Law School

Episode 1: Introduction to the Bar ExamIn this session we’ll cover:

Overview of the Bar Exam and its significance.

Understanding the format and structure of the exam.

Strategies for effective preparation.

Now welcome to "Mastering the Bar Exam," the podcast that will equip you with the knowledge and skills to ace the Bar Exam and become a successful attorney. I am your host, my goal is to help you, aspiring law students, pass the Bar Exam with flying colors.

In today's episode, we will begin our journey by providing an Introduction to the Bar Exam. We'll delve into its significance, understand the format and structure of the exam, and discuss strategies for effective preparation.

First, let's talk about the Bar Exam itself. The Bar Exam is a crucial milestone in your legal career. It is the gateway to becoming a licensed attorney, allowing you to practice law in your jurisdiction. Without passing the Bar Exam, all your hard work and education in law school won't be enough to become a fully-fledged attorney.

Imagine you've just completed your law school education and are eager to start your legal career. However, you can't take on any legal cases or represent clients until you've successfully passed the Bar Exam. The exam is a way to ensure that all attorneys possess the necessary knowledge and competence to serve their clients ethically and effectively.

In one notable instance, a law graduate who was exceptionally talented failed the Bar Exam multiple times due to a lack of preparation and test-taking strategies. It was a harsh lesson that highlighted the importance of dedicated preparation and understanding the exam's requirements.

Before we continue, take a moment to reflect on why passing the Bar Exam is significant for you. What motivated you to pursue a legal career, and how will becoming a licensed attorney help you achieve your goals?

Welcome back, everyone, to the second part of our session on the Preamble and Articles of the U.S. Constitution. In the previous segment, we discussed the significance of the Preamble in setting the goals and guiding principles of our Constitution. Now, we will embark on a detailed examination of each Article of the Constitution, from Article 1 to Article 7. So, let's begin!

Article 1 - The Legislative Branch.

Article 1 establishes the first and most extensive branch of the U.S. government - the Legislative Branch. This branch is vested in the Congress of the United States, consisting of two chambers: the Senate and the House of Representatives.

Section 1: Legislative Powers Vested in Congress.

Article I grants Congress the authority to make laws for the nation, making it the primary law making body of the federal government.

Section 2: House of Representatives.

This section outlines the qualifications and selection process for members of the House of Representatives, including the number of representatives per state, their term lengths, and the process for filling vacancies. The House of Representatives is meant to be the "People's House," representing the interests of the citizens directly.

Section 3: The Senate.

Section 3 details the composition and role of the Senate, consisting of two senators from each state, elected by the state legislatures initially and later by popular vote. The Senate acts as a more deliberative body, representing state interests and providing a check on the House of Representatives.

Section 4: Congressional Elections.

This section grants state legislatures the power to determine the time, place, and manner of congressional elections. However, Congress can override these regulations if needed.

Section 5: Rules and Procedures.

Section 5 establishes the rules and procedures for each chamber of Congress, including quorum requirements, rules for discipline, and the freedom to judge the qualifications of its members.

Section 6: Congressional Compensation and Privileges

This section outlines the compensation of Congress members and protects them from arrest or civil lawsuits while attending sessions, except in cases of treason, felony, or breach of the peace.

Section 7: The Legislative Process.

Section 7 details the process by which bills become laws, including the requirement for both houses to pass a bill before it is presented to the President for approval or veto.

Section 8: Enumerated Powers of Congress.

This crucial section lists the specific powers granted to Congress, including the power to levy taxes, regulate commerce, coin money, and provide for the common defense and general welfare. These enumerated powers are the foundation for much of Congress's legislative authority.

Section 9: Limits on Congress.

Section 9 places limits on Congress's powers, such as prohibiting the suspension of habeas corpus, ex post facto laws, and bills of attainder. Additionally, it limits the ability to grant titles of nobility and directs that direct taxes be apportioned among the states based on their populations.

Section 10: Limits on the States

Section 10 sets limitations on the states, prohibiting them from entering into treaties, coining money, or passing bills of attainder, ex post facto laws, or laws impairing contracts.

Article 2 - The Executive Branch.

Article 2 establishes the second branch of the U.S. government - the Executive Branch. This branch is vested in the President of the United States, who serves as the head of state and government.

Section 1: The President and Vice President.

Article II outlines the qualifications, selection process, and term lengths for the President and Vice President. It also establishes the Electoral College as the method of electing the President.

Chapter 1: Introduction to Contracts Law.

Understanding the Role of Contracts in Legal Practice.

Contracts are fundamental legal instruments that play a pivotal role in various aspects of legal practice. They are agreements between two or more parties that create legally binding obligations enforceable by law. Understanding the nature and significance of contracts is crucial for law students and aspiring lawyers to navigate the complexities of contract law.

Definition and Characteristics of Contracts.

A contract can be defined as a legally enforceable agreement between two or more parties, where each party agrees to undertake certain rights and responsibilities. For a contract to be valid, it must satisfy essential elements, including:

a) Offer and Acceptance: The formation of a contract begins with an offer by one party and its acceptance by the other, resulting in mutual assent to the contract's terms.

b) Consideration: Contracts must involve some form of consideration, which is a bargained-for exchange of value between the parties. Consideration can be money, goods, services, or a promise to do or refrain from doing something.

c) Legal Purpose: Contracts must have a lawful purpose and cannot be created for illegal activities or against public policy.

d) Capacity: Each party must have the legal capacity to enter into the contract. This means they must be of sound mind, of legal age, and not under undue influence or duress.

Importance of Contracts in Legal Transactions.

Contracts serve as the foundation of business and personal transactions. They provide a framework for individuals and entities to define their rights and obligations, allocate risks, and ensure enforceability in case of disputes. The significance of contracts in various legal scenarios includes:

a) Business Agreements: Contracts are vital for businesses to engage in transactions with suppliers, customers, employees, and other stakeholders. They govern sales, leases, employment agreements, and partnerships, among others.

b) Real Estate Transactions: Contracts are used in buying, selling, leasing, and financing real estate properties, ensuring clear terms for both buyers and sellers.

c) Construction Contracts: In construction projects, contracts establish the scope of work, timelines, payment terms, and quality standards.

d) Intellectual Property Licensing: Contracts play a crucial role in licensing intellectual property rights, such as patents, trademarks, and copyrights.

e) Commercial Contracts: These encompass various agreements, including service contracts, distribution agreements, franchise contracts, and more.

Historical Development of Contract Law.

The principles of modern contract law have evolved over centuries of legal history. Early legal systems, such as Roman law and English common law, laid the groundwork for modern contract law. Notable cases and legal developments that have shaped contract law include:

a) Case of Hadley v. Baxendale (1854): This landmark English case established the principle of foreseeability in contract damages, stating that damages should be limited to what was reasonably foreseeable at the time of contract formation.

b) Restatement (Second) of Contracts: The Restatement, published by the American Law Institute (ALI), provides authoritative guidance on contract law and has influenced courts in various jurisdictions.

c) Uniform Commercial Code (UCC): The UCC, adopted by most U.S. states, governs commercial transactions, including the sale of goods, simplifying and unifying contract law across states.

d) Modern Contract Interpretation: Courts have shifted towards an objective approach to contract interpretation, focusing on the parties' intent as expressed in the contract's language.

Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. In most jurisdictions, it is distinct from child support, where, after divorce, one parent is required to contribute to the support of their children by paying money to the child's other parent or guardian.

Etymology.

The term alimony comes from the Latin word alimonia ("nourishment, sustenance", from alere, "to nourish"), from which the terms alimentary (of, or relating to food, nutrition, or digestion), and aliment (a Scots Law rule regarding sustenance to assure the wife's lodging, food, clothing, and other necessities after divorce) are also derived.

History.

The Code of Hammurabi (1754 BC) declares that a man must provide sustenance to a woman who has borne him children so that she can raise them:

137. If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.

The above law only applies to women who had children with her husband. This fits more closely with the definition of child support in some jurisdictions.

Alimony is also discussed in the Code of Justinian.

The modern concept of alimony is derived from English ecclesiastical courts that awarded alimony in cases of separation and divorce. Alimony pendente lite was given until the divorce decree, based on the husband's duty to support the wife during a marriage that still continued. Post-divorce or permanent alimony was also based on the notion that the marriage continued, as ecclesiastical courts could only award a divorce a mensa et thoro, similar to a legal separation today. As divorce did not end the marriage, the husband's duty to support his wife remained intact.

Liberalization of divorce laws occurred in the 19th century, but divorce was only possible in cases of marital misconduct. As a result, the requirement to pay alimony became linked to the concept of fault in the divorce. Alimony to wives was paid because it was assumed that the marriage, and the wife's right to support, would have continued but for the misbehavior of the husband. Ending alimony on divorce would have permitted a guilty husband to profit from his own misconduct. In contrast, if the wife committed the misconduct, she was considered to have forfeited any claim to ongoing support. However, during the period, parties could rarely afford alimony, and so it was rarely awarded by courts. As husbands' incomes increased, and with it the possibility of paying alimony, the awarding of alimony increased, generally because a wife could show a need for ongoing financial support, and the husband had the ability to pay. No-fault divorce led to changes in alimony. Whereas spousal support was considered a right under the fault-based system, it became conditional under the no-fault approach. According to the American Bar Association, marital fault is a "factor" in awarding alimony in 25 states and the District of Columbia. Permanent alimony began to fall out of favor, as it prevented former spouses from beginning new lives, though in some states (for example, Massachusetts, Mississippi, and Tennessee), permanent alimony awards continued, but with some limitations.

Clause 7: Judgment in cases of impeachment; Punishment on conviction.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

If any officer or the President or the Vice President is convicted of impeachment, that person is immediately removed from office and may be barred from holding any federal office in the future. This is purely a political remedy which "touches neither his person, nor his property; but simply divests him of his political capacity," however the convicted person remains liable to trial and punishment in the courts for civil and criminal charges. The President cannot reinstate an impeached officer with his Article 2 appointment power if such officers have been disqualified to hold any future federal office as part of their conviction.

Section 4: Congressional elections and sessions.

Clause 1: Time, place, and manner of holding elections.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

The purpose of this clause is twofold. First, it makes clear the division of responsibility with respect to the conduct of the election of federal senators and representatives. That responsibility lies primarily with the states and secondarily with Congress. Second, the clause lodges the power to regulate elections in the respective legislative branches of the states and the federal government. As authorized by this clause, Congress has set a uniform date for federal elections: the Tuesday following the first Monday in November.

Presently, as there are no on-point federal regulations, the states retain the authority to regulate the dates on which other aspects of the election process are held (registration, primary elections, for example) and where elections will be held. As for regulating the "manner" of elections, the Supreme Court has interpreted this to mean "matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns." The Supreme Court has held that States may not exercise their power to determine the "manner" of holding elections to impose term limits on their congressional delegation.

One of the most significant ways that each state regulates the "manner" of elections is through their power to draw electoral districts. Although in theory Congress could draw the district map for each State, it has not exercised this level of oversight. Congress has, however, required the States to conform to certain practices when drawing districts. States are currently required to use a single-member district scheme, whereby the State is divided into as many election districts for Representatives in the House of Representatives as the size of its representation in that body (that is to say, Representatives cannot be elected at-large from the whole State unless the State has only one Representative in the House, nor can districts elect more than 1 Representative). The Supreme Court has interpreted "by the Legislature thereof" to include the state governor's veto, and the initiative process, in those states whose constitutions provide it. This conclusion has been challenged, however, by the independent state legislature theory, which may have growing support on the Supreme Court.

Employee rights.

Derivative suits.

Because directors owe their duties to the corporation and not, as a general rule, to specific shareholders or stakeholders, the right to sue for breaches of directors duty rests by default with the corporation itself. The corporation is necessarily a party to the suit. This creates a difficulty because almost always, the right to litigate falls under the general powers of directors to manage the corporation day to day (for example Delaware General Corporation Law §141(a)). Often, cases arise (such as in Broz v Cellular Information Systems Incorporated) where an action is brought against a director because the corporation has been taken over and a new, non-friendly board is in place, or because the board has been replaced after bankruptcy. Otherwise, there is a possibility of a conflict of interest because directors will be reluctant to sue their colleagues, particularly when they develop personal ties. The law has sought to define further cases where groups other than directors can sue for breaches of duty. First, many jurisdictions outside the US allow a specific percentage of shareholders to bring a claim as of right (for example 1 per cent). This solution may still entail significant collective action problems where shareholders are dispersed, like the US. Second, some jurisdictions give standing to sue to non-shareholder groups, particularly creditors, whose collective action problems are less. Otherwise, third, the main alternative is that any individual shareholder may "derive" a claim on the corporation's behalf to sue for breach of duty, but such a derivative suit will be subject to permission from the court.

The risk of allowing individual shareholders to bring derivative suits is usually thought to be that it could encourage costly, distracting litigation, or "strike suits" – or simply that litigation (even if the director is guilty of a breach of duty) could be seen as counterproductive by a majority of shareholders or stakeholders who have no conflicts of interest. Accordingly, it is generally thought that oversight by the court is justified to ensure derivative suits match the corporation's interests as a whole because courts may be more independent. However, especially from the 1970s some states, and especially Delaware, began also to require that the board have a role. Most common law jurisdictions have abandoned the role for the board in derivative claims, and in most US states before the 1980s, the board's role was no more than a formality. But then, a formal role for the board was reintroduced. In the procedure to bring a derivative suit, the first step is often that the shareholder had to make a "demand" on the board to bring a claim. Although it might appear strange to ask a group of directors who will be sued, or whose colleagues are being sued, for permission, Delaware courts took the view that the decision to litigate ought by default to lie within the legitimate scope of directors' business judgment. For example, in Aronson v Lewis a shareholder of the Meyers Parking System Inc claimed that the board had improperly wasted corporate assets by giving its 75-year-old director, Mr Fink, a large salary and bonus for consultancy work even though the contract did not require performance of any work. Mr Fink had also personally selected all of the directors.

Introduction to the Preamble.

The Preamble of the U.S. Constitution serves as an eloquent and powerful introduction to the document. It begins with the iconic words, "We the People of the United States," emphasizing that the authority and power of the government originate from the citizens it serves. The Preamble sets the tone for the Constitution, expressing the collective vision and aspirations of the Founding Fathers.

