protected right provided in the religion clauses of the First Amendment. Freedom of religion is closely associated with separation of church and state, a concept advocated by Colonial founders such as Dr. John Clarke, Roger Williams, William Penn, and later Founding Fathers such as James Madison and Thomas Jefferson.
The freedom of religion has changed over time in the United States and continues to be controversial. Concern over this freedom was a major topic of George Washington's Farewell Address. Illegal religion was a major cause of the 1890–1891 Ghost Dance War. Starting in 1918, nearly all of the pacifist Hutterites emigrated to Canada when Joseph and Michael Hofer died following torture for conscientious objection to the draft. Some have since returned, but most Hutterites remain in Canada.
The long-term trend has been towards increasing secularization of the government. The remaining state churches were disest…
Feb 23, 2021
Evidence Law: Relevance - Burden of proof
Burden of proof is a legal duty that encompasses two connected but separate ideas that apply for establishing the truth of facts in a trial before tribunals in the United States: the "burden of production" and the "burden of persuasion." In a legal dispute, one party is initially presumed to be correct, while the other side bears the burden of producing evidence persuasive enough to establish the truth of facts needed to satisfy all the required legal elements of legal dispute. There are varying types of burden of persuasion commonly referred to as standards of proof, and depending on the type of case, the standard of proof will be higher or lower. Burdens of persuasion and production may be of different standards for each party, in different phases of litigation. The burden of production is a minimal burden to produce at least enough evidence for the trier of fact to consider a disputed claim. After litigants have met the burden of production, they have the burden of persuasion: that…
Feb 22, 2021
Criminal Law: Crimes against property – Tax evasion
Tax evasion is the illegal evasion of taxes by individuals, corporations, and trusts. Tax evasion often entails taxpayers deliberately misrepresenting the true state of their affairs to the tax authorities to reduce their tax liability, and it includes dishonest tax reporting, such as declaring less income, profits or gains than the amounts actually earned, or overstating deductions.
Tax evasion is an activity commonly associated with the informal economy. One measure of the extent of tax evasion (the "tax gap") is the amount of unreported income, which is the difference between the amount of income that should be reported to the tax authorities and the actual amount reported.
In contrast, tax avoidance is the legal use of tax laws to reduce one's tax burden. Both tax evasion and tax avoidance can be viewed as forms of tax noncompliance, as they describe a range of activities that intend to subvert a state's tax system, but such classification of tax avoidance is disputable since avo…
Feb 19, 2021
Wills, Trusts and Estates: Wills
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Though it has at times been thought that a "will" historically applied only to real property while "testament" applied only to personal property (thus giving rise to the popular title of the document as "last will and testament"), the historical records show that the terms have been used interchangeably. Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Feb 18, 2021
Constitutional law: Government structure - Local government (Part 2 of 2)
Types.
The Tenth Amendment to the United States Constitution makes local government a matter of state rather than federal law, with special cases for territories and the District of Columbia. As a result, the states have adopted a wide variety of systems of local government. The United States Census Bureau conducts the Census of Governments every five years to compile statistics on government organization, public employment, and government finances. The categories of local government established in this Census of Governments is a convenient basis for understanding local government in the United States. The categories are as follows:
1. County Governments,
2. Town or Township Governments,
3. Municipal Governments, and,
4. Special-Purpose Local Governments,
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Feb 17, 2021
Property law: Nonpossessory interest - Profit + Usufruct + Equitable Servitude
A profit (short for profit-à-prendre in Middle French for "right of taking"), in the law of real property, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another. Indeed, because of the necessity of allowing access to the land so that resources may be gathered, every profit contains an implied easement for the owner of the profit to enter the other party's land for the purpose of collecting the resources permitted by the profit.
Usufruct is a limited real right (or in rem right) found in civil-law and mixed jurisdictions that unites the two property interests of usus and fructus:
Usus (use) is the right to use or enjoy a thing possessed, directly and without altering it.
Fructus (fruit, in a figurative sense) is the right to derive profit from a thing possessed: for instance, by selling crops, leasing immovables or annexed movab…
Feb 16, 2021
Evidence: Types of evidence - Authentication + Hague Evidence Convention + Relevance
An ancient document, in the law of evidence, refers to both a means of authentication for a piece of documentary evidence, and an exception to the hearsay rule.
Authentication.
With respect to authentication, an "ancient document" is one that may be deemed authentic without a witness to attest to the circumstances of its creation because its age suggests that it is unlikely to have been falsified in anticipation of the litigation in which it is introduced.
Under the American Federal Rules of Evidence ("FRE"), a document is deemed authentic if it is:
1. at least twenty years old;
2. in a condition that makes it free from suspicion concerning its authenticity; and.
3. found in a place where such a writing was likely to be kept.
Many states have similar rules but may limit the application of the doctrine to specific kinds of documents such as dispositive instruments (primarily conveyances, deeds, and wills), and may require the documents to be even older.
By admi…
Feb 15, 2021
Criminal Law: Crimes against property – Smuggling
Smuggling is the illegal transportation of objects, substances, information or people, such as out of a house or buildings, into a prison, or across an international border, in violation of applicable laws or other regulations.
There are various motivations to smuggle. These include the participation in illegal trade, such as in the drug trade, illegal weapons trade, exotic wildlife trade, illegal immigration or illegal emigration, tax evasion, providing contraband to a prison inmate, or the theft of the items being smuggled.
Smuggling is a common theme in literature, from Bizet's opera Carmen to the James Bond spy books and later films such as Diamonds Are Forever and Goldfinger.
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Feb 12, 2021
Contract law: Remedies - Quasi-contractual obligations: Quantum meruit + Unjust enrichment
Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".
In the United States, the elements of quantum meruit are determined by state common law. For example, to state a claim for unjust enrichment in New York, a plaintiff must allege that (1) the defendant was enriched; (2) the enrichment was at plaintiff's expense; and (3) the circumstances were such that equity and good conscience require defendants to make restitution.
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make restitution, subject to defences such as change of position. Liability for an unjust (or unjustified) enrichment arises irrespective of wrongdoing on the part of the recipient. The concept of unjust enrichment can be tr…
Feb 11, 2021
Property law: Nonpossessory interest - Covenant
A covenant, in its most general sense and historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English common law a covenant was distinguished from an ordinary contract by the presence of a seal. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration. In United States contract law, an implied covenant of good faith is presumed.
A covenant is a type of agreement analogous to a contractual condition. The covenantor makes a promise to a covenantee to perform (affirmative covenant (American) / positive covenant (England and Wales)) or to refrain from (negative covenant) some action. In real property law, the juristic term real covenants means conditions tied to the ownership or use of land. A "covenant running with the land", meeting tests of wording and circumstances laid down in precedent, imposes duties or restriction…
Feb 10, 2021
Constitutional law: Government structure - Local government (Part 1 of 2)
Local government in the United States refers to governmental jurisdictions below the level of the state. Most states and territories have at least two tiers of local government: counties and municipalities. In some states, counties are divided into townships. There are several different types of jurisdictions at the municipal level, including the city, town, borough, and village. The types and nature of these municipal entities vary from state to state. In addition to these general-purpose local governments, states may also create special-purpose local governments.
Many rural areas and even some suburban areas of many states have no municipal government below the county level. In other places consolidated city-county jurisdictions exist, in which city and county functions are managed by a single municipal government. In places like New England, towns are the primary unit of local government and counties have no governmental function but exist in a purely perfunctory capacity (for exam…
Feb 9, 2021
Evidence: Types of evidence - Lie + Authentication + Chain of custody + Judicial notice + Best evidence rule + Self-authenticating document
A lie is a statement used intentionally for the purpose of deception. The practice of communicating a lie is called lying; a person who communicates a lie may be termed a liar. Lies may be employed to serve a variety of instrumental, interpersonal, or psychological functions for the individuals who use them. Generally, the term "lie" carries a negative connotation and, depending on the context, a person who communicates a lie may be subject to social, legal, religious, or criminal sanctions.
Authentication, in the law of evidence, is the process by which documentary evidence and other physical evidence is proven to be genuine, and not a forgery. Generally, authentication can be shown in one of two ways. First, a witness can testify as to the chain of custody through which the evidence passed from the time of the discovery up until the trial. Second, the evidence can be authenticated by the opinion of an expert witness examining the evidence to determine if it has all of the properti…
Feb 8, 2021
Criminal Law: Crimes against property – Robbery
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by putting the victim in fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft (such as burglary, shoplifting, pickpocketing, or car theft) by its inherently violent nature (a violent crime); whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words (for example, deraubare) of Germanic origin, from Common Germanic raub "theft".
Among the typ…
Feb 5, 2021
Contract law: Remedies - Quasi-contractual obligations: Promissory estoppel (Part 2 of 2)
Promissory estoppel.
The doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the latter has reasonably relied on that promise.
A promise made without consideration is generally not enforceable. It is known as a bare or gratuitous promise. Thus, if a car salesman promises a potential buyer not to sell a certain car over the weekend, but does so, the promise cannot be enforced. But should the car salesman accept from the potential buyer even one penny in consideration for the promise, the promise will be enforceable in court by the potential buyer. Estoppel extends the court's purview even to cases where there is no consideration, though it is generally not a 'sword': not a basis on which to initiate a lawsuit.
In English jurisprudence, the doctrine of promissory estoppel was first developed in Hughes v Metropolitan Railway Co but was lost for some time until it was resurrected by Denning J in the controversial case of Central Lond…
Feb 4, 2021
Property law: Nonpossessory interest - Easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". It is similar to real covenants and equitable servitudes; in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.
Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.
The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement:
Right-of-way (easements of way),
Easements of support (pertaining to excavations),
Easement…
Feb 3, 2021
Constitutional law: Government structure - Judicial branch (Part 3 of 3)
When the Court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae, or "friends of the court", may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the Court may choose to give more time, though this is rare), and during that time, the Justices may interrupt the advocate and ask questions. The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.
Supreme Court bar.
In o…
Feb 2, 2021
Evidence: Types of evidence - DNA profiling
DNA profiling (also called DNA fingerprinting) is the process of determining an individual's DNA characteristics. DNA analysis intended to identify a species, rather than an individual, is called DNA barcoding.
DNA profiling is a forensic technique in criminal investigations, comparing criminal suspects' profiles to DNA evidence so as to assess the likelihood of their involvement in the crime. It is also used in parentage testing, to establish immigration eligibility, and in genealogical and medical research. DNA profiling has also been used in the study of animal and plant populations in the fields of zoology, botany, and agriculture. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Feb 1, 2021
Criminal Law: Crimes against property – Possession of stolen goods
Possession of stolen goods is a crime in which an individual has bought, been given, or acquired stolen goods.
In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged with a misdemeanor or felony, depending on the value of the stolen goods and the good and or property is returned. If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. However, there are often exceptions, because of the difficulty of proving or disproving an individual's knowledge that the goods were stolen. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jan 29, 2021
Contract law: Remedies - Quasi-contractual obligations: Promissory estoppel (Part 1 of 2)
Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word; the person being sanctioned is "estopped". Estoppel may prevent someone from bringing a particular claim. Legal doctrines of estoppel are based in both common law and equity. It is also a concept in international law.
Types of estoppel.
There are many different types of estoppel which can arise, but the common thread between them is that a person is restrained from asserting a particular position in law where it would be inequitable to do so. By way of illustration:
If a landlord promises the tenant that he will not exercise his right to terminate a lease, and relying upon that promise the tenant spends money improving the premises, the doctrine of promissory estoppel may prevent the landlord from exercising a right to terminate, even though his promise might not otherwise have been legally binding as a contract. The…
Jan 28, 2021
Property law: Nonpossessory interest - Lien
A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee and the person who has the benefit of the lien is referred to as the lienor or lien holder.
The etymological root is Anglo-French lien, loyen "bond", "restraint", from Latin ligamen, from ligare "to bind".
In the United States, the term lien generally refers to a wide range of encumbrances and would include other forms of mortgage or charge. In the US, a lien characteristically refers to nonpossessory security interests (see generally: Security interest—categories).
In other common-law countries, the term lien refers to a very specific type of security interest, being a passive right to retain (but not sell) property until the debt or other obligation is discharged. In contrast to the usage of the term in the US, in other countries it refers to a purely possessory…
Jan 27, 2021
Constitutional law: Government structure - Judicial branch (Part 2 of 3)
Salary.
As of 2018, associate justices receive a yearly salary of $255,300 and the chief justice is paid $267,000 per year. Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the same formula used for federal employees, but a justice's pension, as with other federal courts judges, can never be less than their salary at the time of retirement.
Judicial leanings.
Although justices are nominated by the president in power, and receive confirmation by the Senate, justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches. Jurists are, however, informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, however, generally refer to legal outlook rather than a political or…
Jan 26, 2021
Evidence: Types of evidence - Eyewitness identification
In eyewitness identification, in criminal law, evidence is received from a witness "who has actually seen an event and can so testify in court".
The Innocence Project states that "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing." This non-profit organization uses DNA evidence to reopen criminal convictions that were made before DNA testing was available as a tool in criminal investigations.
Even before DNA testing revealed wrongful convictions based on eyewitness identifications, courts recognized and discussed the limits of eyewitness testimony. The late U.S. Supreme Court Justice William J. Brennan, Jr. observed in 1980 that "At least since United States v Wade, 388 U.S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence, and described the evidence as "notoriously unreliable", while noting that juries we…
Jan 25, 2021
Criminal Law: Crimes against property – Gambling
Gambling (also known as betting) is the wagering of money or something of value (referred to as "the stakes") on an event with an uncertain outcome, with the primary intent of winning money or material goods. Gambling thus requires three elements to be present: consideration (an amount wagered), risk (chance), and a prize. The outcome of the wager is often immediate, such as a single roll of dice, a spin of a roulette wheel, or a horse crossing the finish line, but longer time frames are also common, allowing wagers on the outcome of a future sports contest or even an entire sports season.
