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ABSTENTION DOCTRINE
An abstention doctrine is any of several doctrines that a court of law in the United States of America might (or in some cases must) apply to refuse to hear a case if hearing the case would potentially intrude upon the powers of another court. Such doctrines are usually invoked where lawsuits involving the same issues are brought in two different court systems at the same time (such as federal and state courts within a federal system). The United States has a federal court system with limitations on the cases that federal courts can hear, while each state has its own individual court system. In some instances, the jurisdiction of these courts overlaps, so a lawsuit between two parties may be brought in either or both courts. The latter circumstance can lead to confusion, waste of resources, as well as the appearance that one court is disrespecting the other. Both federal and state courts have developed rules determining when one court will defer to Federal abstention doctrines The various abstention doctrines applied by federal courts are named for the United States Supreme Courtcases in which they were enunciated. Pullman abstention Pullman abstention was the first "doctrine of abstention" to be announced by the Court, and is named for Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). Concisely, the doctrine holds that "the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass on them." This doctrine permits a federal court to stay a plaintiff's claim that a state law violates the Constitution until the state's judiciary has had an opportunity to apply the law to the plaintiff's particular case. The hope is to avoid a federal constitutional ruling by allowing the state courts to construct the law in a way that eliminates the constitutional problem or to rule it void under the state's own constitution. For Pullman abstention to be invoked, three conditions must be apparent: 1. The case presents both state grounds and federal constitutional grounds for relief; 2. The proper resolution of the state ground for the decision is unclear; and

3. The disposition of the state ground could obviate the need for adjudication of the federal constitutional ground. Under Pullman abstention, the federal court retains jurisdiction to hear the constitutional issues in the case if the state court's resolution is still constitutionally suspect. In Government and Civil Employees Organizing Committee, CIO v. Windsor, 353 U.S. 364 (1957), the Supreme Court held that litigants must inform the state court that they are contending that the state law violates a federal constitutional provision, so that the state court may take that into consideration when interpreting the state statute. However, in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), the Supreme Court noted that the litigants must not ask the state court to resolve the constitutional issue itself, or the federal court would be bound by res judicata to follow the decision of the state court. In such a case, the litigant seeking a judgment that the law is unconstitutional must usually appeal to the higher courts of the state, rather than seeking review in a federal court. Younger abstention Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim in state court. For example, if an individual who was charged with drug possession under a state law believes that the search was illegal, and in violation of their Fourth Amendment rights, that person may have a cause of action to sue the state for illegally searching him. However, a federal court will not hear the case until the person is convicted of the crime. The doctrine has been extended to state civil proceedings in aid of and closely related to state criminal statutes,[2]administrative proceedings initiated by a State agency, or situations where the State has jailed a person for contempt of court. The doctrine applies even where the state does not bring an action until after the person has filed a lawsuit in federal court, provided that the federal court has not yet undergone proceedings of substance on the merits of the federal suit. There are three exceptions to Younger abstention:

1. Where the prosecution is in bad faith (i.e. the state knows the person to be innocent); or 2. Where the prosecution is part of some pattern of harassment against an individual; or 3. Where the law being enforced is utterly and irredeemably unconstitutional (e.g., if the state were to pass a law making it a crime to say anything negative about its governor under any circumstances).

Burford abstention and Thibodaux abstention Burford abstention, derived from Burford v. Sun Oil Co., 319 U.S. 315 (1943), allows a federal court sitting in diversity jurisdiction to abstain where the state courts likely have greater expertise in a particularly complex area of state law (the case itself dealt with the regulation of oil drilling operations in Texas). Burford allows a federal court to dismiss a case only if: 1. The case presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar," or 2. The adjudication of the case in a federal forum "would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Burford abstention is closely related to Thibodaux abstention, derived from Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), which occurs when a federal court sitting in diversity jurisdiction chooses to allow a state to decide issues of state law that are of great public importance to that state, to the extent that a federal determination would infringe on state sovereignty. Unlike the abstention doctrines raised in federal question cases, there is a strong presumption that federal courts should not apply Burford or Thibodaux Abstention. Colorado River abstention Finally, Colorado River abstention, from Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) comes into play where parallel litigation is being carried out, particularly where federal and state court proceedings are simultaneously being carried out to determine the rights of parties with respect to the same questions of law. Under such circumstances, it makes little sense for two courts to expend the time and effort to achieve a resolution of the question. Unlike other abstention doctrines, application of the Colorado River doctrine is prudential and discretionary, and is based less on comity or respect between different court systems than on the desire to avoid wasteful duplication of litigation. The classification of the doctrine as a form of abstention has been disputed, with some courts simply calling it a "doctrine of exceptional circumstances". Each of the various federal circuits has come up with their own list of factors to weigh in determining whether a federal court should abstain from hearing a case under this doctrine.

Typically, such factors include:

the order in which the courts assumed jurisdiction over property the order in which the courts assumed jurisdiction over the parties the relative inconvenience of the fora the relative progress of the two actions (added by Moses H. Cone Memorial Hospital v. Mercury Constr. Corp. in 1983) the desire to avoid piecemeal litigation whether federal law provides the rule of decision whether the state court will adequately protect the rights of all parties whether the federal filing was vexatious (intended to harass the other party) or reactive (in response to adverse rulings in the state court).

Note on the Rooker-Feldman doctrine The Rooker-Feldman doctrine has some characteristics of an abstention doctrine, because it prohibits federal court review of state court actions. However, it does not require federal courts to abstain from hearing cases pending action in the state court, but instead deems that federal courts lack jurisdiction to hear cases already fully decided in state courts. The doctrine is not a judicially created exception to federal jurisdiction. Rather, the Rooker and Feldman cases simply recognized the fact that Congress has not granted the federal district or appeals courts statutory jurisdiction to consider appeals of state court decisions (except the U.S. Supreme Court via a writ of certiorari). It is an open question whether Congress could do so. State court abstention doctrines No national rule requires state courts to abstain from hearing cases brought in federal courts or in courts of other states. But every state has some doctrine that lets its courts stay actions to avoid duplicative litigation. Some states have doctrines that let state courts abstain from hearing cases already pending in other kinds of tribunals. For example, in Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996), the Minnesota Supreme Court upheld abstention where the state court might "undermine the authority of the tribal courts over Reservation affairs" or "infringe on the right of Indians to govern themselves".

ABSTRACTION PRINCIPLE (LAW)

The abstraction principle or Abstraktionsprinzip is a legal term in German law relating to the law of obligations (Schuldrecht) and property law (Eigentumsrecht). Although no express reference to it is made in the German civil law code (BGB), the concept of "abstracting" a personal obligation to pay or exchange goods or legal rights (e.g. through contract) from the transfer of proprietary title of goods or legal rights is fundamental to German private law. General features The abstraction principle dominates the entire code and is vital for the understanding of how the BGB treats legal transactions, such as contracts. One example to clarify this: In the system of the BGB, ownership is not transferred by a contract of sale, as in some other jurisdictions. Instead, a contract of sale merely obliges the seller to transfer ownership of the good sold to the buyer, while the buyer is obliged to pay the stipulated price. The buyer does not automatically gain ownership by virtue of the contract of sale whereas the seller has not automatically gained ownership of the money. Section 433 of the BGB explicitly states this obligation of the seller, as well as the buyer's obligation to pay the negotiated price and take the thing he bought. So, seller and buyer have just gained reciprocal claims. For transfer of ownership, another contract is necessary which is governed by sections 929 et seq. Thus, in a simple purchase of goods paid immediately in cash, German civil law interprets the transaction as (at least) three contracts: the contract of sale itself, obliging the seller to transfer ownership of the product to the buyer and the buyer to pay the price; a contract that transfers ownership of the product to the buyer, fulfilling the sellers obligation; and a contract that transfers ownership of the money (bills and coins) from the buyer to the seller, fulfilling the buyers obligation. This doesn't mean that contracts in Germany are more complicated to the people involved. Especially the contracts of everyday life don't differ from those in other countries in their outer appearance. For instance, if someone buys a newspaper at a newsstand without saying one single word to the seller, all the three contracts which are mentioned above are fulfilled by conclusive demeanor. Function Although the principle of abstraction seemingly contradicts the usual common sense interpretation of commercial transactions, it is undisputed among the German legal community. The main advantage of the principle of abstraction is its ability to provide a secure legal construction to nearly any financial transaction however complicated this transaction may be. A good example is the well known retention of title. If someone buys something and pays the purchase price by installments the system faces two conflicting interests: the buyer wants to have the purchased goods immediately,

whereas the vendor wants to secure full payment of the purchase price. With the principle of abstraction the BGB has a simple answer to that: the purchase contract obliges the buyer to pay the full price and requires the vendor to transfer property upon receipt of the last installment. As the obligations and the actual conveyance of ownership are in two different contracts it is quite simple to secure both parties' interests. The vendor keeps the rights to the property up to the last payment and the buyer is the mere holder of the purchased goods. If he fails to pay in full the vendor may reclaim his property just like any other owner.

ACQUIESCENCE
In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought makes a claim on their rights. Consequently, the person whose rights are infringed loses the ability to make a claim against the infringer, or succeed in an injunction suit due to the infringer's conduct. The term is most generally a kind of "permission" given by silence or passiveness. Overview The common law doctrine of estoppel by acquiescence is applied when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party is said to have acquiesced to the claim, and is estopped from later challenging it, or making a counterclaim. The doctrine is similar to, and often applied with, estoppel by laches. This occurred in the second Georgia v. South Carolina[1] case before the U.S. Supreme Court in 1990, when it was ruled that Georgia could no longer make any claim to an island in the Savannah River, despite the 1787 Treaty of Beaufort's assignment to the contrary. The court said that the state had knowingly allowed South Carolina to join the island as a peninsula to its own coast by dumping sand from dredging, and to then levy property taxes on it for decades. Georgia thereby lost the island-turned-peninsula by its own acquiescence, even though the treaty had given it all of the islands in the river (see adverse possession). The doctrine of acquiescence although typically not found in law, is found a lot in precedent. As seen by this search of US Supreme Court rulings, the doctrine of acquiescence has been mentioned over a thousand times.

Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a related doctrine that can mean, and have the legal effect, that when confronted with a wrong or an act that can be considered a tortious act, where ones silence may mean that one accepts or permits such acts without protest or claim thereby loses rights to a claim of any loss or damage.[2]

ACT OF STATE DOCTRINE

The Act of State Doctrine states that every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government's acts done within its own territory.[1] The doctrine is not required by international law (neither customary international law nor treaty law), but it is a principle recognized and adhered to by United States federal and state courts.[2] In the United States, the rationales for the doctrine include respect for other nations' sovereignty and protection of the US Executive's prerogative in foreign affairs, both of which may be frustrated by a decision issuing from U.S. courts. The Act of State Doctrine enters consideration most often in cases where a foreign sovereign has expropriated the property of a U.S. national located in that foreign territory (e.g. through nationalization). Rather than pursuing recourse through the courts, United States nationals are to take their claims against foreign sovereign governments to the Executive so that the government can either espouse the claims of all U.S. nationals as a group or seek recourse through diplomatic channels. The United States employs the Act of State Doctrine more broadly and with more frequency than other countries. The Act of State Doctrine, which arose out of state practice in the 17th Century, entered into American jurisprudence in the case Underhill v. Hernandez, 168 U.S. 250 (1897). In an 1892 revolution, General Jos Manuel "Mocho" Hernndez expelled the existing Venezuelan government and took control of Ciudad Bolivar, where plaintiff Underhill lived and ran a waterworks system for the city. Underhill, an American citizen, repeatedly applied to Hernandez for an exit passport, but his requests were refused, and Underhill was forced to stay in Ciudad Bolivar and run the waterworks. Hernandez finally relented and allowed Underhill to return to the United States, where he instituted an action to recover damages for his detention in Venezuela. In finding for the Defendant, a New York Court determined that Hernandez had acted in his official capacity as a military commander so his actions were those of the Venezuelan government. The Court therefore refused to hear Underhill's claim against the government based on the Act of State Doctrine. The Court reasoned, "Every sovereign state is bound to respect the independence of every other sovereign state,

and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory."[5] In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the United States Supreme Court applied the Act of State Doctrine even where the state action likely violated international law. The case arose when Cuba nationalized its sugar industry, taking control of sugar refineries and other companies in the wake of the Cuban revolution. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control. However, despite the loss suffered by United States nationals, the Supreme Court upheld the Act of State Doctrine by assuming the validity of Cuba's domestic action and therefore rejected the claim of US nationals against Cuba for their lost investments. The Sabbatino Court in stated that although the Doctrine is not found in the Constitution, explicitly or implicitly, it does have constitutional underpinnings in the concept of separation of powers. The Supreme Court reasoned that because the Executive had exclusive authority to conduct foreign affairs with other nations on behalf of the United States, disputes arising from the official actions of foreign sovereign powers should not be settled by the Judiciary because those decisions could interfere with the Executive's conduct of foreign affairs.[6] In response to the outcome of the case, Congress enacted 22 U.S.C. 2370, more commonly referred to as the "Second Hickenlooper Amendment," named after the bills sponsor, Bourke B. Hickenlooper, an Iowa Senator. Generally, under the Hickenlooper Amendment, courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign. There is an exception if the Executive requests that the courts consider the Act of State Doctrine because foreign policy interests may be damaged by judicial interference.

AGENT OF RECORD
An agent of record (AOR) is an individual or a legal entity with a duly properly executed in line with the prevailing legal norms and regulations contractual agreement with an insurance policy owner. The agent of record has a legal right to receiving commissions from the respective insurance policy. Individual or a legal entity authorized to represent an insured party in the purchase, servicing, as well as maintenance of insurance coverage with a suitably designated insurer. The majority of insurance companies will not disclose any information or discuss an insured party's account with any agent other than the duly nominated agent of record. An insured party wishing to change insurance agent(s) must submit a revised agent of record nomination letter[1] to the respective insurer authorizing said insurer to

release the insured party's information and to discuss the insured party's coverage with the newly nominated agent. Relevant documents may be executed via hard copy documents or, alternatively, electronically in jurisdictions where electronic execution is recognized as legally possible. Applications may be made electronically, as well as in physical form. Agent of record letter can in some cases be used as an insurance sales tool, though some question its legality.[2] Given the importance of rapidly growing body of electronic documentation, the challenge of authentication abounds. Disambiguation Sometimes the acronym "agent of record" is used interchangeably with the acronym "agent of records". The former has meaning in the context of insurance, specifically where an individual is represented by parties other than him-/herself. The latter is a methodology that provides user with the functionality to record instances of abuse, bullying and harassment. records and

ALTERNATIVE LIABILITY
Alternative liability is a legal doctrine that allows a plaintiff to shift the burden of proving causation of her injury to multiple defendants, even though only one of them could have been responsible. The typical case showing the principle of alternative liability in action is Summers v. Tice, where the two defendants negligently shot in the direction of the plaintiff and only one of the bullets caused the plaintiff's injury. In the interest of justice, the innocent plaintiff's case is not defeated because she cannot prove which party was the actual cause (but-for cause) of her injury. Requirements The doctrine requires that the plaintiff bring all possible defendants into court and that the plaintiff show the defendants all breached a duty of reasonable care. The burden then shifts to the defendants to provide evidence of who caused the injury. Rationale The underpinning of this doctrine is that a plaintiff should not be barred from seeking recovery simply because she does not know who caused her injury. The defendants are usually the parties in the best position to have the relevant information. Distinguish alternative liability from the smoke-out function of res ipsa loquitur seen in the leading case of Ybarra v. Spangard. In Ybarra, the plaintiff brought all defendants who could have possibly been negligent (breached a duty of reasonable care) so that they

could show which party actually was negligent. Thus, in the smoke-out function of res ipsa, the burden is shifted on the defendants to show negligence, whereas in alternative liability all defendants are all shown to have breached a duty of reasonable care and the plaintiff shifts the burden to show causation.

ASSIGNMENT OF INCOME DOCTRINE

The assignment of income doctrine is a judicial doctrine developed in United States case law by courts trying to limit tax evasion. The assignment of income doctrine seeks to "preserve the progressive rate structure of the Code by prohibiting the splitting of income among taxable entities."[1] History The United States Supreme Court created the assignment of income doctrine in the Lucas v. Earl decision.[2] The Supreme Court held that income from services is taxed to the party who performed the services.[3] To elaborate on this principle the decision used the metaphor that "the fruits cannot be attributed to a different tree from that on which they grew."[3] The case is used to support the proposition that the substance of the transaction, rather than the form, is controlling for tax purposes.[4] The doctrine was later expanded in the Helvering v. Horst decision to include income from property.[5] The decision relied on the principle that the power to dispose of income and the enjoyment of property's economic benefits is the equivalent of ownership.[6] Impact This doctrine has important implications for taxpayers trying to shift their tax burden to another. When assigning income to another person (particularly a family member) in the form of a gift, the courts will usually see it as a way to avoid tax and thus consider it fruit. Only in an arms-length sale do the courts see the tree itself being moved.

ASSUMPTION OF RISK
Assumption of risk is a defense in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury. What is usually meant by assumption of risk is more precisely termed primary or "express" assumption of risk. It occurs when the plaintiff has either expressly or implicitly relieved the defendant of the duty to mitigate or relieve the risk causing the injury from which

the cause of action arises. It operates as a complete bar to liability on the theory that upon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part.[1] However, primary assumption of risk is not a blanket exemption from liability for the operators of a dangerous activity. The specific risk causing the injury must have been known to, and appreciated by, the plaintiff in order for primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of liability for reckless conduct.[2] This defense is commonly asserted in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving, but actually extends to all dangerous activities. Thus, for example, it was held that a visitor to the Burning Man festival assumed the risk of getting burned.[3] Secondary assumption of risk is a rather different doctrine akin in some respects to comparative negligence. The difference was explained by the Supreme Court of California as follows: In cases involving primary assumption of riskwhere, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injurythe doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving secondary assumption of riskwhere the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of dutythe doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.[4]

ATTRACTIVE NUISANCE DOCTRINE

"In the law of torts, the attractive nuisance doctrine states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property of the landowner. Conditions According to the Restatement of Torts standard, which is followed in many jurisdictions, there are five conditions that must be met for a land owner to be liable for tort damages to a child trespasser as a result of artificial hazards. The five conditions are:

The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

(See Restatement of Torts 339) While putting up a sign to warn children regarding the danger of the land may exempt the landowner from liability, it will not work in all situations. This is particularly true when the child cannot read the sign. Usually the landowner must take some more affirmative steps to protect children. States that use the Restatement test include:

Alabama; adopted in 1976 case, Tolbert v. Gulsby North Carolina Ohio see case: Bennett v. Stanley, 92 Ohio St.3d 35 (2001)[1] Pennsylvania Utah see case: Pullan v. Steinmetz, 16 P.3d 1245 (2000)[2] Wyoming see case: Thunder Hawk By and Through Jensen v. Union Pacific R. Co, 1995 WY 32, 891 P.2d 773 (Wyo. 1995)[3] Texas see case: Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (1997)

There is no set cut off point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth. If a child of injured child's age is able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply.[4] Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable.

AUDI ALTERAM PARTEM

Audi alteram partem (or audiatur et altera pars) is a Latin phrase that literally means "It is heard [audiatur] also the other party", "hear [audi] the other side too", or "hear the alternative party too".[1] It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.[2] The other principle of natural justice is Nemo iudex in causa sua (or nemo iudex in sua causa) a Latin phrase that means, literally, "no-one should be a judge in their own cause." It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". "Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly. History of use As a general principle of rationality in reaching conclusions in disputed matters, "Hear both sides" was treated as part of common wisdom by the ancient Greek dramatists.[3] The principle was referred to by the International Court of Justice in the Nuclear Tests case, referring to France's non-appearance at judgment.[4] Today, legal systems differ on whether individuals can be convicted in absentia. The principle is highly used in labour law matters in countries like South Africa and Zimbabwe.

B
BENEFICIUM INVENTARII
Beneficium inventarii (literally benefit of the inventory) is a legal doctrine introduced into Roman law by Justinian I to limit the liability of heirs resulting from an insolvent estate.[1] The doctrine, which is in force today in many civil law systems, applies to both wills and intestate successions. An heir may accept a succession under beneficium inventarii without being liable for the debts attaching to the estate or to the claims of legatees beyond the estate's value as previously determined by inventory.

BEST INTERESTS
Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents. Here are some examples:

With whom will the children live? How much contact (previously termed "access" or, in some jurisdictions, "visitation") will the parents, legal guardian, or other parties be allowed (or required) to have? To whom and by whom will child support be paid and in what amount?

History The use of the best interests doctrine represented a 20th-century shift in public policy. The best interests doctrine is an aspect of parens patriae, and in the United States it has replaced theTender Years Doctrine, which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well-being. Until the early 1900s, fathers were given custody of the children in case of divorce. Many U.S. states then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the Tender Years Doctrine was replaced

by the best interests of the child as determined by family courts. Because many family courts continued to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody historically tended to favor the mother of the children. The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000).

Assessing the best interests of the child In proceedings involving divorce or the dissolution of a common-law marriage or a civil union, family courts are directed to assess the best interests of any children of these unions. The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child who was given up for adoption. It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with healthcare providers or other authorities. In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court Advisors from CAFCASS, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English

law, section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider: 1. The ascertainable wishes and feelings of each child concerned (considered in light of their age and understanding) 2. Physical, emotional and/or educational needs now and in the future 3. The likely effect on any change in the circumstances now and in the future 4. Age, sex, background and any other characteristics the court considers relevant 5. Any harm suffered or at risk of suffering now and in the future 6. How capable each parent, and other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs 7. The range of powers available to the court under the Children Act 1989 in the proceedings in question The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehensive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted. Criticism of the best interests standard The Best Interests standard has received considerable criticism by certain groups within the privacy rights and family law reform movement, particularly with regard to how it unlawfully marginalizes children from one of their parents absent a compelling government interest, and often cultivates protracted litigation. Critics argue that a higher evidentiary standard should be applied to fit parents, and that the Best Interests standard should only be applied in cases where a termination of parental rights has already occurred.[citation needed] The Best Interests standard has also come under criticism by parents of young children who are not yet able to voice or have difficulty expressing that they have been

abused. If a child has been physically or sexually abused and the abuser is a parent, the child will be unprotected from the abuser when that abuser cannot be prosecuted. This can and has happened recently, even when the child has said previously that abuse had taken place. This situation has the potential to happen quite frequently because of the young age of the child and possible inconsistent testimony. Instead, the rights of the parent to raise the child take priority over the well-being of the child who is forced to live with the abuser, even in cases of joint custody where an abuse-free environment is possible. Until recently, children would be taken out of the home of the abuser and placed with the non-abusive parent, but the courts have begun to focus on the rights of the parent to raise the child when the abuse cannot be legally recognized by the court (i.e., the abuser is not convicted). In many cases, the voice of the child is ignored because they have not become old enough for their opinion as to their living situation to matter. When the children are too young to have a voice, it is felt by some parents of young children that the courts are acting with regard to parental rights which, until the child is old enough, seem to replace the right of the child to live in an appropriate environment.

