Law School

Nomenclature.

Throughout the world, there are a large number of different types and sub-divisions of liens. Not all of the following liens exist in all legal systems that recognise the concept of a lien. The following are descriptions that are not necessarily mutually exclusive. Types of lien include

accountant's lien—the right of an accountant to retain a client's papers until the accountant's fees have been paid.

agent's lien- the Lien granted to Agent by Borrowers pursuant to this Agreement and the other Security Documents.

agister's lien—the lien of an agister over animals in the agister's care as security for fees.

agricultural lien (United States)—a statutory lien that protects the seller of farming equipment by giving the seller a lien on crops grown with the equipment.

architect's lien—the right of an architect to retain a client's papers until the architect's fees have been paid.

attachment lien—a lien on property seized by pre-judgment attachment.

attorney's lien—the right of an attorney to retain a client's papers until the attorney's fees have been paid (also referred to as a charging lien, solicitor's lien or a retaining lien in some jurisdictions).

banker's lien—the right of a bank to satisfy a customer's matured debt by seizing the customer's money or property within the bank's possession.

blanket lien—a lien that gives the lienor the entitlement to take possession of any or all of the lienee's real property to cover a delinquent loan.

carrier's lien—a carrier's right to retain possession of cargo until the owner of the cargo pays shipping costs.

choate lien (United States)—a lien in which the lienee, the property, and the monetary amount are established so that the lien is perfected and nothing else needs to be done to make the lien enforceable.

common-law lien—a lien arising under the common law, rather than by statute, equity or agreement between the parties.

Types of stalkers.

Psychologists often group individuals who stalk into two categories: psychotic and nonpsychotic. Some stalkers may have pre-existing psychotic disorders such as delusional disorder, schizoaffective disorder, or schizophrenia. However, most stalkers are nonpsychotic and may exhibit disorders or neuroses such as major depression, adjustment disorder, or substance dependence, as well as a variety of personality disorders (such as antisocial, borderline, or narcissistic). The nonpsychotic stalkers' pursuit of victims is primarily angry, vindictive, focused, often including projection of blame, obsession, dependency, minimization, denial, and jealousy. Conversely, only 10% of stalkers had an erotomanic delusional disorder.

In "A Study of Stalkers" Mullen et al (the year 2000) identified five types of stalkers:

Rejected stalkers follow their victims in order to reverse, correct, or avenge a rejection (for example divorce, separation, termination).

Resentful stalkers make a vendetta because of a sense of grievance against the victims – motivated mainly by the desire to frighten and distress the victim.

Intimacy seekers seek to establish an intimate, loving relationship with their victim. Such stalkers often believe that the victim is a long-sought-after soul mate, and they were 'meant' to be together.

Incompetent suitors, despite poor social or courting skills, have a fixation, or in some cases, a sense of entitlement to an intimate relationship with those who have attracted their amorous interest. Their victims are most often already in a dating relationship with someone else.

Predatory stalkers spy on the victim in order to prepare and plan an attack – often sexual – on the victim.

In addition to Mullen and others, Joseph A Davis, Ph.D., an American researcher, crime analyst, and university psychology professor at San Diego State University investigated, as a member of the Stalking Case Assessment Team (SCAT), special unit within the San Diego District Attorney's Office, hundreds of cases involving what he called and typed "terrestrial" and "cyberstalking" between 1995 and 2002. This research culminated in one of the most comprehensive books written to date on the subject. Published by CRC Press, Inc. in August 2001, it is considered the "gold standard" as a reference to stalking crimes, victim protection, safety planning, security and threat assessment.

Characterization, in conflict of laws, is the second stage of the procedure to resolve a lawsuit that involves foreign law. The process is described in English law as Characterisation, or classification within the English judgments of the European Court of Justice. It is alternatively known as qualification in French law.

It is used to determine the correct choice of law rules based on the circumstances of the case, primarily relating to matters of property. This is to reconcile differences between laws of different legal jurisdictions. The objective of characterization is to determine the nature of the action brought by the defendant in order to determine what relevant rules of applicable law apply. This may result in applying laws which differ from the lex fori. Additional factors make this determination not necessarily a simple process as the incidental question and renvoi can make determining the initial point of reference difficult. The leading authority in England and Wales is Macmillan Inc v Bishopsgate Investment Trust plc (number 3) .

Overview.

Characterization is one of the key elements in demarcating the choice of law and jurisdiction issues. The first stage is for the court to determine if it has jurisdiction, if appropriate, to avoid forum shopping. Once the forum court decides that it has jurisdiction to hear the case, it must characterize or classify the causes of action, this relates to choice of law matters. That is regarded as the most important and difficult problem in conflict of laws as trade and travel between states has become the norm. The effects of broken promises, defective goods, traffic accidents and marital squabbles are no longer confined to the sovereign territory of one particular state or nation. This is especially complicated because domestic laws usually operate to satisfy domestic interest. Various causes in actions and their respective remedies differ depending on the state. This derives from historical and political circumstances. The addition of the Rome 1 and Rome 2 Regulations to the European Union conflict of laws regime is designed to determine the choice of law which applies to situations where commercial or civil matters of broken promises, defective goods, traffic accidents, etcetera. with a party which is domiciled in a Member State.

The role of characterization within an international private law adjudication might be highlighted if understood within the simplest example of the sale of a bicycle by A to B. The transaction has both contractual and proprietary elements. Different jurisdictions will characterize the matter in different ways depending on their own laws. As is crucial within the international private law context, it is the responsibility of the adjudicating court to determine the proper law and subsequently apply it.

Personal circumstances.

The legal fiction of the reasonable person is an ideal, as nobody is perfect. Everyone has limitations, so the standard requires only that people act similarly to how "a reasonable person under the circumstances" would, as if their limitations were themselves circumstances. As such, courts require that the reasonable person be viewed as having the same limitations as the defendant.

For example, a disabled defendant is held to a standard that, by necessity, represents how a reasonable person with that same disability would act. This is no excuse for poor judgment, or trying to act beyond one's abilities. Were it so, there would be as many standards as there were defendants; and courts would spend innumerable hours, and the parties much more money, on determining that particular defendant's reasonableness, character, and intelligence.

By using the reasonable person standard, courts instead use an objective tool and avoid such subjective evaluations. The result is a standard that allows the law to behave in a uniform, foreseeable, and neutral manner when attempting to determine liability.

Children.

One broad allowance made to the reasonable person standard is for children. The standard here requires that a child act in a similar manner to how a "reasonable person of like age, intelligence, and experience under like circumstances" would act. In many common law systems, children under the age of 6 or 7 are typically exempt from any liability, whether civil or criminal, as they are deemed to be unable to understand the risk involved in their actions. This is called the defense of infancy: in Latin, doli incapax. In some jurisdictions, one of the exceptions to these allowances concern children engaged in what is primarily considered to be high-risk adult activity, such as operating a motor vehicle, and in some jurisdictions, children can also be "tried as an adult" for serious crimes, such as murder, which causes the court to disregard the defendant's age.

Mentally ill.

The reasonable person standard makes no allowance for the mentally ill. Such a refusal goes back to the standard set in Menlove, where Menlove's attorney argued for the subjective standard. In the 170 years since, the law has kept to the legal judgment of having only the single, objective standard. Such judicial adherence sends a message that the mentally ill would do better to refrain from taking risk-creating actions, unless they exercise a heightened degree of self-restraint and precaution, if they intend to avoid liability.

Generally, the courts have reasoned that by not accepting mental illness as a bar to recovery, a potentially liable third party, such as a caregiver, will be more likely to protect the public. The courts have also stated the reason that members of the public are unable to identify a mentally ill person, as they can a child or someone with a physical disability.

Whistleblower program.

In addition to the methods of proof the IRS has developed, the Tax Relief and Health Care Act of 2006 created the IRS Whistleblower Office, which allows anonymous whistle blowers to receive 15 to 30 percent of any recovery by the IRS which comes to at least $2 million including all penalties, interests and any other monies collected from the government. The whistleblower program seeks information based on evidence and analysis which can provide a solid basis for further investigation rather than speculation and hearsay.

The program is designed to provide incentive to ordinary citizens to inform on tax cheats. The program provides far greater incentives for whistleblowers than previous programs because under prior programs the government was not required to compensate whistleblowers. Under this program, a taxpayer may file a lawsuit in court if he or she does not receive a deserved award.

Whistleblower Office.

Established by the Tax relief and Health Care Act of 2006, the IRS Whistleblower Offices processes tips received from eligible individuals who spot tax problems in their workplace, in their day-to-day personal business, or anywhere else. After determining the degree of credibility, an appropriate IRS office is assigned the case for further investigation. The IRS office assigned varies by the type of issue that the whistleblower alerted it to.

Individuals must meet qualifications to be eligible to receive the reward and must submit Form 211 with supporting documentation to the Internal Revenue Service Office in Ogden, Utah. To claim eligibility the individual must not be an employee of the Department of Treasury or have been an employee there when they obtained the information, must not have obtained the information through the individual’s official duties as an employee of the federal government, or who obtained the information based on a contract with the federal government. Whistleblower incidents happen in greater frequency in the private sector opposed to the government.

The reward can be worth between 15 and 30 percent of the total proceeds that the IRS collects. To claim the reward, the IRS must move ahead based on the information provided and the amount identified, including taxes, penalties, and interests, must be worth more than $2 million. A gross income of $200,000 or more is required if the taxpayer in question is an individual.

The Bipartisan Budget Act of 2018 added subsection 7623(c) which expanded the definition of proceeds for whistleblower awards and was applied to open whistleblower claims. The Taxpayer First Act was signed by President Trump on July 1, 2019. This law made changes surrounding the notification process to whistleblowers and increased protection against retaliation available to whistleblowers. The main goal of the legislation was to improve taxpayer service and to ensure that enforcement of the laws is done in a fair, impartial manner, ultimately supporting the continued success of the nation.

A nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another. Such rights can generally be created in one of two ways: either by an express agreement between the party who owns the land and the party who seeks to own the interest; or by an order of a court.

Under the common law, there are five variations of such rights. These are:

easements,

profits,

restrictive covenants,

equitable servitudes, and,

licenses.

A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee and the person who has the benefit of the lien is referred to as the lienor or lien holder.