Setting the Goals of the Constitution.

Let's now explore the Preamble's text to understand the goals it establishes for our government. It reads as follows:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Forming a More Perfect Union.

The Preamble's first goal is to "form a more perfect Union." This phrase addresses the imperfections of the previous system under the Articles of Confederation and highlights the Founding Fathers' desire to create a stronger and more unified nation. They recognized that a cohesive union was essential for the country's stability and prosperity.

A special needs trust, also known in some jurisdictions as a supplemental needs trust, is a specialized trust that allows the disabled beneficiary to enjoy the use of property that is held in the trust for his or her benefit, while at the same time allowing the beneficiary to receive essential needs-based government benefits. A Special Needs Trust is a specific type of irrevocable trust that exists under Common Law. Several Common Law nations have established specific statutes relative to the creation and use of Special Needs Trusts, and where they exist a Special Needs Trust will not be valid unless it comports with the requirements listed in the statute. The applicable Federal statute in the United States is found at Title 42 United States Code. Several States have established their own statutes.

Generally, irrevocable trusts can be used for minors, beneficiaries with physical or mental challenges, and as a method of asset protection. In addition to the public benefits preservation reasons for such a trust, there are administrative advantages of using a trust to hold and manage property intended for the benefit of the beneficiary, especially if the beneficiary lacks the legal capacity to handle his or her own financial affairs. Special needs trusts may also be useful for people who are planning for possible future disability.

Throughout the world.

A trust for a beneficiary with disability may be set up in any of the common law countries, including the United States, and also in other countries that recognize the concept of a "trust." In such jurisdictions, there is often legislation that provides advantages to such trusts in the areas of taxation and state benefits, for example, in Ireland and the United Kingdom. In the United States of America, such trusts provide advantages in helping beneficiaries qualify for health care coverage under state Medicaid programs, and also for monthly cash payments under the Supplemental Security Income (SSI) program operated by the Social Security Administration.

Overview.

Special needs trusts can provide benefits to, and protect the assets of, minors and the physically challenged or the mentally challenged. Special needs trusts are frequently used to receive an inheritance or personal injury settlement proceeds on behalf of a minor or a person with disability, or are founded from the proceeds of compensation for criminal injuries, litigation or insurance settlements.

A common feature of trusts in all common law jurisdictions is that they may be run either by family members (a private trust) or by trustees appointed by the court. Especially where a trust is to be established for a child or young person with disability, great care is generally taken in the choice of appropriate trustees to manage the trust assets and to deal with future replacement appointments. The use of a private discretionary trust can not only be more efficient in terms of taxation and access to government benefits but can also allow for more efficient investment of funds held than where funds are held by a court official (such as the Official Receiver in England and Wales). However where no appropriate trustees can be found, for example on the death of existing trustees, the court will intervene.

Special needs trusts are often set up under the guidance of a structured settlement planner in cooperation with a qualified legal and financial team to ensure the trust is set up correctly. Only authorized non-profit organizations are approved to manage a special needs trust program. Such pooled trusts are available throughout the United States and are often centered on certain purposes (often disabilities).

Today, every state plus the District of Columbia permits no-fault divorce, though requirements for obtaining a no-fault divorce vary. California was the first U.S. state to enact a no-fault divorce law. Its law was signed by Governor Ronald Reagan, a divorced and remarried former movie actor, and came into effect in 1970. New York was the last state to enact a no-fault divorce law; that law was passed in 2010.

Before no-fault divorce was available, spouses seeking divorce would often allege false grounds for divorce. Removing the incentive to perjure was one motivation for the no-fault movement.

In the States of Wisconsin, Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Illinois, Iowa, Indiana, Hawaii, Florida, Colorado and California, a person seeking a divorce is not permitted to allege a fault-based ground (for example adultery, abandonment or cruelty).

Requirements before the enactment of no-fault divorce.

Prior to the advent of no-fault divorce, a divorce was processed through the adversarial system as a civil action, meaning that a divorce could be obtained only through a showing of fault of one (and only one) of the parties in a marriage. This required that one spouse plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like recrimination (essentially an accusation of "so did you"). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage. Either of these two findings was sufficient to defeat an action for divorce, which meant that the parties remained married.

In some states, requirements were even more stringent. For instance, under its original (1819) constitution, Alabama required not only the consent of a court of chancery for a divorce (and only "in cases provided for by law"), but equally that of two-thirds of both houses of the state legislature. The required vote in this case was even stricter than that required to overturn the governor's veto in Alabama, which required only a simple majority of both houses of the General Assembly. This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the American Civil War.

Bypassing the showing-of-fault requirements for divorce.

These requirements could be problematic if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to manufacture "legal fictions" to bypass the statutory requirements, with the result that by the 1920s, the actual operation of the legal system was "completely at odds with statute and case law". One method popular in New York was referred to as "collusive adultery", in which the husband would check into a hotel with a "mistress" obtained for the occasion. A photographer, also obtained for the occasion, would suddenly appear out of nowhere to take snapshots of the husband and his "mistress" in flagrante delicto. Upon presentation of the photos in court, the judge would convict the husband of adultery, and the couple could be divorced.

Employee rights.

While investment managers tend to exercise most voting rights in corporations, bought with pension, life insurance and mutual fund money, employees also exercise voice through collective bargaining rules in labor law. Increasingly, corporate law has converged with labor law. The United States is in a minority of Organisation for Economic Co-operation and Development countries that, as yet, has no law requiring employee voting rights in corporations, either in the general meeting or for representatives on the board of directors. On the other hand, the United States has the oldest voluntary codetermination statute for private corporations, in Massachusetts since 1919 passed under the Republican governor Calvin Coolidge, enabling manufacturing companies to have employee representatives on the board of directors, if corporate stockholders agreed. Also in 1919 both Procter & Gamble and the General Ice Delivery Company of Detroit had employee representation on boards. In the early 20th century, labor law theory split between those who advocated collective bargaining backed by strike action, those who advocated a greater role for binding arbitration, and proponents of codetermination as "industrial democracy". Today, these methods are seen as complements, not alternatives. A majority of countries in the Organisation for Economic Co-operation and Development have laws requiring direct participation rights. In 1994, the Dunlop Commission on the Future of Worker-Management Relations: Final Report examined law reform to improve collective labor relations, and suggested minor amendments to encourage worker involvement. Congressional division prevented federal reform, but labor unions and state legislatures have experimented.

Corporations are chartered under state law, the larger mostly in Delaware, but leave investors free to organize voting rights and board representation as they choose. Because of unequal bargaining power, but also historic caution of labor unions, shareholders monopolize voting rights in American corporations. From the 1970s employees and unions sought representation on company boards. This could happen through collective agreements, as it historically occurred in Germany or other countries, or through employees demanding further representation through employee stock ownership plans, but they aimed for a voice independent from capital risks that could not be diversified. Corporations where workers attempted to secure board representation included United Airlines, the General Tire and Rubber Company, and the Providence and Worcester Railroad. However, in 1974 the Securities and Exchange Commission, run by appointees of Richard Nixon, rejected that employees who held shares in AT&T were entitled to make proposals to include employee representatives on the board of directors. This position was eventually reversed expressly by the Dodd-Frank Act of 2010 §971, which subject to rules by the Securities and Exchange Commission entitles shareholders to put forward nominations for the board. Instead of pursuing board seats through shareholder resolutions, for example, the United Auto Workers successfully sought board representation by collective agreement at Chrysler in 1980, and the United SteelWorkers secured board representation in five corporations in 1993. However, it was clear that employee stock ownership plans were open to abuse, particularly after Enron collapsed in 2003. Workers had been enticed to invest an average of 62.5 percent of their retirement savings from 401(k) plans in Enron stock, against basic principles of prudent, diversified investment, and had no board representation. This meant, employees lost a majority of pension savings. For this reason, employees and unions have sought representation simply for investment of labor, without taking on undiversifiable capital risk.

Clause 2: Classification of senators; Vacancies.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

After the first group of senators was elected to the First Congress (1789–1791), the senators were divided into three "classes" as nearly equal in size as possible, as required by this section. This was done in May 1789 by lot. It was also decided that each state's senators would be assigned to two different classes. Those senators grouped in the first class had their term expire after only two years; those senators in the second class had their term expire after only four years, instead of six. After this, all senators from those states have been elected to six-year terms, and as new states have joined the Union, their Senate seats have been assigned to two of the three classes, maintaining each grouping as nearly equal in size as possible. In this way, election is staggered; approximately one-third of the Senate is up for reelection every two years, but the entire body is never up for re-election in the same year (as contrasted with the House, where its entire membership is up for reelection every 2 years).

As originally established, senators were elected by the Legislature of the State they represented in the Senate. If a senator died, resigned, or was expelled, the legislature of the state would appoint a replacement to serve out the remainder of the senator's term. If the state legislature was not in session, its governor could appoint a temporary replacement to serve until the legislature could elect a permanent replacement. This was superseded by the Seventeenth Amendment, which provided for the popular election of senators, instead of their appointment by the state legislature. In a nod to the less populist nature of the Senate, the amendment tracks the vacancy procedures for the House of Representatives in requiring that the governor call a special election to fill the vacancy, but (unlike in the House) it vests in the state legislature the authority to allow the governor to appoint a temporary replacement until the special election is held. Note, however, that under the original Constitution, the governors of the states were expressly allowed by the Constitution to make temporary appointments. The current system, under the Seventeenth Amendment, allows governors to appoint a replacement only if their state legislature has previously decided to allow the governor to do so; otherwise, the seat must remain vacant until the special election is held to fill the seat, as in the case of a vacancy in the House.

Clause 3: Qualifications of senators.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

A senator must be at least 30 years of age, must have been a citizen of the United States for at least nine years before being elected, and must reside in the State they will represent at the time of the election.

Course Title and Objectives.

Let's start by looking at the title of our course: "Constitutional Law: Sources and Principles." As the title suggests, we will delve into the various sources of constitutional law and examine the fundamental principles that underpin it.

Importance of the U.S. Constitution.

Now, why is it essential to study the U.S. Constitution? The U.S. Constitution is the supreme law of the land, serving as the foundation for our legal system and the framework upon which our government operates. It establishes the structure of our government, outlines the powers and limitations of each branch, and safeguards individual rights. Understanding the Constitution is crucial for any lawyer, as it forms the basis of our legal framework.

Historical Context and Drafting of the Constitution.

Before we delve into the Constitution's content, let's take a step back and examine its historical context. The Constitution was drafted in the late 18th century, following the American Revolutionary War and the failure of the Articles of Confederation. It was a result of the collective efforts and compromises of the Founding Fathers, who sought to create a more effective and unified system of government.

Basic Structure of the Constitution.

Now, let's explore the basic structure of the Constitution. It is divided into three main parts: the Preamble, the Articles, and the Amendments. The Preamble sets out the broad goals and purposes of the Constitution, while the Articles outline the powers, functions, and limitations of the three branches of government: the Legislative Branch (Article 1), the Executive Branch (Article2), and the Judicial Branch (Article 3). The Amendments, on the other hand, add to and modify the original provisions of the Constitution.

Preamble and its Significance.

Let's focus on the Preamble for a moment. The Preamble serves as an introductory statement that outlines the goals and objectives of the Constitution. It begins with the famous words, "We the People," which reflect the idea that the power of the government emanates from the citizens. The Preamble sets the stage for the subsequent Articles and Amendments, guiding the interpretation and application of the Constitution

An honorary trust, under the law of trusts, is a device by which a person establishes a trust for which there is neither a charitable purpose, nor a private beneficiary to enforce the trust. While such a trust would normally be void for lack of a beneficiary, many jurisdictions have carved out two specific exceptions to this rule: trusts for the care of that person's pets; and trusts to provide for the maintenance of cemetery plots.

The name of the device derives from the lack of any beneficiary legally capable of enforcing an honorary trust: the trustee is bound by honor, but not by law, to carry out the wishes of the creator of the trust.

Like many states, New York has only recently allowed such trusts by statute.

An asset-protection trust is any form of trust which provides for funds to be held on a discretionary basis. Such trusts are set up in an attempt to avoid or mitigate the effects of taxation, divorce and bankruptcy on the beneficiary. Such trusts are therefore frequently proscribed or limited in their effects by governments and the courts.

The asset-protection trust is a trust that splits the beneficial enjoyment of trust assets from their legal ownership. The beneficiaries of a trust are the beneficial owners of equitable interests in the trust assets, but they do not hold legal title to the assets. Thus this kind of trust fulfills the goal of asset protection planning, for example to insulate assets from claims of creditors without concealment or tax evasion. A creditor's ability to satisfy a judgment against a beneficiary's interest in a trust is limited to the beneficiary's interest in such trust. Consequently, the common goal of asset protection trusts is to limit the interests of beneficiaries in such a way so as to preclude creditors from collecting against trust assets.

Such trusts must be irrevocable (a revocable trust will not provide asset protection because and to the extent of the settlor's power to revoke). Most of them contain a spendthrift clause preventing a trust beneficiary from alienating his or her expected interest in favor of a creditor. The spendthrift clause has three general exceptions to the protection afforded: the self-settled trusts (if the settlor of a trust is also a beneficiary of a trust), the case when a debtor is the sole beneficiary and the sole trustee of a trust, and the support payments (a court may order the trustee to satisfy a beneficiary's support obligation to a former spouse or minor child). The first general exception, which accounts for the majority of asset protection trusts, no longer applies in several jurisdictions. The laws of certain jurisdictions including Alaska, Bermuda, and the Cayman Islands allow self-settled trusts to afford their settlors the protection of the spendthrift clause.

Grounds for divorce are regulations specifying the circumstances under which a person will be granted a divorce. Adultery is the most common grounds for divorce. However, there are countries that view male adultery differently than female adultery as grounds for divorce.

Before decisions on divorce are considered, one might check into state laws and country laws for legal divorce or separation as each culture has stipulations for divorce.

Grounds for divorce.

Cruel and inhuman treatment constitute grounds for divorce. In a proper defense, acceptable differences enable the defendant to have the ability to arrange grounds for divorce.