BETAMAX PRINCIPLE
The Betamax principle is a legal principle which states that when a certain property of a device or system has an application, which is legal and commercial sense, but harmful to a certain party, that party cannot pursue the provider of the device or system.

BLUE PENCIL DOCTRINE

The blue pencil doctrine is a legal concept in common law countries, where a court finds that a portion of contract is void or unenforceable, but the other part of the contract is enforceable. In that case the court may order the parties to follow the enforceable part and can delete the void portion. The court may also order the parties to reconsider the contract to make it enforceable. Etymology The term stems from the act of editing written copy with a blue pencil.

In UK law The principle was established by the House of Lords in the case of Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co. Other statute laws such as the Sale of Goods Act 1979 and the Unfair Terms in Consumer Contracts Regulations 1994[1] have established the principle in statute law. In other jurisdictions In most jurisdictions, courts routinely "blue pencil" or reform covenants that are not reasonable. The blue pencil doctrine gives courts the authority to either strike unreasonable clauses from a noncompete agreement, leaving the rest to be enforced, or actually modify the agreement to reflect the terms that the parties could have and probably should have agreed to.[2]

BOULEVARD RULE
The boulevard rule is a principle in United States traffic law which states that the driver of a vehicle entering a highway from a smaller road or entrance (called the unfavored driver) must stop and yield the right of way to all oncoming highway traffic (the favored drivers).[1] The rule often comes into play in road accident cases, when a court must determine if a driver is negligent in causing a collision, due to his breach of the duty of care imposed by the rule on the unfavored driver. Maryland[2] is among the U.S. states which follow this rule, but not all states have similar provisions in statutes or case law. New York[3] applies the rule to traffic entering public roads from private driveways or alleys, but not where public roads intersect.

LEGAL BURDEN OF PROOF

The burden of proof (Latin: onus probandi) is the obligation resting on a party in a trial to produce the evidence that will shift the conclusion away from the default position to one's own position. The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges."[1] He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.

Definition A "legal burden" or a "burden of persuasion" is an obligation that remains on a single party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt) and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.[2] It is not to be confused with evidential burden, which is an obligation that shifts between parties over the course of the hearing or trial. It is not a burden of proof, but the burden to adduce sufficient evidence to properly raise an issue at court. Standard of proof: United States Burden of proof refers most generally to the obligation of a party to prove its allegations at trial. In a civil case the plaintiff sets forth its allegations in a complaint, petition or other pleading. The defendant is then required to file a responsive pleading denying some or all of the allegations and setting forth any affirmative facts in defense affirmative defenses. Each party has the burden of proof of their allegations. In In Re Rogers the Alabama Supreme Court set forth a common explication of the concept as a jurisprudential maxim: "The Sixth Edition of Black's Law Dictionary explained the parenthetical maxim as follows: "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof". Black's Law Dictionary 516 (6th ed. 1990).'"[3] Legal standards Reasonable suspicion Reasonable suspicion is a low standard of proof in the U.S. to determine whether a brief investigative stop or search by a police officer or any government agent is warranted. It is important to note that this stop and/or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence. A more definite standard of proof (often probable cause) would be required to warrant a more thorough stop/search. In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not enough to constitute reasonable suspicion.

An investigatory stop is a seizure under the Fourth Amendment. The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot. The important point is that officers cannot deprive a citizen of liberty unless the officer can point to specific facts and circumstances and inferences therefrom that would amount to a reasonable suspicion. The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion. If the initial confrontation with the person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about his or her business. If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further investigation is complete. In some cases, the investigation may develop sufficient evidence to constitute probable cause. Reasonable to believe In Arizona v. Gant (2009) the court defined a new standard, that of "reasonable to believe." This standard applies only to vehicle searches after the suspect has been placed under arrest and overruled New York v. Belton by saying it must be "reasonable to believe" there is more evidence in the vehicle of the crime the suspect was arrested for. Only then are police officers allowed to go back and search a vehicle incident to a suspect's arrest. There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said it should be a new standard while others have equated it with the "reasonable suspicion" of theTerry stop. Most courts have agreed it is somewhere less than probable cause. Probable cause for arrest Probable cause is a relatively low standard of evidence, which is used in the United States to determine whether a search, or an arrest, is warranted. It is also used by grand juries to determine whether to issue an indictment. In the civil context, this standard is often used where plaintiffs are seeking a prejudgement remedy. In the criminal context, the U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that contraband or evidence of a crime will be found" in determining whether Drug Enforcement Administration agents had a reason to execute a search. Courts vary when determining what constitutes a "fair probability": some[who?] say 30%, others 40%, others 51%.

A good illustration of this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider the following three interactions:

no level of suspicion required: a consensual encounter between officer and citizen reasonable suspicion required: a stop initiated by the officer that would cause a reasonable person not to feel free to leave

probable cause required: arrest. Some credible evidence One of the least reliable standards of proof, this assessment is often used in administrative law, and often in Child Protective Services (CPS) proceedings in some states. The "Some Credible Evidence" standard is used as a legal place-holder to bring some controversy before a trier of fact, and into a legal process. It is on the order of the factual standard of proof needed to achieve a finding of "Probable Cause" used in ex parte threshold determinations needed before a court will issue a search warrant. It is a lower standard of proof than the "Preponderance of the Evidence" standard. The "Some Credible Evidence" standard does not require the fact-finder to weigh conflicting evidence, merely requiring the investigator or prosecutor to present the bare minimum of material credible evidence to support the allegations against the subject, or in support of the allegation; see Valmonte v. Bane, 18 F.3d 992 (2nd Cir. 1994). (In some Federal Appellate Circuit Courts, such as the Second Circuit, the "some credible evidence" standard has been found constitutionally insufficient to protect liberty interests of the parties in controversy at CPS hearings.) Substantial evidence In some appeals from decisions of administrative agencies, the courts apply a "substantial evidence" standard of review over the agency's factual findings. In the United States, for example, if a Social Security Disability Insurance claimant is found "not disabled" (and, therefore, ineligible for benefits) by an Administrative Law Judge (ALJ) and the claimant appeals, both the Appeals Council (the body within the Social Security Administration that hears appeals from decisions of ALJs) and the Federal courts (which, in this type of case, will normally hear an appeal only after the claimant has exhausted all administrative remedies) will look to see whether the administrative law judge's decision was supported by "substantial evidence" or not. Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[4]

Preponderance of the evidence Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. This is also the standard of proof used in Grand Jury indictment proceedings (which, unlike civil proceedings, are procedurally unrebuttable), and in family court determinations solely involving money, such as child support under the Child Support Standards Act. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[5] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States. This is also the standard of proof used when determining eligibility of unemployment benefits for a former employee accused of losing their job through alleged misconduct. In most US states, the employer must prove this case based on preponderance of the evidence. Preponderance of the evidence is the standard of proof used for immunity from prosecution to be granted under Florida's controversial stand-your-ground law. The defense must present their evidence in a hearing pre-trial, show that the statutory prerequisites have been met, and then request that the court grant them a Motion for Declaration of Immunity. The judge must then decide based on the "preponderance of the evidence" whether to grant immunity.[6] This is a far lower burden than "beyond a reasonable doubt," the threshold prosecutors must meet at any proceeding trial.[7] Clear and convincing evidence Clear and convincing evidence is a higher level of burden of persuasion than a "Preponderance of the Evidence". It is employed intra-adjudicatively in Administrative Court determinations, as well as in civil and certain criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.[8] This standard is used in many types of equity cases, including paternity, PINS, juvenile delinquency, child custody, the probate of both wills and living wills, petitions to remove a person fromlife support ("right to die" cases),[9] and many similar cases. Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, "Preponderance of the Evidence", which requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.

This standard is also known as "Clear and Convincing Evidence"; "Clear, Convincing, and Satisfactory Evidence"; "Clear, Cognizant, and Convincing Evidence"; and "Clear, Unequivocal, Satisfactory, and Convincing Evidence", and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists. Beyond reasonable doubt This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies in criminal proceedings. It has been described as, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise. If there is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has not been met. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. However, it does not mean an absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty. If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty. The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which monetary damages are the common remedy. Non-legal standards Beyond the shadow of a doubt Beyond the shadow of a doubt is the strictest standard of proof. It requires that there be no doubt as to the issue. Widely considered an impossible standard, a situation stemming from the nature of knowledge itself, it is valuable to mention only as a

comment on the fact that evidence in a court never need (nor can) reach this level. This phrase, has, nonetheless, come to be associated with the law in popular culture. Standard of proof: United Kingdom trials In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there are only two standards of proof in trials. (There are others which are defined in Statutes relating to police powers etc.) The Criminal standard was formerly described as "beyond reasonable doubt". That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded "so that you are sure". The Civil standard is 'the balance of probabilities', often referred to in judgments as "more likely than not". Prior to the decision of the House of Lords in Re B (A Child) [2008] UKHL 35 [1]there had been some confusion - even at the Court of Appeal - as to whether there was some intermediate standard, described as the 'heightened standard'. The House of Lords found that there was not. As the above description of the American system shows, anxiety by judges to make decisions on very serious matters on the basis of the balance of probabilities had led to a departure from the common law principles of just two standards. Baroness Hale said: "70. ...Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies." "72. ...there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regents Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions enclosure when the door is open, then it may well be more likely to be a lion than a dog." The task for the tribunal then when faced with serious allegations is to recognise that their seriousness generally means they are inherently unlikely, such that to be satisfied that a fact is more likely than not the evidence must be of a good quality. But the standard of proof remains 'the balance of probabilities'.

Other standards for presenting cases or defenses Air of reality The "air of reality" is a standard of proof used in Canada to determine whether a criminal defense may be used. The test asks whether a defense can be successful if it is assumed that all the claimed facts are to be true. In most cases, the burden of proof rests solely on the prosecution, negating the need for a defense of this kind. However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an "air of reality." Two instances in which such a case might arise are, first, when a prima facie case has been made against the defendant or, second, when the defense mounts an affirmative defense, such as the insanity defense. Evidentiary standards of proof Depending on the legal venue, and/or intra-case hearing, varying levels of reliability of proof are considered dispositive of the inquiry being entertained. If the subject threshold level of reliability has been met by the presentation of the evidence, then the thing is considered legally proven for that trial, hearing or inquest. Examples Criminal law In the West, criminal cases usually place the burden of proof on the prosecutor (expressed in the Latin brocard ei incumbit probatio qui dicit, non qui negat, "the burden of proof rests on who asserts, not on who denies"). This principle is known as the presumption of innocence, and is summed up with "innocent until proven guilty," but is not upheld in all legal systems or jurisdictions. Where it is upheld, the accused will be found not guilty if this burden of proof is not sufficiently shown by the prosecution. The presumption of innocence means three things:

With respect to the critical facts of a case the defendant has no burden of proof whatsoever.[10] The state must prove the critical facts of the case to the appropriate level of certainty. The jury is not to draw any inferences adverse to the defendant from the fact that he has been charged with a crime and is present in court represented by counsel to face the charges against him.

