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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. Support this podcast: https://anchor.fm/law-school/support

The Law School of America


    • Sep 29, 2022 LATEST EPISODE
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    • 624 EPISODES


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    Latest episodes from Law School

    Criminal procedure (2023): Trial + Speedy trial

    Play Episode Listen Later Sep 29, 2022 9:54


    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 appeal (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 are governed by administrative law and auxiliarily 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. Labour rights have been integral to social and economic development since the industrial revolution. In criminal law, the right to a speedy trial is a human right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial. Although it is important for the protection of speedy trial rights for there to be a court in which a defendant may complain about the unreasonable delay of the trial, it is also important that nations implement structures that avoid the delay. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Gambling

    Play Episode Listen Later Sep 28, 2022 20:28


    Gambling (also known as betting or gaming) is the wagering of something of value ("the stakes") on an event with an uncertain outcome with the intent of winning something else of value. 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 observed in the English-speaking world. For instance, in the United Kingdom, the regulator of gambling activities is called the Gambling Commission (not the Gaming Commission). The word gaming is used more frequently since the rise of computer and video games to describe activities that do not necessarily involve wagering, especially online gaming, with the new usage still not having displaced the old usage as the primary definition in common dictionaries. "Gaming" has also been used to circumvent laws against "gambling". The media and others have used one term or the other to frame conversations around the subjects, resulting in a shift of perceptions among their audiences. Gambling is also a major international commercial activity, with the legal gambling market totaling an estimated $335 billion in 2009. In other forms, gambling can be conducted with materials that have a value, but are not real money. For example, players of marbles games might wager marbles, and likewise games of Pogs or Magic: The Gathering can be played with the collectible game pieces (respectively, small discs and trading cards) as stakes, resulting in a meta-game regarding the value of a player's collection of pieces. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Federal Rules of Civil Procedure: Venue + Change of venue + Forum non conveniens

    Play Episode Listen Later Sep 27, 2022 12:45


    Criminal venue. The perceived abuse of English criminal venue law was one of the enumerated grievances in the United States Declaration of Independence, which accused George III of the United Kingdom of "transporting us beyond Seas to be tried for pretended offenses." Article Three of the United States Constitution provides: "Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." The "where the said Crimes shall have been committed" language refers to the locus delicti, and a single crime may often give rise to several constitutionally permissible venues. "he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." Thus, venue may be constitutionally permissible even if an individual defendant was never personally present in the relevant state. For example, conspiracy may be prosecuted wherever the agreement occurred or wherever any overt act was committed. For the purposes of constitutional venue, the boundaries of the states are questions of law to be determined by the judge, but the location of the crime is a question of fact to be determined by the jury. The venue provision of Article 3 (regulating the location of the trial) is distinct from the Vicinage Clause of the Sixth Amendment (regulating the geography from which the jury pool is selected). The unit of the former is the state; the unit of the later is the state and judicial district. Unlike judicial districts under the Vicinage Clause, consistent with Article III, Congress may "provide a place of trial where none was provided when the offense was committed, or change the place of trial after the commission of the offense." A change of venue is the legal term for moving a trial to a new location. In high-profile matters, a change of venue may occur to move a jury trial away from a location where a fair and impartial jury may not be possible due to widespread publicity about a crime and its defendants to another community in order to obtain jurors who can be more objective in their duties. This change may be to different towns, and across the other sides of states or, in some extremely high-profile federal cases, to other states. Forum non conveniens (Latin for "an inconvenient forum") (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state. A concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity, also apply in civil law systems in the form of the legal doctrine of lis alibi pendens. Forum non conveniens is not exclusive to common law nations: the maritime courts of the Republic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Economic torts: Restraints of trade

    Play Episode Listen Later Sep 26, 2022 18:21


    Restraints of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business. It is a precursor of modern competition law. In an old leading case of Mitchel v Reynolds (1711) Lord Smith LC said, It is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion. A contractual undertaking not to trade is void and unenforceable against the promisor as contrary to the public policy of promoting trade, unless the restraint of trade is reasonable to protect the interest of the purchaser of a business. Restraints of trade can also appear in post-termination restrictive covenants in employment contracts. United States. In the US, the first significant discussion occurred in the Sixth Circuit's opinion by Chief Judge (later US President and still later Supreme Court Chief Justice) William Howard Taft in United States v Addyston Pipe & Steel Company Judge Taft explained the Sherman Antitrust Act of 1890 as a statutory codification of the English common-law doctrine of restraint of trade, as explicated in such cases as Mitchel v Reynolds. The court distinguished between naked restraints of trade and those ancillary to the legitimate main purpose of a lawful contract and reasonably necessary to effectuation of that purpose. An example of the latter would be a non-competition clause associated with the lease or sale of a bakeshop, as in the Mitchel case. Such a contract should be tested by a "rule of reason," meaning that it should be deemed legitimate if "necessary and ancillary." An example of the naked type of restraint would be the price-fixing and bid-allocation agreements involved in the Addyston case. Taft said that "we do not think there is any question of reasonableness open to the courts to such a contract." The Supreme Court affirmed the judgment. During the following century, the Addyston Pipe opinion of Judge Taft has remained foundational in antitrust analysis. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: Sales taxes (Part Four) (Texas thru Wyoming) + Internet transactions

    Play Episode Listen Later Sep 23, 2022 23:10


    Internet transactions. Through the Internet's history, purchases made over the Internet within the United States have generally been exempt from sales tax, as courts have followed the Supreme Court ruling from Quill Corporation v North Dakota (1992) that a state may only collect sales tax from a business selling products over the Internet if that entity has a physical location in the state. This decision was based on the Dormant Commerce Clause that prevents states from interfering in interstate commerce, unless granted that authority by Congress. Some retailers, like Amazon.com, had voluntarily started collecting sales tax on purchases even from states where they do not have a physical presence. Many states also have a line item on their tax returns allowing the payment of state sales tax when state income tax is filed by an individual or corporation. In May 2013, the Senate passed the Marketplace Fairness Act, which would allow states to collect sales taxes for purchases made online. The legislation would give States the tools to collect sales taxes on cross-State sales transactions. The bill received support from retailers including Walmart and Amazon.com, who have claimed that it is unfair not to require online merchants to collect sales taxes. Groups like the National Retail Federation and the Retail Industry Leaders Association have said that requiring online vendors to collect sales taxes will help make brick and mortar retailers more competitive. However, U.S. House Speaker John Boehner stated that it would be difficult to implement such a system due to varying tax codes in different states. The National Taxpayers Union (NTU) spoke out against the bill, along with The Heritage Foundation, which indicated that it would harm Internet commerce and small businesses. Online retailer eBay believes it will hurt some of its sellers and lobbied Congress to exempt businesses that have less than $10 million in out-of-state sales or fewer than 50 employees. The Act failed to pass in either the 112th or 113th Congress. In October 2017, the state of South Dakota petitioned the Supreme Court to abrogate the Quill decision, citing the ease that online retailers can now determine the location and appropriate sales tax for purchases compared to the state of the Internet in 1992. Several online retailers, including Wayfair, Overstock.com and Newegg, submitted petitions in opposition to South Dakota, stating that the impact will be difficult on small and medium-sized retailers that would not have ease of access to these tools. In January 2018, the Supreme Court agreed to hear the case South Dakota v Wayfair Incorporated in its 2018 term. Oral arguments were heard by the Supreme Court on April 17, 2018. During oral arguments South Dakota's attorney general, Marty Jackley, and the U.S. Solicitor General's representative, Malcolm L Stewart, both posited that if the Court overturns the Quill decision that the ruling must be retroactive and not merely prospective. Several Justices were concerned about the burden that back taxes and ongoing sales and use tax compliance would place on small businesses. On June 21, 2018 the Supreme Court held that states may charge tax on purchases made from out-of-state sellers, even if the seller does not have a physical presence in the taxing state. The court's 5–4 majority decision overturned Quill, ruling that the physical presence rule decided by Quill was 'unsound and incorrect' in the current age of Internet services. Value added tax. There is no value added tax in the United States. There have been proposals to replace some Federal taxes with a value added tax. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal procedure (2023): Fair trial

    Play Episode Listen Later Sep 22, 2022 16:13


    Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in the form of inquisitorial or adversarial criminal procedure. Basic rights. Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that they are innocent, and any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, is required, for example, in the 46 countries that are members of the Council of Europe, under Article 6 of the European Convention on Human Rights, and it is included in other human rights documents. However, in practice it operates somewhat differently in different countries. Such basic rights also include the right for the defendant to know what offense he or she has been arrested for or is being charged with, and the right to appear before a judicial official within a certain time of being arrested. Many jurisdictions also allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense. A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". 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. Fair trial rights. The right to a fair trial has been defined in numerous regional and international human rights instruments. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article. The right to a fair trial is one of the most litigated human rights and substantial case law that has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instruments define the right to a fair trial in broadly the same terms. The aim of the right is to ensure the proper administration of justice. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings: the right to be heard by a competent, independent and impartial tribunal, the right to a public hearing, the right to be heard within a reasonable time, the right to counsel, and, the right to interpretation. States may limit the right to a fair trial or derogate from the fair trial rights only under circumstances specified in the human rights instruments. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Fraud

    Play Episode Listen Later Sep 21, 2022 16:19


    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) or 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 requirements of proof vary among jurisdictions, the requisite elements of fraud as a tort generally are the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact does rely, to the harm of the victim. Proving fraud in a court of law is often said to be difficult as the intention to defraud is the key element in question. As such, proving fraud comes with a "greater evidentiary burden than other civil claims." This difficulty is exacerbated by the fact that some jurisdictions require the victim to prove fraud by clear and convincing evidence. The remedies for fraud may include rescission (for example, reversal) of a fraudulently obtained agreement or transaction, the recovery of a monetary award to compensate for the harm caused, punitive damages to punish or deter the misconduct, and possibly others. In cases of a fraudulently induced contract, fraud may serve as a defense in a civil action for breach of contract or specific performance of contract. Similarly, fraud may serve as a basis for a court to invoke its equitable jurisdiction. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Jurisdiction: Personal jurisdiction: In personam + In rem + quasi in rem