Some examples for grounds for divorce are:

Sexual harassment,

Attendant circumstance,

Adulter,

Alcoholism,

Disability,

Desertion,

Imprisonment, and

Domestic violence (Including physical, sexual, or mental abuse of the other spouse and or the child or children of the couple.)

The spouse that is responsible for committing these allegations is required to confirm the correct date and place that the allegations were committed. The reason for the spouse to confirm the allegations is to show proof that the allegations have taken place in the same state. The state then has to have the authority to administer justice by hearing and determining the controversies. Different states accept different grounds for divorce. For example, some states only accept no-fault divorce where other states accept both fault and no-fault grounds for divorce.

No-fault divorce is the dissolution of a marriage that does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.

History.

In early modern Europe, Prussia took a pioneering role with Frederick the Great's 1757 edict allowing marriages to be resolved on the ground of serious and continuous hostility between spouses, without pointing to any one guilty party. This early example of no-fault divorce was expanded on and formalized with the 1794 General State Laws for the Prussian States, which allowed childless couples to file for divorce without giving a ground.

The first modern no-fault divorce law was enacted in Russia in December 1917 following the October Revolution of the same year. Regarding marriage as a bourgeois institution, the new government transferred divorce jurisdiction from the Russian Orthodox Church to the state courts, which could grant it on application of either spouse. Alimony guarantees under the new regime were weak until a new family code was passed in 1926.

With a law adopted in 1969, California became the first U.S. state to permit no-fault divorce. California's law was framed on a roughly contemporaneous effort of the non-governmental organization National Conference of Commissioners on Uniform State Laws, which began drafting a model of no-fault divorce statute for states to consider in 1967.

The Uniform Marriage and Divorce Act (UMDA) is a model law in the United States and has been used since 1970.

Australia established no-fault divorce in 1975, with the only ground for divorce being irretrievable breakdown of marriage, evidenced by a twelve-month separation. Canada effectively permitted no-fault divorce in 1986 by reducing the separation period to one year.

While investment managers tend to exercise most voting rights in corporations, bought with pension, life insurance and mutual fund money, employees also exercise voice through collective bargaining rules in labor law. Increasingly, corporate law has converged with labor law. The United States is in a minority of Organisation for Economic Co-operation and Development countries that, as yet, has no law requiring employee voting rights in corporations, either in the general meeting or for representatives on the board of directors. On the other hand, the United States has the oldest voluntary codetermination statute for private corporations, in Massachusetts since 1919 passed under the Republican governor Calvin Coolidge, enabling manufacturing companies to have employee representatives on the board of directors, if corporate stockholders agreed. Also in 1919 both Procter & Gamble and the General Ice Delivery Company of Detroit had employee representation on boards. In the early 20th century, labor law theory split between those who advocated collective bargaining backed by strike action, those who advocated a greater role for binding arbitration, and proponents of codetermination as "industrial democracy". Today, these methods are seen as complements, not alternatives. A majority of countries in the Organisation for Economic Co-operation and Development have laws requiring direct participation rights. In 1994, the Dunlop Commission on the Future of Worker-Management Relations: Final Report examined law reform to improve collective labor relations, and suggested minor amendments to encourage worker involvement. Congressional division prevented federal reform, but labor unions and state legislatures have experimented.

Corporations are chartered under state law, the larger mostly in Delaware, but leave investors free to organize voting rights and board representation as they choose. Because of unequal bargaining power, but also historic caution of labor unions, shareholders monopolize voting rights in American corporations. From the 1970s employees and unions sought representation on company boards. This could happen through collective agreements, as it historically occurred in Germany or other countries, or through employees demanding further representation through employee stock ownership plans, but they aimed for a voice independent from capital risks that could not be diversified. Corporations where workers attempted to secure board representation included United Airlines, the General Tire and Rubber Company, and the Providence and Worcester Railroad. However, in 1974 the Securities and Exchange Commission, run by appointees of Richard Nixon, rejected that employees who held shares in AT&T were entitled to make proposals to include employee representatives on the board of directors. This position was eventually reversed expressly by the Dodd-Frank Act of 2010 §971, which subject to rules by the Securities and Exchange Commission entitles shareholders to put forward nominations for the board. Instead of pursuing board seats through shareholder resolutions, for example, the United Auto Workers successfully sought board representation by collective agreement at Chrysler in 1980, and the United SteelWorkers secured board representation in five corporations in 1993. However, it was clear that employee stock ownership plans were open to abuse, particularly after Enron collapsed in 2003. Workers had been enticed to invest an average of 62.5 percent of their retirement savings from 401(k) plans in Enron stock, against basic principles of prudent, diversified investment, and had no board representation. This meant, employees lost a majority of pension savings. For this reason, employees and unions have sought representation simply for investment of labor, without taking on undiversifiable capital risk.

Clause 2: Qualifications of Members.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall, when elected, be an Inhabitant of that State in which he shall be chosen.

The Constitution provides three requirements for Representatives: A Representative must be at least 25 years old, must be an inhabitant of the state in which he or she is elected, and must have been a citizen of the United States for the previous seven years. There is no requirement that a Representative reside within the district in which he or she represents; although this is usually the case, there have been occasional exceptions.

The Supreme Court has interpreted the Qualifications Clause as an exclusive list of qualifications that cannot be supplemented by a house of Congress exercising its Section 5 authority to "judge...the...qualifications of its own members" or by a state in its exercise of its Section 4 authority to prescribe the "times, places and manner of holding elections for Senators and Representatives." The Supreme Court, as well as other federal courts, have repeatedly barred states from additional restrictions, such as imposing term limits on members of Congress, allowing members of Congress to be subject to recall elections, or requiring that Representatives live in the congressional district in which they represent. A 2002 Congressional Research Service report also found that no state could implement a qualification that a Representative not be a convicted felon or incarcerated.

However, the United States Supreme Court has ruled that certain ballot access requirements, such as filing fees and submitting a certain number of valid petition signatures do not constitute additional qualifications and thus few Constitutional restrictions exist as to how harsh ballot access laws can be.

Finally, although the U.S. Constitution places no restrictions on state or local office-holders simultaneously holding federal office, most state constitutions today effectively ban state and local office holders from also holding federal office at the same time by prohibiting federal office holders from also holding state and local office. Unlike other state-mandated restrictions, these sorts of prohibitions are constitutional as long they are enforced purely at the state level (for example against active federal office holders seeking to obtain or hold a state or local office).

Clause 3: Apportionment of Representatives and taxes.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including – in certain circumstances – the use of deadly force.

If a defendant uses defensive force because of a threat of deadly or grievous harm by the other person, or a reasonable perception of such harm, the defendant is said to have a "perfect self-defense" justification. If the defendant uses defensive force because of such a perception, and the perception is not reasonable, the defendant may have an "imperfect self-defense" as an excuse.

General concepts – legal theory.

Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all.

The early theories make no distinction between defense of the person and defense of property. Whether consciously or not, this builds on the Roman Law principle of dominium where any attack on the members of the family or the property it owned was a personal attack on the pater familias – the male head of the household, sole owner of all property belonging to the household, and endowed by law with dominion over all his descendants through the male line no matter their age. The right to self-defense is phrased as the principle of vim vi repellere licet ("it is permitted to repel force by force") in the Digest of Justitian (6th century). Another early application of this was Martin Luther's concept of justified resistance against a Beerwolf ruler, which was used in the doctrine of the lesser magistrate propounded in the 1550 Magdeburg Confession.

In Leviathan (1651), Hobbes (using the English term self-defense for the first time) proposed the foundation political theory that distinguishes between a state of nature where there is no authority and a modern state. Hobbes argues that although some may be stronger or more intelligent than others in their natural state, none are so strong as to be beyond a fear of violent death, which justifies self-defense as the highest necessity. In the Two Treatises of Government, John Locke asserts the reason why an owner would give up their autonomy:

...the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which many call by the general name, property.

In earlier times before the development of national policing, an attack on the family home was effectively either an assault on the people actually inside or an indirect assault on their welfare by depriving them of shelter and or the means of production. This linkage between a personal attack and property weakened as societies developed but the threat of violence remains a key factor. As an aspect of sovereignty, in his 1918 speech Politik als Beruf (Politics as a Vocation), Max Weber defined a state as an authority claiming the monopoly on the legitimate use of physical force within defined territorial boundaries. Recognizing that the modern framework of nations has emerged from the use of force, Weber asserted that the exercise of power through the institutions of government remained indispensable for effective government at any level which necessarily implies that self-help is limited if not excluded.

In American estate planning parlance, an incentive trust is a trust designed to encourage or discourage certain behaviors by using distributions of trust income or principal as an incentive. A typical incentive trust might encourage a beneficiary to complete a degree, enter a profession, or abstain from harmful conduct such as substance abuse. The beneficiary might be paid a certain amount of money from the trust upon graduating from college, or the trust might pay a dollar of income from the trust for every dollar the beneficiary earns.

The Protective Trust is a form of settlement found in England and Wales and several Commonwealth countries. It has marked similarities to asset-protection trusts found in several offshore jurisdictions and US Spendthrift trusts.

In such a trust assets are ordinarily held to pay an income to the beneficiary. The beneficiary may also have access to capital of the trust with the trustee's permission. The right to receive income from a trust would ordinarily be an asset in the hands of the beneficiary and could be sold, thwarting the intention of the donor to spread the gift over the recipient's lifetime. Additionally on a bankruptcy the right to the income would be sold by the beneficiary's trustee in bankruptcy.

The Protective Trust is a form of settlement found in England and Wales and several Commonwealth countries. It has marked similarities to asset-protection trusts found in several offshore jurisdictions and US Spendthrift trusts.

In such a trust assets are ordinarily held to pay an income to the beneficiary. The beneficiary may also have access to capital of the trust with the trustee's permission. The right to receive income from a trust would ordinarily be an asset in the hands of the beneficiary and could be sold, thwarting the intention of the donor to spread the gift over the recipient's lifetime. Additionally on a bankruptcy the right to the income would be sold by the beneficiary's trustee in bankruptcy.

Adultery (from Latin adulterium, “I change or alter one lineage for another”) is extra-marital sex partaken by a spouse, or premarital sex partaken by a betrothed person, that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and shares some similarities in Christianity, Judaism and Islam. Adultery is viewed by many jurisdictions as offensive to public morals, undermining the marriage relationship.

Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalizing adultery.

However, even in jurisdictions that have decriminalized adultery, it may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model.

International organizations have called for the decriminalization of adultery, especially in the light of several high-profile stoning cases that have occurred in some countries. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakirana, has stated that: "Adultery must not be classified as a criminal offense at all". A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offense violates women’s human rights".

In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning. There are fifteen countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia. Most countries that criminalize adultery are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines, and several U.S. states. In some jurisdictions, having sexual relations with the king's wife or the wife of his eldest son constitutes treason.

While the board of directors is generally conferred the power to manage the day-to-day affairs of a corporation, either by the statute, or by the articles of incorporation, this is always subject to limits, including the rights that shareholders have. For example, the Delaware General Corporation Law §141(a) says the "business and affairs of every corporation ... shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation." However, directors themselves are ultimately accountable to the general meeting through the vote. Invariably, shareholders hold the voting rights, though the extent to which these are useful can be conditioned by the constitution. The DGCL §141(k) gives an option to corporations to have a unitary board that can be removed by a majority of members "without cause" (for example a reason determined by the general meeting and not by a court), which reflects the old default common law position. However, Delaware corporations may also opt for a classified board of directors (for example where only a third of directors come up for election each year) where directors can only be removed "with cause" scrutinized by the courts. More corporations have classified boards after initial public offerings than a few years after going public, because institutional investors typically seek to change the corporation's rules to make directors more accountable. In principle, shareholders in Delaware corporations can make appointments to the board through a majority vote, and can also act to expand the size of the board and elect new directors with a majority. However, directors themselves will often control which candidates can be nominated to be appointed to the board. Under the Dodd-Frank Act of 2010, §971 empowered the Securities and Exchange Commission to write a new SEC Rule 14a-11 that would allow shareholders to propose nominations for board candidates. The Act required the SEC to evaluate the economic effects of any rules it wrote, however when it did, the Business Roundtable challenged this in court. In Business Roundtable v SEC, Ginsburg J in the DC Circuit Court of Appeals went as far to say that the SEC had "acted arbitrarily and capriciously" in its rulemaking. After this, the Securities and Exchange Commission failed to challenge the decision, and abandoned drafting new rules. This means that in many corporations, directors continue to have a monopoly on nominating future directors.

Apart from elections of directors, shareholders' entitlements to vote have been significantly protected by federal regulation, either through stock exchanges or the Securities and Exchange Commission. Beginning in 1927, the New York Stock Exchange maintained a "one share, one vote" policy, which was backed by the Securities and Exchange Commission from 1940. This was thought to be necessary to halt corporations issuing non-voting shares, except to banks and other influential corporate insiders. However, in 1986, under competitive pressure from NASDAQ and AMEX, the NYSE sought to abandon the rule, and the SEC quickly drafted a new Rule 19c-4, requiring the one share, one vote principle. In Business Roundtable v SEC the DC Circuit Court of Appeals struck the rule down, through the exchanges and the SEC subsequently made an agreement to regulate shareholder voting rights "proportionately". Today, many corporations have unequal shareholder voting rights, up to a limit of ten votes per share. Stronger rights exist regarding shareholders' ability to delegate their votes to nominees, or doing "proxy voting" under the Securities and Exchange Act of 1934. Its provisions were introduced to combat the accumulation of power by directors or management friendly voting trusts after the Wall Street Crash.

Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Senate.  Article One grants Congress various enumerated powers and the ability to pass laws "necessary and proper" to carry out those powers. Article One also establishes the procedures for passing a bill and places various limits on the powers of Congress and the states from abusing their powers.

Article One Vesting Clause grants all federal legislative power to Congress and establishes that Congress consists of the House of Representatives and the Senate. In combination with the vesting clauses of Article Two and Article Three, the Vesting Clause of Article One establishes the separation of powers among the three branches of the federal government. Section 2 of Article One addresses the House of Representatives, establishing that members of the House are elected every two years, with congressional seats apportioned to the states on the basis of population. Section 2 includes various rules for the House of Representatives, including a provision stating that individuals qualified to vote in elections for the largest chamber of their state's legislature have the right to vote in elections for the House of Representatives. Section 3 addresses the Senate, establishing that the Senate consists of two senators from each state, with each senator serving a six-year term. Section 3 originally required that the state legislatures elect the members of the Senate, but the Seventeenth Amendment, ratified in 1913, provides for the direct election of senators. Section 3 lays out various other rules for the Senate, including a provision that establishes the vice president of the United States as the president of the Senate.