The term "gaming" in this context typically refers to instances in which the activity has been specifically permitted by law. The two words are not mutually exclusive; for example, a "gaming" company offers (legal) "gambling" activities to the public and may be regulated by one of many gaming control boards, for example, the Nevada Gaming Control Board. However, this distinction is not universally o…
Jan 22, 2021
Contract law-Remedies - Penal damages + Rescission + Quasi-contract
Penal damages are liquidated damages which exceed reasonable compensatory damages, making them invalid under common law. While liquidated damage clauses set a pre-agreed value on the expected loss to one party if the other party were to breach the contract, penal damages go further and seek to penalise the breaching party beyond the reasonable losses from the breach. Many clauses which are found to be penal are expressed as liquidated damages clauses but have been seen by courts as excessive and thus invalid.
The judicial approach to penal damages is conceptually important as it is one of the few examples of judicial paternalism in contract law. Even if two parties genuinely and without coercion wish to consent to a contract which includes a penal clause, they are unable to. So, for example, a person wishing to give up smoking cannot contract with a third party to be fined $100 each time they smoke as this figure does not represent the expectation loss of the contract.
A wholesale re…
Jan 21, 2021
Property law-Future use control-Rule against perpetuities + Doctrine of worthier title + Restraint on alienation + Rule in Shelley's Case
The rule against perpetuities is a legal rule in the Anglo-American common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a “life in being plus twenty-one years”. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the "dead hand" or "mortmain".
The basic elements of the rule against perpetuities originated in England in the 17th century and were "crystallized" i…
Jan 20, 2021
Constitutional law: Government structure - Judicial branch (Part 1 of 3)
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America. It has ultimate (and largely discretionary) appellate jurisdiction over all federal and state court cases that involve a point of federal law, and original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party". The Court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The Court may decide cases having political overtones, but it has ruled that it does not have power to decide non-justiciable political questions.
Established by Article Three of the United States Const…
Jan 19, 2021
Evidence law: Types of evidence - Exculpatory + Inculpatory + Demonstrative + Lies
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to present guilt.
In many countries, including the United States, police and prosecutors are required to disclose to the defendant exculpatory evidence they possess before the defendant enters a plea (guilty or not guilty).
Per the Brady v Maryland decision, prosecutors have a duty to disclose exculpatory evidence even if not requested to do so. While the prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control, the prosecution's duty is to disclose all information known to any member of its team, for example, police, investigators, crime labs, et cetera. In Brady v Maryland, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty…
Jan 18, 2021
Criminal Law: Crimes against property – Payola + Pickpocketing
Payola, in the music industry, is the illegal practice of payment to commercial radio in which the song is presented as being part of the normal day's broadcast, without announcing that there has been consideration paid in cash or in kind for its airplay adjacent to the recording's broadcast. Under US law, a radio station can play a specific song in exchange for money, but this must be disclosed on the air as being sponsored airtime.
The term has come to refer to any undisclosed payment made to cast a product in a favorable light (such as obtaining positive reviews). Some radio stations report spins of the newest and most popular songs to industry publications. The number of times the songs are played can influence the perceived popularity of a song.
The term payola is a combination of "pay" and "ola", a common suffix of product names in the early 20th century, such as Pianola, Victrola, Amberola, Crayola, Rock-Ola, Shinola, or brands such as the radio equipment manufacturer Motorola…
Jan 15, 2021
Contract law: Breach of contract - Specific performance + Liquidated damages
Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court.
Specific performance is commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction, but there are mandatory injunctions that have a similar…
Jan 14, 2021
Property law: Conveyancing - Action to quiet title + Equitable conversion + Escheat
An action to quiet title is a lawsuit brought in a court having jurisdiction over property disputes, in order to establish a party's title to real property, or personal property having a title, of against anyone and everyone, and thus "quiet" any challenges or claims to the title.
This legal action is "brought to remove a cloud on the title" so that the plaintiff and those in privity with him may forever be free of claims against the property. The action to quiet title resembles other forms of "preventive adjudication," such as the declaratory judgment.
This genre of lawsuit is also sometimes called either a try title, trespass to try title, or ejectment action "to recover possession of land wrongfully occupied by a defendant." However, there are slight differences. In an ejectment action, it is typically done to remove a tenant or lessee in an eviction action, or an eviction after a foreclosure. Nonetheless, in some states, all terms are used synonymously.
Equitable conversion is a…
Jan 13, 2021
Constitutional law: Government structure - Executive branch (Part 3 of 3)
When the first president, George Washington, announced in his Farewell Address that he was not running for a third term, he established a "two-terms then out" precedent. Precedent became tradition after Thomas Jefferson publicly embraced the principle a decade later during his second term, as did his two immediate successors, James Madison and James Monroe. In spite of the strong two-term tradition, Ulysses S. Grant unsuccessfully sought a non-consecutive third term in 1880.
In 1940, after leading the nation through the Great Depression, Franklin Roosevelt was elected to a third term, breaking the long-standing precedent. Four years later, with the U.S. engaged in World War II, he was re-elected again despite his declining physical health; he died 82 days into his fourth term on April 12, 1945.
In response to the unprecedented length of Roosevelt's presidency, the Twenty-second Amendment was adopted in 1951. The amendment bars anyone from being elected president more than twice, or o…
Jan 12, 2021
Evidence law: Types of evidence - Testimony + Documentary + Real (physical) + Digital
Physical evidence (also called real evidence or material evidence) is any material object that plays some role in the matter that gave rise to the litigation, introduced as evidence in a judicial proceeding (such as a trial) to prove a fact in issue based on the object's physical characteristics.
Documentary evidence is any evidence that is, or can be, introduced at a trial in the form of documents, as distinguished from oral testimony. Documentary evidence is most widely understood to refer to writings on paper (such as an invoice, a contract or a will), but the term can also apply to any media by which information can be preserved, such as photographs; a medium that needs a mechanical device to be viewed, such as a tape recording or film; and a printed form of digital evidence, such as emails or spreadsheets.
Normally, before documentary evidence is admissible as evidence, it must be proved by other evidence from a witness that the document is genuine, called "laying a foundation".…
Jan 11, 2021
Criminal Law: Crimes against property – Larceny
Larceny is a crime involving the unlawful taking or theft of the personal property of another person or business. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law (also Statutory law), where in many cases it remains in force.
The crime of larceny has been abolished in England and Wales, Northern Ireland, and the Republic of Ireland due to breaking up the generalized crime of larceny into the specific crimes of burglary, robbery, fraud, theft, and related crimes. However, larceny remains an offence in parts of the United States, Jersey, and in New South Wales, Australia, involving the taking (caption) and carrying away (asportation) of personal property. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jan 8, 2021
Contract law: Breach of contract: Fundamental breach + Remedies
Fundamental breach of contract is a controversial concept within the common law of contract. The doctrine was, in particular, nurtured by Lord Denning MR, but it did not find favor with the House of Lords.
Whereas breach of condition is a serious breach that "denies the plaintiff the main benefit of the contract", fundamental breach was supposed to be even worse, with the result that any exemption clause limiting the defendant's liability would automatically become void and ineffective. Also, whereas breach of condition gives the plaintiff the option to repudiate, fundamental breach automatically discharges the entire contract.
Although the concept caused some excitement in the 1950s and 1960s, the concept was regarded as flawed by the Law Lords, whose decision in the Suisse Atlantique substantially curtailed the doctrine, which has now been effectively "laid to rest" in England and Canada. The relevant concept in English Law is repudiatory breach of contract.
A legal remedy, also r…
Jan 7, 2021
Property law: Conveyancing: Mortgage law
A mortgage is a legal instrument which is used to create a security interest in real property held by a lender as a security for a debt, usually a loan of money. A mortgage in itself is not a debt, it is the lender's security for a debt. It is a transfer of an interest in land (or the equivalent) from the owner to the mortgage lender, on the condition that this interest will be returned to the owner when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.
The word is a Law French term meaning "dead pledge," originally only referring to the Welsh mortgage, but in the later Middle Ages was applied to all gages and reinterpreted by folk etymology to mean that the pledge ends (dies) either when the obligation is fulfilled or the property is taken through foreclosure.
In most jurisdictions’ mortgages are strongly associated with loans secured on real estate rather than on other propert…
Jan 6, 2021
Constitutional law: Government structure - Executive branch (Part 2 of 3)
Executive powers
The president is head of the executive branch of the federal government and is constitutionally obligated to "take care that the laws be faithfully executed". The executive branch has over four million employees, including the military.
Administrative powers.
Presidents make numerous executive branch appointments: an incoming president may make up to 6,000 before taking office and 8,000 more while serving. Ambassadors, members of the Cabinet, and other federal officers, are all appointed by a president with the "advice and consent" of a majority of the Senate. When the Senate is in recess for at least ten days, the president may make recess appointments. Recess appointments are temporary and expire at the end of the next session of the Senate.
The power of a president to fire executive officials has long been a contentious political issue. Generally, a president may remove executive officials purely at will. However, Congress can curtail and constrain a president's…
Jan 5, 2021
Evidence law
The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.
The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. Important rules that govern admissibility concern hearsay, authentication, relevance, privilege, witnesses, opinions, expert testimony, identification and rules of physical evidence. There are various standards of evidence, standards showing how strong th…
Jan 4, 2021
Criminal Law: Crimes against property – Intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.
The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. This gives economic incentive for their creation, because it allows people to profit from the information and intellectual good…
Jan 1, 2021
Contract law: Breach of contract: Cover + Anticipatory repudiation + Exclusion clause + Efficient breach
Cover is a term used in the law of contracts to describe a remedy available to a buyer who has received an anticipatory repudiation of a contract for the receipt of goods. Under the Uniform Commercial Code, the buyer is permitted (but not required) to find another source of the same type of goods. The buyer may then file a lawsuit against the breaching seller to recover the difference, if any, between the cost of the goods offered and the cost of the goods actually purchased.
Anticipatory repudiation or anticipatory breach is a term in the law of contracts that describes a declaration by the promising party to a contract that he or she does not intend to live up to his or her obligations under the contract. It is an exception to the general rule that a contract may not be considered breached until the time for performance.
An exclusion clause is a term in a contract that seeks to restrict the rights of the parties to the contract.
Traditionally, the district courts have sought to li…
Dec 31, 2020
Property law: Conveyancing: Bona fide purchaser + Strata title + Torrens title
A bona fide purchaser (BFP) – referred to more completely as a bona fide purchaser for value without notice – is a term used predominantly in common law jurisdictions in the law of real property and personal property to refer to an innocent party who purchases property without notice of any other party's claim to the title of that property. A BFP must purchase for value, meaning that he or she must pay for the property rather than simply be the beneficiary of a gift. Even when a party fraudulently conveys property to a BFP (for example, by selling to the BFP property that has already been conveyed to someone else), that BFP will, depending on the laws of the relevant jurisdiction, take good (valid) title to the property despite the competing claims of the other party.
Strata title is a form of ownership devised for multi-level apartment blocks and horizontal subdivisions with shared areas. The word "strata" refers to apartments being on different levels.
Strata title was first in…
Dec 30, 2020
Constitutional law: Government structure - Executive branch (Part 1 of 3)
The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.
The power of the presidency has grown substantially since its formation, as has the power of the federal government as a whole. While presidential power has ebbed and flowed over time, the presidency has played an increasingly strong role in American political life since the beginning of the 20th century, with a notable expansion during the presidency of Franklin D Roosevelt. In contemporary times, the president is also looked upon as one of the world's most powerful political figures as the leader of the only remaining global superpower. As the leader of the nation with the largest economy by nominal GDP, the president possesses significant domestic and international hard and soft power.
Article II of the Constitution establishes the…
Dec 29, 2020
Tort law: Duty to visitors - Trespassers + Licensees + Invitees + Attractive nuisance
In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional. At the same time, the status of a visitor as a trespasser (as opposed to an invitee or a licensee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.
A licensee can mean the holder of a license or, in U.S. tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter. The status of a visitor as a licensee (as opposed to a trespasser or an invitee) defines the legal rights of the visitor if they are injured due to the negligence of the property possessor (not necessarily the owner).
In the law of torts, a…
Dec 28, 2020
Criminal Law: Crimes against property – Fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (for example, a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compensation), a criminal law (for example, a fraud perpetrator may be prosecuted and imprisoned by governmental authorities), or it may cause no loss of money, property or legal right but still be an element of another civil or criminal wrong. The purpose of fraud may be monetary gain or other benefits, for example by obtaining a passport, travel document, or driver's license, or mortgage fraud, where the perpetrator may attempt to qualify for a mortgage by way of false statements.
A hoax is a distinct concept that involves deliberate deception without the intention of gain or of materially damaging or depriving a victim.
As a civil wrong.
In common law jurisdictions, as a civil wrong, fraud is a tort. While the precise definitions and requireme…
Dec 25, 2020
Contract law: Breach of contract
Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. Breach occurs when a party to a contract fails to fulfill its obligation(s), whether partially or wholly, as described in the contract, or communicates an intent to fail the obligation or otherwise appears not to be able to perform its obligation under the contract. Where there is breach of contract, the resulting damages will have to be paid by the party breaching the contract to the aggrieved party.
If a contract is rescinded, parties are legally allowed to undo the work unless doing so would directly charge the other party at that exact time.
It is important to bear in mind that contract law is not the same from country to country. Each country has its own independent, free standing law of contract. Therefore, it makes sense…
Dec 24, 2020
Property law: Conveyancing
In law, conveyancing is the transfer of legal title of real property from one person to another, or the granting of an encumbrance such as a mortgage or a lien. A typical conveyancing transaction has two major phases: the exchange of contracts (when equitable interests are created) and completion (also called settlement, when legal title passes and equitable rights merge with the legal title).
The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. It is a legal requirement in all jurisdictions that contracts for the sale of land be in writing. An exchange of contracts involves two copies of a contract of sale being signed, one copy of which is retained by each party. When the parties are together, both would usually sign both copies, one copy of which being retained by each party, sometimes with a formal handing over of a copy from one party to the other. However, it is usually sufficient that only the copy retained by each party be si…
Dec 23, 2020
Constitutional law: Government structure - Legislative branch (Part 2 of 2)
Structure.
Congress is split into two chambers—House and Senate—and manages the task of writing national legislation by dividing work into separate committees which specialize in different areas. Some members of Congress are elected by their peers to be officers of these committees. Further, Congress has ancillary organizations such as the Government Accountability Office and the Library of Congress to help provide it with information, and members of Congress have staff and offices to assist them as well. In addition, a vast industry of lobbyists helps members write legislation on behalf of diverse corporate and labor interests.