The etymological root is Anglo-French lien, loyen "bond", "restraint", from Latin ligamen, from ligare "to bind".

In the United States, the term lien generally refers to a wide range of encumbrances and would include other forms of mortgage or charge. In the US, a lien characteristically refers to nonpossessory security interests (see generally: Security interest § Types).

In other common-law countries, the term lien refers to a very specific type of security interest, being a passive right to retain (but not sell) property until the debt or other obligation is discharged. In contrast to the usage of the term in the US, in other countries it refers to a purely possessory form of security interest; indeed, when possession of the property is lost, the lien is released. However, common-law countries also recognize a slightly anomalous form of security interest called an "equitable lien" which arises in certain rare instances.

Despite their differences in terminology and application, there are a number of similarities between liens in the US and elsewhere in the common-law world.

Stalking is unwanted and/or repeated surveillance by an individual or group toward another person. Stalking behaviors are interrelated to harassment and intimidation and may include following the victim in person or monitoring them. The term stalking is used with some differing definitions in psychiatry and psychology, as well as in some legal jurisdictions as a term for a criminal offense.

According to a 2002 report by the U.S. National Center for Victims of Crime, "virtually any unwanted contact between two people that directly or indirectly communicates a threat or places the victim in fear can be considered stalking", although in practice the legal standard is usually somewhat stricter.

Definitions.

In 1995 a research paper titled "Stalking Strangers and Lovers" was among the first to use the term "stalking" to describe the common occurrence of males after a breakup who aggressively pursue their female former partner. Prior to that paper instead of the term "stalking", people more commonly used the terms "female harassment", "obsessive following" or "psychological rape".

The difficulties associated with defining this term exactly (or defining it at all) are well documented.

Having been used since at least the 16th century to refer to a prowler or a poacher (Oxford English Dictionary), the term stalker was initially used by media in the 20th century to describe people who pester and harass others, initially with specific reference to the harassment of celebrities by strangers who were described as being "obsessed". This use of the word appears to have been coined by the tabloid press in the United States. With time, the meaning of stalking changed and incorporated individuals being harassed by their former partners. Pathé and Mullen describe stalking as "a constellation of behaviors in which an individual inflicts upon another repeated unwanted intrusions and communications". Stalking can be defined as the willful and repeated following, watching or harassing of another person. Unlike other crimes, which usually involve one act, stalking is a series of actions that occur over a period of time.

Although stalking is illegal in most areas of the world, some of the actions that contribute to stalking may be legal, such as gathering information, calling someone on the phone, texting, sending gifts, emailing, or instant messaging. They become illegal when they breach the legal definition of harassment (for example, an action such as sending a text is not usually illegal, but is illegal when frequently repeated to an unwilling recipient). In fact, United Kingdom law states the incident only has to happen twice when the harasser should be aware their behavior is unacceptable (for example, two phone calls to a stranger, two gifts, following the victim then phoning them, etc.).

Cultural norms and meaning affect the way stalking is defined. Scholars note that the majority of men and women admit engaging in various stalking-like behaviors following a breakup, but stop such behaviors over time, suggesting that "engagement in low levels of unwanted pursuit behaviors for a relatively short amount of time, particularly in the context of a relationship break-up, may be normative for heterosexual dating relationships occurring within U.S. culture."

Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: jurisdiction, rules regarding when it is appropriate for a court to hear such a case; foreign judgments, dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and choice of law, which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law.

Scope and terminology.

The term conflict of laws is primarily used in the United States and Canada, though it has also come into use in the United Kingdom. Elsewhere, the term private international law is commonly used. Some scholars from countries that use conflict of laws consider the term private international law confusing because this body of law does not consist of laws that apply internationally, but rather is solely composed of domestic laws; the calculus only includes international law when the nation has treaty obligations (and even then, only to the extent that domestic law renders the treaty obligations enforceable). The term private international law comes from the private law/public law dichotomy in civil law systems. In this form of legal system, the term private international law does not imply an agreed upon international legal corpus, but rather refers to those portions of domestic private law that apply to international issues.

Importantly, while conflict of laws generally deals with disputes of an international nature, the applicable law itself is domestic law. This is because, unlike public international law (better known simply as international law), conflict of laws does not regulate the relation between countries but rather how individual countries regulate internally the affairs of individuals with connections to more than one jurisdiction. To be sure, as in other contexts, domestic law can be affected by international treaties to which a country is a party.

Moreover, in federal republics where substantial lawmaking occurs at the subnational level—notably in the United States—issues within conflict of laws often arise in wholly domestic contexts, relating to the laws of different states (or provinces, etcetera.) rather than of foreign countries.

In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.

Strictly according to the fiction, it is misconceived for a party to seek evidence from actual people in order to establish how the reasonable man would have acted or what he would have foreseen. This person's character and care conduct under any common set of facts, is decided through reasoning of good practice or policy—or "learned" permitting there is a compelling consensus of public opinion—by high courts.

In some practices, for circumstances arising from an uncommon set of facts, this person is seen to represent a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public. However, cases resulting in judgment notwithstanding verdict can be examples where a vetted jury's composite judgment was deemed beyond that of the reasonable person, and thus overruled.

The reasonable person belongs to a family of hypothetical figures in law including: the "right-thinking member of society", the "officious bystander", the "reasonable parent", the "reasonable landlord", the "fair-minded and informed observer", the "person having ordinary skill in the art" in patent law, and stretching back to Roman jurists, the figure of the bonus pater familias, all used to define legal standards. While there is a loose consensus in black letter law, there is no accepted technical definition. As with legal fiction in general, it is somewhat susceptible to ad hoc manipulation or transformation, and hence the "reasonable person" is an emergent concept of common law. The "reasonable person" is used as a tool to standardize, teach law students, or explain the law to a jury.

As a legal fiction, the "reasonable person" is not an average person or a typical person, leading to great difficulties in applying the concept in some criminal cases, especially in regard to the partial defense of provocation. The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances. While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself. The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law.

The standard is also used in contract law, to determine contractual intent, or (when there is a duty of care) whether there has been a breach of the standard of care. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.

The standard does not exist independently of other circumstances within a case that could affect an individual's judgment.

Under the federal law of the United States of America, tax evasion or tax fraud, is the purposeful illegal attempt of a taxpayer to evade assessment or payment of a tax imposed by Federal law. Conviction of tax evasion may result in fines and imprisonment. Compared to other countries, Americans are more likely to pay their taxes fairly, honestly, and on time.

Tax evasion is separate from tax avoidance, which is the legal utilization of the tax regime to one's own advantage in order to reduce the amount of tax that is payable by means that are within the law. For example, a person can legally avoid some taxes by refusing to earn more taxable income, or by buying fewer things subject to sales taxes. Tax evasion is illegal, while tax avoidance is legal.

In Gregory v Helvering the US Supreme Court concurred with Judge Learned Hand's statement that: "Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes." However, the court also ruled there was a duty not to illegally distort the tax code so as to evade paying one's legally required tax burden.

Definition.

The U.S. Internal Revenue Code, 26 United States Code section 7201, provides:

Sec. 7201. Attempt to evade or defeat tax

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

To prove a violation of the statute, the prosecutor must show (1) the existence of a tax deficiency (an unpaid federal tax), (2) an affirmative act constituting an evasion or attempted evasion of either the assessment or payment of that tax, and (3) willfulness (connoting the voluntary, intentional violation of a known legal duty).

A genuine, good faith belief that one is not violating the Federal tax law based on a misunderstanding caused by the complexity of the tax law is a defense to a charge of "willfulness", even though that belief is irrational or unreasonable. A belief that the Federal income tax is invalid or unconstitutional is not a misunderstanding caused by the complexity of the tax law, and is not a defense to a charge of "willfulness", even if that belief is genuine and is held in good faith.

The Rule in Shelley's Case is a rule of law that may apply to certain future interests in real property and trusts created in common law jurisdictions. It was applied as early as 1366 in The Provost of Beverly's Case but in its present form is derived from Shelley's Case (1581), in which counsel stated the rule as follows:

…when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee simple or in fee tail; that always in such cases, 'the heirs' are words of limitation of the estate, not words of purchase. 

The rule was reported by Lord Coke in England in the 17th century as well-settled law. In England, it was abolished by the Law of Property Act 1925. During the twentieth century, it was abolished in most common law jurisdictions, including the majority of the states of the United States. However, in states where the abrogation has been interpreted to apply only to conveyances made after abrogation, the relevance of the rule today varies from jurisdiction to jurisdiction and in many states remains unclear.

The 1366 application of the rule in common law closely followed Occam's razor, William of Ockham's articulation of the problem-solving principle that "entities should not be multiplied without necessity." The eponymous litigation was brought about because of a settlement made by Sir William Shelley (1480 to 1549), an English judge, on an estate he purchased when Sion Monastery was dissolved. The decision was rendered by Lord Chancellor Sir Thomas Bromley, who presided over an assembly of all the judges on the King's Bench to hear the case during Easter term 1580 thru 81. The rule existed in English common law long before this case was brought to the court, but Shelley's Case gave the law its most famous application.

In the common law of England, the doctrine of worthier title was a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. It essentially provides that a remainder cannot be created in the grantor's heirs, at least not by those words.

The rule provided that where a testator undertook to convey an heir the same estate in land that the heir would take under the laws of inheritance, the heir would be adjudged to have taken title to the land by inheritance rather than by the conveyance, because descent through the bloodline was held to be "worthier" than a conveyance through a legal instrument.

Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by putting the victim in fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offense may vary between jurisdictions. Robbery is differentiated from other forms of theft (such as burglary, shoplifting, pickpocketing, or car theft) by its inherently violent nature (a violent crime); whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words (for example, deraubare) of Germanic origin, from Common Germanic raub "theft".

Among the types of robbery are armed robbery, which involves the use of a weapon, and aggravated robbery, when someone brings with them a deadly weapon or something that appears to be a deadly weapon. Highway robbery or mugging takes place outside or in a public place such as a sidewalk, street, or parking lot. Carjacking is the act of stealing a car from a victim by force. Extortion is the threat to do something illegal, or the offer to not do something illegal, in the event that goods are not given, primarily using words instead of actions.

Criminal slang for robbery includes "blagging" (armed robbery, usually of a bank) or "stick-up" (derived from the verbal command to robbery targets to raise their hands in the air), and "steaming" (organized robbery on underground train systems).