    Play Episode Listen Later Sep 20, 2022 15:16


    In personam is a Latin phrase meaning "against a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint (E&W known as Particulars of Claim (CPR 1999) to give the court jurisdiction to try the case, and the judgment applies to that person and is called an "in personam judgment". In personam is distinguished from in rem, which applies to property or "all the world" instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he or she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there. In rem jurisdiction ("power about or against 'the thing'") is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property. A quasi in rem legal action (Latin, "as if against a thing") is a legal action based on property rights of a person absent from the jurisdiction. In the American legal system the state can assert power over an individual simply based on the fact that this individual has property (bank account, debt, share of stock, land) in the state. Quasi in rem jurisdiction does not have much function in the United States any longer. However, in very specific cases, quasi in rem jurisdiction can still be effective. A quasi in rem action is commonly used when jurisdiction over the defendant is unobtainable due to their absence from the state. Any judgment will affect only the property seized, as in personam jurisdiction is unobtainable. Of note, in a quasi in rem case the court may lack personal jurisdiction over the defendant, but it has jurisdiction over the defendant's property. The property could be seized to obtain a claim against the defendant. A judgment based on quasi in rem jurisdiction generally affects rights to the property only between the persons involved and does not "bind the entire world" as does a judgment based on "jurisdiction in rem". --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Economic torts: Insurance bad faith

    Play Episode Listen Later Sep 19, 2022 15:52


    Insurance bad faith is a tort unique to the law of the United States (but with parallels elsewhere, particularly Canada) that an insurance company commits by violating the "implied covenant of good faith and fair dealing" which automatically exists by operation of law in every insurance contract. In common law countries such as Australia and the UK, the issue is usually framed in the context of a failure of the duty of utmost good faith originating in English insurance law, which does not constitute a tort but rather provides the insured a contractual remedy unique to insurance law. If an insurance company violates the implied covenant, the insured person (or "policyholder") may sue the company on a tort claim in addition to a standard breach of contract claim. The contract-tort distinction is significant because as a matter of public policy, punitive or exemplary damages are unavailable for contract claims, but are available for tort claims. In addition, consequential damages for breach of contract are traditionally subject to certain constraints not applicable to compensatory damages in tort actions. The result is that a plaintiff in an insurance bad faith case may be able to recover an amount larger than the original face value of the policy, if the insurance company's conduct was particularly egregious. Historical background. Most laws regulating the insurance industry in the United States are state-specific. In 1869, the Supreme Court of the United States held, in Paul v Virginia (1869), that the United States Congress did not have the authority to regulate insurance under its power to regulate commerce. In the 1930s and 1940s, a number of U.S. Supreme Court decisions broadened the interpretation of the Commerce Clause in various ways, which led the U.S. Supreme Court held that federal jurisdiction over interstate commerce did extend to insurance in United States v South-Eastern Underwriters Ass'n (1944). In March 1945, the United States Congress expressly reaffirmed its support for state-based insurance regulation by passing the McCarran–Ferguson Act which held that no law that Congress passed should be construed to invalidate, impair or supersede any law enacted by a state regarding insurance. As a result, nearly all regulation of insurance continues to take place at the state level. Such regulation generally comes in two forms. First, each state has an "insurance code" or some similarly named statute which attempts to provide comprehensive regulation of the insurance industry and of insurance policies, a specialized type of contract. State insurance codes generally mandate specific procedural requirements for starting, financing, operating, and winding down insurance companies, and often require insurers to be overcapitalized (relative to other companies in the larger financial services sector) to ensure that they have enough funds to pay claims if the state is hit by multiple natural and man-made disasters at the same time. There is usually a department of insurance or division of insurance responsible for implementing the state insurance code and enforcing its provisions in administrative proceedings against insurers. Second, judicial interpretation of insurance contracts in disputes between policyholders and insurers takes place in the context of the aforementioned insurance-specific statutes as well as general contract law; the latter still exists only in the form of judge-made case law in most states. A few states like California and Georgia have gone farther and attempted to codify all of their contract law (not just insurance law) into statutory law. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: Sales taxes (Part Three) (Missouri. thru Tennessee) + Internet transactions

    Play Episode Listen Later Sep 16, 2022 23:18


    Missouri imposes a sales tax upon all sales of tangible personal property, as well as some "taxable services"; it also charges a use tax for the "privilege of storing, using or consuming within this state any article of tangible personal property." The state rate, including conservation and other taxes, is 4.225%, and counties, municipalities, and other political subdivisions charge their own taxes. Those additional local taxes combined with "community improvement district," "transportation development district," and "museum district" taxes can result in merchandise sales taxes in excess of 10%. The state sales tax rate on certain foods is 1.225%. Missouri provides several exemptions from sales tax, such as purchases by charitable organizations or some common carriers (as opposed to "contract carriers"). Missouri also excludes some purchases from taxation on the grounds that such sales are not sales at retail; these include sales to political subdivisions. The Supreme Court of Missouri in August, 2009, ruled that when a sale is excluded from taxation – as opposed to exempt from taxation – the seller must self-acquire sales tax on its purchase of the goods and remit the tax on such purchases it made. This decision was reversed by two similar – but not identical – statutes added during the 2010 general assembly's regular session. Although the purchaser is obligated to pay the tax, the seller is obligated to remit the tax, and when the seller fails to remit, the obligation to pay falls on them. As compensation for collecting and remitting taxes, and as an incentive to timely remit taxes, sellers may keep two percent of all taxes collected each period. There are two exceptions to the general rule that the seller must pay the sales tax when he or she fails to collect it. First, no sales tax is due upon the purchase of a motor vehicle that must be titled. Instead, the purchaser pays the tax directly to the Department of Revenue within one month of purchase. As long as the vehicle is taken out of state within that first month of purchase and titled elsewhere, no tax is due in Missouri. Second, if the purchaser presents an exemption certificate to the buyer at the time of sale, then the purchaser may be assessed taxes on the purchases if the certificate was issued in bad faith. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Conflict of property laws + Blackacre + Security deposit

    Play Episode Listen Later Sep 15, 2022 20:09


    In conflict of laws, the term lex loci (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the lex causae (the laws chosen to decide a case). General principles. When a case comes before a court, if the main features of the case (particularly the parties and the causes of action) are local, the court will then apply the lex fori, the prevailing municipal law, to decide the case. However, if there are "foreign" elements to the case, the court may then be obliged, under conflict of laws, to consider whether it has jurisdiction to hear the case (see forum shopping). The court must then characterise the issues to allocate the factual basis of the case to its relevant legal classes. The court may then be required to apply the choice of law rules to decide the lex causae, the law to be applied to each cause of action. 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. 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's 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. In certain taxation regimes a deposit need not be declared as a part of the gross income of the receiving party (person or corporation) until either the depositing party or an arbitrator agrees the funds may be used for the intended purpose. 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's 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. In certain taxation regimes a deposit need not be declared as a part of the gross income of the receiving party (person or corporation) until either the depositing party or an arbitrator agrees the funds may be used for the intended purpose. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: false pretenses

    Play Episode Listen Later Sep 14, 2022 14:31


    In criminal law, property is obtained by false pretenses when the acquisition results from intentional misrepresentation of a past or existing fact. Elements. The elements of false pretenses are: a false representation, of a material past or existing fact, which the person making the representation knows is false, made for the purpose of causing, and which does cause, the victim to pass title, and to his property. False pretenses is a statutory offense in most jurisdictions; subject matter covered by statute varies accordingly, and is not necessarily limited to tangible personal property - some statutes include intangible personal property and services. For example, the North Carolina false pretense statute applies to obtaining "any money, goods, property, services, choses in action, or any other thing of value ..." Under common law, false pretense is defined as a representation of a present or past fact, which the thief knows to be false, and which he intends will and does cause the victim to pass the title of his property. That is, false pretense is the acquisition of title from a victim by fraud or misrepresentation of a material past or present fact. a false representation - there must be a description or portrayal of something that is false. If a person makes a statement about something that he mistakenly believes to be untrue there is no false representation. For example, if a person represents that the ring is a diamond solitaire when he believes that is in fact made of cubic zirconium he is not guilty of false pretenses if it turns out that the ring was in fact a diamond. The representation must be false at the time the title passes. Thus if the representation was false when made but is true at the time title to the property passes there is no crime. For example, representing to a seller that you have funds available in your bank account to pay for the goods when in fact your account has a zero balance is not false pretenses if at the time the transaction takes place adequate funds are present in the account. The representation may be oral or written. The misrepresentation has to be affirmative. A failure to disclose a fact does not fit this misrepresentation in common law, unless there is a fiduciary duty between the thief and victim. Moreover, opinion and puffing are not considered misrepresentation as they color the facts but do not misrepresent them. of a material past or existing fact - the representation must relate to a material past or existing fact. A representation concerning a future state of facts is not sufficient. Nor is merely an expression of opinion. which the person making the representation knows is false - A mistaken representation about some past or existing state of facts is not sufficient for false pretense. made for the purpose of causing and which does cause - It is essential that the victim of the false pretenses must actually be deceived by the misrepresentation: the victim must transfer title to the property in reliance on the representation; and the victim being deceived must be a major (if not the only) reason for the victim's transferring title to the defendant. Simply making a false promise or statement is not sufficient. It is not a defense to a false pretenses charge that a reasonable person would not have been deceived by the false representation. No matter how gullible the victim, if he or she was in fact deceived the offense has been committed. On the other hand, the offense requires the victim to believe the representation to be true. If the person to whom the representation has been made has doubts or serious misgivings about the truth of the representation but nonetheless goes through with the transaction he has not been deceived - he has basically assumed the risk of a false representation. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Jurisdiction: Personal jurisdiction

    Play Episode Listen Later Sep 13, 2022 21:39


    Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; for example, to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. International principles. Since there is no world government which all countries recognize to arbitrate disputes over jurisdiction, sovereign powers can find themselves in conflict over which is the more appropriate venue to hear a case, or which country's laws should apply. These conflicts are sometimes resolved de facto by physical factors, such as which country has physical possession of a defendant or property, or sometimes by use of physical police or military force to seize people or property. A country with loose rule of law – for example an absolute monarchy with no independent judiciary – may arbitrarily choose to assert jurisdiction over a case without citing any particular justification. Such assertion can cause problems, such as encouraging other countries to take arbitrary actions over foreign citizens and property, or even provoking skirmishes or armed conflict. In practice, many countries operate by one or another principles, either in written law or in practice, which communicate when the country will and will not assert jurisdiction: treaty jurisdiction — An international treaty explicitly decides the issue. territorial principle — A country asserts jurisdiction over people, property, and events taking place on its own territory. nationality principle — A country asserts jurisdiction over the conduct of its citizens, anywhere in the world. passive personality principle — A country asserts jurisdiction over acts committed against its citizens, anywhere in the world. protective principle — A country asserts jurisdiction over issues that affect its interests, such as conspiracies to overthrow its government, or resources critical to its economy (such as access to an international waterway) universal jurisdiction — A country asserts jurisdiction over certain acts committed by anyone, anywhere in the world. Usually reserved for exceptionally serious crimes, such as war crimes and crimes against humanity. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Economic torts: Conspiracy