The presumption of innocence does not mean that the jury or anyone else must pretend or assume that the defendant is in fact innocent of the charges. Nothing the jury does can alter the fact that the defendant did or did not commit the offense. There is no intermediate state.

For example, if the defendant (D) is charged with murder, the prosecutor (P) bears the burden of proof to show the jury that D did murder someone.

Burden of proof: P

Burden of production: P has to show some evidence that D had committed murder. The United States Supreme Court has ruled that the Constitution requires enough evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. If the judge rules that such burden has been met, then of course it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt.[11] If the judge finds there is not enough evidence under the standard, the case must be dismissed (or a subsequent guilty verdict must be vacated and the charges dismissed).

e.g. witness, forensic evidence, autopsy report Failure to meet the burden: the issue will be decided as a matter of law (the judge makes the decision), in this case, D is presumed innocent

Burden of persuasion: if at the close of evidence, the jury cannot decide if P has established with relevant level of certainty that D had committed murder, the jury must find D not guilty of the crime of murder

Measure of proof: P has to prove every element of the offence beyond a reasonable doubt, but not necessarily prove every single fact beyond a reasonable doubt.

However, in England and Wales, the Magistrates' Courts Act 1980, s.101 stipulates that where a defendant relies on some "exception, exemption, proviso, excuse or qualification" in his defence, the legal burden of proof as to that exception falls on the defendant, though only on the balance of probabilities. For example, a person charged with being drunk in charge of a motor vehicle can raise the defence that there was no likelihood of his driving while drunk.[12] The prosecution has the legal burden of proof beyond reasonable doubt that the defendant exceeded the legal limit of alcohol and was in control of a motor vehicle. Possession of the keys is usually sufficient to prove control, even if the defendant is not in the vehicle and is perhaps in a nearby bar. That being proved, the defendant has the legal burden of proof on the balance of probabilities that he was not likely to drive.[13] In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights (ECHR), art.6(2) guaranteeing right to a fair trial. The House of Lords held that:[13][14]

A mere evidential burden did not contravene art.6(2); A legal/ persuasive burden did not necessarily contravene art.6(2) so long as confined within reasonable limits, considering the questions:

What must the prosecution prove to transfer burden to the defendant?

Is the defendant required to prove something difficult or easily within his access? What threat to society is the provision designed to combat?

Civil law In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover. However, in cases of proving loss of future earning capacity, the plaintiff must prove there is a real or substantial possibility of such a loss occurring. The burden of proof must be distinguished from the "burden of going forward," which simply refers to the sequence of proof, as between the plaintiff and defendant. The two concepts are often confused. Civil cases of the U.S. Supreme Court In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme Court stated: There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, is merely a question of policy and fairness based on experience in the different situations. For support, the Court cited 9 John H. Wigmore, Evidence 2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if school authorities have been found to have practised purposeful segregation in part of a school system, the burden of persuasion shifts to the school to prove that it did not engage in such discrimination in other segregated schools in the same system. In Director, Office of Workers Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production. The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005). The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims. In support of this proposition, the Court cited 2 J. Strong, McCormick on Evidence 337, 412 (5th ed. 1999), which states: The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.

At the same time, the Supreme Court also recognized The ordinary default rule, of course, admits of exceptions. For example, the burden of persuasion as to certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. See Alaska Dept. of Environmental Conservation v. EPA, 540 U.S.461 (2004). Nonetheless, [a]bsent some reason to believe that Congress intended otherwise, therefore, [the Supreme Court] will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.

C
CALCULUS OF NEGLIGENCE
In the United States, the calculus of negligence, or Hand rule or Hand formula, is a term coined by Judge Learned Hand and describes a process for determining whether a legal duty of care has been breached (see negligence). The original description of the calculus was in U.S. v. Carroll Towing,[1] in which an improperly secured barge had drifted away from a pier and caused damage to several other boats. Articulation of the rule Hand stated: [T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. This relationship has been formalized by the law and economics school as such: an act is in breach of the duty of care if:

where B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for the defendant. Rationale The calculus of negligence is based on the Coase theorem. The tort system acts as if, before the injury or damage, a contract had been made between the parties under the assumption that a rational, cost-minimizing individual will not spend money on taking precautions if those precautions are more expensive than the costs of the harm that they prevent. In other words, rather than spending money on safety, the individual will simply allow harm to occur and pay for the costs of that harm, because that will be more cost-efficient than taking precautions. This represents cases where B is greater than PL. If the harm could be avoided for less than the cost of the harm (B is less than PL), then the individual should take the precautions, rather than allowing the harm to occur. If precautions were not taken, we find that a legal duty of care has been breached, and we impose liability on the individual to pay for the harm.

This approach, in theory, leads to an optimal allocation of resources; where harm can be cheaply avoided, the legal system requires precautions. Where precautions are prohibitively expensive, it does not. In marginal-cost terms, we require individuals to invest one unit of precautions up until the point that those precautions prevent exactly one unit of harm, and no less. Criticism Critics point out that term "gravity of loss (L)" is vague, and could entail a wide variety of damages, from a scratched fender to several dead victims.[2] Even then, on top of that, how exactly a juror should determine a value for such a loss is abstract in itself. The speculative nature of the rule also seizes upon how a juror should determine the probability of loss (P).[2] Additionally, the rule fails to account for possible alternatives, whether it be the use of alternate methods to reach the same outcome, or abandoning the risky activity altogether.[2] Human teams estimating risk need to guard against errors, http://en.wikipedia.org/wiki/Absolute_probability_judgement Use in practice In the U.S., juries, with guidance from the court, decide what particular acts or omissions constitute negligence, so a reference to the standard of ordinary care removes the need to discuss this moot "rule". Juries are not told this "rule" but essentially use their common sense to decide what an ordinarily careful person would have done under the circumstances. The "calculus of negligence" has less practical value for the lay researcher seeking to understand how the courts actually determine negligence cases in the United States than the jury instructions used by the courts in the individual states. Outside legal proceedings, This rule is the core premise of Insurance, Risk Management, Quality Assurance, Information Security and Privacy practices. It factors into "Due Care" and "Due Diligence" decisions in business risk. Restrictions exist in the cases were the loss applies to human life or the probability of adverse finding in court cases. The most notable case of abuse by industry in recent years related to fiery crashes involving the gas tank of the Pinto Ford model car. judgment

Quality assurance techniques extend the use of probability and loss to include uncertainty bounds in each quantity and possible interactions between uncertainty in probability and impact for two purposes. First, to more accurately model customer acceptance and process reliability to produce wanted outcomes. Second, to seek cost effective factors either up or down stream of the event that produce better results at sustainably reduced costs. Example, simply providing a protective rail near a cliff also includes quality manufacture features of the rail as part of the solution. Reasonable signs warning of the risk before persons reach the cliff may actually be more effective in reducing fatalities than the rail itself. Australia In Australia, State and Territory legislatures require that the social utility of the activity that creates the risk of harm be taken into account in determining whether or not a reasonable person would have taken precautions against that risk of harm. For example, in Haris v Bulldogs Rugby League Club Limited [3] the court considered the social utility of holding football matches when determining whether a football club took sufficient precautions to protect spectators from the risk of being struck by fireworks set off as part of the entertainment during a game.[4]

CAPACITY (LAW)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties andobligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. Capacity is an aspect of status and both are defined by a person's personal law:

for natural persons, the law of domicile or lex domicilii in common law jurisdictions, and either the law of nationality or lex patriae, or ofhabitual residence in civil law states; for legal persons, the law of the place of incorporation, the lex incorporationis for companies while other forms of business entity derive their capacity either from the law of the place in which they were formed or the laws of the states in which they establish a presence for trading purposes depending on the nature of the entity and the transactions entered into.

When the law limits or bars a person from engaging in specified activities, any agreements or contracts to do so are either voidable or void for incapacity. Sometimes such legal incapacity is referred to as incompetence. For comparison, see Competence (law).

Discussion As an aspect of the social contract between a state and its citizens, the state adopts a role of protector to the weaker and more vulnerable members of society. In public policy terms, this is the policy of parens patriae. Similarly, the state has a direct social and economic interest in promoting trade, so it will define the forms of business enterprise that may operate within its territory, and lay down rules that will allow both the businesses and those that wish to contract with them a fair opportunity to gain value. This system worked well until social and commercial mobility increased. Now persons routinely trade and travel across state boundaries (both physically and electronically), so the need is to provide stability across state lines given that laws differ from one state to the next. Thus, once defined by the personal law, persons take their capacity with them like a passport whether or however they may travel. In this way, a person will not gain or lose capacity depending on the accident of the local laws, e.g. if A does not have capacity to marry her cousin under her personal law (a rule of consanguinity), she cannot evade that law by travelling to a state that does permit such a marriage (see nullity). In Saskatchewan Canada, an exception to this law allows married persons to become the common law spouse spouse of other(s) prior to divorcing the first spouse. This law is not honored amongst other Canadian provinces. Natural persons Standardized classes of person have had their freedom restricted. These limitations are exceptions to the general policy of freedom of contract and the detailed human and civil rights that a person of ordinary capacity might enjoy. Hence, for example, freedom of movement may be modified, the right to vote may be withdrawn, etc. As societies have developed more equal treatment based on gender, race and ethnicity, many of the older incapacities have been removed. For example, English law used to treat married women as lacking the capacity to own property or act independently of their husbands (the last of these rules was repealed by the Domicile and Matrimonial Proceedings Act 1973, which removed the wife's domicile of dependency for those marrying after 1974, so that a husband and wife could have different domiciles).

Infancy The definition of an infant or minor varies, each state reflecting local culture and prejudices in defining the age of majority, marriageable age, voting age, etc. In many jurisdictions, legal contracts, in which (at least) one of the contracting parties is a minor, are voidable by the minor. For a minor to undergo medical procedure, consent is determined by the minor's parent(s) or legal guardian(s). The right to vote in the United States is currently set at 18 years, while the right to buy and consume alcohol is often set at 21 years by

U.S. state law. Some laws, such as marriage laws, may differentiate between the sexes and allow women to marry younger. There are instances in which a person may be able to gain capacity earlier than the prescribed time through a process of emancipation. Conversely, many states allow the inexperience of childhood to be an excusing condition to criminal liability and set the age of criminal responsibility to match the local experience of emerging behavioral problems (see doli incapax). For sexual crimes, the age of consent determines the potential liability of adult accused. As an example of liability in contract, the law in most of Canada provides that an infant is not bound by the contracts he or she enters into except for the purchase of necessaries and for beneficial contracts of service. Infants must pay fair price only for necessary goods and services. However, the British Columbia Infants Act (RSBC 1996 c.223) declares all contracts, including necessities and beneficial contracts of service, are unenforceable against an infant. Only student loans and other contracts made specifically enforceable by statute will be binding on infants in that province. In contracts between an adult and an infant, adults are bound but infants may escape contracts at their option (i.e. the contract is voidable). Infants may ratify a contract on reaching age of majority. In the case of executed contracts, when the infant has obtained some benefit under the contract, he/she cannot avoid obligations unless what was obtained was of no value. Upon repudiation of a contract, either party can apply to the court. The court may order restitution, damages, or discharge the contract. All contracts involving the transfer of real estate are considered valid until ruled otherwise.