In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make restitution, subject to defenses such as change of position. Liability for an unjust (or unjustified) enrichment arises irrespective of wrongdoing on the part of the recipient. The concept of unjust enrichment can be traced to Roman law and the maxim that "no one should be benefited at another's expense": nemo locupletari potest aliena iactura or nemo locupletari debet cum aliena iactura.

The law of unjust enrichment is closely related to, but not coextensive with, the law of restitution. The law of restitution is the law of gain-based recovery. It is wider than the law of unjust enrichment. Restitution for unjust enrichment is a subset of the law of restitution in the same way that compensation for breach of contract is a subset of the law relating to compensation.

History.

Roman law.

In civil law systems, unjust enrichment is often referred to as unjustified enrichment. Its historical foundation of enrichment without cause can be traced back to the Corpus Iuris Civilis. While the concept of enrichment without cause was unknown in classical Roman law, Roman legal compilers eventually enunciated the principle of unjustified enrichment based on two actions of the classical Roman period—the condictio and the actio de in rem verso.

The condictio authorized recovery by the plaintiff of a certain object or money in the hands of the defendant. The defendant was considered a borrower who was charged with returning the object or money. For the actio de in rem verso, the plaintiff bore the burden of specifying the cause for his demand, namely, demanding the restitution of assets that had exited the plaintiff's patrimony and entered the defendant’s patrimony through the acts of the defendant’s servants.

The coherent concept of unjustified enrichment, then appeared in the Justinian Code, based on Roman pragmatism with equitable considerations and moral principles of Greek philosophy. In the Justinian Code, condictiones were grouped into categories, such as when the plaintiff had given a thing or money:

1. in contemplation of a future result that did not follow.

2. for a reason disapproved by law or repugnant to public policy.

3. by mistake because payment was not actually due; or

4. without a good reason for the transaction.

In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.

The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person; this is sometimes labeled as the "reasonable physician standard." It was famously described in Vaughn v Menlove (1837) as whether the individual "proceed with such reasonable caution as a prudent man would have exercised under such circumstances".

Professional standard of care.

In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent manufacturer of a product, or the reasonably prudent professional in that line of work. Such a test (known as the "Bolam Test") was used to determine whether a doctor was liable for medical malpractice before the 2015 UK Supreme Court decision of Montgomery v Lanarkshire Health Board which introduced further responsibilities on the doctor, echoed in similar judgements in other jurisdictions. The standard of care is important because it can determine the level of negligence required to state a valid cause of action. In the business world the standard of care taken can be described as Due Diligence or performing a Channel Check.

Medical standard of care.

A standard of care is a medical or psychological treatment guideline and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition.

Some common examples:

• Treatment standards applied within public hospitals to ensure that all patients receive appropriate care regardless of financial means.

• Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People

1. Diagnostic and treatment process that a clinician should follow for a certain type of patient, illness, or clinical circumstance. Adjuvant chemotherapy for lung cancer is "a new standard of care, but not necessarily the only standard of care". (New England Journal of Medicine, 2004)

2. In legal terms, the level at which an ordinary, prudent professional with the same training and experience in good standing in a same or similar community would practice under the same or similar circumstances. An "average" standard would not apply because in that case at least half of any group of practitioners would not qualify. The medical malpractice plaintiff must establish the appropriate standard of care and demonstrate that the standard of care has been breached, with expert testimony.

3. A physician also has a "duty to inform" a patient of any material risks or fiduciary interests of the physician that might cause the patient to reconsider a procedure, and may be liable if injury occurs due to the undisclosed risk, and the patient can prove that if he had been informed, he would not have gone through with the procedure, without benefit of hindsight. (Informed Consent Rule.) Full disclosure of all material risks incident to treatment must be fully disclosed, unless doing so would impair urgent treatment. As it relates to mental health professional’s standard of care, the California Supreme Court, held that these professionals have "duty to protect" individuals who are specifically threatened by a patient.

Treatment by the Internal Revenue Service.

Prior to the Internal Revenue Service Restructuring and Reform Act of 1998 (the "1998 Act"), the Internal Revenue Service had defined a tax-protester scheme as "any scheme without basis in law or fact for the ostensible purpose of expressing dissatisfaction with the substance, form, or administration of the tax laws be either interfering with tax administration or attempting to illegally avoid or reduce tax liabilities."

The IRS has not released records indicating whom the agency defined as "illegal tax protesters" (coded as TC-148). In testimony before Congress in 1997, former IRS historian Shelley L. Davis contended that the IRS kept lists of citizens "for no reason other than that their political activities might have offended someone at the IRS " and she charged that "anyone who offers even legitimate criticism of the tax collector is  a tax protester "

After the 1997 congressional hearings, Congress responded with the 1998 Act. Subsection (a) of section 3707 of the 1998 Act now prohibits "officers and employees of the Internal Revenue Service" from designating a taxpayer as an "illegal tax protester" or using any similar designation for a taxpayer. By contrast, subsection (b) of section 3707 provides: "An officer or employee of the Internal Revenue Service may designate any appropriate taxpayer as a nonfiler, but shall remove such designation once the taxpayer has filed income tax returns for 2 consecutive taxable years and paid all taxes shown on such returns."

The IRS has prescribed procedures for its personnel to handle frivolous returns (whether considered valid returns or not) in the "Frivolous Return Program" section of the Internal Revenue Manual. The IRS has concluded, in Service Center Advice 200107034 dated November 15, 2000, that the statutory prohibition on the use of the term "illegal tax protester" by IRS personnel does not prohibit the IRS from maintaining a database of frivolous tax return filers as part of its Frivolous Return Program. IRS Advice 200107034 states (in part).

The rule against perpetuities is a legal rule in the Anglo-American common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a “life in being plus twenty-one years”. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the "dead hand" or "mortmain".

The basic elements of the rule against perpetuities originated in England in the 17th century and were "crystallized" into a single rule in the 19th century. The rule's classic formulation was given in 1886 by the American legal scholar John Chipman Gray:

No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.

— John Chipman Gray, Rule Against Perpetuities § 201.

The rule against perpetuities serves a number of purposes. First, English courts have long recognized that allowing owners to attach long-lasting contingencies to their property harms the ability of future generations to freely buy and sell the property, since few people would be willing to buy property that had unresolved issues regarding its ownership hanging over it. Second, judges often had concerns about the dead being able to impose excessive limitations on the ownership and use of property by those still living. For this reason, the rule only allows testators (will-makers) to put contingencies on ownership upon the following generation plus 21 years. Lastly, the rule against perpetuities was sometimes used to prevent very large, possibly aristocratic estates from being kept in one family for more than one or two generations at a time.

The rule also applies to options to acquire property. Often, one of the objectives of delaying the time of vesting is to avoid or reduce taxation of some sort. For example, a bequest in a will may be to one’s grandchildren, often with a life interest to one’s surviving spouse and then to the children, to avoid the payment of multiple death duties or inheritance taxes on the testator’s estate. The rule against perpetuities was one of the devices developed to at least limit this tax avoidance strategy.

A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring their interest in the property. Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail, a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished.

Privacy laws in different countries.

Privacy laws apply to both public and private sector actors.

United States.

The Constitution of the United States and United States Bill of Rights do not explicitly include a right to privacy. Currently no federal law takes a holistic approach to privacy regulation.

In the US, privacy and associated rights have been determined via court cases and the protections have been established through laws.

The Supreme Court in Griswold v Connecticut, (1965) found that the Constitution guarantees a right to privacy against governmental intrusion via penumbras located in the founding text.

In 1890, Warren and Brandeis drafted an article published in the Harvard Law Review titled "The Right To Privacy" that is often cited as the first implicit finding of a U.S. stance on the right to privacy.

Right to privacy has been the justification for decisions involving a wide range of civil liberties cases, including Pierce v Society of Sisters, which invalidated a successful 1922 Oregon initiative requiring compulsory public education; Roe v Wade, which struck down an abortion law from Texas, and thus restricted state powers to enforce laws against abortion; and Lawrence v Texas, which struck down a Texas sodomy law, and thus eliminated state powers to enforce laws against sodomy.

Legally, the right of privacy is a basic law which includes:

1. The right of persons to be free from unwarranted publicity

2. Unwarranted appropriation of one's personality

3. Publicizing one's private affairs without a legitimate public concern

4. Wrongful intrusion into one's private activities

In 2018, California set out to create a policy promoting data protection, the first state in the United States to pursue such protection. The resulting effort is the California Consumer Privacy Act (CCPA), reviewed as a critical juncture where the legal definition of what privacy entails from California lawmakers' perspective. The California Consumer Protection Act is a privacy law protecting the residents of California and their Personal identifying information. The law enacts regulation over all companies regardless of operational geography protecting the six Intentional Acts included in the law.

Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".

In the United States, the elements of quantum meruit are determined by state common law. For example, to state a claim for unjust enrichment in New York, a plaintiff must allege that (1) defendant was enriched; (2) the enrichment was at plaintiff's expense; and (3) the circumstances were such that equity and good conscience require defendants to make restitution.

Situations.

Quantum meruit is the measure of damages where an express contract is mutually modified by the implied agreement of the parties, or not completed. While there is often confusion between the concept of quantum meruit and that of "unjust enrichment" of one party at the expense of another, the two concepts are distinct.

The concept of quantum meruit applies in (but is not limited to) the following set of situations:

1. When a person hires another to do work, but an impeding act falling short of vitiating frustration/repudiation has occurred, such as access or intervening act of God, the worker may sue (or counter-sue) for the value of the improvements made/services rendered. The law implies a promise from the employer to the worker that they will pay them for their services, as much as they may deserve or merit.

The measure of value set forth in a contract is legally admissible as evidence of the value of the improvements or services but the court (or thus out of court settlement) is not required to use the contract's terms when calculating a quantum meruit award. (This is because the values set forth in the contract are rebuttable, meaning the one who ultimately may have to pay the award can contest the value of services set in the contract.)

2. When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit. However, if there is absence of any promised consideration, the plaintiff (such as hirer) has a right to elect to repudiate the contract and, failing a valid frustration, innocent mistake reason or similar defense, has the right to compensation from the defendant on a quantum meruit basis.