    Play Episode Listen Later Sep 12, 2022 13:58


    Economic torts, which are also called business torts, are torts that provide the common law rules on liability which arise out of business transactions such as interference with economic or business relationships and are likely to involve pure economic loss. Nature of economic torts[edit] Economic torts are tortious interference actions designed to protect trade or business. The area includes the doctrine of restraint of trade and, particularly in the United Kingdom, has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern competition law, and certain laws governing intellectual property, particularly unfair competition law. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon." The principal torts are: passing off, injurious falsehood and trade libel (see also Food libel laws), conspiracy, inducement of breach of contract, tortious interference (such as interference with economic relations or unlawful interference with trade), negligent misrepresentation, and, watching and besetting. These torts represent the common law's historical attempt to balance the need to protect claimants against those who inflict economic harm and the wider need to allow effective, even aggressive, competition (including competition between employers and their workers). Two cases demonstrate economic torts' affinity to competition and labour law. In Mogul Steamship Co Ltd the plaintiffs argued they had been driven from the Chinese tea market by a 'shipping conference', that had acted together to underprice them. But this cartel was ruled lawful and "nothing more than a war of competition waged in the interest of their own trade." Nowadays, this would be considered a criminal cartel. In English labour law the most notable case is Taff Vale Railway v Amalgamated Society of Railway Servants. The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions. But it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906. Further torts used against unions include conspiracy, interference with a commercial contract or intimidation. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: Sales taxes (Part Two) (State by state: Alabama thru Mississippi)

    Play Episode Listen Later Sep 9, 2022 37:41


    By jurisdiction. Sales tax rates and what is taxed vary by jurisdiction. The following table compares taxes on selected classes of goods in the states. Significant other differences apply. Following the table is abbreviated coverage of selected sales tax rates by state. Summary Notes: These states tax food but give an income tax credit to compensate poor households: Hawaii, Idaho, Kansas, Oklahoma, South Dakota, and Wyoming. Uniform local taxes are included in the base rate in California & Utah (1.25%), and Virginia (1.0%). --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Nemo dat + Quicquid plantatur

    Play Episode Listen Later Sep 8, 2022 8:02


    Nemo dat quod non habet, literally meaning "no one can give what they do not have", is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. It is equivalent to the civil (continental) Nemo plus iuris ad alium transferre potest quam ipse habet rule, which means "one cannot transfer to another more rights than they have". The rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of the object of the transaction (a bona fide purchaser); however, in many cases, more than one innocent party is involved, making judgment difficult for courts and leading to numerous exceptions to the general rule that aim to give a degree of protection to bona fide purchasers and original owners. The possession of the good of title will be with the original owner. United States. In American law, a bona fide purchaser who unknowingly purchases and subsequently sells stolen goods will, at common law, be held liable in trover for the full market value of those goods as of the date of conversion. Since the true owner retains legal title, the seller is liable even in a chain of successive bona fide purchasers (for example, the true owner can successfully sue the fifth bona fide purchaser in trover). However, the problem of successive bona fide purchasers can be remedied: If the jurisdiction recognises an implied warranty that the seller has title to the property (such as under Article 2 of the Uniform Commercial Code (UCC)), then the bona fide purchaser can sue the seller for breach of that implied warranty. Courts of equity traditionally also recognise various other exceptions, likely giving rise to the idea embodied in the modern UCC. This rule is exemplified in circumstances like the Holocaust reconciliation movement, where property, such as works of art, stolen or confiscated by the Nazis was returned to the families of the original owners. Anyone who purchased the art or thought they had ownership was denied any rights over the litigious property due to the nemo dat rule. As mentioned earlier, the nemo dat rule has numerous exceptions. Legal tender, for example, does not adhere to the rule in certain circumstances. For example, if a rogue buys goods from a bona fide merchant, then that merchant will not have to return the bills to the true owner because holding the rule to be otherwise would disrupt the economy and prevent the free flow of goods. The same may be true of other "negotiable" instruments like cheques. If Alice, a thief, steals a cheque from Bob and sells it to innocent Charlie, then Charlie is entitled to deal with the cheque, and Bob cannot claim it back from Charlie (though the name appearing on the cheque may affect the validity of such a transfer). Another matter is the transfer of other legal rights normally granted by ownership. In 2011, a US District judge ruled that a woman who had purchased a stolen laptop could sue a device tracking company for invasion of privacy stemming from recording software installed on the laptop to facilitate its recovery after being stolen. This ruling demonstrated that bona fide purchasers are entitled to some rights by virtue of possession alone, or that nemo dat is superseded by the bona fide purchaser's right to privacy. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Extortion

    Play Episode Listen Later Sep 7, 2022 11:08


    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, although making unfounded threats in order to obtain an unfair business advantage is also a 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 additionally, in its formal definition, means the infliction of something such as pain and suffering or making somebody endure something unpleasant. The term extortion is often used metaphorically to refer to usury or to price-gouging, though neither is legally considered extortion. It is also often used loosely to refer to everyday situations where one person feels indebted against their will, to another, in order to receive an essential service or avoid legal consequences. Neither extortion or blackmail requires a threat of a criminal act, such as violence, merely a threat used to elicit actions, money, or property from the object of the extortion. Such threats include the filing of reports (true or not) of criminal behavior to the police, revelation of damaging facts (such as pictures of the object of the extortion in a compromising position), etcetera. In law extortion can refer to political corruption, such as selling one's office or influence peddling, but in general vocabulary the word usually first brings to mind blackmail or protection rackets. The logical connection between the corruption sense of the word and the other senses is that to demand bribes in one's official capacity is blackmail or racketeering in essence (that is, "you need access to this resource, the government restricts access to it through my office, and I will charge you unfairly and unlawfully for such access"). Extortion is also known as shakedown, and occasionally exaction. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Amount in controversy + Supplemental jurisdiction + Removal jurisdiction + Class Action Fairness Act of 2005

    Play Episode Listen Later Sep 6, 2022 24:32


    Amount in controversy (sometimes called jurisdictional amount) is a term used in civil procedure to denote the amount at stake in a lawsuit, in particular in connection with a requirement that persons seeking to bring a lawsuit in a particular court must be suing for a certain minimum amount (or below a certain maximum amount) before that court may hear the case. United States. In federal courts. Diversity jurisdiction. In United States federal courts, the term currently applies only to cases brought under diversity jurisdiction, meaning that the court is able to hear the case only because it is between citizens of different states. In such cases, the US Congress has decreed in 28 USC § 1332(a) that the court may hear such suits only where "the matter in controversy exceeds the sum or value of $75,000." This amount represents a significant increase from earlier years. Congress first established the amount in controversy requirement when it created diversity jurisdiction in the Judiciary Act of 1789, pursuant to its powers under Article 3 of the US Constitution, the amount being $500. It was raised to $2,000 in 1887, to $3,000 in 1911, to $10,000 in 1958, to $50,000 in 1988, and finally to the current $75,000 in 1996. The use of the word "exceeds" in Section 1332 implies that the amount in controversy must be more than $75,000; a case removed from state court to federal court must be remanded back to state court if the amount in controversy is exactly $75,000.00. Federal question jurisdiction. Congress did not create a consistent federal question jurisdiction, which allows federal courts to hear any case alleging a violation of the Constitution, laws, and treaties of the United States, until 1875, when Congress created the statute which is now found at 28 USC § 1331: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." At that time, such cases had the same amount of controversy requirement as the diversity cases. Congress eliminated this requirement in actions against the United States in 1976 and in all federal question cases in 1980. Aggregation of claims. Where a single plaintiff has multiple unrelated claims against a single defendant, that plaintiff can aggregate those claims – that is, add the amounts together – to satisfy the amount in controversy requirement. In cases involving more than one defendant, a plaintiff may aggregate the amount claimed against multiple defendants “only if the defendants are jointly liable.” Middle Tennessee News Company Incorporated v Charnel of Cincinnati, Incorporated (2001). However, “if the defendants are severely liable, the plaintiff must satisfy the amount in controversy required against each individual defendant.” The 5–4 decision in Exxon Mobil Corporation v Allapattah Services Incorporated, (2005), held that a federal court has supplemental jurisdiction over claims of other plaintiffs who do not meet the jurisdictional amount for a diversity action, when at least one plaintiff in the action does satisfy the jurisdictional amount. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Nuisance

    Play Episode Listen Later Sep 5, 2022 18:08


    Nuisance is a common law tort. It means that which causes offense, annoyance, trouble or injury. A nuisance can be either public (also "common") or private. A public nuisance was defined by English scholar Sir James Fitzjames Stephen as, "an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects". Private nuisance is the interference with the rights of specific people. Nuisance is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the "right of quiet enjoyment" is being disrupted to such a degree that a tort is being committed. Definition Under the common law, persons in possession of real property (land owners, lease holders etc.) are entitled to the quiet enjoyment of their lands. However this doesn't include visitors or those who aren't considered to have an interest in the land. If a neighbor interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. Legally, the term nuisance is traditionally used in three ways: 1. to describe an activity or condition that is harmful or annoying to others (for example, indecent conduct, a rubbish heap or a smoking chimney). 2. to describe the harm caused by the before-mentioned activity or condition (for example, loud noises or objectionable odors). 3. to describe a legal liability that arises from the combination of the two. However, the "interference" was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person's land that affected the enjoyment of that land. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: Sales taxes (Part One)

    Play Episode Listen Later Sep 2, 2022 19:43


    Sales taxes in the United States are taxes placed on the sale or lease of goods and services in the United States. Sales tax is governed at the state level and no national general sales tax exists. 45 states, the District of Columbia, the territories of Puerto Rico, and Guam impose general sales taxes that apply to the sale or lease of most goods and some services, and states also may levy selective sales taxes on the sale or lease of particular goods or services. States may grant local governments the authority to impose additional general or selective sales taxes. As of 2017, 5 states (Alaska, Delaware, Montana, New Hampshire and Oregon) do not levy a statewide sales tax. California has the highest base sales tax rate, 7.25%. Including county and city sales taxes, the highest total sales tax is in Arab, Alabama, 13.50%. Sales tax is calculated by multiplying the purchase price by the applicable tax rate. The seller collects it at the time of the sale. Use tax is self-assessed by a buyer who has not paid sales tax on a taxable purchase. Unlike the value added tax, a sales tax is imposed only at the retail level. In cases where items are sold at retail more than once, such as used cars, the sales tax can be charged on the same item indefinitely. The definitions of retail sales and taxable items vary among the states. Nearly all jurisdictions provide numerous categories of goods and services that are exempt from sales tax, or taxed at reduced rates. The purchase of goods for further manufacture or for resale is uniformly exempt from sales tax. Most jurisdictions exempt food sold in grocery stores, prescription medications, and many agricultural supplies. Sales taxes, including those imposed by local governments, are generally administered at the state level. States imposing sales tax either impose the tax on retail sellers, such as with Transaction Privilege Tax in Arizona, or impose it on retail buyers and require sellers to collect it. In either case, the seller files returns and remits the tax to the state. In states where the tax is on the seller, it is customary for the seller to demand reimbursement from the buyer. Procedural rules vary widely. Sellers generally must collect tax from in-state purchasers unless the purchaser provides an exemption certificate. Most states allow or require electronic remittance. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Lateral and subjacent support + Assignment