Section 4 of Article One grants the states the power to regulate the congressional election process but establishes that Congress can alter those regulations or make its own regulations. Section 4 also requires Congress to assemble at least once per year. Section 5 lays out various rules for both houses of Congress and grants the House of Representatives and the Senate the power to judge their own elections, determine the qualifications of their own members, and punish or expel their own members. Section 6 establishes the compensation, privileges, and restrictions of those holding congressional office. Section 7 lays out the procedures for passing a bill, requiring both houses of Congress to pass a bill for it to become law, subject to the veto power of the president of the United States. Under Section 7, the president can veto a bill, but Congress can override the president's veto with a two-thirds vote of both chambers.

Section 8 lays out the powers of Congress. (Taxes are apportioned by state population) It includes several enumerated powers, including the power to lay and collect "taxes, duties, imposts, and excises" (provided duties, imposts, and excises are uniform throughout the US), "to provide for the common defense and general welfare of the United States," the power to regulate interstate and international commerce, the power to set naturalization laws, the power to coin and regulate money, the power to borrow money on the credit of the United States, the power to establish post offices and post roads, the power to establish federal courts inferior to the Supreme Court, the power to raise and support an army and a navy, the power to call forth the militia "to execute the laws of the Union, suppress insurrections, and repel invasions" and to provide for the militia's "organizing, arming, disciplining...and governing" and granting Congress the power to declare war. Section 8 also provides Congress the power to establish a federal district to serve as the national capital and gives Congress the exclusive power to administer that district.

In law, provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable individual to lose self control. This makes them less morally culpable than if the act was premeditated (pre-planned) and done out of pure malice (malice aforethought). It "affects the quality of the actor's state of mind as an indicator of moral blameworthiness."

Provocation is often a mitigating factor in sentencing. It rarely serves as a legal defense, meaning it does not stop the defendant from being guilty of the crime. It may, however, lead to a lesser punishment. In some common law legal systems, provocation is a "partial defense" for murder charges, which can result in the offense being classified as the lesser offense of manslaughter, specifically voluntary manslaughter.

Provocation is distinct from self-defense in that self-defense is a legal defense, and refers to a justifiable action to protect oneself from imminent violence.

Definition.

If a crime is caused by provocation, it is said to be committed in the heat of passion, under an irresistible urge incited by the provoking events, and without being entirely determined by reason. "'Malice aforethought' implies a mind under the sway of reason, whereas 'passion' whilst it does not imply a dethronement of reason, is the furor brevis, which renders a man deaf to the voice of reason so that, although the act was intentional to death, it was not the result of malignity of heart, but imputable to human infirmity. Passion and malice are, therefore, inconsistent motive powers, and hence an act which proceeds from the one, cannot also proceed from the other." (Hannah v Commonwealth, Supreme Court of Virginia 1929) Establishing Provocation can reduce a murder charge to a voluntary manslaughter charge.

Provocation may be defined by statutory law, by common law, or some combination. It is a possible defense for the person provoked, or a possible criminal act by the one who caused the provocation. It may be a defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is regarded as insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. Provocation can be a relevant factor in a court's assessment of a defendant's mens rea, intention, or state of mind, at the time of an act which the defendant is accused of.

In common law, provocation is established by establishing events that would be "adequate" to create a heat of passion in a reasonable person, and by establishing that the heat of passion was created in the accused.

The defense of provocation was first developed in English courts in the 16th and 17th centuries. During that period, a conviction of murder carried a mandatory death sentence. This inspired the need for a lesser offense. At that time, not only was it acceptable, but it was socially required that a man respond with controlled violence if his honor or dignity were insulted or threatened. It was therefore considered understandable that sometimes the violence might be excessive and end with a killing.

During the 19th century, as social norms began changing, the idea that it was desirable for dignified men to respond with violence when they were insulted or ridiculed began losing traction and was replaced with the view that while those responses may not be ideal, that they were a normal human reaction resulting from a loss of self-control, and, as such, they deserved to be considered as a mitigating circumstance.

During the end of the 20th century and the beginning of the 21st century, the defense of provocation, and the situations in which it should apply, have led to significant controversies, with many condemning the concept as an anachronism, arguing that it contradicts contemporary social norms where people are expected to control their behavior, even when angry.

An interest in possession trust is a trust in which at least one beneficiary has the right to receive the income generated by the trust (if trust funds are invested) or the right to enjoy the trust assets for the present time in another way. The beneficiary with the right to enjoy the trust property for the time being is said to have an interest in possession and is colloquially described as an income beneficiary, or the life tenant.

Beneficiaries of a trust have an interest in possession if they have the immediate and automatic right to receive the income arising from the trust property as it arises, or have the use and enjoyment of it, such as by living in a property owned by the trustees. Such a beneficiary is also known as an income beneficiary or life tenant. There may be more than one income beneficiary, who may have either a joint tenancy or as tenants in common. The trustee must pass all of the income received, less any trustees' expenses, to the beneficiaries. For income tax purposes, the income so accruing to the income beneficiary is taxable income of the beneficiary, and taxed accordingly, unless otherwise exempted. A beneficiary who is entitled to the income of the trust for life is known as a ‘life tenant’ or as ‘having a life interest’. A beneficiary who is entitled to the trust capital is known as the ‘remainderman’ or the ‘capital beneficiary’.

A charitable trust is an irrevocable trust established for charitable purposes and, in some jurisdictions, a more specific term than "charitable organization". A charitable trust enjoys a varying degree of tax benefits in most countries. It also generates goodwill. Some important terminology in charitable trusts is the term "corpus" (Latin for "body"), which refers to the assets with which the trust is funded, and the term "donor", which is the person donating assets to a charity.

A testamentary trust (sometimes referred to as a will trust or trust under will) is a trust which arises upon the death of the testator, and which is specified in their will. A will may contain more than one testamentary trust, and may address all or any portion of the estate.

Testamentary trusts are distinguished from inter vivos trusts, which are created during the settlor's lifetime.

Polygyny is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygyny which leads to divorce. The frequency of divorce rises in polygynous marriages compared to monogamous relationships. Within polygynous unions, differences in conjugal stability are found to occur by wife order. There are 3 main mechanisms through which polygyny affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.

Causes.

In the western world as a whole, two thirds of divorces are initiated by women. In the United Sates, 69% of divorces are initiated by women and this may be due to higher sensitivity to relationship difficulties. An annual study in the UK by management consultants Grant Thornton, estimates the main proximal causes of divorce based on surveys of matrimonial lawyers.

The main causes in 2004 were:

Adultery; Extramarital sex; Infidelity – 27%.

Domestic violence – 17%.

Midlife crisis – 13%.

Addictions, for example alcoholism and gambling – 6%.

Workaholism – 6%.

Other factors – 31%.

According to this survey, husbands engaged in extramarital affairs in 75% of cases, and wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces it was husbands who were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, very few of which were contested. 53% of divorces were marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.

Social scientists study the causes of divorce in terms of underlying factors that may motivate divorce. One of these factors is the age at which a person gets married; delaying marriage may provide more opportunity or experience in choosing a compatible partner. Wage, income, and sex ratios are other such underlying factors that have been included in analyses by sociologists and economists.

The elevation of divorce rates among couples who cohabited before marriage is called the "cohabitation effect". Evidence suggests that although this correlation is partly due to two forms of selection (a) that persons whose moral or religious codes permit cohabitation are also more likely to consider divorce permitted by morality or religion and (b) that marriage based on low levels of commitment is more common among couples who cohabit than among couples who do not, such that the mean and median levels of commitment at the start of marriage are lower among cohabiting than among non-cohabiting couples), the cohabitation experience itself exerts at least some independent effect on the subsequent marital union.

In 2010, a study by Jay Teachman published in Journal of Marriage and Family found that women who have cohabited or had premarital sex with men other than their husbands have an increased risk of divorce and that this effect is strongest for women who have cohabited with multiple men before marriage. To Teachman, the fact that the elevated risk of divorce is only experienced when the premarital partner(s) is someone other than the husband indicates that premarital sex and cohabitation are now a normal part of the courtship process in the United States. This study only considers data on women in the 1995 National Survey of Family Growth in the United States. Divorce is sometimes caused by one of the partners finding the other unattractive.

Shareholder liability for debts.

One of the basic principles of modern corporate law is that people who invest in a corporation have limited liability. For example, as a general rule shareholders can only lose the money they invested in their shares. Practically, limited liability operates only as a default rule for creditors that can adjust their risk. Banks which lend money to corporations frequently contract with a corporation's directors or shareholders to get personal guarantees, or to take security interests in their personal assets, or over a corporation's assets, to ensure their debts are paid in full. This means much of the time, shareholders are in fact liable beyond their initial investments. Similarly trade creditors, such as suppliers of raw materials, can use title retention clauses or other devices with the equivalent effect to security interests, to be paid before other creditors in bankruptcy. However, if creditors are unsecured, or for some reason guarantees and security are not enough, creditors cannot (unless there are exceptions) sue shareholders for outstanding debts. Metaphorically speaking, their liability is limited behind the "corporate veil". The same analysis, however, has been rejected by the US Supreme Court in Davis v Alexander, where a railroad subsidiary company caused injury to cattle that were being transported. As Brandeis J put it, when one "company actually controls another and operates both as a single system, the dominant company will be liable for injuries due to the negligence of the subsidiary company."

There are a number of exceptions, which differ according to the law of each state, to the principle of limited liability. First, at the very least, as is recognized in public international law, courts will "pierce the corporate veil" if a corporation is being used to evade obligations in a dishonest manner. Defective organization, such as a failure to duly file the articles of incorporation with a state official, is another universally acknowledged ground. However, there is considerable diversity in state law, and controversy over how much further the law ought to go. In Kinney Shoe Corporation v Polan the Fourth Circuit Federal Court of Appeals held that it would also pierce the veil if (1) the corporation had been inadequately capitalized to meet its future obligations (2) if no corporate formalities (for example meetings and minutes) had been observed, or (3) the corporation was deliberately used to benefit an associated corporation. However, a subsequent opinion of the same court emphasized that piercing could not take place merely to prevent an abstract notion of "unfairness" or "injustice". A further, though technically different, equitable remedy is that according to the US Supreme Court in Taylor v Standard Gas Company corporate insiders (for example directors or major shareholders) who are also creditors of a company are subordinated to other creditors when the company goes bankrupt if the company is inadequately capitalized for the operations it was undertaking.

Tort victims differ from commercial creditors because they have no ability to contract around limited liability, and are therefore regarded differently under most state laws. The theory developed in the mid-20th century that beyond the corporation itself, it was more appropriate for the law to recognize the economic "enterprise", which usually comprises groups of corporations, where the parent takes the benefit of a subsidiary's activities and is capable of exercising decisive influence. A concept of "enterprise liability" was developed in fields such as tax law, accounting practices, and antitrust law that were gradually received into the courts' jurisprudence.

Key concepts in bankruptcy include the debtor's discharge and the related "fresh start". Discharge is available in some but not all cases. For example, in a Chapter 7 case only an individual debtor (not a corporation, partnership, etcetera) can receive a discharge.

The effect of a bankruptcy discharge is to eliminate only the debtor's personal liability, not the in rem liability for a secured debt to the extent of the value of collateral. The term "in rem" essentially means "with respect to the thing itself" (for example, the collateral). For example, if a debt in the amount of $100,000 is secured by property having a value of only $80,000, the $20,000 deficiency is treated, in bankruptcy, as an unsecured claim (even though it is part of a "secured" debt). The $80,000 portion of the debt is treated as a secured claim. Assuming a discharge is granted and none of the $20,000 deficiency is paid (for example, due to insufficiency of funds), the $20,000 deficiency—the debtor's personal liability—is discharged (assuming the debt is not non-dischargeable under another Bankruptcy Code provision). The $80,000 portion of the debt is the in rem liability, and it is not discharged by the court's discharge order. This liability can presumably be satisfied by the creditor taking the asset itself. An essential concept is that when commentators say that a debt is "dischargeable", they are referring only to the debtor's personal liability on the debt. To the extent that a liability is covered by the value of collateral, the debt is not discharged.

This analysis assumes, however, that the collateral does not increase in value after commencement of the case. If the collateral increases in value and the debtor (rather than the estate) keeps the collateral (for example, where the asset is exempt or is abandoned by the trustee back to the debtor), the amount of the creditor's security interest may or may not increase. In situations where the debtor (rather than the creditor) is allowed to benefit from the increase in collateral value, the effect is called "lien stripping" or "paring down". Lien stripping is allowed only in certain cases depending on the kind of collateral and the particular chapter of the Code under which the discharge is granted.

The discharge also does not eliminate certain rights of a creditor to setoff (or "offset") certain mutual debts owed by the creditor to the debtor against certain claims of that creditor against the debtor, where both the debt owed by the creditor and the claim against the debtor arose prior to the commencement of the case.

Not every debt may be discharged under every chapter of the Code. Certain taxes owed to federal, state or local government, student loans, and child support obligations are not dischargeable. (Guaranteed student loans are potentially dischargeable, however, if the debtor prevails in a difficult-to-win adversary proceeding against the lender commenced by a complaint to determine dischargeability. Also, the debtor can petition the court for a financial hardship discharge, but the grant of such discharges is rare.)

The debtor's liability on a secured debt, such as a mortgage or mechanic's lien on a home, may be discharged. The effects of the mortgage or mechanic's lien, however, cannot be discharged in most cases if the lien affixed prior to filing. Therefore, if the debtor wishes to retain the property, the debt must usually be paid as agreed. (See also lien avoidance, reaffirmation agreement) (Note: there may be additional flexibility available in Chapter 13 for debtors dealing with oversecured collateral such as a financed auto, so long as the oversecured property is not the debtor's primary residence.)