In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional. At the same time, the status of a visitor as a trespasser (as opposed to an invitee or a licensee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

Trespassing as a tort.

The tort of trespass to land requires an intentional physical invasion of the plaintiff's real property by the defendant or a refusal to leave when ordered to leave.

Intent required.

For example, a person walking in a public park who trips and rolls down a hill will not be liable for trespass just because the bottom of the hill is on private land.

A licensee can mean the holder of a license or, in U.S. tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter. The status of a visitor as a licensee (as opposed to a trespasser or an invitee) defines the legal rights of the visitor if they are injured due to the negligence of the property possessor (not necessarily the owner).

Where licensees are present, activities conducted on the land by or at the behest of the owner of the land must be conducted with the care that a prudent person would show. A duty to warn arises if there is a harmful condition on the land that is hidden from the licensee, so long as the landowner knows of this condition. The licensee falls between the anticipated or discovered trespasser and the invitee on the sliding scale of tort liability assessed to landowners. Whereas the anticipated trespasser needs to be protected from known man made conditions capable of causing death or serious injury, the licensee must be warned of all known dangers. However, unlike an invitee, a licensee has no standing to sue for dangerous conditions that "should have been" discovered by the property owner but were not actually known to the owner.

In the law of torts, an invitee is a person who is invited to land by the possessor of the land as a member of the public or one who enters the land of another for the purpose of business dealings with the possessor of the land. The status of a visitor as an invitee (as opposed to a trespasser or a licensee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

There are generally two types of invitees for example, Business Invitee and Public Invitee.

Business Invitee is a person who enters business property to do business with the land occupier.

Public Invitee is a person who enters land in the possession of another for the purpose for which the property is held open to the public, even if no business purpose is involved.

Even if "invited" onto somebody's premises, a social guest is classified as a licensee.

The property owner has a duty to make the property safe for the invitee, which includes conducting a reasonable inspection of the premises to uncover hidden dangers. The property owner also has a duty to warn the invitee of hazardous conditions that cannot be fixed. Furthermore, property owners assume a duty to rescue an invitee who falls into peril while visiting the property. If an independent contractor hired by the landowner injures an invitee (intentionally or through negligence), the owner can be held vicariously liable. This represents the broadest duty of care owed to any class of visitors to the property.

A tax protester is someone who refuses to pay a tax claiming that the tax laws are unconstitutional or otherwise invalid. Tax protesters are different from tax resisters, who refuse to pay taxes as a protest against a government or its policies, or a moral opposition to taxation in general, not out of a belief that the tax law itself is invalid. The United States has a large and organized culture of people who espouse such theories. Tax protesters also exist in other countries.

Legal commentator Daniel B Evans has defined tax protesters as people who "refuse to pay taxes or file tax returns out of a mistaken belief that the federal income tax is unconstitutional, invalid, voluntary, or otherwise does not apply to them under one of a number of bizarre arguments" (divided into several classes: constitutional, conspiracy, administrative, statutory, and arguments based on 16th Amendment and the "861" section of the tax code; see the Tax protester arguments article for an overview). Law Professor Allen D Madison has described tax protesters as "those who refuse to pay income tax on the basis of some nonsensical legal argument that he or she does not owe tax."

An illegal tax-protest scheme has been defined as "any scheme, without basis in law or fact, designed to express dissatisfaction with the tax laws by interfering with their administration or attempting to illegally avoid or reduce tax liabilities." The United States Tax Court has stated that "tax protester" is a designation "often given to persons who make frivolous antitax arguments".

Tax protesters raise a number of different kinds of arguments. In the United States, these typically include constitutional arguments, such as claims that the Sixteenth Amendment to the Constitution was not properly ratified or that it is unconstitutional generally, or that being forced to file an income tax return violates the Fifth Amendment privilege against self-incrimination. Others are statutory arguments suggesting that the income tax is constitutional but the statutes enacting the income tax are ineffective, or that Federal Reserve Notes or other relevant currencies do not constitute cash or income. Yet another collection of arguments centers on general conspiracies involving numerous government agencies.

Some tax protesters refuse to file a tax return or file returns with no income or tax data supplied.

n property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate; that is, an estate with a condition or event triggering transfer of possessory ownership. A common example is the landlord-tenant relationship. The landlord may own a house but has no general right to enter it while it is being rented. The conditions triggering the transfer of possession, first to the tenant then back to the landlord, are usually detailed in a lease.

As a slightly more complicated example, suppose O is the owner of Blackacre. Consider what happens when O transfers the property, "to A for life, then to B". Person A acquires possession of Blackacre. Person B does not receive any right to possess Blackacre immediately; however, once person A dies, possession will fall to person B (or his estate, if he died before person A). Person B has a future interest in the property. In this example, the event triggering the transfer is person A's death.

Because they convey ownership rights, future interests can usually be sold, gifted, willed, or otherwise disposed of by the beneficiary (but see Vesting below). Because the rights vest in the future, any such disposition will occur before the beneficiary actually takes possession of the property.

There are five kinds of future interests recognized at common law: three in the transferor and two in the transferee.

Vesting.

Vesting means granting a person an immediate right to present or future enjoyment of property. In plain English, one has a right to a vested asset that cannot be taken away by any third party, even though one may not yet possess the asset. When the right, interest or title to the present or future possession of a legal estate can be transferred by its holder to any other party, it is termed a vested interest with respect to that holder.

A vested interest may be one of three types:

A future interest is absolutely (or indefeasibly) vested if its beneficiary must (legally) eventually take possessory ownership.

A future interest is vested subject to divestment if something could occur that would divest the remainder of an interest. For example, "From O to A for life, then to B, but if A stops growing corn, then to C": B would have a vested remainder subject to divestment because he could be divested of his interest by an act of A before the interest becomes possessory.

A future interest is vested subject to open if it belongs to a class of beneficiaries, where that class can expand. A common example is a grant from O "to A's children", where A is a man: the class of A's children can't be closed until approximately thirty eight weeks after A dies, so any children alive at the time of the grant are vested subject to open. This interest is also sometimes referred to as being vested subject to partial divestment.

A person may divest themselves of, or alienate, only those interests that are guaranteed to vest. This rule aligns with the policy that a person should not be allowed to sell a thing that he or she does not own outright. Interests that are not guaranteed to vest are subject to the rule against perpetuities.

The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.

10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) originally written to guarantee individual rights of everyone everywhere. The words Right to Privacy is not written in the document however, many interpret this by reading Article 12, which states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Since the global surveillance disclosures of 2013, initiated by ex-NSA employee Edward Snowden, the right to privacy has been a subject of international debate. Government agencies, such as the NSA, CIA, R&AW and GCHQ, have engaged in mass, global surveillance.

Some current debates around the right to privacy include whether privacy can co-exist with the current capabilities of intelligence agencies to access and analyze many details of an individual's life; whether or not the right to privacy is forfeited as part of the social contract to bolster defense against supposed terrorist threats; and whether threats of terrorism are a valid excuse to spy on the general population.

Private sector actors can also threaten the right to privacy – particularly technology companies, such as Amazon, Apple, Meta, Google, Microsoft, and Yahoo that use and collect personal data. These concerns have been strengthened by scandals, including the Facebook–Cambridge Analytica data scandal, which focused on the psychographic company Cambridge Analytica which used personal data from Facebook to influence large groups of people.

History.

The concept of a human "right to privacy" begins when the Latin word "ius" expanded from meaning "what is fair" to include "a right – an entitlement a person possesses to control or claim something," by the Decretum Gratiani in Bologna, Italy in the 12th Century.

In the United States, an article in the 15 December 1890 issue of the Harvard Law Review, written by attorney Samuel D Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled "The Right to Privacy", is often cited as the first explicit finding of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the "right to be let alone", and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography and sensationalist journalism, also known as "yellow journalism".

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v United States (1928), Brandeis relied on thoughts he developed in his 1890 article The Right to Privacy. In that dissent, he urged that personal privacy matters were more relevant to constitutional law, going so far as to say that "the government was identified as a potential privacy invader." He writes, "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." At that time, telephones were often community assets, with shared party lines and potentially eavesdropping switchboard operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies raised more concerns about privacy, resulting in the Fair Information Practice Principles.

In recent years there have been few attempts to clearly and precisely define the "right to privacy".

United States.

Equitable estoppel.

Equitable estoppel is the American counterpart to estoppel by representation. Its elements are summarized as:

Facts misrepresented or concealed,

Knowledge of true facts,

Fraudulent intent,

Inducement and reliance,

Injury to complainant, and,

Clear, concise, unequivocal proof of actus (not by implication).

For example, in Aspex Eyewear v Clariti Eyewear, eyeglass frame maker Aspex sued competitor Clariti for patent infringement. Aspex waited three years, without responding to a request that it list the infringed patent claims, before asserting its patent in litigation. During this period, Clariti expanded its marketing and sales of the products. The Federal Circuit found that Aspex misled Clariti to believe it would not enforce its patent, and thus estopped Aspex from proceeding with the suit.

Another example of equitable estoppel is the case of Sakharam Ganesh Pandit, an Indian emigrant and lawyer who was granted American citizenship in 1914 due to his designation as "white". Subsequently, Pandit bought property, was admitted to the California bar, married a white woman, and renounced his rights to property and inheritance in British India. Following the Supreme Court case United States v Thind, which found that Indians were considered non-white, and in which Pandit represented the applicant, Bhagat Singh Thind, the US government moved to strip Pandit of his "illegally procured" citizenship. Pandit successfully challenged the denaturalization, arguing that under equitable estoppel, he would be unjustly harmed by losing his citizenship, as it would cause him to become stateless, lose his profession as a lawyer, and make his marriage illegal. In U.S. v Pandit, the U.S. Court of Appeals for the Ninth Circuit upheld Pandit's citizenship, ending denaturalization processes against him and other Indian-Americans.

Promissory estoppel.

In many jurisdictions of the United States, promissory estoppel is an alternative to consideration as a basis for enforcing a promise. It is also sometimes called detrimental reliance.

The American Law Institute in 1932 included the principle of estoppel into § 90 of the Restatement of Contracts, stating:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

— Restatement (Second) removed the requirement that the detriment be "substantial".