Committees.
Specializations.
The committee structure permits members of Congress to study a particular subject intensely. It is neither expected nor possible that a member be an expert on all subject areas before Congress. As time goes by, members develop expertise in particular subjects and their legal aspects. Committees investigate specialized subjec…
Dec 22, 2020
Tort law: Liability and remedies - Joint and several liability + Comparative responsibility + Market share liability
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:
jointly liable, or
severally liable, or
jointly and severally liable.
Joint liability.
If parties have joint liability, then they are each liable up to the full amount of the relevant obligation. So if a married couple takes a loan from a bank, the loan agreement will normally provide that they are to be "jointly liable" for the full amount. If one party dies, disappears, or is declared bankrupt, the other remains fully liable. Accordingly, the bank may sue all living co-promisors for the full amount.
However, in suing, the creditor has only one cause of action; for example, the creditor can sue for each debt only once. If, for example, there are three partners, and the creditor sues all of them for the outstanding loan amount and one of them pays the liability, the creditor cannot recover further amounts from the partners who did not contribute to the liabi…
Dec 21, 2020
Criminal Law: Crimes against property - Extortion + False pretenses
Extortion is the practice of obtaining benefit through coercion. In most jurisdictions it is likely to constitute a criminal offense; the bulk of this article deals with such cases. Robbery is the simplest and most common form of extortion.
Extortion is sometimes called the "protection racket" because the racketeers often phrase their demands as payment for "protection" from (real or hypothetical) threats from unspecified other parties; though often, and almost always, such "protection" is simply abstinence of harm from the same party, and such is implied in the "protection" offer. Extortion is commonly practiced by organized crime. In some jurisdictions, actually obtaining the benefit is not required to commit the offense, and making a threat of violence which refers to a requirement of a payment of money or property to halt future violence is sufficient to commit the offense. Exaction refers not only to extortion or the demanding and obtaining of something through force, but additio…
Dec 18, 2020
Contract law: Rights of third parties - Third-party beneficiary + Delegation + Novation
A third-party beneficiary, in the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been an active party to the contract. This right, known as a ius quaesitum tertio, arises when the third party (tertius or alteri) is the intended beneficiary of the contract, as opposed to a mere incidental beneficiary (penitus extraneus). It vests when the third party relies on or assents to the relationship, and gives the third party the right to sue either the promisor (promittens, or performing party) or the promisee (stipulans, or anchor party) of the contract, depending on the circumstances under which the relationship was created.
A contract made in favor of a third party is known as a "third-party beneficiary contract." Under traditional common law, the ius quaesitum tertio principle was not recognized, instead relying on the doctrine of privity of contract, which restricts rights, obligations, and liabilities arising from a contract to th…
Dec 17, 2020
Property law: Estates in land - Condominiums & Real estate
A condominium (plural either condominia, as in Latin, or condominiums) in international law is a political territory (state or border area) in or over which multiple sovereign powers formally agree to share equal dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it into "national" zones.
Although a condominium has always been recognized as a theoretical possibility, condominia have been rare in practice. A major problem, and the reason so few have existed, is the difficulty of ensuring cooperation between the sovereign powers; once the understanding fails, the status is likely to become untenable.
The word is recorded in English since about 1714, from Modern Latin, apparently coined in Germany about 1700 from Latin com- "together" + dominium "right of ownership" (compare domain). A condominium of three sovereign powers is sometimes called a tripartite condominium or tridominium.
Real estate is property consisting of land and the buildings on…
Dec 16, 2020
Constitutional law: Government structure - Legislative branch (Part 1 of 2)
The United States Congress or U.S. Congress is the bicameral legislature of the federal government of the United States and consists of the House of Representatives and the Senate. The Congress meets in the United States Capitol in Washington, D.C. Both senators and representatives are chosen through direct election, though vacancies in the Senate may be filled by a governor's appointment. Congress has 535 voting members: 100 senators and 435 representatives, the latter defined by the Reapportionment Act of 1929. In addition, the House of Representatives has six non-voting members, bringing the total membership of the US Congress to 541 or fewer in the case of vacancies.
The sitting of a congress is for a two-year term, at present beginning every other January; the current congress is the 116th. Elections are held every even-numbered year on Election Day. The members of the House of Representatives are elected for the two-year term of a congress representing the people of a single con…
Dec 15, 2020
Tort law: Liability and remedies - Injunction & Conflict of tort laws
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers." A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court. Counter Injunctions are injunctions that stop or reverse the enforcement of another injunction.
In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.
History.
The first attempts to establish a coherent choice of law rule for tort cases involving a foreign law element varied between favouring the lex fori (for example, the law of the court) and the lex loc…
Dec 14, 2020
Criminal Law: Crimes against property - Embezzlement
Embezzlement is the act of withholding assets for the purpose of conversion of such assets, by one or more persons to whom the assets were entrusted, either to be held or to be used for specific purposes. Embezzlement is a type of financial fraud. For example, a lawyer might embezzle funds from the trust accounts of their clients; a financial advisor might embezzle the funds of investors; and a husband or a wife might embezzle funds from a bank account jointly held with the spouse.
Embezzlement usually is a premeditated crime, performed methodically, with precautions that conceal the criminal conversion of the property, which occurs without the knowledge or consent of the affected person. Often it involves the trusted individual embezzling only a small proportion of the total of the funds or resources they receive or control, in an attempt to minimize the risk of the detection of the misallocation of the funds or resources. When successful, embezzlements may continue for many years wi…
Dec 11, 2020
Contract law: Rights of third parties - Assignment
An assignment is a legal term used in the context of the law of contract and of property. In both instances, assignment is the process whereby a person, the assignor, transfers rights or benefits to another, the assignee. An assignment may not transfer a duty, burden or detriment without the express agreement of the assignee. The right or benefit being assigned may be a gift (such as a waiver) or it may be paid for with a contractual consideration such as money.
The rights may be vested or contingent, and may include an equitable interest. Mortgages and loans are relatively straightforward and amenable to assignment. An assignor may assign rights, such as a mortgage note issued by a third-party borrower, and this would require the latter to make repayments to the assignee.
A related concept of assignment is novation wherein, by agreement with all parties, one contracting party is replaced by a new party. While novation requires the consent of all parties, assignment needs no consent…
Dec 10, 2020
Property law: Estates in land - Leasehold estate
A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a leasehold estate is typically considered personal property.
Leasehold is a form of land tenure or property tenure where one party buys the right to occupy land or a building for a given length of time. As lease is a legal estate, leasehold estate can be bought and sold on the open market. A leasehold thus differs from a freehold or fee simple where the ownership of a property is purchased outright and thereafter held for an indeterminate length of time, and also differs from a tenancy where a property is let (rented) on a periodic basis such as weekly or monthly.
Terminology and types of leasehold vary from country to country. Sometimes, but not always, a residential tenancy under a lease agreement is colloquially known as renting. The leaseho…
Dec 9, 2020
Constitutional law: Republicanism in the United States
Modern republicanism is a guiding political philosophy of the United States that has been a major part of American civic thought since its founding. It stresses liberty and inalienable individual rights as central values; recognizes the sovereignty of the people as the source of all authority in law; rejects monarchy, aristocracy, and hereditary political power; expects citizens to be virtuous and faithful in their performance of civic duties; and vilifies corruption. American republicanism was articulated and first practiced by the Founding Fathers in the 18th century. For them, "republicanism represented more than a particular form of government. It was a way of life, a core ideology, an uncompromising commitment to liberty, and a total rejection of aristocracy."
Republicanism was based on Ancient Greco-Roman, Renaissance, and English models and ideas. It formed the basis for the American Revolution, the Declaration of Independence (1776), the Constitution (1787), and the Bill of Ri…
Dec 8, 2020
Tort law: Liability and remedies - Damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognized for the award of damages.
Compensatory damages are further categorized into special damages, which are economic losses such as loss of earnings, property damage and medical expenses, and general damages, which are non-economic damages such as pain and suffering and emotional distress. Rather than being compensatory, at common law damages may instead be nominal, contemptuous or exemplary. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Dec 7, 2020
Criminal Law: Crimes against property - Burglary
Burglary, also called breaking and entering and sometimes housebreaking, is illegally entering a building or other areas to commit a crime. Usually that offence is theft, but most jurisdictions include others within the ambit of burglary. To commit burglary is to burgle, a term back-formed from the word burglar, or to burglarize. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Dec 4, 2020
Contract law: Excuses for non-performance - Accord and satisfaction / Rights of third parties: Privity of contract
Accord and satisfaction is a contract law concept about the purchase of the release from a debt obligation. It is one of the methods by which parties to a contract may terminate their agreement. The release is completed by the transfer of valuable consideration that must not be the actual performance of the obligation itself. The accord is the agreement to discharge the obligation and the satisfaction is the legal "consideration" which binds the parties to the agreement. A valid accord does not discharge the prior contract; instead it suspends the right to enforce it in accordance with the terms of the accord contract, in which satisfaction, or performance of the contract will discharge both contracts (the original and the accord). If the creditor breaches the accord, then the debtor will be able to bring up the existence of the accord in order to enjoin any action against him.
If a person is sued over an alleged debt, that person bears the burden of proving the affirmative defense of…
Dec 3, 2020
Property law: Estates in land - Concurrent estate
In property law, a concurrent estate or co-tenancy is any of various ways in which property is owned by more than one person at a time. If more than one person owns the same property, they are commonly referred to as co-owners. Legal terminology for co-owners of real estate is either co-tenants or joint tenants, with the latter phrase signifying a right of survivorship. Most common law jurisdictions recognize tenancies in common and joint tenancies.
Many jurisdictions also recognize tenancies by the entirety, which is effectively a joint tenancy between married persons. Many jurisdictions refer to a joint tenancy as a joint tenancy with right of survivorship, but they are the same, as every joint tenancy includes a right of survivorship. In contrast, a tenancy in common does not include a right of survivorship.
The type of co-ownership does not affect the right of co-owners to sell their fractional interest in the property to others during their lifetimes, but it does affect their po…
Dec 2, 2020
Constitutional law: Federalism in the United States
Federalism in the United States is the constitutional division of power between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and toward the national government. The progression of federalism includes dual, state-centered, and new federalism. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Dec 1, 2020
Tort law: Economic torts - Vicarious liability + Last clear chance + Neutral reportage + + eggshell rule
Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.
The last clear chance doctrine of tort law, is applicable to negligence cases in jurisdictions that apply rules of contributory negligence in li…
Nov 30, 2020
Criminal Law: Crimes against property - Arson + Blackmail + Bribery
Arson is a crime of willfully and maliciously setting fire to or charring property. Though the act typically involves buildings, the term arson can also refer to the intentional burning of other things, such as motor vehicles, watercraft, or forests. The crime is typically classified as a felony, with instances involving a greater degree of risk to human life or property carrying a stricter penalty. A common motive for arson is to commit insurance fraud. In such cases, a person destroys their own property by burning it and then lies about the cause in order to collect against their insurance policy.
A person who commits arson is called an arsonist. Arsonists normally use an accelerant (such as gasoline or kerosene) to ignite, propel and directionalize fires, and the detection and identification of ignitable liquid residues (ILRs) is an important part of fire investigations. Pyromania is an impulse control disorder characterized by the pathological setting of fires. Most acts of arson…
Nov 27, 2020
Contract law: Excuses for non-performance - Unconscionability
Unconscionability (sometimes known as unconscionable dealing/conduct in Australia) is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, because the consideration offered is lacking, or is so obviously inadequate, that to enforce the contract would be unfair to the party seeking to escape the contract.
Unconscionability is determined by examining the circumstances of the parties when the contract was made, such as their bargaining power, age, and mental capacity. Other issues might include lack of choice, superior knowledge, and other obligations or circumstances surrounding the bargaining process. Unconscionable conduct is also found in…
Nov 26, 2020
Property law: Estates in land - Future interest
In property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate; that is, an estate with a condition or event triggering transfer of possessory ownership. A common example is the landlord-tenant relationship. The landlord may own a house, but has no general right to enter it while it is being rented. The conditions triggering the transfer of possession, first to the tenant then back to the landlord, are usually detailed in a lease.
As a slightly more complicated example, suppose O is the owner of Blackacre. Consider what happens when O transfers the property, "to A for life, then to B". Person A acquires possession of Blackacre. Person B does not receive any right to possess Blackacre immediately; however, once person A dies, possession will fall to person B (or his estate, if he died before person A). Person…
Nov 25, 2020
Constitutional law: Rule of law (Part 2 of 2)(Optional)
International Bar Association.
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect t…
Nov 25, 2020
Constitutional law: Rule of law (Part 1 of 2)
The rule of law is defined in the Oxford English Dictionary as "he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes." The term rule of law is closely related to constitutionalism as well as Rechtsstaat and refers to a political situation, not to any specific legal rule.
Use of the phrase can be traced to 16th-century Britain. In the following century, the Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings. John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. "The rule of law" was further popularized in the 19th century by British jurist A V Dic…
Nov 24, 2020
Tort law: Economic torts - Tortious interference + Civil conspiracy/collusion + Restraint of trade
Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.
A tort of negligent interference occurs when one party's negligence damages the contractual or business relationship between others, causing economic harm, such as, by blocking a waterway or causing a blackout that prevents the utility company from being able to uphold its existing contracts with consumers.
*****
A civil conspiracy or collusion is an agreement between two or more parties to deprive a third party of le…
Nov 23, 2020
Criminal Law: Sexual offences - Obscenity
An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits" or "the obscenity of war". As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Nov 20, 2020
Contract law: Excuses for non-performance: Impossibility + Impracticability + Illegality + Unclean hands + Accord and satisfaction
In contract law, impossibility is an excuse for the nonperformance of duties under a contract, based on a change in circumstances (or the discovery of preexisting circumstances), the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible.
The doctrine of impracticability in the common law of contracts excuses performance of a duty, where the said duty has become unfeasibly difficult or expensive for the party who was to perform.