    Play Episode Listen Later Sep 1, 2022 11:44


    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. If the landowner owns everything beneath the ground on his property, he may convey to another party the rights to mineral deposits under the land and other things requiring excavation, such as easements for buried conduits or for water wells. However, such a conveyance requires the recipient to prevent any damage to the surface of the land caused by the excavation unless the conveyance itself grants express authority for the surface land to be damaged, "as reasonably necessary" for the recipient to exercise his extraction rights. … 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 from other non-assigning parties. However, in the case of assignment, the consent of the non-assigning party may be required by a contractual provision. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Embezzlement

    Play Episode Listen Later Aug 31, 2022 12:33


    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. The term "embezzlement" is often used in informal speech to mean theft of money, usually from an organization or company such as an employer. Embezzlement is usually 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, embezzlement may continue for many years without detection. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Federal Rules of Civil Procedure: Jurisdiction + Subject-matter + Federal question + Diversity

    Play Episode Listen Later Aug 30, 2022 21:47


    Subject-matter jurisdiction (also called jurisdiction ratione materiae) is the authority of a court to hear cases of a particular type of cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases. Subject-matter jurisdiction must be distinguished from personal jurisdiction, which is the power of a court to render a judgment against a particular defendant, and territorial jurisdiction, which is the power of the court to render a judgment concerning events that have occurred within a well-defined territory. Unlike personal or territorial jurisdiction, lack of subject-matter jurisdiction cannot be waived. A judgment from a court that did not have subject-matter jurisdiction is forever a nullity. To decide a case, a court must have a combination of subject (subjectam) and either personal (personam) or territorial (locum) jurisdiction. Subject-matter jurisdiction, personal or territorial jurisdiction, and adequate notice are the three most fundamental constitutional requirements for a valid judgment. In United States law, federal question jurisdiction is a type of subject-matter jurisdiction that gives United States federal courts the power to hear civil cases where the plaintiff alleges a violation of the United States Constitution, federal law, or a treaty to which the United States is a party. The federal question jurisdiction statute is codified at 28 U.S.C. § 1331. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. — 28 U.S.C. § 1331. In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction that gives U.S. federal courts the power to hear lawsuits that do not involve a federal question. For a U.S. federal court to have diversity jurisdiction over a lawsuit, two conditions must be met. First, there must be "diversity of citizenship" between the parties, meaning the plaintiffs must be citizens of different U.S. states than the defendants. Second, the lawsuit's "amount in controversy" must be more than $75,000. If a lawsuit does not meet these two conditions, U.S. federal courts will normally lack the power to hear it unless it involves a federal question, and the lawsuit would need to be heard in state court instead. The United States Constitution, in Article 3, Section 2, grants Congress the power to permit federal courts to hear diversity cases through legislation authorizing such jurisdiction. The provision was included because the Framers of the Constitution were concerned that when a case is filed in one state, and it involves parties from that state and another state, the state court might be biased toward the party from that state. Congress first exercised that power and granted federal trial circuit courts diversity jurisdiction in the Judiciary Act of 1789. Diversity jurisdiction is currently codified at 28 U.S.C. § 1332. In 1969, the American Law Institute explained in a 587-page analysis of the subject that diversity is the "most controversial" type of federal jurisdiction, because it "lays bare fundamental issues regarding the nature and operation of our federal union." --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Principles of negligence: Ultrahazardous activity + Deep pocket + Writ of execution

    Play Episode Listen Later Aug 29, 2022 7:42


    An ultrahazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others from being injured. In the Restatement of the Law 2nd, Torts 2nd, the term has been abandoned in favor of the phrase "inherently dangerous activity." Categories of ultrahazardous activity. Several categories of activities are commonly recognized as being inherently hazardous; those who engage in them are subject to strict liability. These include: Transportation, storage, and use of dynamite and other explosives. Transportation, storage, and use of radioactive materials. Transportation, storage, and use of certain hazardous chemicals Keeping of wild animals (for example animals that are not normally domesticated in that area). Note that in this context, "domesticated" does not merely refer to animals that are commonly bred and raised in captivity, such as alligators. Keeping of domesticated animals that have a known propensity for dangerous behavior (for example keeping a dog that has attacked people before). Someone who is injured by one of these inherently hazardous activities while trespassing on the property of the person engaged in the activity is barred from suing under a strict liability theory. Instead, they must prove that the property owner was negligent. In the United Kingdom, this area of law is governed by the rule established in Rylands v Fletcher. Deep pocket as a slang term. The term “deep pockets” (also given as “deep pocket” and “deep pocketed") is attested sparsely in the 1940s through the 1960s but became popular with the litigation explosion of the 1970s. A person with “short arms and deep pockets” is a person (sometimes derided as “miserly” or “cheap") who saves money and doesn't often spend it. The term “short arms and deep/long pockets” is cited in print from at least 1952. In Ireland, this phrase was attached to a wealthy businessman from Tipparary who, upon his round of drinks, would break his glass on the floor, knowing the owner of the pub would ask him to leave. This was also called the “O'Shea Fiddle”. A writ of execution (also known as an execution) is a court order granted to put in force a judgment of possession obtained by a plaintiff from a court. When issuing a writ of execution, a court typically will order a sheriff or other similar official to take possession of property owned by a judgment debtor. Such property will often then be sold in a sheriff's sale and the proceeds remunerated to the plaintiff in partial or full satisfaction of the judgment. It is generally considered preferable for the sheriff simply to take possession of money from the defendant's bank account. If the judgment debtor owns real property, the judgment creditor can record the execution to "freeze" the title until the execution is satisfied. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: Property tax (Part Two)

    Play Episode Listen Later Aug 26, 2022 19:26


    Exemptions and incentives. Taxing jurisdictions provide a wide variety of methods a property owner may use to reduce tax. Nearly all jurisdictions provide a homestead exemption reducing the taxable value, and thus tax, of an individual's home. Many provide additional exemptions for veterans. Taxing jurisdictions may also offer temporary or permanent full or partial exemptions from property taxes, often as an incentive for a particular business to locate its premises within the jurisdiction. Some jurisdictions provide broad exemptions from property taxes for businesses located within certain areas, such as enterprise zones. The largest property tax exemption is the exemption for registered non-profit organizations; all 50 states fully exempt these organizations from state and local property taxes with a 2009 study estimating the exemption's forgone tax revenues range from $17–32 billion per year. Exemptions can be quite substantial. In New York City alone, an Independent Budget Office study found that religious institutions would have been taxed $627M yearly without such exemptions; all exempt groups avoided paying a combined $13 billion in the fiscal year of 2012 (July 1, 2011 to June 30, 2012). Payment. Time and manner of payment of property taxes varies widely. Property taxes in many jurisdictions are due in a single payment by January 1. Many jurisdictions provide for payment in multiple installments. In some jurisdictions, the first installment payment is based on prior year tax. Payment is generally required by cash or check delivered or mailed to the taxing jurisdiction. Liens and seizures. Property taxes generally attach to the property; that is, they become an encumbrance on the property which the current and future owners must satisfy. This attachment, or lien, generally happens automatically without further action of the taxing authority. The lien generally is removed automatically upon payment of the tax. If the tax is not paid within a specified period of time (including additional interest, penalties, and costs), a tax sale is held, which may result in either 1) the actual sale of a property, or 2) a lien sold to a third party, who (after another specified period of time) may take action to claim the property, or force a later sale to redeem the lien. Attachment date. The tax lien attaches to the property at a specific date, generally the date the tax liability becomes enforceable. This date, known as the attachment date, varies by state, and in some states by local jurisdiction. Delinquency. Where the property owner does not pay tax by the due date, the taxing authority may assess penalties and interest. The amount, timing, and procedures vary widely. Generally, the penalty and interest are enforceable in the same manner as the tax, and attach to the property. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Water rights + Prior appropriation + riparian rights (Part Two)

    Play Episode Listen Later Aug 25, 2022 15:17


    Prior appropriation adoptions. Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming all use the prior appropriation doctrine, with permitting and reporting as their regulatory system. Much of the prior appropriation doctrine in the Southwest and Western U.S. states are a legacy from the area being under the civil law systems of Mexico and Spain, where prior appropriation is heavily practiced. California and Texas recognize a dual doctrine system that employs both riparian and prior appropriation rights. Oregon mainly uses the prior appropriation doctrine with some remnants of the riparian doctrine. Landowners have rights to water on their own land at a certain time at which it is then incorporated into the appropriation system. In these cases, riparian rights take precedence, unless they are not claimed by a certain date or are not used within a certain number of years. Eight states engage in prior appropriation while not recognizing the riparian doctrine: Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming. Arizona adopted the prior appropriation doctrine such that a person could acquire this water right simply by applying it to beneficial use and posting an appropriation notice at the point of diversion. Arizona Revised Statutes Annotated § 45-141 Waters (2021). On June 12, 1919, they enacted the Public Water Code in which the person must apply for and obtain a permit for water use. However, prior appropriation does not always determine water allocation in these states because the Secretary of the Interior can allocate water without worrying about senior and junior appropriators. Arizona v California (1963). For example, the secretary of the interior has the power to allocate and regulate water for the purpose of conserving water and wildlife. 43 Code of Federal Regulations § 427.1 Water Conservation (2008). Such regulations could limit a senior user's water use. Various federal regulations can also have priority over senior users. For example, the Endangered Species Act of 1973 seeks to protect animals at risk of extinction, so a senior user's rights may be restricted in favor of federal regulation protecting the habitats of endangered animals. 16 U.S. Code § 1531 Conservation (1973). --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Burglary