Minors and Contractual Capacity A minor (typically under 18) can disaffirm a contract made, no matter the case. However, the entire contract must be disaffirmed. Depending on the jurisdiction, the minor may be required to return any of the goods still in his possession. Also, barter transactions such as purchasing a retail item in exchange for a cash payment are generally recognized through a legal fiction not to be contracts due to the absence of promises of future action. A minor may not disavow such a trade.[1] Disaffirmance - it must be timely. For example, a contract that goes beyond two years of reaching the age of majority would be considered ratified. Minors are still allowed to disaffirm, even if their age is misrepresented. They will not face tort violations. Some states don't allow disaffirmance if the consideration cannot be returned. Obligations - most states hold that a minor only must return the goods (consideration) if the goods are still in the minors possession. Many states are requiring that the minor restore the adult (other party) to the state they were in

before the contract was made. Minors are beginning to be held responsible for damages, wear, tear, etc. of the good in question upon return. A suit for tort is considered by some states to be an enforcement of the contract and is not allowed. Liability - for necessities, (1) the item contracted for must be necessary for minors existence, (2) the value must be up to that of the current standard of living or financial/social status (not excessive in value), (3) the minor must not be under the care of a parent/guardian who is required to supply the item. A minor could be held liable for a contract for the purchase of luxury items (those that are not in the financial/social/standard of living range). Ratification - accepting and giving legal force to an obligation. Express ratification (for a minor) is expressly stating, orally or in writing that he/she intends to be bound by the contract. Implied ratification is when the conduct of the minor is inconsistent with that of disaffirmance or when minor fails to disaffirm an executed contract within a reasonable period. Generally, the courts base their determination on whether the minor, after reaching the age of majority, has had ample opportunity to consider the nature of the contractual obligations he or she entered into as a minor and the extent to which the adult party to the contract has performed.[2] As one court put it, "the purpose of the infancy doctrine is to protect 'minors from foolishly squandering their wealth through improvident contracts with crafty adults who would take advantage of them in the marketplace.'"[3]

Insanity, mental illness, or mental/medical condition Individuals may have an inherent physical condition which prevents them from achieving the normal levels of performance expected from persons of comparable age, or their inability to match current levels of performance may be caused by contracting an illness. Whatever the cause, if the resulting condition is such that individuals cannot care for themselves, or may act in ways that are against their interests, those persons are vulnerable through dependency and require the protection of the state against the risks of abuse or exploitation. Hence, any agreements that were made are voidable, and a court may declare that person a ward of the state and grant power of attorney to an appointed legal guardian. In England and Wales, this is a specific function of the Court of Protection, and all matters concerning persons who have lost, or expect soon to lose, mental capacity are regulated under the Mental Capacity Act 2005. This makes provision for lasting powers of attorney under which decisions about the health, welfare and financial assets of a person who has lost capacity may be dealt with in that person's interests.

This sort of problem sometimes arises when people suffer some form of medical problem such as unconsciousness, coma, extensive paralysis, or delirious states, from accidents or illnesses such as strokes, or often when older people become afflicted with some form of medical/mental disability such as Huntington's disease, Alzheimer's disease, Lewy body disease, or similar dementia. Such persons are often unable to consent to medical treatment and otherwise handle their financial and other personal matters. If the afflicted person has prepared documents beforehand about what to do in such cases, often in a revocable living trust or related documents, then the named legal guardian may be able to take over their financial and other affairs. If the afflicted person owns his/her property jointly with a spouse or other able person, the able person may be able to take over many of the routine financial affairs. Otherwise, it is often necessary to petition a court, such as a probate court, that the afflicted person lacks legal capacity and allow a legal guardian to take over their financial and personal affairs. Procedures and court review have been established, dependent on the area of jurisdiction, to prevent exploitation of the incapacitated person by the guardian. The guardian periodically provides a financial accounting for court review. In the Criminal Law, the traditional common law M'Naghten Rules excused all persons from liability if they did not understand what they were doing or, if they did, that they did not know it was wrong. The consequences of this excuse were that those accused were detained indefinitely or until the medical authorities certified that it was safe to release them back into the community. This consequence was felt to be too draconian and so statutes have introduced new defenses that will limit or reduce the liability of those accused of committing offenses if they were suffering from a mental illness at the relevant time (see the insanity and mental disorder defenses).

Drunkenness or drug abuse Although individuals may have consumed a sufficient quantity of intoxicant or drug to reduce or eliminate their ability to understand exactly what they are doing, such conditions are self-induced and so the law does not generally allow any defense or excuse to be raised to any actions taken while incapacitated. The most generous states do permit individuals to repudiate agreements as soon as sober, but the conditions to exercising this right are strict.

Bankruptcy If individuals find themselves in a situation where they can no longer pay their debts, they lose their status as credit-worthy and become bankrupt. States differ on the means whereby their outstanding liabilities can be treated as discharged and on the precise extent of the limits that are placed on their capacities during

this time but, after discharge, they are returned to full capacity. In the United States, some states have spendthrift laws under which an irresponsible spender may be deemed to lack capacity to enter into contracts (in Europe, these are termed prodigality laws) and both sets of laws may be denied extraterritorial effect under public policy as imposing a potentially penal status on the individuals affected.

Enemy aliens and/or terrorists During times of war or civil strife, a state will limit the ability of its citizens to offer help or assistance in any form to those who are acting against the interests of the state. Hence, all commercial and other contracts with the "enemy", including terrorists, would be considered void or suspended until a cessation of hostilities is agreed.

Business entities

Corporations The extent of an artificial person's capacity depends on the law of the place of incorporation and the enabling provisions included in the constitutive documents of incorporation. The general rule is that anything not included in the corporation's capacity, whether expressly or by implication, is ultra vires, i.e. "beyond the power" of the corporation, and so may be unenforceable by the corporation, but the rights and interests of innocent third parties dealing with the corporations are usually protected.

General and limited partnerships There is a clear division between the approach of states to the definition of partnerships. One group of states treats general and limited partnerships as aggregate. In terms of capacity, this means that they are no more than the sum of the natural persons who conduct the business. The other group of states allows partnerships to have a separate legal personality which changes the capacity of the "firm" and those who conduct its business and makes such partnerships more like corporations.

Unions In some states, trade unions have limited capacity unless any contract made relates to union activities.

Insolvency When a business entity becomes insolvent, an administrator, receiver, or other similar legal functionary may be appointed to determine whether the entity shall continue to trade or be sold so that the creditors may receive all or a proportion

of the money owing to them. During this time, the capacity of the entity is limited so that its liabilities are not increased unreasonably and to the detriment of the existing creditors.

CARLTONA DOCTRINE
The Carltona doctrine (or Carltona principle) expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the ministerin charge of that department. The point was established in Carltona Ltd v. Commissioners of Works.[1] The judgment in Carltona Faced with the requisition of their factory by the war-time government, the factory owners raised a judicial review action to challenge the legality of the requisition order. The order had been made under the auspices of the Defence (General) Regulations 1939, which authorised the Commissioners of Works to requisition such land as they deemed necessary in the national interest. The Regulations specified that the Commissioner's powers were exercisable by, inter alia the Minister of Works and Planning. The factory owners sought to argue that the requisition was invalid because the order had not in fact been signed by the minister, but by an official within the Ministry of Works and Planning. In rejecting this contention, the Master of the Rolls, Lord Greene, acknowledged the realities of government in the 20th century: "In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them...[therefore] The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case." This statement of the way government operates has only became more true in recent decades as increased state interventionism and juridifactory tendencies have produced a rapid growth in the use of delegated legislation. Clearly, confronted with this reality, it would have been preposterous for the Court to construe the wording of the Regulations so narrowly that only the Minister, in person, could exercise the powers. Thus Lord Greene explained that: "Constitutionally, the decision of such an official is, of course, the decision of the minister."

It should be emphasised that the essence of the Carltona doctrine therefore lies in the elision of the identity of departmental officials with the relevant Minister. It is emphatically not the case that the Minister has delegated his decision-making power to a subordinate and therefore the doctrine achieves consistency with the principle that Parliament's delagetees have, unless specifically provided by statute, no power to delegate (delegatus non potest delegare). Lord Greene proceeded to reconcile this with the doctrine of parliamentary accountability on the basis that: "It is he [the minister] who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organization and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them." Scope of the rule Despite suggestions to the contrary by some academic commentators,[2] it seems that there is no restriction on the applicability of the doctrine on account of the nature of the power being wielded. In HMA v. Copeland[3] it was opined, by the highest criminal court in Scotland that: " ...there is no obligation on the minister to exercise his powers personally even when those powers involve a serious invasion of the freedom or property rights of the subject." However, in some instances Parliament has chosen to statutorily override this position by providing that the relevant minister must exercise the power in person.[4] The Supreme Court of Ireland has confirmed that the Carltona doctrine applies to its fullest extent to the Irish civil service also- see Devanney v Shields [1998] 2 I.R .230.

CASTLE DOCTRINE
A castle doctrine (also known as a castle law or a defense of habitation law) is an American legal doctrine that designates a person's abode (or, in some states, any legally-occupied place [e.g., a vehicle or workplace]) as a place in which that person has certain protections and immunities permitting him or her, in certain circumstances, to use force (up to and including deadly force) to defend against an intruder -- free from legal responsibility/prosecution for the consequences of the force used.[1]

Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases "when the actor reasonably fears imminent peril of death or serious bodily harm to him or herself or another".[1] The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states. The legal concept of the inviolability of the home has been known in Western Civilization since the age of the Roman Republic.[2] The term derives from the historic English common law dictum that "an Englishman's home is his castle." This concept was established as English law by 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628.[3]The dictum was carried by colonists to the New World, who later removed "English" from the phrase, making it "a man's home is his castle", which thereby became simply the castle doctrine.[3] The term has been used in England to imply a person's absolute right to exclude anyone from his home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.[4] The term "Make My Day Law" arose at the time of the 1985 Colorado statute that shielded people from any criminal/civil suits for using force including deadly force against an invader of the home.[5] The law's nickname is a reference to the line "Go ahead, make my day" uttered by actor Clint Eastwood's character "Dirty Harry" Callahan (in the 1983 vigilante-policeman film Sudden Impact). Justifiable homicide[6] inside one's home is distinct, as a matter of law, from castle doctrine's no duty to retreat therefrom. Because the mere occurrence of trespassing and occasionally a subjective requirement of fearis sufficient to invoke the castle doctrine, the burden of proof of fact is much less challenging than that of justifying a homicide. With a mere justifiable homicide law, one generally must objectively prove to a trier of fact, beyond all reasonable doubt, the intent in the intruder's mind to commit violence or a felony. It would be a misconception of law to infer that because a state has a justifiable homicide provision pertaining to one's domicile, it has a castle doctrine, exonerating any duty whatsoever to retreat therefrom. Conditions of use Each state differs in the way it incorporates the castle doctrine into its laws, what premises are covered (abode only, or other places too), what degree of retreat or nondeadly resistance is required before deadly force can be used, etc.