However:

Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact. It is also said that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major distinction between equitable estoppel and promissory estoppel is that the former is available only as a defense, while promissory estoppel can be used as the basis of a cause of action for damages.

— 28 American Jurisprudence 2d Estoppel and Waiver § 34

In tort law, a duty of care is a legal obligation which is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship (familial or contractual or otherwise) but eventually become related in some manner, as defined by common law (meaning case law).

Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.

Development of the general duty of care.

At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v Wright (1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution (in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier) first appeared in the judgment of William Brett (later Lord Esher), Master of the Rolls, in Heaven v Pender (1883). Although Brett's formulation was rejected by the rest of the court, similar formulations later appeared in the landmark U.S. case of MacPherson v Buick Motor Co. (1916) and, in the UK, in Donoghue v Stevenson (1932). Both MacPherson and Donoghue were product liability cases, and both expressly acknowledged and cited Brett's analysis as their inspiration.

Scope.

Although the duty of care is easiest to understand in contexts like simple blunt trauma, it is important to understand that the duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time.

For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. This point is illustrated by the decision of the South Carolina Supreme Court in Terlinde v Neely (1980), later cited by the Supreme Court of Canada in Winnipeg Condominium Corporation Number 36 v Bird Construction Company.

The plaintiffs, being a member of the class for which the home was constructed, are entitled to a duty of care in construction commensurate with industry standards. In the light of the fact that the home was constructed as speculative, the home builder cannot reasonably argue he envisioned anything but a class of purchasers. By placing this product into the stream of commerce, the builder owes a duty of care to those who will use his product, so as to render him accountable for negligent workmanship.

The United States Tax Court (in case citations, T.C.) is a federal trial court of record established by Congress under Article I of the U.S. Constitution, section 8 of which provides (in part) that the Congress has the power to "constitute Tribunals inferior to the supreme Court". The Tax Court specializes in adjudicating disputes over federal income tax, generally prior to the time at which formal tax assessments are made by the Internal Revenue Service.

Though taxpayers may choose to litigate tax matters in a variety of legal settings, outside of bankruptcy, the Tax Court is the only forum in which taxpayers may do so without having first paid the disputed tax in full. Parties who contest the imposition of a tax may also bring an action in any United States District Court, or in the United States Court of Federal Claims; however these venues require that the tax be paid first, and that the party then file a lawsuit to recover the contested amount paid (the "full payment rule" of Flora v United States).

The main emblem of the tax court represents a fasces.

History.

The first incarnation of the Tax Court was the "U.S. Board of Tax Appeals", established by Congress in the Revenue Act of 1924 (also known as the Mellon tax bill) in order to address the increasing complexity of tax-related litigation. Those serving on the Board were simply designated as "members." The members of the Board were empowered to select, on a biennial basis, one of their members as "chairman." In July 1924, Coolidge announced the appointment of the first twelve appointees, of which seven members were appointed from private life and the other five from the Bureau of Internal Revenue. Additional members were appointed in the fall, and the Board when fully constituted originally had 16 members, with Charles D. Hamel serving as the first Chairman. The Board was initially established as an "independent agency in the executive branch of the government." It was housed in the Internal Revenue Service Building in the Federal Triangle. The first session of the Board of Tax Appeals spanned July 16, 1924 to May 31, 1925.

In 1929, the United States Supreme Court indicated that the Board of Tax Appeals was not a "court," but was instead "an executive or administrative board, upon the decision of which the parties are given an opportunity to base a petition for review to the courts after the administrative inquiry of the Board has been had and decided."

In 1942, Congress passed the Revenue Act of 1942, renaming the Board as the "Tax Court of the United States". With this change, the Members became Judges and the Chairman became the Presiding Judge. By 1956, overcrowding and the desire to separate judicial and executive powers led to initial attempts to relocate the court. In 1962, Secretary of the Treasury Douglas Dillon appealed to the U.S. General Services Administration (GSA) to incorporate funds for the design of a new building in its upcoming budget. The GSA allocated $450,000, and commissioned renowned architect Victor A Lundy, who produced a design that was approved in 1966. However, funding constraints brought on by the Vietnam War delayed the start of construction until 1972.

The Tax Court was again renamed to its current formal designation in the Tax Reform Act of 1969, changing it from an historically administrative court to a full judicial court. The completed United States Tax Court Building was dedicated on November 22, 1974, the fiftieth anniversary of the Revenue Act that created the court.

Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. The seller retains legal title of the property prior to the date of conveyance, but this land interest is considered personal property (a right to the payment of money, rather than a right to the property). The risk of loss is then transferred to the buyer – if a house on the property burns down after the contract has been signed, but before the deed is conveyed, the buyer will nevertheless have to pay the agreed-upon purchase price for the land unless the seller in possession or deemed in possession has failed to protect it. Such issues can and should be avoided by parties by stipulating in the contract who will bear the loss in such occurrences. The above rule varies by jurisdiction, but is the general rule.

An action to quiet title is a lawsuit brought in a court having jurisdiction over property disputes, in order to establish a party's title to real property, or personal property having a title, of against anyone and everyone, and thus "quiet" any challenges or claims to the title.

This legal action is "brought to remove a cloud on the title" so that plaintiff and those in privity with them may forever be free of claims against the property. The action to quiet title resembles other forms of "preventive adjudication," such as the declaratory judgment.

This genre of lawsuit is also sometimes called either a try title, trespass to try title, or ejectment action "to recover possession of land wrongfully occupied by a defendant." However, there are slight differences. In an ejectment action, it is typically done to remove a tenant or lessee in an eviction action, or an eviction after a foreclosure. Nonetheless, in some states, all terms are used synonymously.

Escheat is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.

Negligent homicide is a criminal charge brought against a person who, through criminal negligence, allows another person to die.

Examples include the crash of Aeroperu Flight 603 near Lima, Peru. The accident was caused by a piece of duct tape that was left over the static ports (on the bottom side of the fuselage) after cleaning the aircraft, which led to the crash. An employee had left the tape on and was charged with negligent homicide. Other times, an intentional killing may be negotiated down to the lesser charge as a compromised resolution of a murder case, as might occur in the context of the intentional shooting of an unarmed man after a traffic altercation.

Voluntary manslaughter is the killing of a human being in which the offender acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control their emotions. Voluntary manslaughter is one of two main types of manslaughter, the other being involuntary manslaughter.

Vehicular homicide is a crime that involves the death of a person other than the driver as a result of either criminally negligent or murderous operation of a motor vehicle.

In cases of criminal negligence, the defendant is commonly charged with unintentional vehicular manslaughter.

Vehicular homicide is similar to the offense, in some countries, of "dangerous driving causing death".

The victim may be either a person not in the car with the offending motorist (such as a pedestrian, cyclist, or another motorist), or a passenger in the vehicle with the offender.

Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word; the person being sanctioned is "estopped". Estoppel may prevent someone from bringing a particular claim. Legal doctrines of estoppel are based in both common law and equity. It is also a concept in international law.

Types of estoppel.

There are many different types of estoppel which can arise, but the common thread between them is that a person is restrained from asserting a particular position in law where it would be inequitable to do so. By way of illustration:

If a landlord promises the tenant that he will not exercise his right to terminate a lease, and relying upon that promise the tenant spends money improving the premises, the doctrine of promissory estoppel may prevent the landlord from exercising a right to terminate, even though his promise might not otherwise have been legally binding as a contract. The landlord is precluded from asserting a specific right.

If a person brings legal proceedings in one country claiming that a second person negligently injured them and the courts of that country determine that there was no negligence, then under the doctrine of issue estoppel the first person will not normally be able to argue before the courts of another country that the second person was negligent (whether in respect of the same claim or a related claim). The first person is precluded from asserting a specific claim.

Estoppel is an equitable doctrine. Accordingly, any person wishing to assert an estoppel must normally come to the court with "clean hands".

The doctrine of estoppel (which may prevent a party from asserting a right) is often confused with the doctrine of waiver (which relates to relinquishing a right once it has arisen). It also substantially overlaps with, but is distinct from, the equitable doctrine of laches.

Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by a lawyer during the provision of legal services that causes harm to a client.

Examples.

A common example of legal malpractice involves the lawyer missing a deadline for filing a paper with the court or serving a paper on another party, where that error is fatal to the client's case or causes the client to spend more money to resolve the case than would otherwise have been required. For example, a lawyer may commit malpractice by:

After being retained to file a claim or lawsuit, failing to file a case before the statute of limitations expires.

Failing to respond to potentially dispositive motions filed by the opposing party.

Failing to timely file a notice of appeal.

Malpractice may also occur as the result of a breach of the contract pursuant to which the client is represented by the attorney.

United States.

Under U.S. law, in order to rise to an actionable level of negligence (an actual breach of a legal duty of care), the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonably prudent attorney would make. While the elements of a cause of action for legal malpractice may vary by state, under typical state law the four elements of legal malpractice are:

1. An attorney-client relationship,

2. Negligence by the attorney,

3. A loss or injury to the client caused by the negligence, and

4. Financial loss or injury to the client.

To satisfy the third element, legal malpractice requires proof of what would have happened had the attorney not been negligent; that is, "but for" the attorney's negligence ("but for" causation). If the same result would have occurred without negligence by the attorney, no cause of action will be permitted. "But for" or actual causation can be difficult to prove. If the malpractice allegedly occurred in litigation, the legal malpractice case may result in a "trial-within-a-trial" which delves into the facts of the case for which the client originally retained the attorney.

In law, standing or locus standi is a condition that a party seeking a legal remedy must show they have, by demonstrating to the court, sufficient connection to and harm from the law or action challenged to support that party's participation in the case. A party has standing in the following situations:

The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the "something to lose" doctrine, in which the party has standing because they will be directly harmed by the conditions for which they are asking the court for relief.

The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief. In the United States, this is the grounds for asking for a law to be struck down as violating the First Amendment to the Constitution of the United States, because while the plaintiff might not be directly affected, the law might so adversely affect others that one might never know what was not done or created by those who fear they would become subject to the law. This is known as the "chilling effects" doctrine.

The party is granted automatic standing by act of law. Under some environmental laws in the United States, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated. The law allows the plaintiff to receive attorney's fees if they substantially prevail in the action. In some U.S. states, a person who believes a book, film or other work of art is obscene may sue in their own name to have the work banned directly without having to ask a District Attorney to do so.