Impracticability is similar in some respects to the doctrine of impossibility because it is triggered by the occurrence of a condition which prevents one party from fulfilling the contract. The major difference between the two doctrines is that while impossibility excuses performance where the contractual duty cannot physically be performed, the doctrine of impracticability comes into play where performance is still physically possible, but would be extremely burdensome for the party wh…
Nov 19, 2020
Property law: Estates in land - Life estate & Defeasible estate
In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person. The owner of a life estate is called a "life tenant".
In the combined jurisdiction of England and Wales since 1925 a freehold estate intended to be 'held' as a life interest takes effect only as an interest enjoyed in equity, specifically as an interest in possession trust. The other type of land ownership is leasehold and although most long leases are for a period of between 99 and 999 years 'leases for life' will be interpreted in often unpredictable ways as either as a license or a lease.
A defeasible estate is created when a grantor transfers land conditionally. Upon the happening of the event or condition stated by the grantor, the transfer may be void or at least subject to a…
Nov 18, 2020
Constitutional law: Separation of powers
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.
During the Age of Enlightenment, philosophers such as Montesquieu advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary. His writings considerably influenced the opinions of the framers of the Unite…
Nov 17, 2020
Tort law: Economic torts - Fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (for example, a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compensation), a criminal law (for example, a fraud perpetrator may be prosecuted and imprisoned by governmental authorities), or it may cause no loss of money, property or legal right but still be an element of another civil or criminal wrong. The purpose of fraud may be monetary gain or other benefits, for example by obtaining a passport, travel document, or driver's license, or mortgage fraud, where the perpetrator may attempt to qualify for a mortgage by way of false statements.
A hoax is a distinct concept that involves deliberate deception without the intention of gain or of materially damaging or depriving a victim.
As a civil wrong.
In common law jurisdictions, as a civil wrong, fraud is a tort. While the precise definitions and requireme…
Nov 16, 2020
Criminal Law: Sexual offences - Indecent exposure
Indecent exposure is the deliberate public exposure by a person of a portion of their body where such exposure is contrary to local standards of appropriate behavior. The term indecent exposure is a legal expression. Social and community attitudes to the exposing of various body parts and laws covering what is referred to as indecent exposure vary significantly in different countries. It ranges from outright prohibition to prohibition of exposure of certain body parts, such as the genital area, buttocks or breasts.
Decency is generally judged by the standards of the local community, which are seldom codified in specifics in law. Such standards may be based on religion, morality or tradition, or justified on the basis of "necessary to public order". Non-sexual exhibitionism or public nudity is sometimes considered indecent exposure. If sexual acts are performed, with or without an element of nudity, this can be considered gross indecency, which is usually a more serious criminal offenc…
Nov 13, 2020
Contract law: Excuses for non-performance: Misrepresentation & Frustration of purpose
In common law jurisdictions, a misrepresentation is an untrue or misleading statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The misled party may normally rescind the contract, and sometimes may be awarded damages as well (or instead of rescission).
The law of misrepresentation is an amalgam of contract and tort; and its sources are common law, equity and statute. The common law was amended by the Misrepresentation Act 1967. The general principle of misrepresentation has been adopted by the USA and various Commonwealth countries, e.g. India.
· The customary norms of the trade in question.
· The representation forms the basis of a collateral contract.
Otherwise, an action may lie in misrepresentation, and perhaps in the torts of negligence and deceit also. Although a suit for breach of contract is relatively straightforward, there are advantages in bringing a p…
Nov 12, 2020
Property law: Estates in land - Fee tail
In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alienated by the tenant-in-possession, and instead causes it to pass automatically by operation of law to an heir determined by the settlement deed. The term fee tail is from Medieval Latin feodum talliatum, which means "cut(-short) fee" and is in contrast to "fee simple" where no such restriction exists and where the possessor has an absolute title (although subject to the allodial title of the monarch) in the property which he can bequeath or otherwise dispose of as he wishes. Equivalent legal concepts exist or formerly existed in many other European countries and elsewhere. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Nov 11, 2020
Constitutional law: Judicial review (Part 2 of 2)
Responses to the Kentucky and Virginia Resolutions.
In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the states have the power to determine whether acts of Congress are constitutional. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia Resolutions. Six of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, not in the state legislatures. For example, Vermont's resolution stated: "It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."
Thus, five years before Marbury v Madison, a number of state legislatures stated their understanding that under the Constitution, the federal courts possess the power of judicial review.
Marbury v Madison.
The Supreme Court's landmark decision regarding (Cranch) (1803). Mar…
Nov 10, 2020
Tort law: Dignitary torts - Seduction & Breach of promise
The tort of seduction was a civil wrong or tort in common law legal systems, and still exists in some jurisdictions.
An unmarried woman could sue on the grounds of seduction to obtain damages from her seducer, if her consent to sex was based upon his misrepresentation.
Legal basis,
Initially, the tort of seduction was a remedy for a father's property interest in his daughter's chastity. However, the damages to which the father would be entitled were based on the father's loss of the working services of a daughter, much as a master could sue if a third-party caused injury to his servant that rendered the servant unable to work, because she was "seduced and debauched" and became pregnant as a result of nonmarital sexual activity. The tort of seduction was one of the most common civil actions toward the end of the 19th century, and fathers were often successful before juries.
In the 20th century, the action was criticized as maintaining "property interests in humans", and the tort was…
Nov 9, 2020
Criminal law: Sexual offences - Adultery
Adultery (from Latin adulterium) is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Islam, and Judaism. A single act of sexual intercourse is generally sufficient to constitute adultery, and a more long-term sexual relationship is sometimes referred to as an affair.
Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws…
Nov 6, 2020
Contract law: Excuses for non-performance - Mistake
n contract law, a mistake is an erroneous belief, at contracting, that certain facts are true. It can be argued as a defense, and if raised successfully can lead to the agreement in question being found void ab initio or voidable, or alternatively an equitable remedy may be provided by the courts. Common law has identified three different types of mistakes in contract: the 'unilateral mistake', the 'mutual mistake' and the 'common mistake'. The distinction between the 'common mistake' and the 'mutual mistake' is important.
Another breakdown in contract law divides mistakes into four traditional categories: unilateral mistake, mutual mistake, mistranscription, and misunderstanding.
The law of mistake in any given contract is governed by the law governing the contract. The law from country to country can differ significantly. For instance, contracts entered into under a relevant mistake have not been voidable in English law since Great Peace Shipping v Tsavliris (International) Ltd (20…
Nov 5, 2020
Property law: Estates in land - Allodial title
Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense of the land. Historically, much of land was uninhabited and could, therefore, be held "in allodium".
Most property ownership in common law jurisdictions is fee simple. In the United States, the land is subject to eminent domain by federal, state and local government, and subject to the imposition of taxes by state and/or local governments, and there is thus no true allodial land. Some states within the U.S. (notably, Nevada and Texas) have provisions for considering land allodial under state law, and the term may be used in other circumstances. Land is "held of the Crown" in England and Wales and other jurisdictions in the Commonwealth realms. Some land in the Orkney and Shetland Islands, known as udal land, is held in a manner akin to allodial…
Nov 4, 2020
Constitutional law: Judicial review (Part 1 of 2)
In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States: In 1796, Hylton v United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme…
Nov 3, 2020
Tort law: Dignitary torts - Alienation of affections - Malicious prosecution - Abuse of process - Breach of confidence
Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is brought by a spouse against a third party alleged to be responsible for damaging the marriage, most often resulting in divorce. The defendant in an alienation of affections suit is typically an adulterous spouse's lover, although family members, counselors, and therapists or clergy members who have advised a spouse to seek divorce have also been sued for alienation of affections.
The tort of alienation of affections often overlaps with another "heart balm" tort: criminal conversation. Alienation of affections has most in common with the tort of tortious interference, where a third party can be held liable for interfering with the contractual relationship between two parties.
Malicious prosecution is a common law intentional tort. While like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be i…
Nov 2, 2020
Criminal law: Offence against the person - Torture
Torture (from Latin tortus: to twist, to torment) is the act of deliberately inflicting severe physical or psychological suffering on someone by another as a punishment or in order to fulfill some desire of the torturer or force some action from the victim. Torture, by definition, is a knowing and intentional act; deeds which unknowingly or negligently inflict suffering or pain, without a specific intent to do so, are not typically considered torture.
Torture has been carried out or sanctioned by individuals, groups, and states throughout history from ancient times to modern day, and forms of torture can vary greatly in duration from only a few minutes to several days or longer. Reasons for torture can include punishment, revenge, extortion, persuasion, political re-education, deterrence, coercion of the victim or a third party, interrogation to extract information or a confession irrespective of whether it is false, or simply the sadistic gratification of those carrying out or observ…
Oct 30, 2020
Contract law: Contract interpretation - Contract of adhesion - Integration clause - Contra proferentem
A standard form contract (sometimes referred to as a contract of adhesion, a leonine contract, a take-it-or-leave-it contract, or a boilerplate contract) is a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position.
While these types of contracts are not illegal per se, there exists a potential for unconscionability. In addition, in the event of an ambiguity, such ambiguity will be resolved contra proferentem, for example, against the party drafting the contract language.
In contract law, an integration clause, merger clause, (sometimes, particularly in the United Kingdom, referred to as an entire agreement clause) is a clause in a written contract which declares that contract to be the complete and final agreement between the parties. It is often placed at or towards the end of the contract. Any pre-…
Oct 29, 2020
Intellectual property: Orphan Work & Criticism of copyright
An orphan work is a copyright-protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details cannot be found. A work can become orphaned through rightsholders being unaware of their holding, or by their demise (e.g. deceased persons or defunct companies) and establishing inheritance has proved impracticable. In other cases, comprehensively diligent research fails to determine any authors, creators or originators for a work. Since 1989, the amount of orphan works in the United States has increased dramatically since registration is optional and, thus, many works' statuses remain unknown.
Criticism of copyright, perhaps outright anti-copyright sentiment, is a dissenting view of the current state of copyright law or copyright as a concept. Critical groups often discuss philosophical, economical, or social rationales of such laws and the…
Oct 28, 2020
Property law: Bailment - License - Alienation
Bailment is a legal relationship in common law, where the owner transfers physical possession of personal property ("chattel") for a time, but retains ownership. The owner giving up custody is the "bailor" and the person who takes is "bailee". The bailee holds the personal property in trust for a specific purpose and delivers the property back to the bailor when the purpose is accomplished.
A bailment for the mutual benefit of the parties is created when there is an exchange of performances between the parties (for example, a bailment for the repair of an item when the owner is paying to have the repair accomplished).
A bailor receives the sole benefit from a bailment when a bailee acts gratuitously (for example, the owner leaves the precious item such as a car or a piece of jewelry in the safekeeping of a trusted friend while the owner is traveling abroad without any agreement to compensate the friend).
A bailment is created for the sole benefit of the bailee when a bailor acts gra…
Oct 27, 2020
Tort law: Dignitary torts - Invasion of privacy - Intrusion on Seclusion - False light
The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.
In the 1948 Universal Declaration of Human Rights Article 12, the United Nations states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Intrusion on Seclusion
Intrusion on seclusion is one of the four privacy torts created under U.S. common law. Intrusion on seclusion is commonly thought to be the bread-and-butter claim for an "invasion of privacy."
The other three privacy claims under U.S. tort law are:
• public disclosure of private facts,
• false light, and
• appropriation of someone's name or likeness.
Elements.
The elements of an intrusion on seclusion claim in tort law…
Oct 26, 2020
Criminal Law: Offence against the person - Robbery
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by putting the victim in fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft (such as burglary, shoplifting, pickpocketing, or car theft) by its inherently violent nature (a violent crime); whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words (for example, deraubare) of Germanic origin, from Common Germanic raub "theft".
Among the typ…
Oct 23, 2020
Contract law: Contract interpretation - Parol Evidence Rule
The parol evidence rule is a rule in the Anglo-American common law that governs what kinds of evidence parties to a contract dispute can introduce when trying to determine the specific terms of a contract. The rule also prevents parties who have reduced their agreement to a final written document from later introducing other evidence, such as the content of oral discussions from earlier in the negotiation process, as evidence of a different intent as to the terms of the contract. The rule provides that "extrinsic evidence is inadmissible to vary a written contract". The term "parol" derives from the Anglo-Norman French p a r o l or p a r o l e, meaning "word of mouth" or "verbal", and in medieval times referred to oral pleadings in a court case.
The rule's origins lie in English contract law, but has been adopted in other common law jurisdictions; however there are now some differences between application of the rule in different jurisdictions. For instance, in the US, a common misc…
Oct 22, 2020
Property law: Acquisition - Treasure trove
Treasure trove is an amount of money or coin, gold, silver, plate, or bullion found hidden underground or in places such as cellars or attics, where the treasure seems old enough for it to be presumed that the true owner is dead and the heirs undiscoverable. An archaeological find of treasure trove is known as a hoard. The legal definition of what constitutes treasure trove and its treatment under law vary considerably from country to country, and from era to era.
The term is also often used metaphorically. Collections of articles published as a book are often titled Treasure Trove, as in A Treasure Trove of Science. This was especially fashionable for titles of children's books in the early- and mid-20th century.
Terminology.
Treasure trove, sometimes rendered treasure-trove, literally means "treasure that has been found". The English term treasure trove was derived from tresor trové, the Anglo-French equivalent of the Latin legal term thesaurus inventus. In 15th-century English t…
Oct 21, 2020
Intellectual property: Copyright troll / Limitations and exceptions to copyright / Idea–expression distinction
A copyright troll is a party (person or company) that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution. Critics object to the activity because they believe it does not encourage the production of creative works, but instead makes money through the inequities and unintended consequences of high statutory damages provisions in copyright laws intended to encourage creation of such works.
Both the term and the concept of a copyright troll began to appear in the mid-2000s. It derives from the pejorative "patent trolls", which are companies that enforce patent rights to earn money from companies that are selling products, without having products of their own for sale. It is distinguished from organizations such as ASCAP, which collect royalties and enforce copyrights of their members.
Limitations and exceptions to copyri…
Oct 20, 2020
Tort law: Negligence - Entrustment / Liability torts - Quasi-tort & Ultrahazardous activity
Negligent entrustment is a cause of action in tort law that arises where one party (the entrustor) is held liable for negligence because they negligently provided another party (the entrustee) with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. The cause of action most frequently arises where one person allows another to drive their automobile.