    Play Episode Listen Later Aug 24, 2022 18:15


    Burglary, also called breaking and entering and sometimes housebreaking, is the act of entering a building or other areas without permission, with the intention of committing a criminal offence. Usually that offence is theft, robbery or murder, 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. Common-law definition. At common law, burglary was defined by Sir Matthew Hale as: The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not. 1. Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. Breaking does not require that anything be "broken" in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter. 2. Entering can involve either physical entry by a person, or the insertion of an instrument to remove property. Insertion of a tool to gain entry may not constitute entering by itself. Note that there must be a breaking and an entering for common-law burglary. Breaking without entry or entry without breaking is not sufficient for common-law burglary. 3. Although rarely listed as an element, the common law required that "entry occur as a consequence of the breaking". For example, if wrongdoers partially open a window with a pry bar—but then notice an open door, which they use to enter the dwelling instead, there is no burglary under common law. The use of the pry bar would not constitute an entry even if a portion of the prybar "entered" the residence. Under the instrumentality rule the use of an instrument to affect a breaking would not constitute an entry. However, if any part of the perpetrator's body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrators used the pry bar to pry open the window and then used their hands to lift the partially opened window, an "entry" would have taken place when they grasped the bottom of the window with their hands. 4. House includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation. 5. Nighttime is defined as hours between half an hour after sunset and half an hour before sunrise. 6. Typically, this element is expressed as the intent to commit a felony “therein”. The use of the word “therein” adds nothing and certainly does not limit the scope of burglary to those wrongdoers who break and enter a dwelling intending to commit a felony on the premises. The situs of the felony does not matter, and burglary occurs if the wrongdoers intended to commit a felony at the time they broke and entered. The common-law elements of burglary often vary between jurisdictions. The common-law definition has been expanded in most jurisdictions, such that the building need not be a dwelling or even a building in the conventional sense, physical breaking is not necessary, the entry does not need to occur at night, and the intent may be to commit any felony or theft. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Federal Rules of Civil Procedure: Jurisdiction

    Play Episode Listen Later Aug 23, 2022 21:44


    Civil procedure doctrines are rules developed by case law as opposed to being set down in codes or legislation, which, together with court rules and codes, define the steps that a person involved in a civil lawsuit can (or cannot) take. Purpose. In the United States federal jurisdiction, these doctrines have developed to comprehensively deal with certain common issues that arise when a person is involved in bringing, or contemplating bringing a civil lawsuit. Other jurisdictions. Similar doctrines exist In other jurisdictions, (however they are sometimes referred to under names other than 'Doctrines of Civil Procedure'), although often they have much less importance. For example, in England and Wales, all civil procedure is covered by the Civil Procedure Rules 1998, which according to Part 1 of those rules are a 'new procedural code', and have therefore largely replaced any pre-existing doctrines. Jurisdiction (from Latin juris 'law' + dictio 'declaration') is the legal term for the authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jurisdiction draws its substance from international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of society. International dimension. Generally, international laws and treaties provide agreements which nations agree to be bound to. Such agreements are not always established or maintained. The exercise of extraterritorial jurisdiction by three principles outlined in the UN charter. These are equality of states, territorial sovereignty and non-intervention. This raises the question of when many states can prescribe or enforce jurisdiction. The Lotus case establishes two key rules to the prescription and enforcement of jurisdiction. The case outlines that jurisdiction is territorial and that a state may not exercise its jurisdiction in the territory of another state unless there is a rule that permits this. On that same note, states enjoy a wide measure of discretion to prescribe jurisdiction over persons, property and acts within their own territory unless there was a rule that prohibits this. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Principles of negligence: Product liability (Part Two)

    Play Episode Listen Later Aug 22, 2022 16:28


    Types of liability. Section 2 of the Restatement Third.) of Torts: Products Liability distinguishes between three major types of product liability claims: Manufacturing defect, Design defect, and, Failure to warn (also known as marketing defects). However, in most states, these are not legal claims in and of themselves, but are pleaded in terms of the legal theories mentioned above. For example, a plaintiff might plead negligent failure to warn or strict liability for defective design. The three types of product liability claims are defined as follows: Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. In other words, the defective product differs from the others on the same assembly line and does not conform to the manufacturer's intended design. Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured. In other words, the defective product is the same as every other one on the same assembly line because it is exactly what the manufacturer designed and intended to build, but the plaintiff is contending that the design itself is defective. The Third Restatement expressly prefers to measure defective design in terms of whether the product design's risks outweigh its benefits, and expressly deprecates the consumer expectations test associated with Section 402A of the Second Restatement. As noted above, state courts either use one test or the other or both. The Third Restatement also places the burden of proof on the plaintiff to prove that risks outweigh benefits by proving the feasibility of a safer alternative design. Failure-to-warn defects arise in products that carry inherent non-obvious dangers which can be mitigated through adequate warnings to the user, and which are present regardless of how well the product is manufactured and designed for its intended purpose. This class of defects also includes failure to provide relevant product instructions or sufficient product warnings. Theories of liability. In the United States, the claims most commonly associated with product liability are negligence, strict liability, breach of warranty, and various consumer protection claims. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: Property tax (Part One)

    Play Episode Listen Later Aug 19, 2022 16:44


    Most local governments in the United States impose a property tax, also known as a millage rate, as a principal source of revenue. This tax may be imposed on real estate or personal property. The tax is nearly always computed as the fair market value of the property times an assessment ratio times a tax rate, and is generally an obligation of the owner of the property. Values are determined by local officials, and may be disputed by property owners. For the taxing authority, one advantage of the property tax over the sales tax or income tax is that the revenue always equals the tax levy, unlike the other taxes. The property tax typically produces the required revenue for municipalities' tax levies. A disadvantage to the taxpayer is that the tax liability is fixed, while the taxpayer's income is not. The tax is administered at the local government level. Many states impose limits on how local jurisdictions may tax property. Because many properties are subject to tax by more than one local jurisdiction, some states provide a method by which values are made uniform among such jurisdictions. Property tax is rarely self-computed by the owner. The tax becomes a legally enforceable obligation attaching to the property at a specific date. Most states impose taxes resembling property tax in the state, and some states tax other types of business property. Basics. Most jurisdictions below the state level in the United States impose a tax on interests in real property (land, buildings, and permanent improvements) that are considered under state law to be ownership interests. Rules vary widely by jurisdiction. However, certain features are nearly universal. Some jurisdictions also tax some types of business personal property, particularly inventory and equipment. States generally do not impose property taxes. Many overlapping jurisdictions may have authority to tax the same property. These include counties or parishes, cities and/or towns, school districts, utility districts, and special taxing authorities which vary by state. Few states impose a tax on the value of property. The tax is based on fair market value of the subject property, and generally attaches to the property on a specific date. The owner of the property on that date is liable for the tax. The amount of tax is determined annually based on the market value of each property on a particular date, and most jurisdictions require redeterminations of value periodically. The tax is computed as the determined market value times an assessment ratio times the tax rate. Assessment ratios and tax rates vary among jurisdictions, and may vary by type of property within a jurisdiction. Most jurisdictions' legislative bodies determine their assessment ratios and tax rates, though some states impose constraints on such determinations. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Water rights + Prior appropriation + riparian rights (Part One)

    Play Episode Listen Later Aug 18, 2022 15:18


    Water right in water law refers to the right of a user to use water from a water source, for example, a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and groundwater in the same manner, while others use different principles for each. Types of water right. Understanding ‘Water Rights' first requires consideration of the context and origin of the ‘right' being discussed, or asserted. Traditionally, a water rights refers to the utilization of water as an element supporting basic human needs like drinking or irrigation. Water Rights could also include the physical occupancy of waterways for purposes of travel, commerce and even recreational pursuits. The legal principles and doctrines that form the basis of each type of water rights are not interchangeable and vary according to local and national laws. Therefore, variations among countries, and within national subdivisions, exist in discussing and acknowledging these rights. Utilization of water as an element. Based on ownership of the land. Often, water rights are based on ownership of the land upon which the water rests or flows. For example, under English common law, any rights asserted to 'moveable and wandering' water must be based upon rights to the 'permanent and immovable' land below. On streams and rivers these are referred to as riparian rights, or littoral rights, which are protected by property law. Legal principles long recognized under Riparian principles, involve the right to remove the water – for drinking or irrigation- or to add more water into the channel – for drainage or effluence. Under riparian law, the water is subject to the test of ‘reasonable use'. The judiciary has defined ‘reasonable use' principle as follows: “the true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.” Because of the limits on use, the doctrine of riparian rights is often known as the "downstream user rule"—the downstream users have rights to the water which the upstream users may not abridge. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Bribery

    Play Episode Listen Later Aug 17, 2022 23:24


    Bribery is the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official, or other person, in charge of a public or legal duty. With regard to governmental operations, essentially, bribery is "Corrupt solicitation, acceptance, or transfer of value in exchange for official action." Gifts of money or other items of value which are otherwise available to everyone on an equivalent basis, and not for dishonest purposes, is not bribery. Offering a discount or a refund to all purchasers is a legal rebate and is not bribery. For example, it is legal for an employee of a Public Utilities Commission involved in electric rate regulation to accept a rebate on electric service that reduces their cost for electricity, when the rebate is available to other residential electric customers. However, giving a discount specifically to that employee to influence them to look favorably on the electric utility's rate increase applications would be considered bribery. A bribe is an illegal or unethical gift or lobbying effort bestowed to influence the recipient's conduct. It may be money, goods, rights in action, property, preferment, privilege, emolument, objects of value, advantage, or merely a promise to induce or influence the action, vote, or influence of a person in an official or public capacity. The United Nations Sustainable Development Goal 16 has a target to substantially reduce corruption and bribery of all forms as part of an international effort aimed at ensuring peace, justice and strong institutions. Everything in our society goes through changes that bring long-lasting positive or negative complications. Similar has been the case with bribery, which brought negative changes to societal norms as well as to trade. The researchers found that when bribery becomes part of social norms, then one approach is not enough to tackle bribery due to the existence of different societies in different countries. If severe punishment works in one country, it doesn't necessarily mean that severe punishment would work in another country to prevent bribery. Also, the research found that bribery plays a significant role in public private firms around the world. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Federal Rules of Civil Procedure (Part Two)