In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless they can demonstrate that they are or will "imminently" be harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality.

Mortgages in the United States.

The Three Theories of Mortgages.

There are three legal theories pertaining to mortgages: Title Theory, Lien Theory, and Intermediate Theory. These three theories pertain particularly to the operation of mortgages, and so provide the key to understanding the differences which exist in the operation of mortgages across jurisdictions.

Title Theory.

Title theory is "the idea that a mortgage transfers legal title of the mortgaged property from the mortgagor to the mortgagee, which retains it until the mortgage has been satisfied or foreclosed. Only a few American States...have adopted this theory." Under title theory, a mortgage has the effect of a deed passing legal title, though conditionally, of the mortgaged property to the mortgagee (the lender in a loan agreement being secured by the mortgage), with so-called "equitable title" (which is really equity of redemption) being retained by the mortgagor (the borrower in the loan). The fact of the mortgagor's retaining of the "equity of redemption" is the fact which renders the passing of title under title theory conditional. Mortgages within title theory jurisdictions, then, may be viewed as having the action of what might be called "conditional deeds". Though legal title is passed pursuant to a mortgage therein, the arrangement is generally construed by courts to recognize the mortgagor as "owner" of the mortgaged property within title theory jurisdictions. Even so, foreclosure of the property as a remedy for default under title theory is most often extrajudicial (non-judicial).

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when an offender kills (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in some jurisdictions), the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.

The concept of felony murder originates in the rule of transferred intent, which is older than the limit of legal memory. In its original form, the malicious intent inherent in the commission of any crime, however trivial, was considered to apply to any consequences of that crime regardless of intent.

History.

While there is debate about the original scope of the rule, modern interpretations typically require that the offense be an inherently dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.

According to some commentators, the common law rule dates to the twelfth century and took its modern form in the eighteenth century. The modern conception of the felony murder rule arose in 1716, with William Hawkins' Treatise of Pleas of the Crown, during his work on English criminal law. Hawkins reasoned that malice was implicit in a crime that "necessarily tends to raise Tumults and Quarrels, and consequently cannot but be attended with the danger of personal hurt." Thus, "this rule should extend to killings in the course of felonies à fortiori."

Elements.

In most jurisdictions, to qualify as an underlying offense for a felony murder charge, the underlying offense must present a foreseeable danger to life, and the link between the offense and the death must not be too remote. For example, if the recipient of a forged check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder, as the cause of death is too remote from the criminal act.

There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the "agency theory" admit only deaths caused by the agents of the crime. Jurisdictions that use the "proximate cause theory" include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the offense and the death was short enough to have legally caused the death.

The merger doctrine excludes from the offenses that qualify as underlying offenses any felony that is presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction that is carefully set by the legislature. However, merger may not apply when an assault against one person results in the death of a different person.

Felony murder is typically the same grade of murder as premeditated murder and carries the same sentence as is used for premeditated murder in the jurisdiction in question.

Penal damages are liquidated damages which exceed reasonable compensatory damages, making them invalid under common law. While liquidated damage clauses set a pre-agreed value on the expected loss to one party if the other party were to breach the contract, penal damages go further and seek to penalise the breaching party beyond the reasonable losses from the breach. Many clauses which are found to be penal are expressed as liquidated damages clauses but have been seen by courts as excessive and thus invalid.

The judicial approach to penal damages is conceptually important as it is one of the few examples of judicial paternalism in contract law. Even if two parties genuinely and without coercion wish to consent to a contract which includes a penal clause, they are unable to. So, for example, a person wishing to give up smoking cannot contract with a third party to be fined $100 each time they smoke as this figure does not represent the expectation loss of the contract.

A wholesale review of the English law rule against penalty clauses (as opposed to penal damages) was conducted by the UK Supreme Court in the 2015 judgment in Cavendish Square Holding BV v Talal El Makdessi. 

As distinguished from other types of damages.

Penal damages are to be distinguished from punitive damages, which are awarded in certain types of tort actions for actions which caused harm to the plaintiff. Penal damages are also different from treble damages, which are generally set by statute for certain violations of competition law and related laws.

A quasi-contract (or implied-in-law contract or constructive contract) is a fictional contract recognised by a court. The notion of a quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems. Quasi Contract laws have been deduced from the Latin statement “Nemo debet locupletari ex aliena jactura”, which proclaims that no man should grow rich out of another person’s loss. It was one of the central doctrines of Roman law. The word Quasi means having some similarities but not entirely. Similarly, such a Contract means laws like ordinary contract law but not totally.

Negligent entrustment is a cause of action in United States tort law which arises where one party ("the entrustor") is held liable for negligence because they negligently provided another party ("the entrustee") with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. The cause of action most frequently arises where one person allows another to drive their automobile.

General principles.

One of the earliest reported cases under this cause of action, the 1915 Mississippi case of Winn v Haliday, concerned the negligence of the father in entrusting a dangerous agency to a son known to be negligent, based on the allegation that the appellant knew his son to be given to 'joyriding'.

The key allegation that must be proven in such a case can be described as follows:

A plaintiff who invokes that doctrine must present evidence which creates a factual issue whether the owner knew, or had reasonable cause to know, that he was entrusting his car to an unfit driver likely to cause injury to others. Furthermore, in order to impose liability upon the owner, the plaintiff must prove that the negligent entrustment of the motor vehicle to the tortfeasor was a proximate cause of the accident.

Negligent entrustment is generally found where the entrustee had a reputation or record that showed his propensity to be dangerous through possession of such an instrumentality. Where the claim is against an employer, the employer will be held liable if the entrustee's record was known to the employer or would have been easily discoverable by that employer, had a diligent search been conducted. For example, suppose a bus company hires a driver who has a record of reckless driving, which the company could have learned of through a search of publicly available records. The company will be liable for the negligent entrustment of the bus to that driver, if the driver is in an accident.

Similarly, if A lends his handgun to B, knowing that B has a propensity for violence, A may be held to have negligently entrusted the gun to B when B uses the gun to shoot someone during an argument. However, such cases are often harder to prove than negligent entrustment cases involving employment, because judges and juries are less likely to find that an entrustor had a duty to check on the publicly available records of an entrustee who was merely a friend. Evidence in such cases is usually presented through testimony about the entrustor's knowledge of the entrustee's reputation for violence, and of specific acts of violence committed by the entrustor.

In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".

medical professionals

lawyers

financial professionals

architects

engineers

Uniformity Clause.

The final phrase of the Taxing and Spending Clause stipulates:

but all Duties, Imposts and Excises shall be uniform throughout the United States.

Here, the requirement is that taxes must be geographically uniform throughout the United States. This means taxes affected by this provision must function "with the same force and effect in every place where the subject of it is found." However, this clause does not require revenues raised by the tax from each state be equal.

Justice Story characterized this requirement in a light more relevant to practicality and fairness:

It was to cut off all undue preferences of one state over another in the regulation of subjects affecting their common interests. Unless duties, imposts, and excises were uniform, the grossest and most oppressive inequalities, vitally affecting the pursuits and employments of the people of different states, might exist.

In other words, it was another check placed on the legislature in order to keep a larger group of states from "ganging up" to levy taxes benefiting them at the expense of the remaining, smaller group of states.

A somewhat notable exception to this limitation has been upheld by the Supreme Court. In United States v Ptasynski, the Court allowed a tax exemption which was quasi-geographical in nature. In the case, oil produced within a defined geographic region above the Arctic Circle was exempted from a federal excise tax on oil production. The basis for the holding was that Congress had determined the Alaskan oil to be of its own class and exempted it on those grounds, even though the classification of the Alaskan oil was a function of where it was geographically produced.

To understand the nuance of the Court's holding, consider this explanation: Congress decides to implement a uniform tax on all coal mining. The tax so implemented distinguishes between different grades of coal (for example, anthracite versus bituminous versus lignite) and exempts one of the grades from taxation. Even though the exempted grade could potentially be defined by where it is geographically produced, the tax itself is still geographically uniform.

A mortgage is a legal instrument of the common law which is used to create a security interest in real property held by a lender as a security for a debt, usually a mortgage loan. The corresponding term in civil law jurisdictions is hypothec.

A mortgage in itself is not a debt, it is the lender's security for a debt. It is a transfer of an interest in land (or the equivalent) from the owner to the mortgage lender, on the condition that this interest will be returned to the owner when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.

The word is a Law French term meaning "dead pledge," originally only referring to the Welsh mortgage, but in the later Middle Ages was applied to all gages and reinterpreted by folk etymology to mean that the pledge ends (dies) either when the obligation is fulfilled or the property is taken through foreclosure.

In most jurisdictions mortgages are strongly associated with loans secured on real estate rather than on other property (such as ships) and in some jurisdictions only land may be mortgaged. A mortgage is the standard method by which individuals and businesses can purchase real estate without the need to pay the full value immediately from their own resources. Refer mortgage loan for residential mortgage lending, and commercial mortgage for lending against commercial property.

Participants and variant terminology.

Legal systems in different countries, while having some concepts in common, employ different terminology. However, in general, a mortgage of property involves the following parties. The borrower, known as the mortgagor, gives the mortgage to the lender, known as the mortgagee.

Lender or mortgagee.

A mortgage lender is an investor that lends money secured by a mortgage on real estate. In today's world, most lenders sell the loans they write on the secondary mortgage market. When they sell the mortgage, they earn revenue called Service Release Premium. Typically, the purpose of the loan is for the borrower to purchase that same real estate. As the mortgagee, the lender has the right to sell the property to pay off the loan if the borrower fails to pay.

The mortgage runs with the land, so even if the borrower transfers the property to someone else, the mortgagee still has the right to sell it if the borrower fails to pay off the loan.

So that a buyer cannot unwittingly buy property subject to a mortgage, mortgages are registered or recorded against the title with a government office, as a public record. The borrower has the right to have the mortgage discharged from the title once the debt is paid.

Victim.

All jurisdictions require that the victim be a natural person; that is, a human being who was still alive before being murdered. In other words, under the law one cannot murder a corpse, a corporation, a non-human animal, or any other non-human organism such as a plant or bacterium.