Quasi-tort is a legal term that is sometimes used to describe unusual tort actions, on the basis of a legal doctrine that some legal duty exists which cannot be classified strictly as negligence in a personal duty resulting in a tort nor as a contractual duty resulting in a breach of contract, but rather some other kind of duty recognizable by the law. It has been used, for example, to describe a tort for strict liability arising out of product liability, although this is typically simply called a 'tort'.
Although it is not to be found in most legal dictionaries, it has been used…
Oct 19, 2020
Criminal Law: Offence against the person - Invasion of privacy
The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.
In the 1948 Universal Declaration of Human Rights Article 12, the United Nations states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
History.
The concept of a human "right to privacy" begins when the Latin word "ius" expanded from meaning "what is fair" to include "a right - an entitlement a person possesses to control or claim something," by the Decretum Gratiani in Bologna, Italy in the 12th Century.
In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandei…
Oct 16, 2020
Contract Law: Defenses against formation - Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in writing, signed by the party to be charged, with sufficient content to evidence the contract.
Terminology.
The term statute of frauds comes from an Act of the Parliament of England passed in 1677 (authored by Lord Nottingham assisted by Sir Matthew Hale, Sir Francis North and Sir Leoline Jenkins. and passed by the Cavalier Parliament), the title of which is An Act for Prevention of Frauds and Perjuries. Many common law jurisdictions have made similar statutory provisions, while a number of civil law jurisdictions have equivalent legislation incorporated into their civil codes. The original English statute itself may still be in effect in a number of Canadian provinces, depending on the constitutional or reception statute of English law, and any subsequent legislative developments.
Application.
The statute of frauds typically requires a signed writing in the following circumstances:
C…
Oct 16, 2020
Property law: Acquisition - Lost, mislaid, and abandoned property
Lost, mislaid, and abandoned property are categories of the common law of property which deals with personal property or chattel which has left the possession of its rightful owner without having directly entered the possession of another person. Property can be considered lost, mislaid or abandoned depending on the circumstances under which it is found by the next party who obtains its possession.
There is an old saying that possession is nine-tenths of the law, perhaps dating back centuries. This means that in most cases, the possessor of a piece of property is its rightful owner without evidence to the contrary. More colloquially, this may be called finders keepers. The contradiction to this principle is theft by finding, which may occur if conversion occurs after finding someone else's property.
The rights of a finder of such property are determined in part by the status in which it is found. Because these classifications have developed under the common law of England, they turn…
Oct 14, 2020
Intellectual Property Law: Paraphrasing of copyrighted material (Part 2 of 2)
Moral rights.
Moral rights are rights of creators of copyrighted works that are generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution and the right to the integrity of the work, which bars the work from alteration, distortion, or mutilation without the author's permission. Paraphrasing without permission may be seen as violating moral rights. Moral rights are distinct from any economic rights tied to copyrights. Even if the author has assigned their copyright to a third party, they still maintain the moral rights to the work. Moral rights were first recognized in France and Germany. They were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. While the United States became a signatory to the Berne convention in 1989, it does not completely recognize moral rights as part of copyright law, which is seen as protecting commercial rights in intellectual proper…
Oct 14, 2020
Intellectual Property Law: Paraphrasing of copyrighted material (Part 1 of 2)
Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright.
The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.
Legal traditions.
Early years.
An early example of the concept of paraphrasing as a copyright issue arose with Johann Heinrich Zedler's application in 1730 for copyright protection in Saxony for his Grosses vollständiges Universal-Lexicon, one of the first encyclopedias. The publisher of a rival General Historical Lexicon said that Zedler's Universal Lexicon would not differ in content from this and other existing lexicons apart from paraphrasing. On 16 October 1730, the Upper Consistory court in Dresden rejected Zedl…
Oct 13, 2020
Tort law: Negligence - Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.
Product liability by country.
The overwhelming majority of countries have strongly preferred to address product liability through legislative means. In most countries, this occurred either by enacting a separate product liability act, adding product liability rules to an existing civil code, or including strict liability within a comprehensive Consumer Protection Act. In the United States, product liability law was developed primarily through case law from state courts as well as the Restatements of the Law produced by the American Law Institute (ALI).
The United States and the European Union's product liability…
Oct 12, 2020
Criminal Law: Offence against the person - Kidnapping and Intimidation
In criminal law, kidnapping is the unlawful transportation, asportation and confinement of a person against their will. Thus, it is a composite crime. It can also be defined as false imprisonment by means of abduction, both of which are separate crimes that when committed simultaneously upon the same person merge as the single crime of kidnapping. The asportation/abduction element is typically but not necessarily conducted by means of force or fear. That is, the perpetrator may use a weapon to force the victim into a vehicle, but it is still kidnapping if the victim is enticed to enter the vehicle willingly, for example, in the belief it is a taxicab.
Kidnapping may be done to demand for ransom in exchange for releasing the victim, or for other illegal purposes. Kidnapping can be accompanied by bodily injury which elevates the crime to aggravated kidnapping.
Kidnapping of a child is also known as child abduction, and these are sometimes separate legal categories.
Intimidation (also…
Oct 9, 2020
Contract Law: Defenses against formation - Duress/Coercion and Undue influence
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against the person. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act in a manner otherwise would not ". Duress is pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform. The notion of duress must be distinguished both from undue influence in civil law. In criminal law, duress and necessity are different defenses.
Duress has two aspects. One is that it negates the person's consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act. A defendant utilizing the duress defense admits to breaking the law, but claims that he/she is not liable because, even though the act broke the law, it was only performed because of extreme unl…
Oct 8, 2020
Property law: Acquisition - Discovery and Accession
The discovery doctrine, also called doctrine of discovery, is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v M'Intosh in 1823. Chief Justice John Marshall explained and applied the way that colonial powers laid claim to lands belonging to foreign sovereign nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects travelled to and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of modern colonial/imperial governments, such as in the 2005 case of Sherrill v Oneida Nation.
The 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result. John Marshall explained the Court's reasoning. The decision has been the subject of a number of la…
Oct 7, 2020
Intellectual Property Law: Public Domain
The public domain consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable.
As examples, the works of William Shakespeare, Ludwig van Beethoven, and Georges Méliès, are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired. Some works are not covered by copyright, and are therefore in the public domain—among them the formulae of Newtonian physics, cooking recipes, and all computer software created prior to 1974. Other works are actively dedicated by their authors to the public domain; some examples include reference implementations of cryptographic algorithms, the image-processing software ImageJ (created by the National Institutes of Health), and the CIA's World Factbook. The term public domain is not normally applied to situations where the creator of a work retains residual rig…
Oct 6, 2020
Tort law: Negligence - Malpractice
In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".
Professionals who may become the subject of malpractice actions include:
medical professionals: a medical malpractice claim may be brought against a doctor or other healthcare provider who fails to exercise the degree of care and skill that a similarly situated professional of the same medical specialty would provide under the circumstances.
lawyers: a legal malpractice claim may be brought against a lawyer who fails to render services with the level of skill, care and diligence that a reasonable lawyer would apply under similar circumstances.
financial professionals: professionals such as accountants, financial planners and stockbrokers, may be subject to claims for professional negligence based upon their failure to meet professional standards when providing services to their clients.
architects: an architect or construction pro…
Oct 5, 2020
Criminal Law: Offence against the person - Murder
Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.
Most societies consider murder to be an extremely serious crime, and thus that a person convicted of murder should receive harsh punishments for the purposes of retribution, deterrence, rehabilitation, or incapacitation. In most countries, a person convicted of murder generally faces a long-term prison sentence, possibly a life sentence, and in a few, the death penalty may be imposed.
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Oct 2, 2020
Contract Law: Defenses against formation - Lack of capacity
The capacity of natural and juridical persons (legal persons), in general, determines whether they may make binding amendments to their rights, duties, and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. Capacity is an aspect of status, and both are defined by a person's personal law:
for natural persons, the law of domicile or lex domicilii in common law jurisdictions, and either the law of nationality or lex patriae, or of habitual residence in civil law states;
for juridical persons, the law of the place of incorporation, the lex incorporationis for companies, while other forms of business entity derive their capacity either from the law of the place in which they were formed or the laws of the states in which they establish a presence for trading purposes depending on the nature of the entity and the transactions entered into.
When the law limits or bars a person from engaging in specified activities, any agreement…
Oct 1, 2020
Property law: Acquisition - Adverse possession (Part 2 of 2) Hostile possession
Hostile possession.
The disseisor must have entered or used the land without permission from the true owner. The disseisor's motivations may be interpreted by the court in several ways, depending upon state law and precedent:
Objective view – the land was used without true owner's permission and in a manner inconsistent with true owner's rights.
Bad faith or intentional trespass view – the land was used with the adverse possessor's subjective intent to disregard or violate the actual property owner's rights.
Good faith view – a few states require that the party claiming adverse possession must have mistakenly believed that it is their land.
Some jurisdictions permit accidental adverse possession, as might occur as the result of a surveying error that places the boundary line between properties in the wrong location.
Renters, hunters or others who enter the land with permission are not taking possession that is hostile to the title owner's rights. (mistaken possession in som…
Sep 30, 2020
Intellectual Property Law: Fair use (Part 2 of 2)
Fair use in particular areas.
Computer code.
The Oracle America, Inc. v Google, Inc. case revolves around the use of application programming interfaces (APIs) used to define functionality of the Java programming language, created by Sun Microsystems and now owned by Oracle Corporation. Google used the APIs' definition and their structure, sequence and organization (SSO) in creating the Android operating system to support the mobile device market. Oracle had sued Google in 2010 over both patent and copyright violations, but after two cycles, the case matter was narrowed down to whether Google's use of the definition and S S O of Oracle's Java APIs (determined to be copyrightable) was within fair use. The Federal Circuit Court of Appeals has ruled against Google, stating that while Google could defend its use in the nature of the copyrighted work, its use was not transformative, and more significantly, it commercially harmed Oracle as they were also seeking entry to the mobile market.…
Sep 29, 2020
Tort law: Negligence - Negligent infliction of emotional distress, Negligence in employment and Entrustment
The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular a…
Sep 28, 2020
Criminal law: Offence against the person - Manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.
The definition of manslaughter differs among legal jurisdictions.
Voluntary manslaughter.
In voluntary manslaughter, the offender had intent to kill or seriously harm, but acted "in the moment" under circumstances that could cause a reasonable person to become emotionally or mentally disturbed. Examples could include a defender killing a home invader without being placed in a life or death situation. There are mitigating circumstances that reduce culpability, such as when the defendant kills only with an intent to cause serious bodily harm. Voluntary manslaughter in some jurisdictions is a lesser included offense of murder. The traditional mitigating factor was provocation; however, others have been added in various jurisdictions.
Th…
Sep 25, 2020
Contract law: Contract formation - Implied-in-fact contract and Collateral contract
An implied-in-fact contract is a form of an implied contract formed by non-verbal conduct, rather than by explicit words. The United States Supreme Court has defined it as "an agreement 'implied in fact” as "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding."
Although the parties may not have exchanged words of agreement, their conduct may indicate that an agreement existed.
For example, if a patient goes to a doctor's appointment, his actions indicate he intends to receive treatment in exchange for paying reasonable/fair doctor's fees. Likewise, by seeing the patient, the doctor's actions indicate he intends to treat the patient in exchange for payment of the bill. Therefore, it seems that a contract actually existed between the doctor and the patient, even though nobody spoke any words of agreement. (They both ag…
Sep 24, 2020
Property law: Acquisition - Adverse possession (Part 1 of 2)
Adverse possession, sometimes colloquially described as "squatter's rights", is a legal principle under which a person who does not have legal title to a piece of property — usually land (real property) — acquires legal ownership based on continuous possession or occupation of the property without the permission of its legal owner.
In general, a property owner has the right to recover possession of their property from unauthorized possessors through legal action such as ejectment. However, in the English common law tradition, courts have long ruled that when someone occupies a piece of property without permission and the property's owner does not exercise their right to recover their property for a significant period of time, not only is the original owner prevented from exercising their right to exclude, but an entirely new title to the property "springs up" in the adverse possessor. In effect, the adverse possessor becomes the property's new owner. Over time, legislatures have c…
Sep 23, 2020
Intellectual property: Fair use (Part 1 of 2)
Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. Like "fair dealing" rights that exist in most countries with a British legal history, the fair use right is a general exception that applies to all different kinds of uses with all types of works and turns on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.
The doctrine of "fair use" originated in the Anglo-American common law during the 18th and 19th centuries as a way of preventing copyright law from being too rigidly appl…
Sep 22, 2020
Tort law: Negligence - Duty to rescue-continued (Regulations by country * optional lesion)
Regulations by country.
In some countries, there exists a legal requirement for citizens to assist people in distress, unless doing so would put themselves or others in harm's way. Citizens are often required to, at minimum, call the local emergency number, unless doing so would be harmful, in which case the authorities should be contacted when the harmful situation has been removed. As of 2012, there were such laws in several countries, including Albania, Andorra, Argentina, Austria, Belgium, Brazil, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Israel, Italy, the Netherlands, Norway, Poland, Portugal, Russia, Serbia, Spain, Switzerland and Tunisia. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Sep 22, 2020
Tort law: Negligence - Duty to rescue
A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party who could face potential injury or death without being rescued. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue. This does not necessarily obviate a moral duty to rescue: though law is binding and carries government-authorized sanctions and awarded civil penalties, there are also separate ethical arguments for a duty to rescue even where law does not punish failure to rescue.
Common law system.
In the common law of most English-speaking countries, there is no general duty to come to the rescue of another. Generally, a person cannot be held liable for doing nothing while another person is in peril. However, such a duty may arise in two situations:
A duty to rescue arises where a person creates a hazardous situation.…
Sep 22, 2020
Tort law: Negligence - The rescue doctrine and calculus of negligence
In the USA, the rescue doctrine of the law of torts holds that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. This doctrine was originally promulgated by Benjamin N. Cardozo in the 1921 case, Wagner v Int'l Ry. Co. There, writing for the Court of Appeals of New York (which is the supreme court of that state), Cardozo stated: "Danger invites rescue. The cry of distress is the summons to relief ... The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had." The rescue doctrine was established nineteen years later, in the landmark case of Cote v Palmer.