Justification is a defense in a criminal case, by which a defendant who committed the acts asserts that because what they did meets certain legal standards, they are not criminally culpable for the acts which would otherwise be criminal. Justification and excuse are related but different defenses (see Justification and excuse).

Justification is an exception to the prohibition of committing certain offenses. Justification can be a defense in a prosecution for a criminal offense. When an act is justified, a person is not criminally liable even though their act would otherwise constitute an offense. For example, to intentionally commit a homicide would be considered murder. However, it is not considered a crime if committed in self-defense. In addition to self-defense, the other justification defenses are defense of others, defense of property, and necessity.

A justification is not the same as an excuse. In contrast, an excuse is a defense that recognizes a crime was committed, but that for the defendant, although committing a socially undesirable crime, conviction and punishment would be morally inappropriate because of an extenuating personal inadequacy, such as mental defect, lack of mental capacity, sufficient age, intense fear of death, lacking the ability to control their own conduct, etc.

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Mistake (criminal law).

A mistake of fact may sometimes mean that, while a person has committed the physical element of an offense, because they were laboring under a mistake of fact, they never formed the mental element. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.

Discussion.

Most criminal law systems in developed states exclude mistake of law as a defense, because allowing defendants to invoke their own ignorance of the law would breach the public policy represented by the Latin maxim: ignorantia legis neminem excusat. But someone operating under a mistake of fact will not generally be liable, because, although the defendant has committed the actus reus of the offense, the defendant may honestly believe in a set of facts that would prevent him or her from forming the requisite mens rea required to constitute the crime.

For example: A defendant goes into a supermarket and places eight items in a basket which is presented to the cashier for payment in the usual way. Both honestly believe that all eight items have been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices that a mistake was made by the cashier so that only seven items were priced. This detective arrests the defendant after leaving the store. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the mens rea for theft (which is usually dishonesty) when he physically removes them from the store.

There is a complex question as to whether the defense of 'mistake' applies to crimes that do not specify a mental element – such as strict liability offenses and manslaughter by criminal negligence. In Australia, the High Court's 2005 ruling in R v Lavender prevents the use of any 'reasonable mistake of fact' defense in cases of involuntary manslaughter. However, the defense of mistake is available to offenses of strict liability such as drunk driving: see DPP v Bone (2005). And it is the very availability of the defense of 'mistake' that distinguishes between offenses of strict and absolute liability. Mistake of fact is unavailable in respect to absolute liability offenses.

A purpose trust is a type of trust which has no beneficiaries, but instead exists for advancing some non-charitable purpose of some kind. In most jurisdictions, such trusts are not enforceable outside of certain limited and anomalous exceptions, but some countries have enacted legislation specifically to promote the use of non-charitable purpose trusts. Trusts for charitable purposes are also technically purpose trusts, but they are usually referred to simply as charitable trusts. People referring to purpose trusts are usually taken to be referring to non-charitable purpose trusts.

Trusts which fail the test of charitable status usually fail as non-charitable purpose trusts, although there are certain historical exceptions to this, and some countries have modified the law in this regard by statute. The court will not usually validate non-charitable purpose trusts which fail by treating them as a power. In IRC v Broadway Cottages Trust (1955) the English Court of Appeal held: "I am not at liberty to validate this trust by treating it as a power. A valid power is not to be spelled out of an invalid trust."

Conceptual objections.

The basis for the general prohibition against non-charitable purpose trusts is usually phrased on one or more of several specific grounds.

The beneficiary principle.

A trust is, at its root, an obligation; accordingly, "every trust must have a definite object. There must be someone in whose favor the court can decree performance." With a charitable trust, this power of enforcement is usually vested in the Attorney General. However, such conceptual objections seem less strong since the decision of the House of Lords in McPhail v Doulton (1971) where Lord Wilberforce rode roughshod over objections to widening the class of valid discretionary trusts on the basis that there would be difficulty ascertaining beneficiaries for the court to enforce the trust in favor of.

Where the objects of a trust are a purpose rather than an individual or individuals, there is much greater risk that a trust would not be enforceable due to lack of certainty. Cases such as Morice v Bishop of Durham (1804) and Re Astor (1952) re-affirm the court's disinclination to enforce trusts that are not specific and detailed. It is noteworthy that the common law exceptions to the general prohibition on purposes trusts tend to relate to specific and detailed matters, such as maintenance of a specific tomb, or caring for a particular animal.

Excessive delegation of testamentary power.

Purpose trusts have been attacked conceptually on the basis that it would amount to the delegation of a testamentary power, although subsequent cases have cast doubt on the correctness of that reasoning.

Perpetuity.

Charitable purpose trusts are exempt from the rule against perpetuities. Private trusts are not. Accordingly, all non-charitable purposes trusts, to be valid, need to comply with the perpetuity rules in the relevant jurisdiction.

Common law exceptions.

There are, nonetheless, several well recognised exceptions at common law where non-charitable purposes trusts will be upheld.

Tombs and monuments.

Provisions for the building or maintenance of tombs or monuments have been upheld as a matter of common law, although solely on the basis of ancient precedent. In Re Hooper (1932) a trust for the maintenance of graves was upheld, but the court indicated that it would not have done so had it not been bound by Pirbright v Salwey (1896). Such trusts still need to comply with the requirement of certainty. Hence a bequest to a Parish council for "the purpose of providing some useful memorial to myself" was struck down.

Animals.

Trusts for the care of specific animals have been upheld. In Re Dean (1889), North J upheld a trust for maintenance of horses and hounds for 50 years relying upon much older authorities and the monument cases.

Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. It can be said to be a legal dissolution of a marriage by a court or other competent body. It is the legal process of ending a marriage.

Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation or access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.

Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash or infidelity.

The only countries that do not allow divorce are the Philippines and the Vatican City. In the Philippines, divorce for non-Muslim Filipinos is not legal unless one spouse is an undocumented immigrant and satisfies certain conditions. The Vatican City is a state ruled by the head of the Catholic Church, a religion that does not allow for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975, although from 1910 to 1940 it was possible both for the civil and religious marriage), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Colombia (1991; from 1976 was allowed only for non-Catholics), Andorra (1995), Ireland (1996), Chile (2004) and Malta (2011).

Overview.

Grounds for divorce vary widely from country to country. Marriage may be seen as a contract, a status, or a combination of these. Where it is seen as a contract, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. In contrast, in some countries (such as Sweden, Finland, Australia, New Zealand), divorce is purely no fault. This means it does not matter what the reasons are that a party or parties want to separate. They can separate of their own free will without having to prove someone is at fault for the divorce. Many jurisdictions offer both the option of a no fault divorce as well as an at fault divorce. This is the case, for example, in many states of the US, France and the Czech Republic.

Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements and support. In some jurisdictions, one spouse may be forced to pay the attorney's fees of another spouse.

Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.

Incorporation and charter competition.

The process of starting up a new corporation is quick, though each state differs. A corporation is not the only kind of business organization that can be chosen. People may wish to register a partnership or a Limited Liability Company, depending on the precise tax status and organizational form that is sought. Most frequently, however, people running major enterprises will choose corporations which have limited liability for those who become the shareholders: if the corporation goes bankrupt the default rule is that shareholders will only lose the money they paid for their shares, even if debts to commercial creditors are still unpaid. A state office, perhaps called the "Division of Corporations" or simply the "Secretary of State", will require the people who wish to incorporate to file "articles of incorporation" (sometimes called a "charter") and pay a fee. The articles of incorporation typically record the corporation's name, if there are any limits to its powers, purposes or duration, and identify whether all shares will have the same rights. With this information filed with the state, a new corporation will come into existence, and be subject to the legal rights and duties that the people involved create on its behalf. The incorporators will also have to adopt "bylaws" which identify many more details such as the number of directors, the arrangement of the board, requirements for corporate meetings, duties of officer holders and so on. The certificate of incorporation will have identified whether the directors or the shareholders, or both have the competence to adopt and change these rules. All of this is typically achieved through the corporation's first meeting.

One of the most important things that the articles of incorporation determine is the state of incorporation. Different states can have different levels of corporate tax or franchise tax, different qualities of shareholder and stakeholder rights, more or less stringent directors' duties, and so on. However, it was held by the Supreme Court in Paul v Virginia that in principle states ought to allow corporations incorporated in a different state to do business freely. This appeared to remain true even if another state (for example Delaware) required significantly worse internal protections for shareholders, employees, or creditors than the state in which the corporation operated (for example New York). So far, federal regulation has affected more issues relating to the securities markets than the balance of power and duties among directors, shareholders, employees and other stakeholders. The Supreme Court has also acknowledged that one state's laws will govern the "internal affairs" of a corporation, to prevent conflicts among state laws. So under the present law, regardless of where a corporation operates in the 50 states, the rules of the state of incorporation (subject to federal law) will govern its operation. Early in the 20th century, it was recognized by some states, initially New Jersey, that the state could cut its tax rate in order to attract more incorporations, and thus bolster tax receipts. Quickly, Delaware emerged as a preferred state of incorporation. In the 1933 case of Louis K Liggett Company v Brandeis J Lee, represented the view that the resulting "race was one not of diligence, but of laxity", particularly in terms of corporate tax rates, and rules that might protect less powerful corporate stakeholders. Over the 20th century, the problem of a "race to the bottom" was increasingly thought to justify Federal regulation of corporations.

Avoidance actions.

Debtors, or the trustees that represent them, gain the ability to reject, or avoid actions taken with respect to the debtor's property for a specified time prior to the filing of the bankruptcy. While the details of avoidance actions are nuanced, there are three general categories of avoidance actions:

Preferences: 11 U.S.C. § 547.

Federal fraudulent transfer: 11 U.S.C. § 548.

Non-bankruptcy law creditor: 11 U.S.C. § 544.

All avoidance actions attempt to limit the risk of the legal system accelerating the financial demise of a financially unstable debtor who has not yet declared bankruptcy. The bankruptcy system generally endeavors to reward creditors who continue to extend financing to debtors and discourage creditors from accelerating their debt collection efforts. Avoidance actions are some of the most obvious of the mechanisms to encourage this goal.

Despite the apparent simplicity of these rules, a number of exceptions exist in the context of each category of avoidance action.

Preferences.

Preference actions generally permit the trustee to avoid (that is, to void an otherwise legally binding transaction) certain transfers of the debtor's property that benefit creditors where the transfers occur on or within 90 days of the date of filing of the bankruptcy petition. For example, if a debtor has a debt to a friendly creditor and a debt to an unfriendly creditor, and pays the friendly creditor, and then declares bankruptcy one week later, the trustee may be able to recover the money paid to the friendly creditor under 11 U.S.C. § 547. While this "reach back" period typically extends 90 days backwards from the date of the bankruptcy, the amount of time is longer in the case of "insiders"—typically one year. Insiders include family and close business contacts of the debtor.

Fraudulent transfer.

Bankruptcy fraudulent transfer law is similar in practice to non-bankruptcy fraudulent transfer law. Some terms, however, are more generous in bankruptcy than they are otherwise. For instance, the statute of limitations within bankruptcy is two years as opposed to a shorter time frame in some non-bankruptcy contexts. Generally a fraudulent transfer action operates in much the same way as a preference avoidance. Fraudulent transfer actions, however, sometimes require a showing of intent to shelter the property from a creditor.

Fraudulent transfer may involve an actual or a "constructive" fraud. Actual fraud is based upon the intent of the transfer, whereas constructive fraud may be inferred based upon economic factors. Factors that may lead to an inference of fraud include whether the transfer was for reasonably equivalent value and whether the debtor was insolvent at the time of the transfer.

The conversion of nonexempt assets into exempt assets on the eve of bankruptcy is not an indicator of fraud per se. However, depending on the amount of the exemption and the circumstances surrounding the conversion, a court may find the conversion to be a fraudulent transfer. This is especially true when the conversion amounts to nothing more than a temporary arrangement. When finding the conversion of nonexempt into exempt assets to be a fraudulent transfer, courts tend to focus on the existence of an independent reason for the conversion. For example, if a debtor purchased a residence protected by a homestead exemption with the intent to reside in such residence that would be an allowable conversion into nonexempt property. But where the debtor purchased the residence with all of their available funds, leaving no money to live off, that presumed that the conversion was temporary, indicating a fraudulent transfer. Courts look at the timing of the transfer as the most important factor.

In the United States, variances in the insanity defense between states, and in the federal court system, are attributable to differences with respect to three key issues:

Availability: whether the jurisdiction allows a defendant to raise the insanity defense,

Definition: when the defense is available, what facts will support a finding of insanity, and

Burden of proof: whether the defendant has the duty of proving insanity or the prosecutor has the duty of disproving insanity, and by what standard of proof.

In Foucha v Louisiana (1992) the Supreme Court of the United States ruled that a person could not be held "indefinitely" for psychiatric treatment following a finding of not guilty by reason of insanity.

Availability.

In the United States, a criminal defendant may plead insanity in federal court, and in the state courts of every state except for Idaho, Kansas, Montana, and Utah. However, defendants in states that disallow the insanity defense may still be able to demonstrate that a defendant was not capable of forming intent to commit a crime as a result of mental illness.

In Kahler v Kansas (2020), the U.S. Supreme Court held, in a 6–3 ruling, that a state does not violate the Due Process Clause by abolishing an insanity defense based on a defendant's incapacity to distinguish right from wrong. The Court emphasized that state governments have broad discretion to choose laws defining "the precise relationship between criminal culpability and mental illness."

Definition.

Each state and the federal court system currently uses one of the following "tests" to define insanity for purposes of the insanity defense. Over its decades of use the definition of insanity has been modified by statute, with changes to the availability of the insanity defense, what constitutes legal insanity, whether the prosecutor or defendant has the burden of proof, the standard of proof required at trial, trial procedures, and to commitment and release procedures for defendants who have been acquitted based on a finding of insanity.

M'Naghten test.

The guidelines for the M'Naghten Rules, state, among other things, and evaluating the criminal responsibility for defendants claiming to be insane were settled in the British courts in the case of Daniel M'Naghten in 1843. M'Naghten was a Scottish woodcutter who killed the secretary to the prime minister, Edward Drummond, in a botched attempt to assassinate the prime minister himself. M'Naghten apparently believed that the prime minister was the architect of the myriad of personal and financial misfortunes that had befallen him. During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him "not guilty by reason of insanity".