California's murder statute, penal code section 187, expressly mentioned a fetus as being capable of being killed, and was interpreted by the Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction. This holding has two implications. Firstly, a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime. And secondly, as stated by Justice Stanley Mosk in his dissent, because women carrying nonviable fetuses may not be visibly pregnant, it may be possible for a defendant to be convicted of intentionally murdering a person they did not know existed.

Mitigating circumstances.

Some countries allow conditions that "affect the balance of the mind" to be regarded as mitigating circumstances. This means that a person may be found guilty of "manslaughter" on the basis of "diminished responsibility" rather than being found guilty of murder, if it can be proved that the killer was suffering from a condition that affected their judgment at the time. Depression, post-traumatic stress disorder and medication side-effects are examples of conditions that may be taken into account when assessing responsibility.

Insanity.

Mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia and dementia, and excuse the person from the need to undergo the stress of a trial as to liability. Usually, sociopathy and other personality disorders are not legally considered insanity, because of the belief they are the result of free will in many societies. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the defense of "not guilty by reason of insanity" may be used to get a not guilty verdict. This defense has two elements:

That the defendant had a serious mental illness, disease, or defect.

That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what they were doing was wrong.

Under New York law, for example:

§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

— N.Y. Penal Law, § 40.15

Liquidated damages, also referred to as liquidated and ascertained damages (LADs), are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (for example, late performance). This is most applicable where the damages are intangible, such as a failure by the contractor on a public project to fulfill minority business subcontracting quotas.

An average of the likely costs which may be incurred in dealing with a breach may be used. Authority for the proposition that averaging is the appropriate approach may be taken from the case of English Hop Growers v Dering, (1928).

When damages are not predetermined/assessed in advance, then the amount recoverable is said to be "at large" (to be agreed or determined by a court or tribunal in the event of breach).

The purpose of a liquidated damages clause is to increase certainty and avoid the legal costs of determining actual damages later if the contract is breached. Thus, they are most appropriate when (a) the parties can agree in advance on reasonable compensation for breach, but (b) the court would have a difficult time determining fair compensation at the time of breach. Under the common law, liquidated damages may not be set so high that they are penalty clauses rather than fair compensation.

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).

The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.

History.

NIED began to develop in the late nineteenth century, but only in a very limited form, in the sense that plaintiffs could recover for consequential emotional distress as a component of damages when a defendant negligently inflicted physical harm upon them. By 1908, most industrial U.S. states had adopted the "physical impact" form of NIED. However, NIED started developing into its more mature and more controversial form in the mid-20th century, as the new machines of the Second Industrial Revolution flooded the legal system with all kinds of previously unimaginable complex factual scenarios. Courts began to allow plaintiffs to recover for emotional distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then, was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone. In the 1968 landmark decision of Dillon v Legg, the Supreme Court of California was the first court to allow recovery for emotional distress alone – even in the absence of any physical injury to the plaintiff – in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone of danger" where the relative was killed. A 2007 statistical study commissioned by the Court found that Dillon was the most persuasive decision published by the Court between 1940 and 2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.

The next step after Dillon was to make optional the element of another person (so that the injury could be to anything where it would be reasonably foreseeable that such injury would cause some person emotional distress). The first such case was Rodrigues v State, in which the Supreme Court of Hawaii held that plaintiffs could recover for negligent infliction of emotional distress as a result of negligently caused flood damage to their home. This is generally considered to be the true birth of NIED as a separate tort.

Twelve years after Dillon, California expanded NIED again, by holding that a relative could recover even where the underlying physical injury was de minimis (unnecessary medications and medical tests) if the outcome was foreseeable (the breakup of the plaintiffs' marriage as a result of the defendants' negligent and incorrect diagnosis of a sexually transmitted disease).

In 1994, the U.S. Supreme Court for the first time recognized NIED as part of federal common law, by holding that railroad workers could pursue NIED claims against their employers under the Federal Employers Liability Act. The Court recognized only the pre-Dillon form of NIED, though, in that the plaintiff had to be within a zone of danger to recover in the absence of physical injury.

In 1999, Hawaii took NIED even further by expressly holding that "damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury."

General Welfare Clause to pay the Debts and provide for the common Defense and general Welfare of the United States;

Of all the limitations upon the power to tax and spend, the General Welfare Clause appears to have achieved notoriety as one of the most contentious. The dispute over the clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."

The two primary authors of The Federalist Papers set forth two separate, conflicting interpretations:

James Madison advocated the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.

Alexander Hamilton, only after the Constitution had been ratified, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.

Although The Federalist was not reliably distributed outside of New York, the essays eventually became the dominant reference for interpreting the meaning of the Constitution as they provided the reasoning and justification behind the Framers' intent in setting up the federal government.

While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years. This assertion is based on the motivating factor which the Kentucky and Virginia Resolutions played upon the electorate; the Kentucky Resolutions, authored by Thomas Jefferson, specifically criticized Hamilton's view. Further, Jefferson himself later described the distinction between the parties over this view as "almost the only landmark which now divides the federalists from the republicans...."

Associate Justice Joseph Story

Associate Justice Joseph Story relied heavily upon The Federalist as a source for his Commentaries on the Constitution of the United States. In that work, Story excoriated both the Madisonian view and a previous, strongly nationalistic view of Hamilton's which was rejected at the Philadelphia Convention. Ultimately, Story concluded that Thomas Jefferson's view of the clause as a limitation on the power to tax, given in Jefferson's opinion to Washington on the constitutionality of the national bank, was the correct reading. However, Story also concluded that Hamilton's view on spending, articulated in his 1791 Report on Manufactures, is the correct reading of the spending power.

Property Deeds registration is a land management system whereby all important instruments which relate to the common law title to parcels of land are registered on a government-maintained register, to facilitate the transfer of title. The system has been used in some common law jurisdictions and continues to be used in some jurisdictions, including most of the United States.

It is being replaced by Torrens systems in many jurisdictions. Australia, Ireland as well as most Canadian provinces have converted from deeds registries to Torrens titles. Some Canadian provinces have never operated a deeds registry and have always used Torrens titles. Other Canadian provinces which have converted from a deeds registry to Torrens titles have operated both systems in conjunction until the Torrens system gradually superseded the deeds registry system, as was the case in Nova Scotia and New Brunswick during the 2000s. In the Canadian province of Ontario, electronic registration led to Ontario's version of Torrens title covering almost all land, but the past deeds registration still governs some issues. Hong Kong and the Canadian provinces of Quebec, Newfoundland and Labrador and Prince Edward Island are the only provinces left which still operate a deeds registration system.

In contrast to the Torrens system in which basically the one who registered in a land registry as owner of a piece or parcel of land has an indefeasible title of the land, deeds registration system is merely a registration of all important instruments related to that land. In order to establish one's title to the land, a person (or usually their purchaser's attorney) will ascertain, for example:

all the title documents have been properly executed,

"a chain of title" is established, for example, the proper ownerships from the granting of the land from the government to the current owner, and,

there are no encumbrances on the land that probably will harm the title of the land.

Estoppel is a common law doctrine which, when it applies, prevents a litigant from denying the truth of what was said or done. The doctrine of estoppel by deed (also known as after-acquired title) is a particular estoppel doctrine in the context of real property transfers. Under the doctrine, the grantor of a deed (generally the seller of a piece of real property) is estopped (barred) from denying the truth of the deed. The doctrine may only be invoked in a suit arising out of the deed, or involving a particular right arising out of the deed.

While rooted in warranty deeds, estoppel by deed has been extended to affect quitclaim deeds if the deed represents that the grantor actually had title. 

Generally, a quitclaim is a formal renunciation of a legal claim against some other person, or of a right to land. A person who quitclaims renounces or relinquishes a claim to some legal right, or transfers a legal interest in land. Originally a common law concept dating back to Medieval England, the expression is in modern times mostly restricted to North American law, where it often refers specifically to a transfer of ownership or some other interest in real property.

Commonly, quitclaims are used in situations where a grantor transfers any interest they have in property to a recipient (the grantee) but without offering any guarantee as to the extent of that interest. There may even be no guarantee that the grantor owns the property or has any legal interest in it whatsoever. Specific situations where a precise definition of the grantor's interest (if any) may be unnecessary include property transferred as a gift, to a family member, or into a business entity.

The legal instrument by which the transfer is effected may be known as a quitclaim deed or quitclaim agreement. Details of the instrument itself, and the typical circumstances of use, vary by U.S. state.

Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

Most societies consider murder to be an extremely serious crime, and thus that a person convicted of murder should receive harsh punishments for the purposes of retribution, deterrence, rehabilitation, or incapacitation. In most countries, a person convicted of murder generally faces a long-term prison sentence, a life sentence, or capital punishment.

Use of the term.

In many countries, in news reports, out of concern for being accused of defamation, journalists are generally careful not to identify a suspect as a murderer until the suspect is convicted of murder in a court of law. After arrest, for example, journalists may instead write that the person was "arrested on suspicion of murder", or, after a prosecutor files charges, as an "accused murderer".

Opponents of abortion consider abortion a form of murder. In some countries, a fetus is a legal person who can be murdered, and killing a pregnant woman is considered a double homicide.

Definition.

The eighteenth-century English jurist William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs

when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.

The elements of common law murder are:

unlawful,

killing,

through criminal act or omission,

of a human,

by another human, and,

with malice aforethought.

Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court.

Specific performance is commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction, but there are mandatory injunctions that have a similar effect to specific performance.

At common law, a claimant's rights were limited to an award of damages. Later, the court of equity developed the remedy of specific performance instead, should damages prove inadequate. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute.

As with all equitable remedies, orders of specific performance are discretionary, so their availability depends on its appropriateness in the circumstances. Such orders are granted when damages are not an adequate remedy and in some specific cases such as land (which is regarded as unique).

Exceptional circumstances.

 An order of specific performance is generally not granted if any of the following is true:

Specific performance would cause severe hardship to the defendant.

The contract was unconscionable.

Common Law damages are readily available or the detriment suffered by the claimant is easy to substitute, then damages are adequate.

The claimant has misbehaved (unclean hands).

Specific performance is impossible.

Performance consists of a personal service 

The contract is too vague to be enforced.

The contract was terminable at will (meaning either party can renege without notice).

Note that consumer protection laws may disallow terms that allow a company to terminate a consumer contract at will (for example Unfair Terms in Consumer Contracts Regulations 1999)

The contract required constant supervision.