Essentially, the rescue doctrine means that the rescuer can recover damages from a defendant when the rescuer is injured rescuing someone. The defendant is usually negligent in causing the…
Sep 21, 2020
Criminal Law: Offence against the person - Home invasion
A hot prowl burglary, cat burglary, or home invasion is a sub-type of burglary (or in some jurisdictions, a separately defined crime) in which an offender unlawfully breaks and enters into a building or residence while the occupants are inside. The overarching intent of a hot prowl burglary can be theft, robbery, assault, sexual assault, murder, kidnapping, or another crime, either by stealth or direct force. Hot prowl burglaries are considered especially dangerous by law enforcement because of the potential for a violent confrontation between the occupant and the offender.
Historiography.
The first published use of the term "home invasion" recorded in the Oxford English Dictionary is an article in The Washington Post on 1 February 1912, with an article in the Los Angeles Times on 18 March 1925 clearly indicating the modern meaning.
"Home-invasion robberies" were highlighted in June 1995, when the term appeared in the cover story of The FBI Law Enforcement Bulletin in an article wri…
Sep 21, 2020
Criminal Law: Offence against the person - Homicide
Homicide is the act of one human killing another. A homicide requires only a volitional act by another person that results in death, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no intent to cause harm. Homicides can be divided into many overlapping legal categories, including murder, manslaughter, justifiable homicide, killing in war (either following the laws of war or as a war crime), euthanasia, and capital punishment, depending on the circumstances of the death. These different types of homicides are often treated very differently in human societies; some are considered crimes, while others are permitted or even ordered by the legal system.
Criminal homicide.
Criminal homicide takes many forms including accidental killing or murder. Criminal homicide is divided into two broad categories, murder and manslaughter, based upon the state of mind and intent of the person who commits the homicide.
A report issued by the United Nations Of…
Sep 18, 2020
Contract law: Contract formation - Firm offer, Invitation to bargain and Mirror image rule
A firm offer is an offer that will remain open for a certain period or until a certain time or occurrence of a certain event, during which it is incapable of being revoked. As a general rule, all offers are revocable at any time prior to acceptance, even those offers that purport to be irrevocable on their face.
In the United States, an exception is the merchant firm offer rule set out in Uniform Commercial Code - § 2-205, which states that an offer is firm and irrevocable if it is an offer to buy or sell goods made by a merchant and it is in writing and signed by the offeror. Such an offer is irrevocable even in the absence of consideration. If no time is stated, it is irrevocable for a reasonable time, but in no event may a period of irrevocability exceed three months. Any such term of assurance in a form supplied by the offeree must be separately signed by the offeror.
However, even when the period of irrevocability expires, the offer may still remain open until revoked or reject…
Sep 18, 2020
Contract law: Contract formation - Consideration
Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions.
The court in Currie v Misa declared consideration to be a “Right, Interest, Profit, Benefit, or Forbearance, Detriment, Loss, Responsibility”. Thus, consideration is a promise of something of value given by a promisor in exchange for something of value given by a promise; and typically the thing of value is goods, money, or an act. Forbearance to act, such as an adult promising to refrain from smoking, is enforceable only if one is thereby surrendering a legal right.
Consideration may be thought of as the concept of value offered and accepted by people or organizations entering into contracts. Anything of value promised by one party to the other when making a contract can be treated as "consideration": for example, if A signs a contract to buy a car from B for $5,000, A's consi…
Sep 17, 2020
Property law: Types - Personal property & Community property
Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables – any property that can be moved from one location to another.
Personal property can be understood in comparison to real estate, immovable property or real property (such as land and buildings).
Movable property on land (larger livestock, for example) was not automatically sold with the land, it was "personal" to the owner and moved with the owner.
The word cattle is the Old Norman variant of Old French chatel, chattel (derived from Latin capitalis, “of the head”), which was once synonymous with general movable personal property.
Community property (United States) also called Community of Property (South Africa) is a marital property regime that originated in civil law jurisdictions but is now also found in some common law jurisdictions. Community of property re…
Sep 16, 2020
Intellectual property: Trademark (Conclusion)
Usage.
A trademark identifies the brand owner of a particular product or service. Trademarks can be used by others under licensing agreements; for example, Bullyland obtained a license to produce Smurf figurines; the Lego Group purchased a license from Lucasfilm in order to be allowed to launch Lego Star Wars; TT Toys Toys is a manufacturer of licensed ride-on replica cars for children. The unauthorized usage of trademarks by producing and trading counterfeit consumer goods is known as brand piracy.
The owner of a trademark may pursue legal action against trademark infringement. Most countries require formal registration of a trademark as a precondition for pursuing this type of action. The United States, Canada and other countries also recognize common law trademark rights, which means action can be taken to protect an unregistered trademark if it is in use. Still, common law trademarks offer to the holder, in general, less legal protection than registered trademarks.
Designation.…
Sep 16, 2020
Intellectual property: Trademark (Introduction)
A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.
The first legislative act concerning trademarks was passed in 1266 under the reign of Henry III, requiring all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century. In France the first comprehensive trademark system in the world was passed into law in 1857. The Trade Marks Act 1938 of the United Kingdom changed the system, permitting reg…
Sep 15, 2020
Tort law: Negligence - Res ipsa loquitur
Res ipsa loquitur (Latin: "the thing speaks for itself") is a doctrine in the Anglo-American common law that says in a tort lawsuit a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. Although modern formulations differ by jurisdiction, common law originally stated that the accident must satisfy the necessary elements of negligence: duty, breach of duty, causation, and injury. In res ipsa loquitur, the elements of duty of care, breach, and causation are inferred from an injury that does not ordinarily occur without negligence.
History.
The term comes from Latin and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself". The earliest known use of the phrase was by Cicero in his defense speech Pro Milone. The circumstances of the genesis of the phrase and application by Cicero in Roman legal trials has led to que…
Sep 14, 2020
Criminal Law: Offence against the person - Harassment
Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behavior that demeans, humiliates, or embarrasses a person, and it is characteristically identified by its unlikelihood in terms of social and moral reasonableness. In the legal sense, these are behaviors that appear to be disturbing, upsetting, or threatening. They evolve from discriminatory grounds, and have an effect of nullifying a person's rights or impairing a person from benefiting from their rights. When these behaviors become repetitive, they can also be defined as bullying. The continuity or repetitiveness and the aspect of distressing, alarming or threatening may distinguish it from insult. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Sep 14, 2020
Criminal law: Offence against the person - False imprisonment
False imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is not necessary for false imprisonment to occur. A false imprisonment claim may be made based upon private acts, or upon wrongful governmental detention. For detention by the police, proof of false imprisonment provides a basis to obtain a writ of habeas corpus.
Under common law, false imprisonment is both a crime and a tort.
Imprisonment.
Within the context of false imprisonment, an imprisonment occurs when a person is restrained from moving from a location or bounded area, as a result of a wrongful intentional act, such as the use of force, threat, coercion, or abuse of authority.
The following are examples of false imprisonment:
The taking hostage of a bank's customers and employees by bank robbers.
The detention of a customer by a business owner (for example, hotel…
Sep 11, 2020
Contract law: Contract formation - Posting rule
The posting rule (or mailbox rule in the United States, also known as the "postal rule" or "deposited acceptance rule") is an exception to the general rule of contract law in common law countries that acceptance of an offer takes place when communicated. Under the posting rule, that acceptance takes effect when a letter is posted (that is, dropped in a post box or handed to a postal worker). In plain English, the "meeting of the minds" necessary to contract formation occurs at the exact moment word of acceptance is sent via post by the person accepting it, rather than when that acceptance is received by the person who offered the contract.
The rules of contracts by post (postal rules) include the following:
1. An offer made by post/letter is not effective until received by the offeree.
2. Acceptance is effective as soon as it is posted.
3. For revocation to be effective, it must be received by the offeree before they post their letter of acceptance.
One rationale given…
Sep 10, 2020
Property law: Types - Real property (real estate, realty, or immovable property)
In English common law, real property, real estate, realty, or immovable property is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixed to the land, including crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads, among other things. The term is historic, arising from the now-discontinued form of action, which distinguished between real property disputes and personal property disputes. Personal property was, and continues to be, all property that is not real property.
In countries with personal ownership of real property, civil law protects the status of real property in real-estate markets, where estate agents work in the market of buying and selling real estate. Scottish civil law calls real property "heritable property", and in French-based law, it is called immobilier ("immovable property").
The conceptual difference was between immovable property, which would transfer title along with…
Sep 9, 2020
Intellectual property: Trade secret
Trade secrets are a type of intellectual property that comprise formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ascertainable by others, and which the owner takes reasonable measures to keep secret. In some jurisdictions, such secrets are referred to as confidential information.
Definition.
The precise language by which a trade secret is defined varies by jurisdiction, as do the particular types of information that are subject to trade secret protection. Three factors are common to all such definitions:
A trade secret is information that;
is not generally known to the public.
confers economic benefit on its holder because the information is not publicly known; and
where the holder makes reasonable efforts to maintain its secrecy.
In international law, these three factors define a trade secret under article 39 of the Agreement on Trade-Related Aspects o…
Sep 8, 2020
Tort law: Negligence - Proximate cause
In law, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. (For example, but for running the red light, the collision would not have occurred.) The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but for test is ineffective (see But-for test). Since but-for causation is very easy to show (but for stopping to tie your shoe, you would not have missed the train and would not have been mugged), a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of Insurance and is concerned with how the loss or dama…
Sep 7, 2020
Criminal law: Offence against the person - Defamation (Conclusion)
Overview.
As of 2017, at least 130 UNESCO member states retained criminal defamation laws. In 2017, the Organization for Security and Cooperation in Europe (OSCE) Office of the Representative on Freedom of the Media issued a report on criminal defamation and anti-blasphemy laws among its member states, which found that defamation is criminalized in nearly three-quarters (42) of the 57 OSCE participating states. Many of the laws pertaining to defamation include specific provisions for harsher punishment for speech or publications critical of heads of state, public officials, state bodies and the state itself. The OSCE report also noted that blasphemy and religious insult laws exist in around one third of OSCE participating states; many of these combine blasphemy and religious insult with elements of hate speech legislation.
In Africa, at least four member states decriminalized defamation between 2012 and 2017. The ruling by the African Court of Human and Peoples’ Rights in Lohé Iss…
Sep 7, 2020
Criminal law: Offence against the person - Defamation (Introduction)
Defamation (sometimes known as calumny, vilification, libel, slander or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. In several countries, including South Korea, a true statement can also be considered defamation.
Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander and defamation in other media such as printed words or images, called libel. In the United States, false light laws protect against statements which are not technically false but are misleading.
In some jurisdictions, defamation is treated as a crime rather than a civil wrong. The United Nations Human Rights Committee ruled in 2012 that the libel law of one country, the Philippines, was inconsistent with Article 19 of the Internati…
Sep 5, 2020
Pro bono
Pro bono publico (English: "for the public good"; usually shortened to pro bono) is a Latin phrase for professional work undertaken voluntarily and without payment. Unlike traditional volunteering, it uses the specific skills of professionals to provide services to those who are unable to afford them.
Pro bono publico is also used in the United Kingdom to describe the central motivation of large organizations, such as the National Health Service and various NGOs which exist "for the public good" rather than for shareholder profit, but it equally or even more applies to the private sector where professionals like lawyers and bankers offer their specialist skills for the benefit of the community or NGOs.
Legal counsel
Pro bono legal counsel may assist an individual or group on a legal case by filing government applications or petitions. A judge may occasionally determine that the loser should compensate a winning pro bono counsel.
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Sep 4, 2020
Contract law: Contract formation - Offer and acceptance
Offer and acceptance analysis is a traditional approach in contract law. The offer and acceptance formula, developed in the 19th century, identifies a moment of formation when the parties are of one mind. This classical approach to contract formation has been modified by developments in the law of estoppel, misleading conduct, misrepresentation, unjust enrichment, and power of acceptance.
Treitel defines an offer as "an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed", the "offeree". An offer is a statement of the terms on which the offeror is willing to be bound. It is the present contractual intent to be bound by a contract with definite and certain terms communicated to the offeree.
The expression of an offer may take different forms and which form is acceptable varies by jurisdiction. Offers may be presented in a letter, newspaper advertisement, fax, email…
Sep 3, 2020
Property law: Course Introduction
Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.
The concept, idea or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.
Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute, protection of personal property rights was present in medieval Islamic law and jurisprudence, and in more feudalist forms in the common law courts of medieval and early modern England. --- Send in a voice message: https://anchor.fm/law-school/message S…
Sep 2, 2020
Intellectual property: Trade dress and Utility model
Trade dress is the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is a form of intellectual property.
United States.
Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another. For example, the shape, color, and arrangement of the materials of a children's line of clothing can be protectable trade dress (though, the design of the garments themselves is not protected), as can the design of a magazine cover, the appearance and décor of a chain of Mexican-style restaurants, and a method of displaying wine bottles in a wine shop.
Utility model
A utility model is a patent-like intellectual property right to protect inventions. This type of right is available in many countries but, notably, not in the U…
Sep 1, 2020
Tort law: Negligence - Standard of care
In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.
The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person. It was famously described in Vaughn v Menlove (1837) as whether the individual "proceed with such reasonable caution as a prudent man would have exercised under such circumstances'. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Aug 31, 2020
Tort Law: Negligence - Duty of care
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship (familial or contractual or otherwise) but eventually become related in some manner, as defined by common law (meaning case law).
Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.
Development of the…
Aug 31, 2020
Criminal law: Offence against the person - Criminal negligence
In criminal law, criminal negligence is a surrogate mens rea (Latin for "guilty mind") required to constitute a conventional as opposed to strict liability offense. It is not, strictly speaking, a mens rea because it refers to an objective standard of behavior expected of the defendant and does not refer to their mental state.
Concept.
To constitute a crime, there must be an actus reus (Latin for "guilty act") accompanied by the mens rea. Negligence shows the least level of culpability, intention being the most serious, and recklessness being of intermediate seriousness, overlapping with gross negligence. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a "malfeasance" where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a "misfeasance" or "nonfeasance", where the fa…
Aug 28, 2020
Res judicata
Res judicata (RJ), also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) relitigation of a claim between the same parties. In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter. The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion. Common law. In common law jurisdictions, the principle of res judicata may be asserted either…
Aug 27, 2020
Intellectual property: Related rights (or neighboring rights in copyright law)(Part 2 of 2)
International protection of related rights.