The House of Lords asked the judges of the common law courts to answer five questions on insanity as a criminal defense, and the formulation that emerged from their review—that a defendant should not be held responsible for their actions only if, as a result of their mental disease or defect, they (1) did not know that their act would be wrong; or (2) did not understand the nature and quality of their actions—became the basis of the law governing legal responsibility in cases of insanity in England. Under the rules, loss of control because of mental illness was no defense. The M'Naghten rule was embraced with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century.

A resulting trust is an implied trust that comes into existence by operation of law, where property is transferred to someone who pays nothing for it; and then is implied to have held the property for the benefit of another person. The trust property is said to "result" or jump back to the transferor (implied settlor). In this instance, the word 'result' means "in the result, remains with", or something similar to "revert" except that in the result the beneficial interest is held on trust for the settlor. Not all trusts whose beneficiary is also the settlor can be called resulting trusts. In common law systems, the resulting trust refers to a subset of trusts which have such outcome; express trusts which stipulate that the settlor is to be the beneficiary are not normally considered resulting trusts. Another understanding of resulting trusts could be an equitable instrument used to rectify and reverse unjust enrichment.

The beneficial interest results in the settlor, or if the settlor has died the property forms part of the settlor's estate (intestacy). It remains with the person and the case of "Vandervell v Inland Reveneue Commissioners" (1967) shows that only the beneficial interest disappears but not the beneficiary interest.

Closely-related parties.

Some jurisdictions may establish a rebuttable presumption of gift for property transfers between relatives. The presumption may operate as an affirmative defense to a petition to establish a resulting trust implied by operation of law as it is.

The law presumes that it is legitimate to transfer property to a family member, particularly for a relative's support. But an unrelated transferee who receives substantial value without consideration is ordinarily presumed to hold the property in trust for the benefit of the transferor, unless it can be proven by them that it was intended to be a gift. The rebuttable presumption of gift affects transfers between siblings, uncles, aunts, children, and grandchildren.

A notable exception to the presumption of gift is the transfer of property between husband and wife (transmutations). The marital exception to presumption of gift arises from the fiduciary duty that spouses owe to one another. Spouses have a special trusted relationship that imputes an obligation of utmost good faith and fair dealing. Accordingly, spouses are deemed incapable of transmutation except under specified circumstances, such as when making an EXPRESS DECLARATION of transmutation as by clear statement in a deed or other writing of substantial dignity.

Unlawful purpose.

In common law jurisdictions, a resulting trust law is a creation of the law of equity, rather than of common law (in the strict sense). Accordingly, the laws of some jurisdictions might recognize equitable defenses such as laches, unclean hands, and the responsibility to do equity. For example, if a transferor transfers property for an unlawful purpose and gains a benefit, then a court might hold that he has waived his right to claim a resulting trust. In such situations, a court balances the transferee's unjust enrichment with the enablement of cheating by the transferor. Enabling a cheater to gain from his transaction would erode the legitimacy of the court.

Other jurisdictions may elect to disregard an unlawful purpose.

In situations involving illegality, it can become difficult to distinguish implementation of a resulting trust theory (implied by operation of law) from an oral express trust (one implied by the facts). A transferor failing upon one theory might still prevail upon the other.

A sham marriage or fake marriage is a marriage of convenience entered into without intending to create a real marital relationship. This is usually for the purpose of gaining an advantage from the marriage.

Definitions of sham marriage vary by jurisdiction, but are often related to immigration. The essential point in the varying definitions is whether the couple intend to live in a real marital relationship, to establish a life together. A typical definition by the UK Home Office in 2015:

A sham marriage or civil partnership is one where the relationship is not genuine but one party hopes to gain an immigration advantage from it. There is no subsisting relationship, dependency, or intent to live as husband and wife or civil partners.

While referred to as a "sham" or "fake" because of its motivation, the union itself is legally valid if it conforms to the formal legal requirements for marriage in the jurisdiction. Arranging or entering into such a marriage to deceive public officials is in itself a violation of the law of some countries, for example the US.

After a period, couples often divorce if there is no purpose in remaining married. The reverse situation, in which a couple gets a divorce while continuing to live together, is called paper divorce.

Marriage fraud.

Sham marriages are sometimes considered distinct from a marriage fraud, which is a type of romance scam, in which one spouse is unwittingly taken advantage of by the foreign spouse who feigns romantic interest, typically in order to obtain a residence permit or for money.

Background.

Common reasons for sham marriages are to gain immigration, residency, work, or citizenship rights for one of the spouses.

There have been cases of people entering into a sham marriage to avoid suspicion of homosexuality, bisexuality, etc. For example, Hollywood studios had allegedly requested homosexual or homoromantic actors, such as Rock Hudson, to conceal their homosexuality in a so-called lavender marriage.

Fraud.

Since the introduction of stricter modern immigration laws in First World countries, sham marriages have become a common method to allow a foreigner to reside, and possibly gain citizenship, in the more desirable country of the spouse. The couple marries with knowledge that the marriage is solely for the purpose of obtaining the favorable immigration status, and without intending to live as a couple. This is frequently arranged as a business transaction with payment of a sum of money, and occurs more commonly with foreigners already in the country.

United States.

A green card marriage is a marriage of convenience between a legal resident of the United States of America and a person who would be ineligible for residency if they were not being married to the resident. The term derives from the availability of permanent resident documents ("green cards") for spouses of legal residents in the United States, where marriage is one of the fastest and surest ways to obtain legal residence. Marriages, if legitimate, entitle the spouse to live and work in the United States, as in most other countries. In the United States, 2.3 million marriage visas were approved from 1998 through 2007, representing 25% of all green cards in 2007. Even if the non-resident spouse was previously an illegal immigrant, marriage entitles the spouse to residency.

Most marriages between residents and non-residents are undertaken properly, for reasons other than or in addition to residency status. That said, the practice of obtaining residency through marriage is illegal in the United States if the marriage itself is fraudulent. A marriage that is solely for purposes of obtaining legal residence is considered a sham, and is a crime in the United States for both participants.

United States corporate law regulates the governance, finance and power of corporations in US law. Every state and territory has its own basic corporate code, while federal law creates minimum standards for trade in company shares and governance rights, found mostly in the Securities Act of 1933 and the Securities and Exchange Act of 1934, as amended by laws like the Sarbanes–Oxley Act of 2002 and the Dodd–Frank Wall Street Reform and Consumer Protection Act. The US Constitution was interpreted by the US Supreme Court to allow corporations to incorporate in the state of their choice, regardless of where their headquarters are. Over the 20th century, most major corporations incorporated under the Delaware General Corporation Law, which offered lower corporate taxes, fewer shareholder rights against directors, and developed a specialized court and legal profession. Nevada has attempted to do the same. Twenty-four states follow the Model Business Corporation Act, while New York and California are important due to their size.

bankruptcy.

In the United States, bankruptcy is largely governed by federal law, commonly referred to as the "Bankruptcy Code" ("Code"). The United States Constitution (Article 1, Section 8, Clause 4) authorizes Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States". Congress has exercised this authority several times since 1801, including through adoption of the Bankruptcy Reform Act of 1978, as amended, codified in Title 11 of the United States Code and the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Some laws relevant to bankruptcy are found in other parts of the United States Code. For example, bankruptcy crimes are found in Title 18 of the United States Code (Crimes). Tax implications of bankruptcy are found in Title 26 of the United States Code (Internal Revenue Code), and the creation and jurisdiction of bankruptcy courts are found in Title 28 of the United States Code (Judiciary and Judicial procedure).

Bankruptcy cases are filed in United States bankruptcy court (units of the United States District Courts), and federal law governs procedure in bankruptcy cases. However, state laws are often applied to determine how bankruptcy affects the property rights of debtors. For example, laws governing the validity of liens or rules protecting certain property from creditors (known as exemptions), may derive from state law or federal law. Because state law plays a major role in many bankruptcy cases, it is often unwise to generalize some bankruptcy issues across state lines.

History.

Originally, bankruptcy in the United States, as nearly all matters directly concerning individual citizens, was a subject of state law. However, there were several short-lived federal bankruptcy laws before the Act of 1898: the Bankruptcy Act of 1800, which was repealed in 1803; the Act of 1841, which was repealed in 1843; and the Act of 1867, which was amended in 1874 and repealed in 1878.

The first more lasting federal bankruptcy law, sometimes called the "Nelson Act", initially entered into force in 1898. The current Bankruptcy Code was enacted in 1978 by § 101 of the Bankruptcy Reform Act of 1978, and generally became effective on October 1, 1979; it completely replaced the former bankruptcy law, the "Chandler Act" of 1938, which had given unprecedented power to the Securities and Exchange Commission for the regulation of bankruptcy filings.

The current code has been amended numerous times since 1978. See also the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Chapters of the Bankruptcy Code.

Entities seeking relief under the Bankruptcy Code may file a petition for relief under a number of different chapters of the Code, depending on circumstances. Title 11 contains nine chapters, six of which provide for the filing of a petition. The other three chapters provide rules governing bankruptcy cases in general. A case is typically referred to by the chapter under which the petition is filed. These chapters are described below.

Chapter 7: Liquidation.

Liquidation under a Chapter 7 filing is the most common form of bankruptcy. Liquidation involves the appointment of a trustee who collects the non-exempt property of the debtor, sells it and distributes the proceeds to the creditors. Because all states allow for debtors to keep essential property, Chapter 7 cases are often "no asset" cases, meaning that the bankrupt estate has no non-exempt assets to fund a distribution to creditors.

Chapter 7 bankruptcy remains on a bankruptcy filer's credit report for 10 years.

United States bankruptcy law significantly changed in 2005 with the passage of Bankruptcy Abuse Prevention and Consumer Protection Act (US) —- BAPCPA, which made it more difficult for consumer debtors to file bankruptcy in general and Chapter 7 in particular.

The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to a psychiatric disease at the time of the criminal act. This is contrasted with an excuse of provocation, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state. It is also contrasted with the justification of self-defense or with the mitigation of imperfect self-defense. The insanity defense is also contrasted with a finding that a defendant cannot stand trial in a criminal case because a mental disease prevents them from effectively assisting counsel, from a civil finding in trusts and estates where a will is nullified because it was made when a mental disorder prevented a testator from recognizing the natural objects of their bounty, and from involuntary civil commitment to a mental institution, when anyone is found to be gravely disabled or to be a danger to themself or to others.

Exemption from full criminal punishment on such ground's dates back to at least the Code of Hammurabi. Legal definitions of insanity or mental disorder are varied, and include the M'Naghten Rule, the Durham rule, the 1953 British Royal Commission on Capital Punishment report, the ALI rule (American Legal Institute Model Penal Code rule), and other provisions, often relating to a lack of mens rea ("guilty mind").  In the criminal laws of Australia and Canada, statutory legislation enshrines the M'Naghten Rules, with the terms defense of mental disorder, defense of mental illness or not criminally responsible by reason of mental disorder employed. Being incapable of distinguishing right from wrong is one basis for being found to be legally insane as a criminal defense. It originated in the M'Naghten Rule, and has been reinterpreted and modernized through more recent cases, such as People v Serravo.

In the United Kingdom, Ireland, and the United States, use of the defense is rare. Mitigating factors, including things not eligible for the insanity defense such as intoxication and partial defenses such as diminished capacity and provocation, are used more frequently.

The defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the jury, but they are not allowed to testify to the accused's criminal responsibility, as this is a matter for the jury to decide. Similarly, mental health practitioners are restrained from making a judgment on the "ultimate issue"—whether the defendant is insane.

Some jurisdictions require the evaluation to address the defendant's ability to control their behavior at the time of the offense (the volitional limb). A defendant claiming the defense is pleading "not guilty by reason of insanity" (NGRI) or "guilty but insane or mentally ill" in some jurisdictions which, if successful, may result in the defendant being committed to a psychiatric facility for an indeterminate period.

Presumptive resulting trusts.

These are transfers made by A to B, where the law creates a rebuttable presumption of a resulting trust applying if the intention is not made clear by A. (written evidence produced).

For example, when A transfers property to B, unless the transfer was made by father to child or by husband to wife, in the absence of any other evidence the law presumes that a resulting trust has been created for A.(Y this category excluded: for example:A evidence cannot stand in Course of testimony & remains Hearsay)(A will not get the property if H&W & F&C can adduce evidence it is their property and resulting trust will not arise.

The main categories of fact situations giving rise to a presumption of a resulting trust are: - Where A makes a voluntary conveyance of property to B - Where A has made a monetary contribution to the purchase of property for B.

From these cases it can be stated that where there is a voluntary transfer of property, the law presumes the recipient holds that property on resulting trust, until the property is transferred back to the original owner, unless the recipient can show a gift was intended.

The presumptions are, however, easily rebutted. In Fowkes v Pascoe, evidence was shown that a woman had purchased stock in the names of herself and her grandson; evidence by the grandson and granddaughter-in-law that this had been done as a gift was admissible. On the other hand, the presumption is solely concerned with evidence of an intent to create a trust; ulterior motives to create a trust are not taken into account. In Tinsley v Milligan, a woman transferred property to her business partner on trust in order to fraudulently claim social security payments; it was held that this did not defeat the presumption of a resulting trust.

The fact that is being proved by the presumption of a resulting trust is the intention to create a trust for the settlor. This view of presumed resulting trusts has been endorsed by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC);

"...the presumption of resulting trust is rebutted by evidence of any intention inconsistent with such a trust, not only by evidence of an intention to make a gift."

Some have argued that this presumption arises as a result of a lack of intention to transfer any beneficial interest. This view has generally not received judicial endorsement.

A marriage license is a document issued, either by a religious organization or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between jurisdictions, and has changed over time. Marriage licenses began to be issued in the Middle Ages, to permit a marriage which would otherwise be illegal (for instance, if the necessary period of notice for the marriage had not been given).

Today, they are a legal requirement in some jurisdictions and may also serve as the record of the marriage itself, if signed by the couple and witnessed. In other jurisdictions, a license is not required. In some jurisdictions, a "pardon" can be obtained for marrying without a license, and in some jurisdictions, common-law marriages and marriage by cohabitation and representation are also recognized. These do not require a marriage license. There are also some jurisdictions where marriage licenses do not exist at all and a marriage certificate is given to the couple after the marriage ceremony has taken place.