    Play Episode Listen Later Aug 16, 2022 14:24


    Title V – Discovery. Rules 26 to 37. Title V covers the rules of discovery. Modern civil litigation is based upon the idea that the parties should not be subject to surprises at trial. Discovery is the process whereby civil litigants seek to obtain information both from other parties and from non parties (or third parties). Parties have a series of tools with which they can obtain information: 1. Document requests (Rule 34): a party can seek documents and other real objects from parties and non parties. 2. Interrogatories (Rule 33): a party can require other parties to answer 25 questions. 3. Requests for admissions (Rule 36): A party can require other parties to admit or deny the truth of certain statements. 4. Depositions (Rule 30): A party can require at most 10 individuals or representatives of organizations to make themselves available for questioning for a maximum of one day of 7 hours, without obtaining leave of court. FRCP Rule 37 oversees the possible sanctions that someone may seek if a failure to preserve data takes place and outlines how courts may apply sanctions or remedial measures. Updates to FRCP Rule 37 went into effect on December 1, 2015, and have led to a significant decline in spoliation rulings in subsequent years. Federal procedure also requires parties to divulge certain information without a formal discovery request, in contrast to many state courts where most discovery can only be had by request. Information covered by this initial disclosure is found in Rule 26a section 1 subsection A, includes information about potential witnesses, information/copies about all documents that may be used in the party's claim (excluding impeachment material), computations of damages, and insurance information. Information about any expert witness testimony is also required. Notable exceptions to the discovery rules include impeachment evidence/witnesses, "work product" (materials an attorney uses to prepare for the trial, especially documents containing mental impressions, legal conclusions, or opinions of counsel), and experts who are used exclusively for trial prep and will not testify. FRCP Rule 26 provides general guidelines to the discovery process, it requires the plaintiff to initiate a conference between the parties to plan the discovery process. The parties must confer as soon as practicable after the complaint was served to the defendants—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16b. The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference. The Discovery Plan must state the parties' proposals on subject of the discovery, limitations on discovery, case management schedule and timing deadlines for each stage of the discovery process, including: End-date of the discovery. This should be at least 60 days before the trial. The trial target date is usually 6 months to 2 years after the conference. Amendments to the deadlines for filing pleadings under FRCP 7 & 15, if any. Deadline for amending pleadings. Normally it is at least 30 days before the discovery ends. Deadline for joining claims, remedies and parties (FRCP 18 & 19). Normally it is at least 30 days before the discovery ends. Deadline for initial expert disclosures and rebuttal expert disclosures. Normally it is at least 30 days before the discovery ends. Deadline for dispositive motions. Usually it is at least 30 days after the discovery end-date. Deadline for Pre-trial order. If any dispositive motions are filed, the Joint Pretrial Order can be filed at least 30 days after the last decision on the merits. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Principles of negligence: Product liability (Part One)

    Play Episode Listen Later Aug 15, 2022 16:20


    Types of liability. Section 2 of the Restatement Third.) of Torts: Products Liability distinguishes between three major types of product liability claims: Manufacturing defect, Design defect, and, Failure to warn (also known as marketing defects). However, in most states, these are not legal claims in and of themselves, but are pleaded in terms of the legal theories mentioned above. For example, a plaintiff might plead negligent failure to warn or strict liability for defective design. The three types of product liability claims are defined as follows: Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. In other words, the defective product differs from the others on the same assembly line and does not conform to the manufacturer's intended design. Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured. In other words, the defective product is the same as every other one on the same assembly line because it is exactly what the manufacturer designed and intended to build, but the plaintiff is contending that the design itself is defective. The Third Restatement expressly prefers to measure defective design in terms of whether the product design's risks outweigh its benefits, and expressly deprecates the consumer expectations test associated with Section 402A of the Second Restatement. As noted above, state courts either use one test or the other or both. The Third Restatement also places the burden of proof on the plaintiff to prove that risks outweigh benefits by proving the feasibility of a safer alternative design. Failure-to-warn defects arise in products that carry inherent non obvious dangers which can be mitigated through adequate warnings to the user, and which are present regardless of how well the product is manufactured and designed for its intended purpose. This class of defects also includes failure to provide relevant product instructions or sufficient product warnings. Theories of liability. In the United States, the claims most commonly associated with product liability are negligence, strict liability, breach of warranty, and various consumer protection claims. Breach of warranty. Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction. Warranty claims historically required privity between the injured party and the manufacturer or seller; in plain English, they must be dealing directly with one another. As noted above, this requirement was demolished in the landmark Henningsen case. Breach of warranty-based product liability claims usually focus on one of three types: 1. Breach of an express warranty, 2. Breach of an implied warranty of merchantability, and, 3. Breach of an implied warranty of fitness for a particular purpose. Express warranty claims focus on express statements by the manufacturer or the seller concerning the product (for example, "This chainsaw is useful to cut turkeys"). The various implied warranties cover those expectations common to all products (for example, that a tool is not unreasonably dangerous when used for its proper purpose), unless specifically disclaimed by the manufacturer or the seller. They are implied by operation of law from the act of manufacturing, distributing, or selling the product. Claims involving real estate (especially mass-produced tract housing) may also be brought under a theory of implied warranty of habitability. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: State income tax (Part Three)

    Play Episode Listen Later Aug 12, 2022 13:51


    Apportionment. The courts have held that the requirement for fair apportionment may be met by apportioning between jurisdictions all business income of a corporation based on a formula using the particular corporation's details. Many states use a three factor formula, averaging the ratios of property, payroll, and sales within the state to that overall. Some states weigh the formula. Some states use a single factor formula based on sales. State capital gains taxes. Most states tax capital gains as ordinary income. Most states that do not tax income (Alaska, Florida, Nevada, South Dakota, Texas, and Wyoming) do not tax capital gains either, nor do two states (New Hampshire and Tennessee) that do or did tax only income from dividends and interest. History. The first state income tax, as the term is understood today in the United States, was passed by the State of Wisconsin in 1911 and came into effect in 1912. However, the idea of taxing income has a long history. Some of the English colonies in North America taxed property (mostly farmland at that time) according to its assessed produce, rather than, as now, according to assessed resale value. Some of these colonies also taxed "faculties" of making income in ways other than farming, assessed by the same people who assessed property. These taxes taken together can be considered a sort of income tax. The records of no colony covered by Rabushka (the colonies that became part of the United States) separated the property and faculty components, and most records indicate amounts levied rather than collected, so much is unknown about the effectiveness of these taxes, up to and including whether the faculty part was actually collected at all. Colonies with laws taxing both property and faculties. Rabushka makes it clear that Massachusetts and Connecticut actually levied these taxes regularly, while for the other colonies such levies happened much less often; South Carolina levied no direct taxes from 1704 through 1713, for example. Becker, however, sees faculty taxes as routine parts of several colonies' finances, including Pennsylvania. During and after the American Revolution, although property taxes were evolving toward the modern resale-value model, several states continued to collect faculty taxes. States with faculty taxes. Between the enactment of the Constitution and 1840, no new general taxes on income appeared. In 1796, Delaware abolished its faculty tax, and in 1819 Connecticut followed suit. On the other hand, in 1835, Pennsylvania instituted a tax on bank dividends, paid by withholding, which by about 1900 produced half its total revenue. Several states, mostly in the South, instituted taxes related to income in the 1840s; some of these claimed to tax total income, while others explicitly taxed only specific categories, these latter sometimes called classified income taxes. These taxes may have been spurred by the ideals of Jacksonian democracy, or by fiscal difficulties resulting from the Panic of 1837. None of these taxes produced much revenue, partly because they were collected by local elected officials. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Mineral rights

    Play Episode Listen Later Aug 11, 2022 13:36


    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 responsibilities of parties involved can be found here. Types of mineral estate. Unified estate. Unified estates, sometimes referred to as "fee simple" or "unified tenure" mean that the surface and mineral rights are not severed. Severed or split estate. This type of estate occurs when mineral and surface ownership are separated. This can occur from prior ownership of mineral rights or is commonly performed when land is passed between family generations. Today corporations own a significant portion of mineral rights beneath private individuals. Fractional ownership. Here a percentage of the mineral property is owned by two or more entities. This can occur when owners leave fractions of the rights to multiple children or grandchildren. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Bribery

    Play Episode Listen Later Aug 10, 2022 23:24


    Bribery is the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official, or other person, in charge of a public or legal duty. With regard to governmental operations, essentially, bribery is "Corrupt solicitation, acceptance, or transfer of value in exchange for official action." Gifts of money or other items of value which are otherwise available to everyone on an equivalent basis, and not for dishonest purposes, is not bribery. Offering a discount or a refund to all purchasers is a legal rebate and is not bribery. For example, it is legal for an employee of a Public Utilities Commission involved in electric rate regulation to accept a rebate on electric service that reduces their cost for electricity, when the rebate is available to other residential electric customers. However, giving a discount specifically to that employee to influence them to look favorably on the electric utility's rate increase applications would be considered bribery. A bribe is an illegal or unethical gift or lobbying effort bestowed to influence the recipient's conduct. It may be money, goods, rights in action, property, preferment, privilege, emolument, objects of value, advantage, or merely a promise to induce or influence the action, vote, or influence of a person in an official or public capacity. The United Nations Sustainable Development Goal 16 has a target to substantially reduce corruption and bribery of all forms as part of an international effort aimed at ensuring peace, justice and strong institutions. Everything in our society goes through changes that bring long-lasting positive or negative complications. Similar has been the case with bribery, which brought negative changes to societal norms as well as to trade. The researchers found that when bribery becomes part of social norms, then one approach is not enough to tackle bribery due to the existence of different societies in different countries. If severe punishment works in one country, it doesn't necessarily mean that severe punishment would work in another country to prevent bribery. Also, the research found that bribery plays a significant role in public private firms around the world. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure: Federal Rules of Civil Procedure (Part One)

    Play Episode Listen Later Aug 9, 2022 15:21


    The Federal Rules of Civil Procedure (FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has seven months to veto the rules promulgated or they become part of the FRCP. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. Although federal courts are required to apply the substantive law of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of civil procedure. States may determine their own rules, which apply in state courts, although 35 of the 50 states have adopted rules that are based on the FRCP. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Principles of negligence: Product liability (Part One)

    Play Episode Listen Later Aug 8, 2022 16:20


    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 regimes are the two leading models for how to impose strict liability for defective products, meaning that "virtually every product liability regime in the world follows one of these two models." United States. The United States was the birthplace of modern product liability law during the 20th century, due to the 1963 Greenman decision which led to the emergence of product liability as a distinct field of private law. In 1993, it was reported that "no other country can match the United States for the number and diversity of its product liability cases, nor for the prominence of the subject in the eyes of the general public and legal practitioners." This was still true as of 2015: "In the United States, product liability continues to play a big role: litigation is much more frequent there than anywhere else in the world, awards are higher, and publicity is significant." In the United States, the majority of product liability laws are determined at the state level and vary widely from state to state. Each type of product liability claim requires proof of different elements in order to present a valid claim. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: State income tax (Part Two)