Apart from the Rome convention, a number of other treaties address the protection of related rights:
Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva Phonograms Convention, 1971).
Convention Relating to the Distribution of Program–Carrying Signals Transmitted by Satellite (Brussels Convention, 1974).
Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty, 1989).
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994).
WIPO Performances and Phonograms Treaty (WPPT, 1996).
Apart from the TRIPS Agreement, these treaties cannot truly be described as global: the Rome Convention had 83 signatories as of 2006, compared with 162 for the Berne Convention.
Relation to authors' rights.
Related rights are independent of any authors' rights, as is made clear in the various treaties. Hence a CD recording of a song is concurre…
Aug 26, 2020
Intellectual property: Related rights (or neighboring rights in copyright law)(Introduction)
In copyright law, related rights (or neighboring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". Neighboring rights is a more literal translation of the original French droits voisins. Both authors' rights and related rights are copyrights in the sense of English or U.S. law.
Related rights vary much more widely in scope between different countries than authors' rights. The rights of performers, phonogram producers and broadcasting organizations are certainly covered, and are internationally protected by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations signed in 1961.
Within the European Union, the rights of film producers (as opposed to directors) and database creators are also protected by related rights, and the term is sometimes extended to include the sui generis rights in semiconductor topologies and other industrial design r…
Aug 25, 2020
Criminal law: Offence against the person - Battery
Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the act of creating apprehension of such contact.
Battery is a specific common law misdemeanor, although the term is used more generally to refer to any unlawful offensive physical contact with another person, and may be a misdemeanor or a felony, depending on the circumshttps://en.wikipedia.org/wiki/Offence_(law)tances. Battery was defined at common law as "any unlawful and or unwanted touching of the person of another by the aggressor, or by a substance put in motion by him." In more severe cases, and for all types in some jurisdictions, it is chiefly defined by statutory wording. Assessment of the severity of a battery is determined by local law.
Generally.
Specific rules regarding battery vary among different jurisdictions, but some elements remain constant across jurisdictions. Battery generally requires that:
1. an offensive touch or contact is made upon the victim, instigate…
Aug 22, 2020
Intellectual property: Moral rights
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions.
Moral rights apply only to literary, dramatic, musical and artistic works, and also to films (where the director enjoys moral rights). The most important exceptions to be aware of are computer programs and employees. In most situations employees do not enjoy moral rights.
The moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preservation of the integrity of the work allows the author to object to alteration, distortion, or mutilation of the work that is "prejudicial to the author's honor or reputation". Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any econo…
Aug 21, 2020
Intellectual property: Patent (Part 2 of 2)
Application and prosecution.
A patent is requested by filing a written application at the relevant patent office. The person or company filing the application is referred to as "the applicant". The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art (for example, the relevant area of technology) to make and use the invention. In some countries there are requirements for providing specific information such as the usefulness of the invention, the best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention. Drawings illustrating the invention may also be provided.
The application also includes one or more claims that define what a patent covers or the "scope of protection".
After filing, an application is often referred to as "patent pending". While this term does not confer legal protect…
Aug 20, 2020
Intellectual property: Patent (Part 1 of 2)
A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling public disclosure of the invention. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce his or her rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.:17
The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the scope of protection that is being sought. A patent may include many claims, each of which defines a specific property right. These claims must meet various patentability requirements, which in the U…
Aug 19, 2020
The US Constitution: History and overview (Part 4 of 4)
Unratified amendments. Unratified amendments. Collectively, members of the House and Senate typically propose around 150 amendments during each two-year term of Congress. Most however, never get out of the Congressional committees in which they were proposed, and only a fraction of those that do receive enough support to win Congressional approval to actually go through the constitutional ratification process.
Six amendments approved by Congress and proposed to the states for consideration have not been ratified by the required number of states to become part of the Constitution. Four of these are technically still pending, as Congress did not set a time limit for their ratification. The other two are no longer pending, as both had a time limit attached and in both cases the time period set for their ratification expired. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Aug 18, 2020
Criminal Law: Offence against the person - Assault
An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Generally, the common law definition is the same in criminal and tort law.
Traditionally, common law legal systems had separate definitions for assault and battery. When this distinction is observed, battery refers to the actual bodily contact, whereas assault refers to a credible threat or attempt to cause battery. Some jurisdictions combined the two offences into assault and battery, which then became widely referred to as "assault". The result is that in many of these jurisdictions, assault has taken on a definition that is more in line with the traditional definition of battery. The legal systems of civil law and Scots law have never distinguished assault from battery.
Legal systems generally ackno…
Aug 17, 2020
Tort law: Negligence - Gross negligence
Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negligence may be able to recover punitive damages from the person who caused the injury or loss.
Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct deviates from the proverbial "reasonable person". By extension, if somebody has been grossly negligent, that means they have fallen so far below the ordinary standard of care that one can expect, to warrant the label of being "gross". Gross negligence may thus be described as reflecting "the want of even slight or scant care", falling below the level of care that even a careless person would be expected to follow. While some jurisdictions equate the culpability of gross negligence with that of recklessness, most differentiate it from simple…
Aug 17, 2020
Tort law: Negligence
Negligence (negligentia in Latin) is a failure to exercise appropriate and or ethical rules of care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.
Elements of negligence claims
Some things must be established by anyone who wants to sue in negligence.…
Aug 16, 2020
In re: Don McGahn (also: Committee on the Judiciary, United States House of Representatives v. Donald F. McGahn II; U.S. House Judiciary Committee v. Donald F. McGahn)
In re: Don McGahn (also: Committee on the Judiciary, United States House of Representatives v. Donald F. McGahn II; U.S. House Judiciary Committee v. Donald F. McGahn) is a U.S. constitutional case lawsuit (1:19-cv-02379) filed in the United States District Court for the District of Columbia by the House Judiciary Committee to compel the testimony of former White House Counsel Donald F. McGahn, Jr. under subpoena. McGahn was put under subpoena to testify regarding his knowledge of the Russia investigation and Mueller Report and whether President Donald Trump's actions could constitute obstruction of justice. The case gained importance as the House launched impeachment proceedings against Trump regarding the Trump–Ukraine scandal.
In April 2019, the House Judiciary Committee subpoenaed McGahn to testify before Congress about potential obstruction of justice on the part of the Trump administration. The administration directed McGahn to ignore the subpoena, claiming that he was "absolu…
Aug 14, 2020
The US Constitution: History and overview (Part 3 of 4)
Amending the Constitution.
The procedure for amending the Constitution is outlined in Article Five. The process is overseen by the archivist of the United States. Between 1949 and 1985 it was overseen by the administrator of General Services, and before that by the secretary of state.
Under Article Five, a proposal for an amendment must be adopted either by Congress or by a national convention, but as of 2020 all amendments have gone through Congress. The proposal must receive two-thirds of the votes of both houses to proceed. It is passed as a joint resolution, but is not presented to the president, who plays no part in the process. Instead, it is passed to the Office of the Federal Register, which copies it in slip law format and submits it to the states. Congress decides whether the proposal is to be ratified in the state legislature or by a state ratifying convention. To date all amendments have been ratified by the state legislatures except one, the Twenty-first Amendment.
A pr…
Aug 12, 2020
Intellectual property: Integrated circuit layout design protection
Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property. In United States intellectual property law, a "mask work" is a two or three-dimensional layout or topography of an integrated circuit (IC or "chip"), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously. Because of the functional nature of the mask geometry, the designs cannot be effectively protected under copyright law (except perhaps as decorative art). Similarly, because individual lithographic mask works are not clearly protectable subject matter; they also cannot be effectively protected under patent…
Aug 12, 2020
Criminal law: Inchoate offenses - Conspiracy
In criminal law, a conspiracy is an agreement between two or more persons to commit a crime at some time in the future. Criminal law in some countries or for some conspiracies may require that at least one overt act be undertaken in furtherance of that agreement, to constitute an offense. There is no limit on the number participating in the conspiracy and, in most countries, no requirement that any steps have been taken to put the plan into effect (compare attempts which require proximity to the full offense). For the purposes of concurrence, the actus reus is a continuing one and parties may join the plot later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted or cannot be traced. Finally, repentance by one or more parties does not affect liability (unless, in some cases, it occurs before the parties have committed overt acts) but may reduce their sentence.
An unindicted co-conspirator, or unindicted conspirator, is a person or enti…
Aug 10, 2020
Tort law: Defenses - Defense of property and Shopkeeper's privilege
The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property.
Shopkeeper's privilege is a law recognized in some parts of the United States under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.
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Aug 9, 2020
Contracts (Part 3 of 3)
In many countries, in order to obtain damages for breach of contract or to obtain specific performance or other equitable relief, the aggrieved injured party may file a civil (non-criminal) lawsuit in court. In England and Wales, a contract may be enforced by use of a claim, or in urgent cases by applying for an interim injunction to prevent a breach. Likewise, in the United States, an aggrieved party may apply for injunctive relief to prevent a threatened breach of contract, where such breach would result in irreparable harm that could not be adequately remedied by money damages. Arbitration. If the contract contains a valid arbitration clause then, prior to filing a lawsuit, the aggrieved party must submit an arbitration claim in accordance with the procedures set forth in the clause. Many contracts provide that all disputes arising thereunder will be resolved by arbitration, rather than litigated in courts. Arbitration judgments may generally be enforced in the same manner as ordina…
Aug 7, 2020
Criminal law: Inchoate offenses - Attempted murder
Attempted murder is a crime of attempt in various jurisdictions.
Canada.
Section 239 of the Criminal Code makes attempted murder punishable by a maximum of life imprisonment. If a gun is used, the minimum sentence is four, five or seven years, dependent on prior convictions and relation to organized crime.
United Kingdom.
England and Wales.
In English criminal law, attempted murder is the crime of simultaneously preparing to commit an unlawful killing and having a specific intention to cause the death of a human being under the Queen's Peace. The phrase "more than merely preparatory" is specified by the Criminal Attempts Act 1981 to denote the fact that preparation for a crime by itself does not constitute an "attempted crime".
In England and Wales, as an "attempt", attempted murder is an offence under section 1(1) of the Criminal Attempts Act 1981 and is an indictable offence which carries a maximum penalty of life imprisonment (the same as the mandatory sentence for murder). Th…
Aug 7, 2020
Criminal law: Inchoate offenses - Attempt
An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent, and some conduct toward completion of the crime.
One group of theories in criminal law is that attempt to commit an act occurs when a person comes dangerously close to carrying out a criminal act, and intends to commit the act, but does not commit it. The person may have carried out all the necessary steps (or thought they had) but still failed, or the attempt may have been abandoned or prevented at a late stage. The attempt must have gone beyond mere planning or preparation and is distinct from other inch…
Aug 6, 2020
Contracts (Part 2 of 3)
Contractual terms are classified differently depending upon the context or jurisdiction. Terms establish conditions precedent. English, but not necessarily non-English, common law distinguishes between important conditions and warranties, with a breach of a condition by one party allowing the other to repudiate and be discharged while a warranty allows for remedies and damages but not complete discharge. Whether or not a term is a condition is determined in part by the parties' intent.
In a less technical sense, however, a condition is a generic term and a warranty is a promise. Not all language in the contract is determined to be a contractual term. Representations, which are often precontractual, are typically less strictly enforced than terms, and material misrepresentations historically were a cause of action for the tort of deceit. Warranties were enforced regardless of materiality; in modern United States law the distinction is less clear but warranties may be enforced more stri…
Aug 5, 2020
Intellectual property: Industrial design right
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
Under the Hague Agreement Concerning the International Deposit of Industrial Designs, a WIPO-administered treaty, a procedure for an international registration exists. To qualify for registration, the national laws of most member states of WIPO require the design to be novel. An applicant can file for a single international deposit with WIPO or with the national office in a country party to the treaty. The design will then be protected in as many member countries of the treaty as desired. Design rights started in the United Kingdom…
Aug 3, 2020
Tort law: Defenses - Right of self-defense
The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable force or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including –in certain circumstances– the use of deadly force.
If a defendant uses defensive force because of a threat of deadly or grievous harm by the other person, or a reasonable perception of such harm, the defendant is said to have a "perfect self-defense" justification. If defendant uses defensive force because of such a perception, and the perception is not reasonable, the defendant may have an "imperfect self-defense" as an excuse.
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Aug 3, 2020
The US Constitution: History and overview (Part 2 of 4)
Preamble.
The preamble to the Constitution serves as an introductory statement of the document's fundamental purposes and guiding principles. It neither assigns powers to the federal government, nor does it place specific limitations on government action. Rather, it sets out the origin, scope and purpose of the Constitution. Its origin and authority is in "We, the people of the United States". This echoes the Declaration of Independence. "One people" dissolved their connection with another, and assumed among the powers of the earth, a sovereign nation-state. The scope of the Constitution is twofold. First, "to form a more perfect Union" than had previously existed in the "perpetual Union" of the Articles of Confederation. Second, to "secure the blessings of liberty", which were to be enjoyed by not only the first generation but for all who came after, "our posterity". --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/s…
Jul 31, 2020
Criminal law: Inchoate offenses
An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the following: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent." --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 30, 2020
Contracts (Part 1 of 3)
A contract is a legally binding document that recognizes and governs the rights and duties of the parties to the agreement. A contract is legally enforceable because it meets the requirements and approval of the law. A contract typically involves the exchange of goods, service, money, or promise of any of those. "Breach of contract", means that the law will have to award the injured party either the access to legal remedies such as damages or cancellation.
In the Anglo-American common law, formation of a contract generally requires an offer, acceptance, consideration, and mutual intent to be bound. Each party must be those who are binding by the contract. Although most oral contracts are binding, some types of contracts may require formalities such as being in writing or by deed.
In the civil law tradition, contract law is a branch of the law of obligations.
Each country recognized by private international law has its own national system of law to govern contracts. Although systems…
Jul 28, 2020
Intellectual property: Indigenous intellectual property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' claims of collective intellectual property rights to protect specific cultural knowledge of their groups.