Mutuality was lacking in the initial agreement of the contract.

The contract was made for no consideration.

Specific performance will not be granted for contracts which are void or unenforceable. The exception to this (in equity) is in relation to estoppel or part performance.

Where an injunction to restrain an employee from working for a rival employer will be granted even though specific performance cannot be obtained. The leading case is Lumley v Wagner, which is an English decision.

Additionally, in England and Wales, under s 50 of the Senior Courts Act 1981, the High Court has a discretion to award a claimant damages in lieu of specific performance (or an injunction). Such damages will normally be assessed on the same basis as damages for breach of contract, namely to place the claimant in the position he would have been had the contract been carried out.

Negligence (Latin, negligentia) is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.

Elements of negligence claims.

Some things must be established by anyone who wants to sue in negligence. These are what are called the "elements" of negligence.

Most jurisdictions say that there are four elements to a negligence action:

1. duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care,

2. breach: the defendant breaches that duty through an act or culpable omission,

3. damages: as a result of that act or omission, the plaintiff suffers an injury, and,

4. causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. However, at their heart, the various definitions of what constitutes negligent conduct are very similar.

The Taxing and Spending Clause (which contains provisions known as the General Welfare Clause and the Uniformity Clause), Article 1, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States its power of taxation. While authorizing Congress to levy taxes, this clause permits the levying of taxes for two purposes only: to pay the debts of the United States, and to provide for the common defense and general welfare of the United States. Taken together, these purposes have traditionally been held to imply and to constitute the federal government's taxing and spending power.

Constitutional text.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Background.

One of the most often claimed defects of the Articles of Confederation was its lack of a grant to the central government of the power to lay and collect taxes. Under the Articles, Congress was forced to rely on requisitions upon the governments of its member states. Without the power to independently raise its own revenues, the Articles left Congress vulnerable to the discretion of the several State governments—each State made its own decision as to whether it would pay the requisition or not. Some states were not giving Congress the funds for which it asked by either paying only in part, or by altogether ignoring the request from Congress. Without the revenue to enforce its laws and treaties, or pay its debts, and without an enforcement mechanism to compel the States to pay, the Confederation was practically rendered impotent and was in danger of falling apart.

The Congress recognized this limitation and proposed amendments to the Articles in an effort to supersede it. However, nothing ever came of those proposals until the Philadelphia Convention.

Powers granted.

The power to tax is a concurrent power of the federal government and the individual states. The taxation power has been perceived over time to be very broad, but has also, on occasion, been curtailed by the courts. United States v Butler stated that the clause also granted "a substantive power... to appropriate", not subject to the limitations imposed by the other enumerated powers of Congress.

Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence (termed "indefeasibility") of title of the person recorded on the register as the proprietor (owner), and of all other interests recorded on the register.

Ownership of land is transferred by registration of a transfer of title, instead of by the use of deeds. The Registrar provides a Certificate of Title to the new proprietor, which is merely a copy of the related folio of the register. The main benefit of the system is to enhance certainty of title to land and to simplify dealings involving land.

Its name derives from Sir Robert Richard Torrens (1814 thru 1884), who designed, lobbied for and introduced the private member's bill which was enacted as the Real Property Act 1858 in the Province of South Australia, the first version of Torrens title in the world. Torrens based his proposal on many of the ideas of Ulrich Hübbe, a German lawyer living in South Australia. The system has been adopted by many countries and has been adapted to cover other interests, including credit interests (such as mortgages), leaseholds and strata titles.

Overview.

The Torrens title system operates on the principle of "title by registration" (granting the high indefeasibility of a registered ownership) rather than "registration of title". The system does away with the need for proving a chain of title (for example, tracing title back in time through a series of documents). The State guarantees title, and the system is usually supported by a compensation scheme for those who lose their title due to private fraud or error in the State's operation.

In most jurisdictions, there will be parcels of land which are still unregistered.

The Torrens system works on three principles:

1. Mirror principle – the register reflects (mirrors) accurately and completely the current facts about title to each registered lot. This means that each dealing affecting a lot (such as a transfer of title, a mortgage or discharge of same, a lease, an easement or a covenant) must be entered on the register and so be viewable by anyone.

2. Curtain principle – one does not need to go behind the Certificate of Title as it contains all the information about the title. This means that ownership need not be proved by long complicated documents that are kept by the owner, as in the Private Conveyancing system. All of the necessary information regarding ownership is on the Certificate of Title.

3. Indemnity principle – provides for compensation of loss caused by private fraud or by errors made by the Registrar of Titles.

Corporate manslaughter is a crime in several jurisdictions, including England and Wales and Hong Kong. It enables a corporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation that might be awarded in civil litigation or any criminal prosecution of an individual (including an employee or contractor). The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect in the UK on 6 April 2008.

Mayhem is a common law criminal offense consisting of the intentional maiming of another person.

Under the law of England and Wales and other common law jurisdictions, it originally consisted of the intentional and wanton removal of a body part that would handicap a person's ability to defend themselves in combat. Under the strict common law definition, initially this required damage to an eye or a limb, while cutting off an ear or a nose was deemed not sufficiently disabling. In the many years since, the meaning of the crime expanded to encompass any type of mutilation, disfigurement, or crippling act done using any instrument.

United States.

Modern statutes in the U.S. define mayhem as disabling or disfiguring, such as rendering useless a member of another person's arms or legs. The injury must be permanent, not just a temporary loss. Some courts will hold even a minor battery as mayhem if the injury is not minor. Mayhem in the U.S. is a felony in all states and jurisdictions, including federal. In the states of California, Vermont and Oklahoma, mayhem is punishable by up to life imprisonment. In other states where laws defining mayhem (or maiming) are in place, the maximum punishment for mayhem is generally around 10 to 20 years, and mandatory minimum terms of imprisonment may also apply, depending on the laws of the state. If mayhem was committed in an aggravated fashion, such as in the case of where it resulted in permanent disability or disfigurement, the punishment is generally much more severe, and may even include life imprisonment. For example, simple mayhem in California is punishable by two to eight years in prison, whereas aggravated mayhem (where permanent injuries result) is punishable by up to life imprisonment.

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual.

In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (for example, injunctive relief or specific performance). Another type of remedy available in these systems is declaratory relief, where a court determines the rights of the parties to action without awarding damages or ordering equitable relief. The type of legal remedies to be applied in specific cases depend on the nature of the wrongful act and its liability.

In the legal system of the United States, there exists a traditional form of judicial remedies that serve to combat juror biases caused by news coverage. The First Amendment of the United States forbids the government from censoring and restraining the freedom of expression, which allows the ever-expanding news media to influence the legal process. The entangled relationship between mass media and the legal system presents challenges to the Sixth Amendment that guarantees the rights of criminal defendants to receive fair trials. Trial-level remedies are in place to avoid pretrial publicity from affecting the fairness of a trial. To minimize the impacts of pretrial publicity, there are six kinds of judicial remedies at the disposal of judges: voir dire, change of venue, change of veniremen, continuance, admonition, sequestration.

In English and American jurisprudence, there is a legal maxim (albeit one sometimes honored in the breach) that for every right, there is a remedy; where there is no remedy, there is no right. That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim was first enunciated by William Blackstone: "It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress." In addition to the United Kingdom and the United States, legal remedy is a concept widely practiced in the legal system of a variety of countries, though approached differently.

Breach of promise is a common law tort, abolished in many jurisdictions. It was also called breach of contract to marry, and the remedy awarded was known as heart balm.

From at least the Middle Ages until the early 20th century, a man's promise of engagement to marry a woman was considered, in many jurisdictions, a legally binding contract. If the man were to subsequently change his mind, he would be said to be in "breach" of this promise and subject to litigation for damages.

The converse of this was seldom true; the concept that "it's a woman's prerogative to change her mind" had at least some basis in law (though a woman might pay a high social price for exercising this privilege, as explained below)—and unless an actual dowry of money or property had changed hands or the woman could be shown to have become engaged to a man only to be able to use large amounts of his money, a man was only rarely able to recover in a "breach of promise" suit against a woman, were he even allowed to file one.

Changing social attitudes toward morals have led to the decline of this sort of action. Most jurisdictions, at least in the English-speaking, common law world, have become increasingly reluctant to intervene in cases of personal relationships not involving the welfare of children or actual violence. Many have repealed all laws regarding such eventualities, whereas in others the statute allowing such an action may technically remain on the books but the action has become very rare and unlikely to be pursued with any probability of success. What is arising in its stead are judicial opinions and/or statutes permitting a breach of contract action for wedding expenses incurred when the nuptials are called off, or for loss of employment, moving and living expenses incurred by one party as a result of an engagement which is later broken.

Development of the modern income tax.

Congress re-adopted the income tax in 1913, levying a 1% tax on net personal incomes above $3,000, with a 6% surtax on incomes above $500,000. By 1918, the top rate of the income tax was increased to 77% (on income over $1,000,000) to finance World War I. The top marginal tax rate was reduced to 58% in 1922, to 25% in 1925, and finally to 24% in 1929. In 1932 the top marginal tax rate was increased to 63% during the Great Depression and steadily increased.

During World War II, Congress introduced payroll withholding and quarterly tax payments. In pursuit of equality (rather than revenue) President Franklin D Roosevelt proposed a 100% tax on all incomes over $25,000. When Congress did not enact that proposal, Roosevelt issued an executive order attempting to achieve a similar result through a salary cap on certain salaries in connection with contracts between the private sector and the federal government. For tax years 1944 through 1951, the highest marginal tax rate for individuals was 91%, increasing to 92% for 1952 and 1953, and reverting to 91% 1954 through 1963.

For the 1964 tax year, the top marginal tax rate for individuals was lowered to 77%, and then to 70% for tax years 1965 through 1981. In 1978 income brackets were adjusted for inflation, so fewer people were taxed at high rates. The top marginal tax rate was lowered to 50% for tax years 1982 through 1986. Reagan undid 40% of his 1981 tax cut, in 1983 he hiked gas and payroll taxes, and in 1984 he raised tax revenue by closing loopholes for businesses. According to historian and domestic policy adviser Bruce Bartlett, Reagan's 12 tax increases over the course of his presidency took back half of the 1981 tax cut.