    Play Episode Listen Later Aug 5, 2022 10:16


    States with local income taxes in addition to state-level income tax. The following states have local income taxes. These are generally imposed at a flat rate and tend to apply to a limited set of income items. Alabama: Some counties, including Macon County, and municipalities, including Birmingham (employees on payroll only). California: San Francisco (payroll only). Colorado: Some municipalities, including Denver and Aurora (flat-fee Occupational Privilege tax for privilege of working or conducting business; filed with municipality imposing fee). Delaware: Wilmington (earned, certain Schedule E income, as well as capital gains from sale of property used in business; income must be reported to the City of Wilmington if Wilmington tax is not withheld by employer.) Indiana (all local taxes reported on state income tax form): All counties. Iowa (all local taxes reported on state income tax form): Many school districts and Appanoose County. Kansas: Some counties and municipalities (interest and dividend income; reported on separate state form 200 filed with the county clerk). Kentucky: Most counties, including Kenton County, Kentucky, and municipalities, including Louisville and Lexington (earned income and certain rental income that qualifies as a business; reported as Occupational License fee/tax by employer or as Net Profits tax by business, filed with county or municipality imposing tax). Maryland: (all local taxes reported on state income tax form): All counties, and the independent city of Baltimore. Michigan: Many cities, including Detroit, Lansing, and Flint (most income above a certain annual threshold; reported on form issued by imposing city or on separate state form 5118/5119/5120 in the case of Detroit). Missouri: (all other cities are prohibited from imposing local income tax): Kansas City, (earned income; income must be reported to Kansas City if Kansas City tax is not withheld by employer; residents must file the Earnings tax form to report wages on which Kansas City income tax is not withheld and the Business Earnings tax form to report self-employment income). St. Louis, (earned income; income must be reported to the City of St. Louis if St. Louis tax is not withheld by employer; residents must file the Earnings tax form to report wages on which St. Louis income tax is not withheld and the Business Earnings tax form to report self-employment income). New Jersey: Newark (payroll only). New York (all local taxes reported on state income tax form): New York City, (employees with NYC section 1127 withholding should also file New York City Form 1127). Yonkers, Metropolitan Commuter Transportation District (self-employed with income sourced from New York City, as well as the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester). --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Property rights

    Play Episode Listen Later Aug 4, 2022 16:32


    Property rights have developed over ancient and modern history, from Abrahamic law to today's Universal Declaration of Human Rights article 17. Property rights can be understood as constructs in economics for determining how a resource or economic good is used and owned. 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 three broad components and is often referred to as a bundle of rights in the United States: 1. the right to use the good. 2. the right to earn income from the good, and, 3. the right to transfer the good to others, alter it, abandon it, or destroy it (the right to ownership cessation). Conceptualizing Property in Economics Vs Law. The fields of economics and law do not have a general consensus on conceptions of property rights. Various property types are used in law but the terminology can be seen in economic reports. Sometimes in economics, property types are simply described as private or public or common in reference to private goods (excludable and rivalrous goods, like a phone) and public goods (non-excludable and non-rivalrous goods, like air) respectively. Below is a list of the several property types defined and their relation to the economic concepts of excludability (the ability to limit the consumption of the good) and rivalry (a person's consumption of the good reduces the ability of another to consume it). --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Crimes against property: Arson + Blackmail

    Play Episode Listen Later Aug 3, 2022 11:26


    Arson is the crime of willfully and deliberately setting fire to or charring property. Though the act typically involves buildings, the term 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. Arson which results in death can be further prosecuted as manslaughter or murder. 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 referred to as an arsonist, or a serial arsonist if committed several times. 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 (ILR's) is an important part of fire investigations. Pyromania is an impulse control disorder characterized by the pathological setting of fires. Most acts of arson are not committed by pyromaniacs. Blackmail is an act of coercion using the threat of revealing or publicizing either substantially true or false information about a person or people unless certain demands are met. It is often damaging information, and it may be revealed to family members or associates rather than to the general public. These acts can also involve using threats of physical, mental or emotional harm, or of criminal prosecution, against the victim or someone close to the victim. It is normally carried out for personal gain, most commonly of position, money, or property. It is also used, sometimes by state agencies, to exert influence; this was a common Soviet practice, so much so that the term "kompromat", transliterated from Russian, is often used for compromising material used to exert control. Blackmail may also be considered a form of extortion. Although the two are generally synonymous, extortion is the taking of personal property by threat of future harm. Blackmail is the use of threat to prevent another from engaging in a lawful occupation and writing libelous letters or letters that provoke a breach of the peace, as well as use of intimidation for purposes of collecting an unpaid debt. In many jurisdictions, blackmail is a statutory offense, often criminal, carrying punitive sanctions for convicted perpetrators. Blackmail is the name of a statutory offense in the United States, England and Wales, and Australia, and has been used as a convenient way of referring to certain other offenses, but was not a term used in English law until 1968. Blackmail was originally a term from the Scottish Borders meaning payments rendered in exchange for protection from thieves and marauders. The "mail" part of blackmail derives from Middle English male meaning "rent or tribute". This tribute (male or reditus) was paid in goods or labor; hence "blackmail". Alternatively, it may be derived from two Scottish Gaelic words blathaich - to protect; and mal - tribute or payment. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Civil procedure in the United States

    Play Episode Listen Later Aug 2, 2022 18:36


    Civil procedure in the United States consists of rules that govern civil actions in the federal, state, and territorial court systems, and is distinct from the rules that govern criminal actions. Like much of American law, civil procedure is not reserved to the federal government in its Constitution. As a result, each state is free to operate its own system of civil procedure independent of her sister states and the federal court system. History. Early federal and state civil procedure in the United States was rather ad hoc and was based on traditional common law procedure but with much local variety. There were varying rules that governed different types of civil cases such as "actions" at law or "suits" in equity or in admiralty; these differences grew from the history of "law" and "equity" as separate court systems in English law. Even worse, discovery was generally unavailable in actions at law. In order to obtain discovery, a party to a legal action had to bring a collateral proceeding, a bill in equity in aid of discovery, just to obtain essential documents or testimony from the opposing party. Procedure in the early federal courts was rather incoherent. The Process Act of 1792 authorized the federal courts to write their own procedural rules for everything but actions at law. In the context of actions at law, the earlier Process Act of 1789 was so poorly written that it forced a federal court sitting in a state to apply the common law rules of pleading and procedure that were in effect in the state at the time it joined the Union, regardless of whether the state had modified or revised its civil procedure system since. In other words, even though a state's common law pleading system was always constantly evolving through case law, the federal courts in that state were literally frozen in time (a concept now known as "static conformity"). The Process Acts of 1789 and 1792 did not expressly address the problem of what procedural laws to apply in the federal courts in new states that joined the Union after the original Thirteen Colonies. In 1828, Congress enacted a law which stated that such courts would follow the civil procedure in effect at the time those states joined the Union. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Principles of negligence: Strict liability + Absolute liability

    Play Episode Listen Later Aug 1, 2022 10:13


    Tort law. In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred, and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It has the beneficial effect of simplifying and thereby expediting court decisions in these cases, although the application of strict liability may seem unfair or harsh, as in Re Polemis. Under the English law of negligence and nuisance, even where tortious liability is strict, the defendant may sometimes be liable only for the reasonably foreseeable consequences of his act or omission. An early example of strict liability is the rule Rylands v Fletcher, where it was held that "any person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". If the owner of a zoo keeps lions and tigers, he is liable if the big cats escape and cause damage or injury. In strict liability situations, although the plaintiff does not have to prove fault, the defendant can raise a defense of absence of fault, especially in cases of product liability, where the defense may argue that the defect was the result of the plaintiff's actions and not of the product, that is, no inference of defect should be drawn solely because an accident occurs. If the plaintiff can prove that the defendant knew about the defect before the damages occurred, additional punitive damages can be awarded to the victim in some jurisdictions. The doctrine's most famous advocates were Learned Hand, Benjamin Cardozo, and Roger J Traynor. Strict liability is sometimes distinguished from absolute liability. In this context, an actus reus may be excused from strict liability if due diligence is proved. Absolute liability, however, requires only an actus reus. Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions. To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action but also have had a deliberate intention or guilty mind (mens rea). In a crime of strict or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defense of a “mistake of fact” is available: in a crime of absolute liability, a mistake of fact is not a defense. Strict or absolute liability can also arise from inherently dangerous activities or defective products that are likely to result in a harm to another, regardless of protection taken, such as owning a pet rattlesnake; negligence is not required to be proven. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Taxation in the US (2022): State and local taxation: State income tax (Part One)

    Play Episode Listen Later Jul 29, 2022 10:58


    In addition to federal income tax collected by the United States, most individual U.S. states collect a state income tax. Some local governments also impose an income tax, often based on state income tax calculations. Forty-two states and many localities in the United States impose an income tax on individuals. Eight states impose no state income tax, and a ninth, New Hampshire, imposes an individual income tax on dividends and interest income but not other forms of income. Forty-seven states and many localities impose a tax on the income of corporations. State income tax is imposed at a fixed or graduated rate on taxable income of individuals, corporations, and certain estates and trusts. These tax rates vary by state and by entity type. Taxable income conforms closely to federal taxable income in most states with limited modifications. States are prohibited from taxing income from federal bonds or other federal obligations. Most states do not tax Social Security benefits or interest income from obligations of that state. In computing the deduction for depreciation, several states require different useful lives and methods be used by businesses. Many states allow a standard deduction or some form of itemized deductions. States allow a variety of tax credits in computing tax. Each state administers its own tax system. Many states also administer the tax return and collection process for localities within the state that impose income tax. State income tax is allowed as an itemized deduction in computing federal income tax, subject to limitations for individuals. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Partition