It is a concept that has developed as an analog to predominantly western concepts of intellectual property law, and has most recently been promoted by the World Intellectual Property Organization, as part of a broader effort by the United Nations to see the world's indigenous, intangible cultural heritage better valued and better protected against perceived, ongoing mistreatment.
Nation states across the world have experienced difficulties reconciling local indigenous laws and cultural norms with a predominantly western legal system, in many cases leaving indigenous peoples' individual and communal intellectual property rights largely unprotected. Therefore, international bodies such as the United Nations have become involved in the issue, making mo…
Jul 26, 2020
Tort law: Defenses - Statute of limitations
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated.
When the time specified in a statute of limitations passes, a claim might no longer be filed or, if filed, may be subject to dismissal if the defense against that claim is raised that the claim is time-barred as having been filed after the statutory limitations period. When a statute of limitations expires in a criminal case, the courts no longer have jurisdiction. Most crimes that have statutes of limitations are distinguished from serious crimes as these may be brought at any time.
In civil law systems, such provisions are typically part of their civil or criminal codes. The cause of action dictates the statute of limitations, which can be reduced (or extended) to ensure a fair trial. The intention of these laws is to facilitate resolution within a "reasonable" length of time. Wha…
Jul 26, 2020
Tort law: Defenses - Necessity
In tort common law, the defense of necessity gives the state or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from common law is necessitas inducit privilegium quod jura private, ("Necessity induces a privilege because of a private right"). A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor…
Jul 23, 2020
Criminal law: Severity of offense - Summary offence
A summary offence is a crime in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
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Jul 23, 2020
Criminal law: Severity of offense - Misdemeanor
A misdemeanor (American English, spelled misdemeanour in British English) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than administrative infractions (also known as minor, petty, or summary offences) and regulatory offences. Many misdemeanors are punished with monetary fines. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 20, 2020
Intellectual property: Geographical indication
A geographical indication (GI) is a name or sign used on products which corresponds to a specific geographical location or origin (for example, a town, region, or country). The use of a geographical indication, as an indication of the product's source, acts as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a good reputation due to its geographical origin.
Appellation d'origine contrôlée ('Appellation of origin') is a sub-type of geographical indication where quality, method, and reputation of a product originate from a strictly defined area specified in its intellectual property right registration. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 19, 2020
Tort law: Defenses - Consent
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships.
Types of consent include implied consent, express consent, informed consent and unanimous consent. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a mental disorder, a low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 19, 2020
Tort law: Defenses - Contributory negligence
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.
Because the contributory negligence doctrine can lead to harsh results, many common law jurisdictions have abolished it in favor of a "comparative fault" or "comparative negligence" approach. A comparative negligence approach reduces the plaintiff's damages award by the percentage of fault that the factfinder assigns to the plaintiff for his or her own injury. For example, if a jury thinks that the plaintiff is 30% at fault for his own injury, the plaintiff's damages award will be reduced by 30%. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 19, 2020
The US Constitution: History and overview (Part 1 of 4)
The Constitution of the United States is the supreme law of the United States of America. The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress (Article I); the executive, consisting of the president (Article II); and the judicial, consisting of the Supreme Court and other federal courts (Article III). Article IV, Article V and Article VI embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article VII establishes the procedure subsequently used by the thirteen States to ratify it. It is regarded as the oldest written and codified national constitution in force.
Since the Constitution came into force in 1…
Jul 14, 2020
Criminal law: Severity of offense - Felony
The term felony originated from English common law, from the French medieval word "félonie", to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added. Other crimes were called misdemeanors. A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. Following conviction of a felony in a court of law, a person may be described as a convicted felon. The centuries-old stigma of loss of wealth, status and speculated extreme gravity to the crime sees those personal descriptions widely deprecated, in favor of ex-convict or ex-criminal.
Some common law countries and jurisdictions no longer classify crimes as felonies or misdemeanors and instead use other distinctions, such as by classifying serious crimes as indictable offences and less serious crimes as summary offences.
In the United States, where the felony, misdemea…
Jul 14, 2020
Criminal law: Scope of criminal liability - Vicarious
The legal principle of vicarious liability applies to hold one person liable for the actions of another when engaged in some form of joint or collective activity. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 12, 2020
Intellectual property: Farmers' rights
The International Treaty on Plant Genetic Resources for Food and Agriculture, (also known as ITPGRFA, International Seed Treaty or Plant Treaty is a comprehensive international agreement in harmony with the Convention on Biological Diversity, which aims at guaranteeing food security through the conservation, exchange and sustainable use of the world's plant genetic resources for food and agriculture (PGRFA), the fair and equitable benefit sharing arising from its use, as well as the recognition of farmers' rights. It was signed in 2001 in Madrid, and entered into force on June 29th 2004. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 12, 2020
Tort law: Defenses - Assumption of risk
Assumption of risk is a defense in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which the plaintiff was participating at the time of his or her injury. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 12, 2020
Tort law: Defenses - Comparative negligence
Comparative negligence, or non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the factfinder, usually a jury, must decide the degree to which the plaintiff's negligence and the combined negligence of all other relevant actors all contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence that disallows any recovery by a plaintiff whose negligence contributed even minimally to causing the damages. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 9, 2020
Bonus episode: Supreme Court case opinion - Trump v. Vance
Trump v. Vance, 591 U.S. ___ (2020), was a landmark[1][2] United States Supreme Court case related to the New York County District Attorney Cyrus Vance Jr.'s attempt to subpoena the tax records of President Donald Trump as part of the ongoing investigation into the Stormy Daniels scandal, which Trump has litigated to prevent their release. The Court held that Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.[3] The 7–2 decision was issued in July 2020, with Justices Samuel A. Alito and Clarence Thomas dissenting. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 9, 2020
Bonus episode: Supreme Court case opinion - Trump v. Mazars USA, LLP
Trump v. Mazars USA, LLP, 591 U.S. ___ (2020) was a Supreme Court of the United States case involving the United States House of Representatives subpoenas to obtain the tax returns of President Donald Trump, which Trump has litigated to prevent but which had been cleared by the United States Court of Appeals for the District of Columbia Circuit. In a 7–2 decision issued in July 2020, the Supreme Court reversed the Circuit Court's decision, asserting that the court had not properly assessed the separation of powers between Congress and the President, and remanded the case for review with a set of considerations to evaluate the worthiness of the subpoena request. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 8, 2020
Intellectual property: Database right
A database right is a sui generis property right, comparable to but distinct from copyright, that exists to recognise the investment that is made in compiling a database, even when this does not involve the "creative" aspect that is reflected by copyright. Such rights are often referred to in the plural: database rights. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 7, 2020
Criminal law: Scope of criminal liability - Corporate liability
In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. It is sometimes regarded as an aspect of criminal vicarious liability, as distinct from the situation in which the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 4, 2020
Tort law: Property torts - Trover
Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself.
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Jul 3, 2020
Intellectual property: Copyright (Part 2)
The concept of copyright developed after the printing press came into use in Europe in the 15th and 16th centuries. The printing press made it much cheaper to produce works, but as there was initially no copyright law, anyone could buy or rent a press and print any text. Popular new works were immediately reset and re-published by competitors, so printers needed a constant stream of new material. Fees paid to authors for new works were high, and significantly supplemented the incomes of many academics --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 2, 2020
Criminal law: Scope of criminal liability - Complicity
Complicity is the participation in a completed criminal act of an accomplice, a partner in the crime who aids or encourages (abets) other perpetrators of that crime, and who shares with them an intent to act to complete the crime. A person is an accomplice of another person in the commission of a crime if they purpose the completion of a crime, and toward that end, if that person solicits or encourages the other person, or aids or attempts to aid in planning or committing the crime, or has legal duty to prevent that crime but fails to properly make an effort to prevent it. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jul 1, 2020
Bonus episode: Supreme Court case opinion - Patent and Trademark Office v. Booking.com B. V.
Booking.com is an online travel agency, operating under both that name and at that domain name. The company sought to trademark its name with the United States Patent and Trademark Office (USPTO). The USPTO had denied the application: it ruled that the term "booking" as applied to the class of travel services was a generic term, and that Booking.com had not shown how their mark had gained distinctiveness. Booking.com appealed to the Trademark Trial and Appeal Board, (TTAB), which upheld that "booking" was a generic term within the class of travel services, and simply appending "dot com" did not change its generic nature. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 30, 2020
Bonus episode: Legal Terminology
A reference work with a list of legal terms from one or more languages, ordered alphabetically, explaining each word's meaning, and sometimes containing information on its usage, translations, and other data. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 29, 2020
Criminal law: Elements - Concurrence
In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both actus reus ("guilty action") and mens rea ("guilty mind"), to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 25, 2020
Tort law: Property torts - Replevin
Replevin or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 21, 2020
Intellectual property: Copyright (Part 1)
Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 21, 2020
Criminal law: Causation
Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 14, 2020
Criminal law: Mens rea
Mens rea; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.
The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea, i.e. "the act is not culpable unless the mind is guilty". In jurisdictions with due process, there must be both actus reus ("guilty act") and mens rea for a defendant to be guilty of a crime (see concurrence). As a general rule, someone who acted without mental fault is not liable in criminal law. Exceptions are known as strict liability crimes. Moreover, when a person intends a harm, but because of bad aim or other cause, the intent is transferred from an intended victim to an unintended victim, the case is considered to be a matter of transferred intent.
In civil law, it is usually not necessary to prove a subjective mental ele…
Jun 12, 2020
Tort Law: Property torts: Detinue
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant and second that the defendant refused to return the chattel once demanded by the claimant.
Detinue allows for a remedy of damages for the value of the chattel, but unlike most other interference torts, detinue also allows for the recovery of the specific chattel being withheld. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 8, 2020
Intellectual property: Authors' rights
The term is considered as a direct translation of the French term droit d’auteur (also German Urheberrecht). It was first (1777) promoted in France by Pierre-Augustin Caron de Beaumarchais, who had close relations with Benjamin Franklin. It is generally used in relation to the copyright laws of civil law countries and in European Union law. Authors' rights are internationally protected by the for the Protection of Literary and Artistic Works and by other similar treaties. “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Jun 7, 2020
Criminal law: Actus reus
The terms actus reus and mens rea developed in English Law are derived from the principle stated by Edward Coke, namely, actus non facit reum nisi mens sit rea, which means: "an act does not make a person guilty unless (their) mind is also guilty"; hence, the general test of guilt is one that requires proof of fault, culpability or blameworthiness both in thought and action.
In order for an actus reus to be committed there has to have been an act. Various common law jurisdictions define act differently but generally, an act is a "bodily movement whether voluntary or involuntary." In Robinson v. California, 370 U.S. 660 (1962), the U.S. Supreme Court ruled that a California law making it illegal to be a drug addict was unconstitutional because the mere status of being a drug addict was not an act and thus not criminal. Commentator Dennis Baker asserts: "Although lawyers find the expression actus reus convenient, it is misleading in one respect. It means not just the criminal act but al…
Jun 1, 2020
Tort law: Property torts - Conversion
Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability. Its equivalents in criminal law include larceny or theft and criminal conversion. In those jurisdictions that recognize it, criminal conversion is a lesser crime than theft/larceny.
Examples of conversion include: 1) Alpha cuts down and hauls away trees on land s/he knows is owned by Beta, without permission or privilege to do so; and 2) Gamma takes furniture belonging to Delta and puts it into storage, without Delta's consent (and especially if Delta does not know where Gamma put it). A common act of conversion in medieval times involved bolts of cloth that were bailed for safekeeping, which the bailee or a third party took and made clothes for their own use or for sale.
Many questions concerning joint ownership in enterprises such as a partnership belong in e…
May 31, 2020
Criminal law
Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.
Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation.
Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
May 25, 2020
Intellectual property: Part 3
Copyright infringement is reproducing, distributing, displaying or performing a work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator. It is often called "piracy". While copyright is created the instant a work is fixed, generally the copyright holder can only get money damages if the owner registers the copyright. Enforcement of copyright is generally the responsibility of the copyright holder. The ACTA trade agreement, signed in May 2011 by the United States, Japan, Switzerland, and the EU, and which has not entered into force, requires that its parties add criminal penalties, including incarceration and fines, for copyright and trademark infringement, and obligates the parties to actively police for infringement.
There are limitations and exceptions to copyright, allowing limited use of copyrighted works, which does not constitute infringement. Examples of such…
May 25, 2020
Tort law: Property torts - Trespass
Trespass is an area of criminal law or tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.
Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding, mayhem (or maiming), and false imprisonment. Through the evolution of the common law in various jurisdictions, and the codification of common law torts, most jurisdictions now broadly recognize three trespasses to the person: assault, which is "any act of such a nature as to excite an apprehension of battery"; battery, "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it"; and false imprisonment, the "unlawful obstruction or deprivation of freedom from restraint of movement". One can Retrieve wounded or expired game from neighboring properties and boundaries even if the neighboring land owner does not give permission as long as there are no weapons in poss…
May 21, 2020
Intellectual property: Part 2
The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation. The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it…
May 17, 2020
Intellectual property: Part I
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets. Early precursors to some types of intellectual property existed in societies such as Ancient Rome, but the modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
May 16, 2020
Tort Law: Transferred intent
Transferred intent (or transferred mens rea, or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. To be held legally responsible under the law, usually the court must demonstrate that the person has criminal intent, that is, that the person knew another would be harmed by his or her actions and wanted this harm to occur. If a murderer intends to kill John, but accidentally kills George instead, the intent is transferred from John to George, and the killer is held to have had criminal intent. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
May 9, 2020
Tort Law: Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
May 3, 2020
Tort Law: False Imprisonment
False imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification or consent. Actual physical restraint is not necessary for false imprisonment to occur. A false imprisonment claim may be made based upon private acts, or upon wrongful governmental detention. For detention by the police, proof of false imprisonment provides a basis to obtain a writ of habeas corpus.
Under common law, false imprisonment is both a crime and a tort. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Apr 25, 2020
Tort Law: Intentional Torts
An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer). The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed, while strict liability torts refers to situations where a party is liable for injuries no matter what precautions were taken. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support
Apr 9, 2020
Tort Law
Learn the basics of tort law as taught in Law School. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support