Typical conditions that apply to some castle doctrine laws include:[citation needed]

An intruder must be making (or have made) an attempt to unlawfully or forcibly enter an occupied residence, business, or vehicle. The intruder must be acting unlawfully (the castle doctrine does not allow a right to use force against officers of the law, acting in the course of their legal duties). The occupant(s) of the home must reasonably believe the intruder intends to inflict serious bodily harm or death upon an occupant of the home. Some states apply the Castle Doctrine if the occupant(s) of the home reasonably believe the intruder intends to commit a lesser felony such as arson or burglary. The occupant(s) of the home must not have provoked or instigated an intrusion; or, provoked/instigated an intruder's threat or use of deadly force.

In all cases, the occupant(s) of the home: must be there legally; must not be fugitives from the law, themselves, or, aiding/abetting other fugitives; and, must not use force upon an officer of the law performing a legal duty[citation needed]. Immunity from civil lawsuit In addition to providing a valid defense in criminal law, many laws implementing the castle doctrine, particularly those with a "stand-your-ground clause," also have a clause which provides immunity from any civil lawsuits filed on behalf of the assailant (for damages/injuries resulting from the force used to stop them). Without this clause, an assailant could sue for medical bills, property damage, disability, and pain & suffering as a result of the injuries inflicted by the defender; or, if the force results in the assailant's death, his/her next-of-kin or estate could launch a wrongful death suit. Even if successfully rebutted, the defendant (the homeowner/defender) may still have to pay high legal costs leading up to the suit's dismissal. Without criminal/civil immunity, such civil action could be used as revenge against a lawfully-acting defender (who was, originally, the assailant's victim). Use of force in self-defense which causes damage or injuries to other, non-criminallyacting parties, may not be shielded from criminal or civil prosecution, however. Duty-to-retreat "Castle laws" remove the duty to retreat before using deadly force when one is in their home or in some U.S. states just simply where one can legally be.[7] Stand-your-ground Main article: Stand-your-ground law In some states in the United States, one can use deadly force in any location one is legally allowed to be without first attempting to retreat. Such laws remove the requirement that the threat must occur on one's own property.

Origins According to 18th-century Presbyterian minister and biblical commentator Matthew Henry, the prohibition of murder found in the Torah contains an exception for legitimate self-defense. A home defender who struck and killed a thief caught in the act of breaking in at night was not guilty of bloodshed. If a thief is caught breaking in and is struck so that he dies, the thief owes no blood-debt to the home-defender; but if the thief lives, he owes a blood-debt to the home-defender and must make restitution.[8][9] By the 18th century, many US state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II (Forcible Entry Act 1381) in law since 1381which imposed criminal sanctions intending to discourage the resort to self-help.[10][11] This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means. Then as now, there were English politicians who were for or against the use of self-help over state-help. William Blackstone, in Book 4, Chapter 16[12] of his Commentaries on the Laws of England,[13] proclaims that the laws "leave him (the inhabitant) the natural right of killing the aggressor (the burglar)" and goes on to generalize in the following words: And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully;[14] quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?[15] For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nusancers, and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case. William Blackstone, Commentaries on the Laws of England Not only was the doctrine considered to justify defense against neighbors and criminals, but any of the Crown's agents who attempted to enter without a proper warrant as well. It should be noted that prohibitions of the Fourth Amendment to the United States Constitution share a common background with current castle doctrine laws.[citation needed] In 1841, The Preemption Act was passed to "appropriate the proceeds of the sales of public lands... and to grant 'pre-emption rights' to individuals" who were already living on federal lands (commonly referred to as "squatters"). During this same period, claim clubs sprung up all over the US advocating vigilance and the castle doctrine. This was in concurrence with the culture of manifest destiny which led to westward expansion and the American Indian Wars, the last of which ended by the 1920's.

Today, the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land.[16] A minority of states, however, have taken the view that their forcible entry statutes have not deprived a defendant with the right to immediate possession of land of his common law privilege to use reasonable force to regain possession thereof.[17] State-by-state positions For the states with a castle doctrine, an external link is provided to the text of the specific statute, if available. If a direct link is unavailable, for example if the destination website uses JavaScript, the statute name and/or number is listed. States with a castle law Castle doctrine lays down that there is no duty to retreat from an intruder in one's home. A justifiable homicide which occurs inside one's home is distinct as a matter of law from castle doctrine's no duty to retreat. As such, states with justifiable homicide provisions in pertaining to one's domicile, do not in themselves authorize indiscriminate violence therein--the mere fact that one is trespassing is no defense per se to justifying homicide. State Statute Notes

Colorado

18-1-704

"...any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant." 18-1-704.5 Use of deadly physical force against an intruder.[dead link]

Connecticut

Sec. 53a-20

State

Statute

Notes

Hawaii

703-304

Retreat required outside the home if it can be done in "complete safety."

Idaho

18-4009

a justifiable homicide law in self-defense from violence--must prove intruder's intent thereof

Illinois

720 ILCS 5

Use of deadly force justified. Specific legislation prevents filing claim against defender of dwelling. Illinois has no requirement of retreat.

Indiana

IC 35-41-3-2

Iowa

704.1

No duty to retreat from home or place of business in defense of self or a "third party".

Louisiana

LA RS 14:20

(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.

Maine

104

Deadly force justified to terminate criminal trespass AND another crime within home, or to stop unlawful and imminent use of deadly force, or to effect a citizen's arrest against deadly force; duty to retreat not specifically removed[18]

State

Statute

Notes

Maryland

See Maryland self-defense. Case-law, not statute, incorporates the common law castle-doctrine into Maryland self-defense law. Invitees or guests may have duty to retreat based on mixed case law.[19]

Massachusetts 278-8a

Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

Minnesota

609.065

No duty to retreat before using deadly force to prevent a felony in one's place of abode; no duty to retreat before using deadly force in self-defense in one's place of abode [20]) This isn't as clear as it appears, however. There are four cases in Minnesota where duty of retreat was upheld.[21]

Missouri

609.065

Extends to any building, inhabitable structure, or conveyance of any kind, whether the building, inhabitable structure, or conveyance is temporary or permanent, mobile or immobile (e.g., a camper, RV or mobile home), which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night, whether the person is residing there temporarily, permanently or visiting (e.g., a hotel or motel), and any vehicle. The defense against civil suits is absolute and includes the award of attorney's fees, court costs, and all reasonable expenses incurred by

State

Statute

Notes the defendant in defense of any civil action brought by a plaintiff.

New Jersey

[1]

Retreat required if actor knows he can avoid necessity of deadly force in complete safety, etc. except not obliged to retreat from dwelling, unless the initial aggressor

North Carolina

14-51.3

Use of force in defense of person; relief from criminal or civil liability.(a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.(2) Under the circumstances permitted pursuant to G.S. 14-51.2.(b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011-268, s. 1.)

Ohio

SB 184

Extends to vehicles of self and immediate family; effective September 9, 2008.[22] Section 2901.09

State

Statute

Notes

Oregon

Use of force justifiable in a range of scenarios without a duty to retreat specified. Oregon Supreme Court affirmed in State of Oregon v. Sandoval that the law "sets out a specific set of ORS161.209- circumstances that justify a person's use of deadly force (that 229 the person reasonably believes that another person is using or about to use deadly force against him or her) and does not interpose any additional requirement (including a requirement that there be no means of escape)."

Rhode Island

11-8-8

Wisconsin

[2]

Assembly Bill 69, signed December 7, 2011) The civil immunity became Sec. 895.62, Wis.Stats. and the criminal immunity became Sec. 939.48, Wis.Stats.

Wyoming

[3][dead link]

States with weak or no specific castle law These states uphold castle doctrine in general, but may rely on case law instead of specific legislation, may enforce a duty to retreat, and may impose specific restrictions on the use of deadly force:

District of Columbia Nebraska - a bill was introduced in January 2012 that allowed deadly force against a person who broke into a house or occupied vehicle or who tried to kidnap someone from a house or vehicle; however, the bill was revised to include only an affirmative defense from lawsuits pertaining to justifiable use of force.[23] New Mexico New York - Allows for the use of "reasonable force" in self-defense against home invasion.[citation needed]

South Dakota - "Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is." See South Dakota Codified Laws 2216-34 (2005).[24] Vermont[25]

Worldwide Australia Australian states have several differing laws. However, under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.[26] In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader. Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family. The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge.[27] England and Wales In English common law a defendant may seek to avoid criminal or civil liability by claiming that he acted in self-defence.[28] This requires the jury to determine whether the defendant believed that force was necessary to defend him or herself, his or her property, or to prevent a crime, and that the force used was reasonable.[29] While there is no duty to retreat from an attacker and failure to do so is not conclusive evidence that a person did not act in self-defence, it may still be considered by the jury as a relevant factor when assessing the merits of a self-defence claim.[28] The common law duty to retreat was repealed by the Criminal Law Act 1967. This duty never existed when a person is somewhere he has a lawful right to be, but due to the repeal, now extends to public places, etc. Germany attack.[30] Courts have interpreted this law as applicable to home invasion, including the use of lethal force against law enforcement in cases where the home owner was of the mistaken belief that the intrusion was unlawful.[31]

Israel Israeli law allows property owners to defend themselves with force.[32] This law was introduced in response to the trial of Shai Dromi, an Israeli farmer who shot Arab intruders on his farm late at night.[33] Italy Italy passed a law in 2005 that would allow property owners to defend themselves with force.[34]

CAVEAT EMPTOR
Caveat emptor /kvit mptr/ is Latin for "Let the buyer beware"[1] (from caveat, "may he beware", the subjunctive of cavere, "to beware" + emptor, "buyer"). Generally, caveat emptor is the property law principle that controls the sale of real property after the date of closing, but may also apply to sales of other goods. Explanation Under the principle of caveat emptor, the buyer could not recover damages from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. Before statutory law, the buyer had no express warranty ensuring the quality of goods. Common law requires that goods must be "fit for the particular purpose" and of "merchantable quality"[citation needed], but this implied warranty can be difficult to enforce and may not apply to all products. Hence, buyers are still advised to be cautious. United States The modern trend in the US, however, is one of the Implied Warranty of Fitness that applies only to the sale of new residential housing by a builder-seller and the caveat emptor rule applies to all other sale situations (i.e. homeowner to buyer).[2] Many other jurisdictions have provisions similar to this. In addition to the quality of the merchandise, this phrase also applies to the return policy. In most jurisdictions, there is no legal requirement for the vendor to provide a refund or exchange. In many cases, the vendor will not provide a refund but will provide a credit. In the cases of software, movies and other copyrighted material, many vendors will only do a direct exchange for another copy of exactly the same title. Most stores require proof of purchase and impose time limits on exchanges or refunds. Some larger chain stores will, however, do exchanges or refunds at any time, with or without proof of purchase, although they usually require a form of picture ID and place quantity or dollar limitations on such returns.