    Play Episode Listen Later Jul 28, 2022 10:42


    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"). Why forced sales occur. Forced sales generally occur because owners of property are unable to agree upon certain aspects of the ownership. The owners may disagree on how to use the property, the amount of money to invest into the property, on their right to occupy and use the whole of the property. If the parties cannot come to an agreement, the case moves to court through a petition to partition action. Property may be owned by more than one person either as joint tenants, tenants in common, and in some states tenants by the entirety. The choice of which tenancy to enter into is made by the parties at the time of purchase. With each type of tenancy, each owner has the right to occupy the whole. That means that owners are not allowed to designate certain rooms as their own, but each element of the property is enjoyed fully by all parties. Types of partition. There are three kinds of partitions which can be awarded by court: partition in kind, partition by allotment, and partition by sale. 1. A partition in kind is a division of the property itself among the co-owners. 2. In a partition by allotment, which is not available in all jurisdictions, the court awards full ownership of the land to a single owner or subset of owners and orders them to pay the person or persons divested of ownership for the interest awarded. 3. Partition by sale constitutes a forced sale of the land, followed by division of the profits thus realized among the tenants. Generally, the court is supposed to order a partition sale only if the land cannot be physically divided, although this determination often rests on whether the economic value of the divided pieces is less in the aggregate than the value of the parcel as a single piece. See Delfino v Vealencis (1980). A provision in a deed completely prohibiting partition will not be given effect, but courts will enforce a provision that temporarily restricts partition, as long as the restriction is reasonable. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Criminal law (2022): Sexual offenses: Indecent exposure

    Play Episode Listen Later Jul 27, 2022 9:35


    Indecent exposure is the deliberate public exposure by a person of a portion of their body in a manner contrary to local standards of appropriate behavior. Laws and social attitudes regarding indecent exposure vary significantly in different countries. It ranges from outright prohibition of the exposure of any body parts other than the hands or face 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 in some jurisdictions, which is usually a more serious criminal offence (historically, gross indecency statutes often did not specifically define the crime itself, leaving this up to the determination of courts; in practice, gross indecency was used primarily to criminalize sexual activity between men that fell short of sodomy laws, though present-day statutes vary). In some countries, exposure of the body in breach of community standards of modesty is also considered to be public indecency. The legal and community standards of what states of undress constitute indecent exposure vary considerably and depend on the context in which the exposure takes place. These standards have also varied over time, making the definition of indecent exposure a complex topic. History. What is an inappropriate state of dress in a particular context depends on the standards of decency of the community where an exposure takes place. These standards vary from time to time and can vary from the very strict standards of modesty in places such as Afghanistan and Saudi Arabia, which require most of the body to be covered, to tribal societies such as the Pirahã or Mursi where full nakedness is the norm. There is generally no implication that the state of dress objected to is of a sexual nature; and if such an allegation were to be made, the act would generally be described as "gross indecency". --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Conflict of laws and private international law (2022): Hague Conference on Private International Law

    Play Episode Listen Later Jul 26, 2022 8:09


    The Hague Conference on Private International Law (HCCH) is an intergovernmental organization in the area of private international law (also known as conflict of laws), that administers several international conventions, protocols and soft law instruments. The Hague Conference was first convened by Tobias Asser in 1893 in The Hague. In 1911, Asser received the Nobel Prize for Peace for his work in the field of private international law, and in particular for his achievements with respect to the HCCH. After World War II, the Hague Conference was established as an international organization. History. A permanent diplomatic conference. On the initiative of Tobias Asser, the First Diplomatic Session of the HCCH was convened in 1893. Its aim was, and remains, to "work for the progressive unification of the rules of private international law", including by creating, and assisting in the implementation of, multilateral conventions that promote the harmonization of the rules and principles of private international law (or conflict of laws). The First to Fourth Diplomatic Session of the HCCH took place in 1893, 1894, 1900 and 1904 respectively. They resulted in a number of multilateral treaties, the Hague Conventions, that unified the rules of private international law in the areas of Marriage (1902), Divorce (1902), Guardianship (1902), Civil procedure (1905), Effects of Marriage (1905), and Deprivation of Civil Rights (1905). After World War I, the Fifth and Sixth Diplomatic Sessions took place in 1925 and 1928 respectively. The result of those Diplomatic Sessions was the Protocol to recognize the competence of the Permanent Court of International Justice to interpret the Hague Conventions on Private International Law. Intergovernmental organization. After World War II, steps were taken to establish the HCCH as an intergovernmental organization, governed by its member states and administered by a secretariat, the Permanent Bureau. The treaty establishing the HCCH, the "Statute of the Hague Conference on Private International Law", was adopted during the Seventh Diplomatic Session of the HCCH in 1951, and entered into force on 15 July 1955. The acronym "HCCH" is derived from using the respective capitals of the phrases "Hague Conference" and "Conférence de La Haye". It represents the bilingual nature of the HCCH, which has both English and French as its working languages. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Principles of negligence: Attractive nuisance doctrine + Comparative responsibility + Contributory negligence

    Play Episode Listen Later Jul 25, 2022 13:13


    The attractive nuisance doctrine applies to the law of torts in some jurisdictions. It states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children. The doctrine is designed to protect children who are unable to appreciate the risk posed by the object, by imposing a liability on the landowner. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property. There is no set cutoff point that defines youth. The courts will evaluate each "child" on a case-by-case basis to see if the "child" qualifies as a youth. If it is determined that the child was able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply. Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable by the landowner. Comparative responsibility (known as comparative fault in some jurisdictions) is a doctrine of tort law that compares the fault of each party in a lawsuit for a single injury. Comparative responsibility may apply to intentional torts as well as negligence and encompasses the doctrine of comparative negligence. Comparative responsibility divides the fault among parties by percentages, and then accordingly divides the money awarded to the plaintiff. The plaintiff may only recover the percentage of the damages he is not at fault for. If a plaintiff is found to be 25% at fault, he can recover only 75% of his damages. There are several circumstances that make comparative responsibility intricate: when the plaintiff shares in fault for the damages, when a defendant who has a share of the fault cannot be included in the suit, when one of the defendants can not pay, and when there are charges of both negligence and intentional torts in the same action. 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 fact-finder 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

    Taxation in the US: State and local taxation (Part 3)

    Play Episode Listen Later Jul 22, 2022 15:18


    Alternative tax bases (AMT, states). An alternative minimum tax (AMT) is imposed at the federal level on a somewhat modified version of taxable income. The tax applies to individuals and corporations. The tax base is adjusted gross income reduced by a fixed deduction that varies by taxpayer filing status. Itemized deductions of individuals are limited to home mortgage interest, charitable contributions, and a portion of medical expenses. AMT is imposed at a rate of 26% or 28% for individuals and 20% for corporations, less the amount of regular tax. A credit against future regular income tax is allowed for such excess, with certain restrictions. Many states impose minimum income taxes on corporations or a tax computed on an alternative tax base. These include taxes based on the capital of corporations and alternative measures of income for individuals. Details vary widely by state. Differences between book and taxable income for businesses. In the United States, taxable income is computed under rules that differ materially from U.S. generally accepted accounting principles. Since only publicly traded companies are required to prepare financial statements, many non-public companies opt to keep their financial records under tax rules. Corporations that present financial statements using other than tax rules must include a detailed reconciliation of their financial statement income to their taxable income as part of their tax returns. Key areas of difference include depreciation and amortization, timing of recognition of income or deductions, assumptions for cost of goods sold, and certain items (such as meals and entertainment) the tax deduction for which is limited. Reporting under self-assessment system. Income taxes in the United States are self-assessed by taxpayers by filing required tax returns. Taxpayers, as well as certain non-tax-paying entities, like partnerships, must file annual tax returns at the federal and applicable state levels. These returns disclose a complete computation of taxable income under tax principles. Taxpayers compute all income, deductions, and credits themselves, and determine the amount of tax due after applying required prepayments and taxes withheld. Federal and state tax authorities provide preprinted forms that must be used to file tax returns. IRS Form 1040 series is required for individuals, Form 1120 series for corporations, Form 1065 for partnerships, and Form 990 series for tax exempt organizations. The state forms vary widely, and rarely correspond to federal forms. Tax returns vary from the two-page (Form 1040EZ) used by nearly 70% of individual filers to thousands of pages of forms and attachments for large entities. Groups of corporations may elect to file consolidated returns at the federal level and with a few states. Electronic filing of federal and many state returns is widely encouraged and in some cases required, and many vendors offer computer software for use by taxpayers and paid return preparers to prepare and electronically file returns. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

    Property law (2022): Related topics: Fixture + Waste

    Play Episode Listen Later Jul 21, 2022 12:25


    A fixture, as a legal concept, means any physical property that is permanently attached (fixed) to real property (usually land). Property not affixed to real property is considered chattel property. Fixtures are treated as a part of real property, particularly in the case of a security interest. A classic example of a fixture is a building, which, in the absence of language to the contrary in a contract of sale, is considered part of the land itself and not a separate piece of property. Generally speaking, the test for deciding whether an article is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land, the article is likely a fixture; if the article was affixed to enhance the use of the chattel itself, the article is likely a chattel. Chattel property is converted into a fixture by the process of attachment. For example, if a piece of lumber sits in a lumber yard, it is a chattel. If the same lumber is used to build a fence on the land, it becomes a fixture to that real property. In many cases, the determination of whether property is a fixture or a chattel turns on the degree to which the property is attached to the land. For example, this problem arises in the case of a trailer home. In this case, the characterization of the home as chattel or realty will depend on how permanently it is attached, such as whether the trailer has a foundation. The characterization of property as a fixture or as chattel is important. In most jurisdictions, the law respecting the registration of security against debt, or proof that money has been lent on the collateral of property, is different for chattels than it is for real property. For example, in the province of Ontario, Canada, mortgages against real property must be registered in the county or region's land titles office. However, mortgages against chattels must be registered in the province-wide registry set up under the Personal Property Security Act. In the case of a trailer home, whether it is a fixture or chattel has a bearing on whether a real property mortgage applies to the trailer. For example, most mortgages contain a clause that forbids the borrower from removing or demolishing fixtures on the property, which would lower the value of the security. However, there have been cases where lenders lend money based on the value of the trailer home on the property, where that trailer is later removed from the property. Similarly, a chattel mortgage granted to allow a person to purchase a trailer home could be lost if the trailer is later attached to real property. The law regarding fixtures can also cause many problems with property held under a lease. Fixtures put in place by the tenant belong to the landlord if the tenant is evicted from the property. This is the case even if the fixture could have legally been removed by the tenant while the lease was in good standing. For example, a chandelier hung by the tenant may become the property of the landlord. Although this example is trivial, there have been cases where heavy equipment incorporated into a plant has been deemed to have become fixtures even though it was sold as chattels. Because the value of fixtures often exceeds the value of the land they are affixed to, lawsuits to determine whether a particular item is a chattel or a fixture are common. In one case in Canada, a provincial government argued that a huge earth dam was a chattel, as it was only held in place by gravity and not by any type of affixation (the claim was rejected). In a sale of land, fixtures are treated as part of the land, and may not be removed or altered by the seller prior to the transfer of the land. Fixtures are known in civil law as essential parts. --- Send in a voice message: https://anchor.fm/law-school/message Support this podcast: https://anchor.fm/law-school/support

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