History.

For most of Western history, marriage was a private contract between two families. Until the 16th century, Christian churches accepted the validity of a marriage on the basis of a couple's declarations. If two people claimed that they had exchanged marital vows, even without witnesses, the Catholic Church accepted that they were validly married.

Some states in the US hold that public cohabitation can be sufficient evidence of a valid marriage. Marriage license application records from government authorities are widely available starting from the mid-19th century. Some are available dating from the 17th century in colonial America. Marriage licenses have been required since 1639 in Massachusetts, with their use gradually expanding to other jurisdictions.

United States.

In the United States, until the mid-19th century, common-law marriages were recognized as valid, but thereafter some states began to invalidate common-law marriages. Common-law marriages, if recognized by law, are valid, notwithstanding the absence of a marriage license; this becomes an issue in the settlement of decedents' estates. North Carolina and Tennessee (which was originally western North Carolina) never recognized marriage at the common law as valid without a license unless entered into in other states. They have always recognized otherwise valid marriages (except bigamous, polygamous, interracial, or same-sex) entered into in conformity with the law of other states, territories and nations.

The specifications for obtaining a marriage license vary between states. In general, however, both parties must appear in person at the time the license is obtained; be of marriageable age (for example, over 18 years; lower in some states with the consent of a parent); present proper identification (typically a driver's license, state ID card, birth certificate or passport; more documentation may be required for those born outside of the United States); and neither must be married to anyone else (proof of spouse's death or divorce may be required for someone who had been previously married in some states).

The US states of Louisiana, Florida, Connecticut, Wisconsin, Indiana, Oklahoma, Massachusetts, Mississippi, California, New York, and the District of Columbia once required blood tests before issuing a marriage license, but such requirements have since been abolished. The tests were mainly used to check for previous or current bouts of syphilis and rubella (German measles); other diseases that have been screened for before marriage in some cases have included tuberculosis, gonorrhea, and HIV, the last of which is the only one of those three that is detectable using a blood test.

Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.

Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories, although common law courts in some jurisdictions are less stringent than others in this regard. In practice, however, such courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright, as fair dealing is not as flexible a concept as the American concept of fair use.

There are similar limitations and exceptions to copyright, such as the right to quote, also in the Berne Convention and in the laws of civil law jurisdictions.

By country.

United States.

The parallel concept in United States copyright law is fair use. The term "fair dealing" has a different meaning in the U.S. It is a duty of full disclosure imposed upon corporate officers, fiduciaries, and parties to contracts. In the reported cases, it usually arises in the context of the "implied covenant of good faith and fair dealing", which underlies the tort cause of action for insurance bad faith.

Canada.

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to engage in certain activities relating to research, private study, education, parody, satire, criticism, review, or news reporting. With respect to criticism, review, and news reporting, the user must mention the source of the material, along with the name of the author, performer, maker, or broadcaster for the dealing to be fair.

Prior to 2011, fair dealing in Canada was not definitely found to contain exceptions for parody (unlike fair use in the United States), but the Copyright Act has since been amended to include parody and satire (along with educational use) under its fair dealing provisions. Previously, a Quebec Court of Appeal in Les productions Avanti Cine Video v Favreau (4 August 1999) had recognized that parody could potentially be a 'critique', but it refused to recognize the exception in that circumstance.

The 2004 ruling by the Supreme Court of Canada in CCH Canadian Limited v Law Society of Upper Canada has gone far in clarifying the concept of fair dealing in Canada. In considering fair dealing the Court makes the following general observation:

It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defense. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.

Furthermore, by taking "a liberal approach to the enumerated purposes of the dealing", the Court has made fair dealing more flexible, reducing the gap between this provision and US fair use.

Subrogation is the assumption by a third party (such as a second creditor or an insurance company) of another party's legal right to collect debts or damages. It is a legal doctrine whereby one person is entitled to enforce the subsisting or revived rights of another for one's own benefit. A right of subrogation typically arises by operation of law, but can also arise by statute or by agreement. Subrogation is an equitable remedy, having first developed in the English Court of Chancery. It is a familiar feature of common law systems. Analogous doctrines exist in civil law jurisdictions.

Subrogation is a relatively specialized field of law; entire legal textbooks are devoted to the subject.

Doctrine.

Countries which have inherited the common law system will typically have a doctrine of subrogation, but its doctrinal basis in a particular jurisdiction may vary from that in other jurisdictions, depending upon the extent to which equity remains a distinct body of law in that jurisdiction.

English courts have now accepted that the concept of unjust enrichment has a role to play in subrogation. In contrast, this approach has been stridently rejected by the High Court of Australia, where the doctrinal basis of subrogation is said to lie in the prevention of unconscionable results: for example, the discharge of a debtor or one party getting double recovery.

Types.

The situations in which subrogation will be available are not closed and vary from jurisdiction to jurisdiction. Subrogation typically arises in three-party situations. Some common examples of subrogation include:

Indemnity insurance. An indemnity insurer may be entitled to be subrogated to the rights of insured as against a third party who is responsible for the damage to the insured.

Law of guarantees. A surety may be entitled to be subrogated to the rights of the creditor as against the principal debtor.

Trust creditors. A creditor of a trustee may be entitled to be subrogated to the trustee's right of indemnity.

Subrogation to outgoing securities. A lender who advances funds for the purpose of discharging a security may be entitled to be subrogated to the third party's security as against the borrower.

Bills of exchange. The indorser of a bill of exchange may be entitled to be subrogated to the holder as against the acceptor (who is liable to indemnify the indorser).

Indemnity insurer's subrogation rights.

"Subrogation" has been used in this context to refer to two distinct situations.

First, after paying out under a policy of indemnity insurance, an insurer may be entitled to stand in the shoes of the insured and enforce the insured's rights against the third-party tortfeasor who is responsible for the loss. This is subrogation in its proper or core sense. Insurance subrogation, and, specifically, the types and amounts of payments that can be recovered, differs from jurisdiction to jurisdiction.

Secondly, after paying out under a policy of indemnity insurance, an insurer may be entitled to sue the insured where the insured has already had his loss made good by the third-party tortfeasor. That is, the insurer has a claim against the insured so as to ensure that the insured does not get double recovery. This situation might arise if, for example, an insured claimed in full under the policy, but then started proceedings against the third-party tortfeasor, and recovered substantial damages. Strictly speaking, this is not a case of subrogation; it is a case of recoupment.

In law, ignorantia juris non excusat (Latin for "ignorance of the law excuses not"), or ignorantia legis neminem excusat ("ignorance of law excuses no one"), is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content.

European-law countries with a tradition of Roman law may also use an expression from Aristotle translated into Latin: nemo censetur ignorare legem ("nobody is thought to be ignorant of the law") or ignorantia iuris nocet ("not knowing the law is harmful").

Explanation.

The rationale of the doctrine is that if ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit would merely claim that one was unaware of the law in question to avoid liability, even if that person really does know what the law in question is. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state's activities, this is the price paid to ensure that willful blindness cannot become the basis of exculpation. Thus, it is well settled that persons engaged in any undertakings outside what is common for a normal person will make themselves aware of the laws necessary to engage in that undertaking. If they do not, they cannot complain if they incur liability.

The doctrine assumes that the law in question has been properly promulgated—published and distributed, for example, by being printed in a government gazette, made available over the Internet, or printed in volumes available for sale to the public at affordable prices. In the ancient phrase of Gratian, Leges instituuntur cum promulgantur ("Laws are instituted when they are promulgated"). In order that a law obtain the binding force which is proper to a law, it must be applied to the men who have to be ruled by it. Such application is made by their being given notice by promulgation. A law can bind only when it is reasonably possible for those to whom it applies to acquire knowledge of it in order to observe it, even if actual knowledge of the law is absent for a particular individual. A secret law is no law at all.

In criminal law, although ignorance may not clear a defendant of guilt, it can be a consideration in sentencing, particularly where the law is unclear or the defendant sought advice from law enforcement or regulatory officials. For example, in one Canadian case, a person was charged with being in possession of gambling devices after they had been advised by customs officials that it was legal to import such devices into Canada. Although the defendant was convicted, the sentence was an absolute discharge.

In addition, there were, particularly in the days before satellite communication and cellular phones, persons who could genuinely be ignorant of the law due to distance or isolation. For example, in a case in British Columbia, four hunters were acquitted of game offenses where the law was changed during the period they were in the wilderness hunting. Another case, in early English law, involved a seaman on a clipper before the invention of radio who had shot another. Although he was found guilty, he was pardoned, as the law had been changed while he was at sea.

Although ignorance of the law, like other mistakes of law, is not a defence, a mistake of fact may well be, depending on the circumstances: that is, the false but sincerely held belief in a factual state of affairs which, had it been the case, would have made the conduct innocent in law.

An express trust is a trust created "in express terms, and usually in writing, as distinguished from one inferred by the law from the conduct or dealings of the parties." Property is transferred by a person (called a trustor, settlor, or grantor) to a transferee (called the trustee), who holds the property for the benefit of one or more persons, called beneficiaries. The trustee may distribute the property, or the income from that property, to the beneficiaries. Express trusts are frequently used in common law jurisdictions as methods of wealth preservation or enhancement.

Terms.

Law generally requires only a simple formality to create an express trust. In certain jurisdictions, an express trust may even be established orally. Typically, a settlor would record the disposition, where real property is to be held in trust or the value of property in trust is large. Where legal title to property is being passed to a trustee, a "deed of settlement" or "Trust Instrument" (for jurisdictions that do not recognise Deeds) may be used. Where property is to continue to be held by the person making the trust, a "declaration of trust" will be appropriate.

Often, a trust corporation or more than one trustee is appointed to allow for uninterrupted administration of the trust in the event of a trustee's resignation, death, bankruptcy or incapacity. Additionally a Protector may be appointed who, for example, is authorized to appoint new trustees and to review the trustees' annual accounts.

To be valid at common law, a trust instrument must ascertain its beneficiaries, as well as the res (a Latin term meaning "thing") or subject matter of the trust, unless it is a charitable trust which does not provide specific beneficiaries.

To be valid in equity, a trust must satisfy the following elements: 1. Property or rights of a kind which can be the subject of a trust 2. A declaration of trust or disposition on trust by a person legally competent to create a trust 3. Certainty of property and objects (trust must be administratively workable 4. Compliance with requirements regarding evidence 5. Compliance with rule against remoteness of vesting (rule against perpetuities and rule against inalienability of income for longer than the perpetuity period)

Common forms of express trust.

Bare trust.

property transferred to another to hold for example for a third person absolutely. May be of use where property is to be held and invested on behalf of a minor child or mentally incapacitated person.

Life Interest trust.

the income from property transferred is paid to one person, "the life tenant" (for example a widower), during their lifetime and thereafter is transferred to another person (who may take absolutely or a second life interest according to the terms of the trust, in the second case a third beneficiary would come into play). The trustees may have power to pay capital as well as income to the life tenant. Alternatively, they may have rights to transfer ("appoint") property to other beneficiaries ahead of their entitlement.

Discretionary trust.

the trustees may pay out income to whichever of the beneficiaries they, in the reasonable exercise of their discretion, think fit. They will normally also have the power to pay out capital. They may have extensive powers, even to add new beneficiaries, but such powers may normally only be exercised bona fide in the interests of the beneficiaries as a whole. Discretionary trusts must not be indefinite and are subject to 'the rule against perpetuities'. In New South Wales, the time prescribed is a statutory period of 80 years from the date the disposition takes effect.

Marriage is an institution that is historically filled with restrictions. From age, to gender, to social status, various restrictions are placed on marriage by communities, religious institutions, legal traditions and states.

Marriage age.

The minimum age at which a person is able to lawfully marry, and whether parental or other consents are required, vary from country to country. In the U.S. the minimum age for marriage without parental and or judicial approval is 18 except for Nebraska (19) and Mississippi (21); but most states allow exceptions to the general minimum age in some circumstances (see Marriage age in the United States). In England and Wales the general age at which a person may marry is 18, but 16- or 17-year-olds may get married with their parents' or guardians' consent. If they are unable to obtain this, they can gain consent from the courts, which may be granted by the Magistrates' Courts, or the county or High Court family divisions.

Gender restrictions.

Legal, social, and religious restrictions apply in all countries on the genders of the couple.

In response to changing social and political attitudes, some jurisdictions and religious denominations now recognize marriages between people of the same sex. Other jurisdictions have instead "civil unions" or "domestic partnerships", while additional others explicitly prohibit same-sex marriages.

In 1989, Denmark became the first country to legally recognize a relationship for same-sex couples, establishing registered partnerships, which gave those in same-sex relationships "most rights of married heterosexuals, but not the right to adopt or obtain joint custody of a child". In 2001, the Netherlands became the first country in the world to legalize same-sex marriage. As of date, marriage between same-sex couples is legally performed and recognized in 34 countries, namely the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, France, Uruguay, New Zealand, Luxembourg, the United States, Ireland, Colombia, Finland, Malta, Germany, Australia, Austria, Taiwan, Ecuador, United Kingdom, Costa Rica, Chile, Switzerland, Slovenia, Cuba, Mexico and Andorra.

Civil union, civil partnership, domestic partnership and registered partnership statuses offer varying legal benefits of marriage. As of 5 June 2023, countries that have an alternative form of legal recognition other than marriage on a national level are: Bolivia, Croatia, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Italy, Liechtenstein, Monaco, Montenegro and San Marino.

Further religious conflicts.

These developments have created a political and religious reaction in some countries, including in England, where the Church of England, after long debate, officially banned blessings of gay couples by Church of England clergy, and in the United States, which continues to experience conflicts, based upon religious grounds.

Kinship restrictions.

Kinship is two people that are related by blood or adoption, such as brother, sister, mother, father, aunt, uncle etcetera. No European country prohibits marriage between first cousins. The U.S. is the only western country with cousin marriage restrictions. Societies have often placed restrictions on marriage to relatives, though the degree of prohibited relationship varies widely. In most societies, marriage between brothers and sisters has been forbidden, with ancient Egyptian, Hawaiian, and Inca royalty being prominent exceptions. In many societies, marriage between first cousins is preferred, while at the other extreme, the medieval Catholic Church prohibited marriage even between distant cousins.