Laidlaw v. Organ,[3] a decision written in 1817 by Chief Justice John Marshall, is believed by scholars to have been the first U.S. Supreme Court case which laid down the rule of caveat emptor in U.S. law.[4] United Kingdom In the UK, consumer law has moved away from the caveat emptor model, with laws passed that have enhanced consumer rights and allow greater leeway to return goods that do not meet legal standards of acceptance.[5] Consumer purchases are regulated by the Sale of Goods Act 1979. In the UK, consumers have the right to a full refund for faulty goods. However, by convention, most retail companies allow customers to return goods within a specified period (typically a month or two) for a full refund or an exchange, even if there is no fault with the product. Exceptions may apply for goods sold as damaged or to clear. Goods bought through 'distance selling', for example online or by phone, also have a statutory 'cooling off' period of seven working days. To cancel the contract is to treat the contract as if it had not been made, except that the Regulations refer to the terms. Although no longer applied in consumer law, the principle of caveat emptor is generally held to apply to transactions between businesses unless it can be shown that the seller had a clear information advantage over the buyer that could not have been removed by carrying out reasonable due diligence.

CAVEAT VENDITOR
Caveat venditor is Latin for "let the seller beware." It is a counter to caveat emptor and suggests that sellers can also be deceived in a market transaction. This forces the seller to take responsibility for the product and discourages sellers from selling products of unreasonable quality. In the landmark case of MacPherson v. Buick Motor Co. (1916), New York Court Appeals Judge Benjamin N. Cardozo established that privity of duty is no longer required in regard to a lawsuit for product liability against the seller. This case is widely regarded as the origin of caveat venditor as it pertains to modern tort law in US. Clausula rebus sic stantibus In public international law, clausula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept).

Because the doctrine poses a risk to the security of treaties as its scope is relatively unconfined, it requires strict regulations as to the conditions in which it may be invoked. The doctrine is part of customary international law, but is also provided for in the 1969 Vienna Convention on the Law of Treaties under Article 62 (Fundamental Change of Circumstance), although the doctrine is never mentioned by name. Article 62 provides the only two justifications of the invocation of rebus sic stantibus: first, that the circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty (sub-paragraph A) and the instance wherein the change of circumstances has had a radical effect on the obligations of the treaty (sub-paragraph B). If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not apply and the provision remains in effect. Clausula rebus sic stantibus only relates to changed circumstances that were never contemplated by the parties. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1973). Although it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty, unilateral denunciation of a treaty is prohibited; a party does not have the right to denounce a treaty unilaterally.

COMMAND RESPONSIBILITY
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes.[1][2][3][4] The term may also be used more broadly to refer to the duty to supervise subordinates, and liability for the failure to do so, both in government, military law and with regard to corporations and trusts. The doctrine of command responsibility was established by the Hague Conventions (IV) and (X) of 1907 and was applied for the first time by the German Supreme Court in Leipzig after World War I, in the 1921 trial of Emil Mller.[5][6][7] The "Yamashita standard" is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted in 1945, in a still controversial trial, for atrocities committed by troops under his command in the Philippines. Yamashita was charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes".[8][9]

The "Medina standard" is based upon the 1971 prosecution of U.S. Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War.[10] It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. However, Medina was acquitted of all charges.[8][11][12] Origin Developing accountability In The Art of War, written during the 6th century BC, Sun Tzu argued that it was a commander's duty to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict. Similarly, in the Bible (Kings 1: Chapter 21), within the story of Ahab and the killing of Naboth, King Ahab was blamed for the killing of Naboth on orders from Queen Jezebel, because Ahab (as king) is responsible for everyone in his kingdom. The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474, was the first international recognition of commanders obligations to act lawfully. [13][14] Hagenbach was put on trial for atrocities committed during the occupation of Breisach, found guilty of war crimes and beheaded.[15] Since he was convicted for crimes "he as a knight was deemed to have a duty to prevent" Hagenbach defended himself by arguing that he was only following orders[16][17] from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman Empire had given Breisach.[18] Despite the fact there was no explicit use of a doctrine of "command responsibility" it is seen as the first trial based on this principle.[15][19] During the American Civil War, the concept developed further, as is seen in the Lieber Code. This regulated accountability by imposing criminal responsibility on commanders for ordering or encouraging soldiers to wound or kill already disabled enemies.[16][19] This was stipulated in Article 71 which provided that: Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.[20][21] The Hague Convention of 1907 was the first attempt at codifying the principle of command responsibility on a multinational level, specifically within "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section I on Belligerents: Chapter I The Qualifications of Belligerents" and "Section III Military Authority over the territory of the hostile State."[22] Article 1 of Section I states that:

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;

Another example of command responsibility is shown in Article 43 of Section III which stipulates that: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. While the Hague Convention of 1907 does not explicitly create a doctrine of command responsibility, it does uphold a notion that a superior must account for their actions of his subordinates. It also suggests that military superiors have a proactive and reactive duty to ensure that their troops act in accordance with international law and if they fail to command them lawfully, their respective states may be held criminally liable. In turn, those states may choose to punish their commanders. At such, this convention has been viewed as a foundational root of modern doctrine of command responsibility.[23][21] After WWI, the Allied Powers Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties recommended the establishment of an international tribunal, which would try individuals for "order[ing], or, with knowledge thereof and with power to intervene, abstain[ing] from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war."[19] Introducing responsibility for an omission Command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). In Re Yamashita before a United States Military Commission, General Yamashita became the first to be charged solely on the basis of responsibility for an omission. He was commanding the 14th Area Army of Japan in the Philippines when some of the Japanese troops engaged in atrocities against thousands of civilians. As commanding officer, he was charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes". By finding Yamashita guilty, the Commission adopted a new standard, stating that where "vengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable." However, the ambiguous wording resulted in a long-standing debate about the amount of knowledge required to establish command responsibility.

The matter was appealed, and was affirmed by the United States Supreme Court In re Yamashita 327 U.S. 1 (1946)[24] After sentencing, Yamashita was executed. Following In re Yamashita, courts clearly accepted that a commanders actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.[8][19] In the High Command Case, the United States Military Tribunal argued that in order for a commander to be criminally liable for the actions of his subordinates "there must be a personal dereliction" which "can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part" based upon "a wanton, immoral disregard of the action of his subordinates amounting to acquiescence".[6][8][19] In the Hostage Case, the U.S. Military Tribunal seemed to limit the situations where a commander has a duty to know to instances where he has already had some information regarding subordinates unlawful actions.[6][8][19] After World War II, the parameters of command responsibility were thus increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates. These cases, the latter two part of the Nrnberg tribunals, discussed explicitly the requisite standard of mens rea, and were unanimous in finding that a lesser level of knowledge than actual knowledge may be sufficient.[19] Codification The first international treaty to comprehensively codify the doctrine of command responsibility was the Additional Protocol I (AP I) of 1977 to the Geneva Conventions of 1949.[5][7][8] Article 86(2) states that: the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from responsibility if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. Article 87 obliges a commander to "prevent and, where necessary, to suppress and report to competent authorities" any violation of the Conventions and of AP I. In Article 86(2) for the first time a provision would "explicitly address the knowledge factor of command responsibility".[6][8][19] Definitions In the discussion regarding "command responsibility" the term "command" can be defined as A De jure (legal) command, which can be both military and civilian. The determining factor here is not rank but subordination. Four structures are identified:[5][6]

1. Policy command: heads of state, high-ranking government officials, monarchs 2. Strategic command: War Cabinet, Joint Chiefs of Staff 3. Operational command: military leadership; in Yamashita it was established that operational command responsibility cannot be ceded for the purpose of the doctrine of command responsibility operational commanders must exercise the full potential of their authority to prevent war crimes, failure to supervise subordinates or non-assertive orders dont exonerate the commander. 4. Tactical command: direct command over troops on the ground International case law has developed two special types of "de jure commanders." 1. Prisoners-of-war (POW) camp commanders: the ICTY established in Aleksovski that POW camp commanders are entrusted with the welfare of all prisoners, and subordination in this case is irrelevant. 2. Executive commanders: supreme governing authority in the occupied territory subordination is again irrelevant, their responsibility is the welfare of the population in the territory under their control, as established in the High Command and Hostages cases after World War II. B De facto (factual) command, which specifies effective control, as opposed to formal rank. This needs a superior-subordinate relationship. Indicia are:[5][6] 1. Capacity to issue orders 2. Power of influence: influence is recognized as a source of authority in the Ministries case before the US military Tribunal after World War II. 3. Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test superior status is deduced from analysis of distribution of tasks within the unit, it applies both to operational and POW camp commanders. Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or prosecution of crimes mandatory.[5] Application of command responsibility Nuremberg Tribunal Main articles: Nuremberg Trials, Subsequent Nuremberg Trials, and Nuremberg Defense Following World War II, communis opinio was that the atrocities committed by the Nazis were so severe a special tribunal had to be held. However, contemporary jurists such as Harlan Fiske Stone criticized the Nuremberg Trials as victor's justice. The Nuremberg Charter determined the basis to prosecute people for:[16]

Crime

Description

Crimes against peace

the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

War crimes

violations of the laws and customs of war. A list follows with, inter alia, murder, ill-treatment or deportation into slave labour or for any other purpose of the civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, the killing of hostages, the plunder of public or private property, the wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

Crimes against humanity

murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The jurisdiction ratione personae is considered to apply to "leaders, organisers, instigators and accomplices" involved in planning and committing those crimes.[16] International Criminal Tribunal for the former Yugoslavia The ICTY statute article 7 (3) establishes that the fact that crimes "were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators."[19] In The Prosecutor v. Delali et al. (the elebii case) first considered the scope of command responsibility by concluding that "had reason to know" (article 7(3)) means that a commander must have "had in his possession information of a nature, which at the least, would put him on notice of the risk of offences by indicating the need for additional investigation in order to ascertain whether crimes were committed or were about to be committed by his subordinates."[6][8][19]

In The Prosecutor v. Blaki ("the Blaki case") this view was corroborated. However, it differed regarding mens rea required by AP I. The Blaki Trial Chamber concluded that "had reason to know", as defined by the ICTY Statute, also imposes a stricter "should have known" standard of mens rea.[8][19] The conflicting views of both cases were addressed by the Appeals Chambers in elebii and in a separate decision in Blaki. Both rulings hold that some information of unlawfal acts by subordinates must be available to the commander following which he did not, or inadequately, discipline the perpetrator.[5][6][8][19] The concept of command responsibility has developed significantly in the jurisprudence of the ICTY. One of the most recent judgements that extensively deals with the subject is the Halilovi judgement [1] of 16 November 2005 (para. 22-100). International Criminal Tribunal for Rwanda International Criminal Court Following several ad hoc tribunals, the international community decided on a comprehensive court of justice for future crimes against humanity. This resulted in the International Criminal Court, which identified four categories.[16] 1. Genocide 2. Crimes against humanity 3. War crimes 4. Crimes of aggression Article 28 of the Rome Statute of the International Criminal Court codified the doctrine of command responsibility.[8] With Article 28(a) military commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they: either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.[7][8][19] It uses the stricter "should have known" standard of mens rea, instead of "had reason to know," as defined by the ICTY Statute.[6][19] The Bush administration has adopted the American Servicemembers' Protection Act and entered in Article 98 agreements in an attempt to protect any US citizen from appearing before this court. As such it interferes with implementing the command responsibility principle when applicable to US citizens.[25]