The idea–expression distinction or idea–expression dichotomy is a legal doctrine in the United States that limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.

Unlike patents, which may confer proprietary rights in relation to general ideas and concepts per se when construed as methods, copyrights cannot confer such rights. An adventure novel provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any artwork contained in the book, but generally not in the idea or genre of the story. Copyright, therefore, may not subsist in the idea of a man venturing out on a quest, but may subsist in a particular story that follows that pattern. Similarly, if the methods or processes described in a work are patentable, they may be the subject of various patent claims, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C Clarke, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that was not considered patentable in 1954 when it was developed at Bell Labs.

Legal origins and status.

Philosophically, there is disagreement about the distinction between thought and language. In the past it was often thought that the two could not be separated, and so a paraphrase could never exactly reproduce a thought expressed in different words. At the opposite extreme is the view that concepts and language are completely independent, so there is always a range of ways in which a concept can be expressed.

In the United States, the doctrine originated from the 1879 Supreme Court case of Baker v Selden. The Supreme Court held in Selden that, while exclusive rights to the "useful arts" (in this case bookkeeping) described in a book might be available by patent, only the description itself was protectable by copyright. In later cases, the Supreme Court has stated that "unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself," and that "copyright's idea or expression dichotomy 'strike a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'"

In the English decision of Donoghue v Allied Newspapers Limited (1938) Ch 106, the court illustrated the concept by stating that "the person who has clothed the idea in form, whether by means of a picture, a play or a book" owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937), Latham CJ used the analogy of reporting a person's fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact.

Today, Article 1.2 of the European Union Software Directive expressly excludes from copyright ideas and principles that underlie any element of a computer program, including those that underlie its interfaces. As stated by the European Court of Justice in SAS Institute Inc v World Programming Limited, "to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development."

Scènes à faire.

Some courts have recognized that particular ideas can be expressed effectively only by using certain elements or background. The French name for this doctrine is Scènes à faire. Therefore, even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. This is true in the United Kingdom and most Commonwealth countries.

In contract law, rescission is an equitable remedy which allows a contractual party to cancel the contract. Parties may rescind if they are the victims of a vitiating factor, such as misrepresentation, mistake, duress, or undue influence. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into a contract (the status quo ante).

Taxonomy.

Rescission is used throughout the law in a number of different senses. The failure to draw these crucial distinctions is productive of serious confusion. Although Judicature legislation has been enacted throughout the common law world, and jurisdictions vary in their recognition of a distinct body of law known as equity, reference to the jurisdictional origins is still important for the purposes of exposition.

"Rescission" in the sense of termination. Rescission in this sense is not the focus of this article. Where a contract is terminated, obligations under the contract are only discharged prospectively; the contract is not rendered void ab initio. Rescission in the sense of termination covers two key situations:

First, where a party to a contract exercises an express right of termination, he or she is sometimes said to have exercised a right to rescind the contract.

Secondly, where a party is faced with a repudiation, the party can elect to terminate the contract; this too has often been referred to as an election to rescind.

"Rescission" at common law. Rescission at common law (as distinct from rescission in equity) is a self-help remedy: historically, the common law courts simply gave effect to the rescinding party's unequivocal election to rescind the contract. Rescission at common law is only available for fraudulent misrepresentations and duress. Rescission renders the contract void ab initio, and courts will only grant rescission under common law if the parties can be restored to their original positions prior to the formation of the contract ("restitutio in integrum"). Courts of Equity exercised a jurisdiction to effect rescission where restoring the parties to the contract to their pre-contract positions was not possible at common law.

"Rescission" in equity. Rescission is available in equity's exclusive jurisdiction in a wide range of situations. For example, where there has been an innocent but material misrepresentation, a breach of fiduciary duty, unconscionable conduct, or equitable fraud.

In court.

Rescission is an equitable remedy and is discretionary. It is used as a synonym for termination at law. A court may decline to rescind a contract if one party has affirmed the contract by his action, or a third party has acquired some rights or there has been substantial performance in implementing the contract. To improve chances of being granted rescission, parties may do well to describe those circumstances which may give rise to an entitlement to terminate, as was done in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd. Furthermore, because rescission is supposed to be imposed mutually upon both sides to a contract, the party seeking rescission normally must offer to give back all benefits he or she has received under the contract (an "offer of tender").

The US state of Virginia uses the term "cancellation" for equitable rescission. Furthermore, a minority of common law jurisdictions, like South Africa, use the term "rescission" for what other jurisdictions call "reversing", "overturning" or "overruling" a court judgment. In this sense, the term means to be set aside or made void, on application to the court that granted the judgment or to a higher court. Applications to rescind a judgment are usually made on the basis of error or for good cause.

Entrapment is a practice in which a law enforcement agent or agent of the state induces a person to commit a "crime" that the person would have otherwise been unlikely or unwilling to commit. It "is the conception and planning of an offense by an officer or agent, and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer or state agent".

Police conduct rising to the level of entrapment is broadly discouraged and thus, in many jurisdictions, is available as a defense against criminal liability. Sting operations, through which police officers or agents engage in deception to try to catch persons who are committing crimes, raise concerns about possible entrapment.

Depending on the law in the jurisdiction, the prosecution may be required to prove beyond a reasonable doubt that the defendant was not entrapped or the defendant may be required to prove that they were entrapped as an affirmative defense.

In the practice of journalism and whistle-blowing entrapment means "deceptive and trust-breaking techniques ... applied to trick someone to commit a legal or moral transgression."

United States.

In the United States, two competing tests exist for determining whether entrapment has taken place, known as the "subjective" and "objective" tests.

The "subjective" test looks at the defendant's state of mind; entrapment can be claimed if the defendant had no "predisposition" to commit the crime.

The "objective" test looks instead at the government's conduct; entrapment occurs when the actions of government officers would usually have caused a normally law-abiding person to commit a crime.

Contrary to popular belief, the United States does not require police officers to identify themselves as police in the case of a sting or other undercover work, and police officers may lie when engaged in such work. The law of entrapment instead focuses on whether people were enticed to commit crimes they would not have otherwise considered in the normal course of events.

Land trust: A private, nonprofit organization that, as all or part of its mission, actively works to conserve land by undertaking or assisting in land or conservation easement acquisition, or by its stewardship of such land or easements; or an agreement whereby one party (the trustee) agrees to hold ownership of a piece of real property for the benefit of another party (the beneficiary).

Offshore trust: Strictly speaking, an offshore trust is a trust which is resident in any jurisdiction other than that in which the settlor is resident. However, the term is more commonly used to describe a trust in one of the jurisdictions known as offshore financial centers or, colloquially, as tax havens. Offshore trusts are usually conceptually similar to onshore trusts in common law countries, but usually with legislative modifications to make them more commercially attractive by abolishing or modifying certain common law restrictions. By extension, "onshore trust" has come to mean any trust resident in a high-tax jurisdiction.

Personal injury trust: A personal injury trust is any form of trust where funds are held by trustees for the benefit of a person who has suffered an injury and funded exclusively by funds derived from payments made in consequence of that injury.

Private and public trusts: A private trust has one or more particular individuals as its beneficiary. By contrast, a public trust (also called a charitable trust) has some charitable end as its beneficiary. To qualify as a charitable trust, the trust must have as its object certain purposes such as alleviating poverty, providing education, carrying out some religious purpose, etc. The permissible objects are generally set out in legislation, but objects not explicitly set out may also be an object of a charitable trust, by analogy. Charitable trusts are entitled to special treatment under the law of trusts and also the law of taxation.

Protective trust: Here the terminology is different between the UK and the USA:

In the UK, a protective trust is a life interest that terminates upon the happening of a specified event; such as the bankruptcy of the beneficiary, or any attempt by an individual to dispose of their interest. They have become comparatively rare.

In the US, a 'protective trust' is a type of trust that was devised for use in estate planning. (In another jurisdiction this might be thought of as one type of asset protection trust.) Often a person, A, wishes to leave property to another person B. A, however, fears that the property might be claimed by creditors before A dies, and that therefore B would receive none of it. A could establish a trust with B as the beneficiary, but then A would not be entitled to use of the property before they died. Protective trusts were developed as a solution to this situation. A would establish a trust with both A and B as beneficiaries, with the trustee instructed to allow A use of the property until they died, and thereafter to allow its use to B. The property is then safe from being claimed by A's creditors, at least so long as the debt was entered into after the trust's establishment. This use of trusts is similar to life estates and remainders, and is frequently used as an alternative to them.

Purpose trust: Or, more accurately, non-charitable purpose trust (all charitable trusts are purpose trusts). Generally, the law does not permit non-charitable purpose trusts outside of certain anomalous exceptions which arose under the eighteenth-century common law (and, arguably, Quistclose trusts). Certain jurisdictions (principally, offshore jurisdictions) have enacted legislation validating non-charitable purpose trusts generally.

QTIP Trust: Short for "qualified terminal interest property". A trust recognized under the tax laws of the United States which qualifies for the marital gift exclusion from the estate tax.

A domestic partnership is a relationship, usually between couples, who live together and share a common domestic life, but are not married (to each other or to anyone else). People in domestic partnerships receive legal benefits that guarantee the right of survivorship, hospital visitation, and other rights.

The term is not used consistently, which results in some inter-jurisdictional confusion. Some jurisdictions, such as Australia, New Zealand, and the U.S. states of California, Maine, Nevada, Oregon and Washington use the term "domestic partnership" to mean what other jurisdictions call civil union, civil partnership, or registered partnership. Other jurisdictions use the term as it was originally coined, to mean an interpersonal status created by local municipal and county governments, which provides an extremely limited range of rights and responsibilities.

Some legislatures have voluntarily established domestic partnership relations by statute instead of being ordered to do so by a court. Although some jurisdictions have instituted domestic partnerships as a way to recognize same-sex marriage, statutes do exist which provide for recognition of opposite-sex domestic partnerships in many jurisdictions.

In some legal jurisdictions, domestic partners who live together for an extended period of time but are not legally entitled to common-law marriage may be entitled to legal protection in the form of a domestic partnership. Some domestic partners may enter into non marital relationship contracts in order to agree, either verbally or in writing, to issues involving property ownership, support obligations, and similar issues common to marriage. (See effects of marriage and palimony.) Beyond agreements, registration of relationships in domestic partnership registries allow for the jurisdiction to formally acknowledge domestic partnerships as valid relationships with limited rights.

Overview.

Although the terms are sometimes used interchangeably, a Domestic Partnership, Same Sex Marriage or Civil Union are each separate and distinct legal concepts. The domestic partnership is a legal relationship between two people of the same or opposite sex who live together and share a domestic life, but are not married or joined by a civil union nor are blood relatives. It may be established by contract between the parties, but more often by registration according to procedures established by a state or municipal government. Benefits granted under a domestic partnership vary among different jurisdictions. Some accord full health benefits, others only a right of visitation. In still other jurisdictions, registered domestic partners are accorded a legal status similar to that of a married person with respect to matters of probate, guardianships, conservatorships, inheritance, protection from abuse, and related matters.

Since the 2015 US Supreme Court's decision legalizing same-sex marriage, there have been fewer US domestic partnerships registered, but in many jurisdictions they are still allowed for couples of the same gender or different genders who do not want to marry but still would like to be eligible for certain benefits. Many couples opt for a domestic partnership after comparing the potential tax consequences of being married.

In 2011, United States business entities incurred $29 billion in direct costs because of patent trolls. Lawsuits brought by "patent assertion companies" made up 61% of all patent cases in 2012, according to the Santa Clara University School of Law. From 2009 through mid-2013, Apple Inc. was the defendant in 171 lawsuits brought by non-practicing entities (NPEs), followed by Hewlett-Packard (137), Samsung (133), AT&T (127), and Dell (122). Patent troll-instigated litigation, once mostly confined to large companies in patent-dependent industries such as pharmaceuticals, came to involve companies of all sizes in a wide variety of industries. In 2005, patent trolls sued 800 small firms (those with less than $100 million annual revenue), the number growing to nearly 2,900 such firms in 2011; the median defendant's annual revenue was $10.3 million. A July 2014 PricewaterhouseCoopers study concluded that non-practicing entities (NPEs) accounted for 67 percent of all patent lawsuits filed—up from 28 percent five years earlier—and though the median monetary award size has shrunk over time, the median number of awards to NPEs was three times higher than those of practicing companies.

A 2014 study from Harvard University, Harvard Business School and the University of Texas concluded that firms forced to pay patent trolls reduce R&D spending, averaging $211 million less than firms having won a lawsuit against a troll. That 2014 study also found that trolls tend to sue firms with fewer attorneys on staff, in effect encouraging firms to invest in legal representation at the expense of technology development. The 2014 study reported that trolls tend to opportunistically sue firms with more available cash, even if the firm's available cash was not earned in the technology that is the subject of the patent lawsuit, and targeting the firms long before a product begins turning a profit, thus disincentivizing investment in new technologies.

Emphasis became progressively focused on patents covering software rather than chemical or mechanical inventions, given the difficulty in defining the scope of software patent claims in comparison to the more easily defined specific compounds in chemical patents. A GAO study concluded that the proportion of patent lawsuits initiated by trolls hadn't changed significantly from 2007 through 2011, the GAO speculating that the raw numerical increase in both troll and non-troll instituted lawsuits may be due to the "inherently imprecise" language and a lack of common, standardized, scientific vocabulary in constantly evolving emerging technologies such as software. Software patents were described as "particularly prone" to abuse because software is "inherently conceptual", with research indicating that a software patent is four times as likely as a chemical patent to be involved in litigation, and a software "business method patent" is thirteen times more likely to be litigated.

On June 4, 2013, the National Economic Council and Council of Economic Advisers released a report entitled Patent Assertion and U.S. Innovation that found significant harm to the economy from such entities and made recommendations to address them. The report further stated: "Specific policies should focus on fostering clearer patents with a high standard of novelty and non-obviousness, reducing disparity in the costs of litigation for patent owners and technology users, and increasing the adaptability of the innovation system to challenges posed by new technologies and new business models, would likely have a similar effect today."