War on terror Manfred Nowak, United Nations Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment A number of commentators have advanced the argument that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of war crimes committed either with their knowledge or by persons under their control.[26] As a reaction to the September 11, 2001 attacks the U.S. government adopted several controversial measures (e.g., invading Iraq, asserting "unlawful combatant" status, and "enhanced interrogation methods"[27]). Alberto Gonzales and others argued that detainees should be considered "unlawful combatants" and as such not be protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.[28] Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" suggests, at the least, an awareness by those involved in crafting policies in this area that US officials are involved in acts that could be seen to be war crimes.[29] The U.S. Supreme Court overruled the premise on which this argument is based in Hamdan v. Rumsfeld, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay, and that the Guantanamo military commission used to try these suspects were in violation of US and international law because it was not created by Congress.[30] On April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad alQahtani.[31] Dave Lindorff contends that by ignoring the Geneva Conventions the US administration, including President Bush, as Commander-in-Chief, is culpable for war crimes.[32] In addition, former chief prosecutor of the Nuremberg Trials Benjamin Ferencz has called the invasion of Iraq a "clear breach of law", and as such it constitutes a crime against peace.[33] On November 14, 2006, invoking universal jurisdiction, legal proceedings were started in Germany - for their alleged involvement of prisoner abuse - against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others.[34] This allegedly prompted recently retired Donald Rumsfeld to cancel a planned visit to Germany. Former Army Lt. Ehren Watada refused to be deployed to Iraq based on his claims of command responsibility. Although his own deployment was not ordered until after Security Council Resolution 1511 authorized a multinational force in [35] Iraq, Watada argued that the invasion of Iraqwas illegal, and as such he claimed he was bound by command responsibility to refuse to take part in an illegal war. He was discharged from the Army in 2009.

The Military Commissions Act of 2006 is seen as an amnesty law for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act[36] and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.[37] Luis Moreno-Ocampo told The Sunday Telegraph that he is willing to start an inquiry by the International Criminal Court (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and American President George W. Bush.[38] Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the United States is not a State Party to the relevant treatyunless Bush were accused of crimes inside a State Party, or the UN Security Council (where the United States has a veto) requested an investigation. However Blair does fall under ICC jurisdiction as Britain is a State Party. Nat Hentoff wrote on August 28, 2007, that a leaked report by the International Committee of the Red Cross and the July 2007 report by Human Rights First and Physicians for Social Responsibility, titled Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, might be used as evidence of American war crimes if there was a Nuremberg-like trial regarding the War on Terror.[39] Shortly before the end of President Bush's second term, news media in other countries started opining that under the United Nations Convention Against Torture, the United States is obligated to hold those responsible for prisoner abuse to account under criminal law.[40] One proponent of this view was the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Professor Manfred Nowak) who, on January 20, 2009, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law the United States would now be mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture.[41] Law professor Dietmar Herz explained Nowak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as interrogation tool.[41] War in Darfur Human Rights Watch commented on this conflict by stating that: ...individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff. ...... The principle of command responsibility is applicable in internal armed conflicts as well as international armed conflicts.[42]

The Sunday Times in March 2006, and the Sudan Tribune in March 2008, reported that the UN Panel of Experts determined that Salah Gosh and Abdel Rahim Mohammed Hussein had "command responsibility" for the atrocities committed by the

multiple Sudanese security services.[43]

Following an inquiry by the United Nations, regarding allegations of involvement of the Government in genocide, the dossier was referred to the International Criminal Court.[43] On May 2, 2007, the ICC issued arrest warrants for militia leader Ali Muhammad al-Abd al-Rahman, of the Janjaweed, a.k.a. Ali Kushayb, and Ahmad Muhammad Haroun for crimes against humanity and war crimes.[43] To this day Sudan has refused to comply with the arrest warrants and has not turned them over to the ICC.[44] The International Criminal Court's chief prosecutor, Luis Moreno-Ocampo, announced on July 14, 2008, ten criminal charges against President Omar al-Bashir, accusing him of sponsoring war crimes, genocide, and crimes against humanity.[45] The ICC's prosecutors have charged al-Bashir with genocide because he "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity.[45] The ICC's prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a panel of ICC judges to issue an arrest warrant for Bashir.[45] Zimbabwe Further information: Human rights in Zimbabwe, Joshua Nkomo, Zimbabwean Fifth Brigade, and Zimbabwean presidential election, 2008 For his conduct as President of Zimbabwe, including allegations of torture and murder of political opponents, it is suggested Robert Mugabe may be prosecuted using this doctrine.[46]Because Zimbabwe has not subscribed to the International Criminal Court's jurisdiction it may be authorised by the United Nations Security Council. The precedent for this was set by its referral to bring indictments relating to the crimes committed in Darfur.[47] Otherwise, a Zimbabwean regime following Mugabe's would have jurisdiction over his alleged crimes (in the absence of any amnesty law) as would the numerous countries with universal jurisdiction over torture, including the UK.

COMMON EMPLOYMENT
Common employment was an historical defence in English tort law that said workers implicitly undertook the risks of being injured by their co-workers, with whom they were in "common employment". The US labor law terminology was the "fellow servant rule".

Development The operation of the doctrine was seen first in Priestly v Fowler in the United Kingdom. In the United States the doctrine was seen in Farwell v. Boston & Worcester R.R. Corp.[1][2] It was abolished altogether by the Law Reform (Personal Injuries) Act 1948 in the United Kingdom. The doctrine has been superseded in the United States by worker's compensation laws, by which a worker can file for a quasi-tort, regardless of their co-worker's fault.

COMPARATIVE NEGLIGENCE
Comparative negligence, or non-absolute contributory negligence outside of the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the fact-finder, usually a jury, must decide the degree to which the plaintiff's negligence versus the combined negligence of all other relevant actors contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages. Explanation Prior to the late 1960s, however, only a few states had adopted this system. When comparative negligence was adopted, three main versions were used. The first was called "pure" comparative negligence. A plaintiff who was 90% to blame for an accident could recover 10% of his losses. (Of course, if the defendant suffered injuries in such a case, he/she could counter claim and recover 90% of his/her losses from the other party.) The second and third versions are lumped together in what is called "modified" comparative negligence. One variant allows plaintiffs to recover only if the plaintiff's negligence is "not greater than" the defendant's (viz., the plaintiff's negligence must not be more than 50% of the combined negligence of both parties). The other variant allows plaintiffs to recover only if the plaintiff's negligence is "not as great as" the defendant's (viz., the plaintiff's negligence must be less than 50% of the combined negligence). The apparently minor difference between the two modified forms of comparative negligence are thought by lawyers handling such cases to be significant in that juries who ordinarily assign degrees of fault are much less willing to award damages to a plaintiff who is equally at fault than to one who is less at fault than the defendant.

Contributory negligence doctrine Some states, though, still use the contributory negligence doctrine when evaluating negligence in a tort. Alabama, for instance, has not adopted this. In Williams v. Delta Int'l Machinery Corp., 619 So.2d 1330, 1333 (Ala. 1993), the court said: "[after] exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years." Maryland, North Carolina, Virginia, and Washington, D.C. continue to use contributory negligence as well. Neither comparative negligence nor contributory negligence should be confused with joint and several liability which generally holds each of two or more culpable defendants responsible for all the damages sustained by a plaintiff. For practical reasons, a plaintiff who faces the defense of comparative negligence may wish to join all potentially culpable defendants in his action because the plaintiff's negligence will be balanced against the combined negligence of all defendants in apportioning damages, even though the plaintiff may not be able actually to get compensation from some of them--for example where an insolvent individual and a major corporation were both negligent in causing plaintiff's harm. Consideration Consideration is the concept of legal value in connection with contracts. It is anything of value promised to another when making a contract. It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. Consideration to create a legally enforceable contract entails a detriment to the promisee OR a benefit to the promisor. Under the notion of "pre-existing duties", if either the promisor or the promisee already had a legal obligation to render such payment, it cannot be seen as consideration in the legal sense. In common law it is a prerequisite that both parties offer consideration before a contract can be thought of as binding. The doctrine of consideration is irrelevant in many jurisdictions, although contemporary commercial litigant relations have held the relationship between a promise and a deed is a reflection of the nature of contractual considerations. If there is no element of consideration found, there is thus no contract formed. However, even if a court decides there is no contract, there might be a possible recovery under quantum meruit (sometimes referred to as aquasi-contract) or promissory estoppel. If A signs a contract to buy a car from B for $5,000, A's consideration is the $5,000, and B's consideration is the car.

Additionally, if A signs a contract with B such that A will paint B's house for $500, A's consideration is the service of painting B's house, and B's consideration is $500 paid to A. Further, if A signs a contract with B such that A will not repaint his own house in any other color than white, and B will pay A $500 per year to keep this deal up, there is also consideration. Although A did not promise to affirmatively do anything, A did promise not to do something that he was allowed to do, and so A did pass consideration. A's consideration to B is the forbearance in painting his own house in a color other than white, and B's consideration to A is $500 per year. Conversely, if A signs a contract to buy a car from B for $0, B's consideration is still the car, but A is giving no consideration, and so there is no valid contract. However, if B still gives the title to the car to A, then B cannot take the car back, since, while it may not be a valid contract, it is a valid gift. There are a number of common issues as to whether consideration exists in a contract. History and comparative law Roman law-based systems[1] (including Scotland) do not require consideration, and some commentators consider it unnecessary and have suggested that consideration be abandoned, and estoppel be used to replace it as a basis for contracts.[2] However, legislation, rather than judicial development, has been touted as the only way to remove this entrenched common law doctrine. Lord Justice Denning famously stated that "The doctrine of consideration is too firmly fixed to be overthrown by a side-wind."[3] The reason that both exist in common law jurisdictions is thought by leading scholars to be the result of the combining by 19th century judges of two distinct threads: first the consideration requirement was at the heart of the action of assumpsit, which had grown up in the Middle Ages and remained the normal action for breach of a simple contract in England & Wales until 1884, when the old forms of action were abolished; secondly, the notion of agreement between two or more parties as being the essential legal and moral foundation of contract in all legal systems, promoted by the 18th century French writer Pothier in his Traite des Obligations, much read (especially after translation into English in 1805) by English judges and jurists. The latter chimed well with the fashionable will theories of the time, especially John Stuart Mill's influential ideas on free will, and got grafted on to the traditional common law requirement for consideration to ground an action in assumpsit.[4] Civil law systems take the approach that an exchange of promises, or a concurrence of wills alone, rather than an exchange in valuable rights is the correct basis. So if you promised to give me a book, and I accepted your offer without giving anything in return, I would have a legal right to the book and you could not change your mind about giving me it as a gift.

However, in common law systems the concept of culpa in contrahendo, a form of 'estoppel', is increasingly used to create obligations during pre-contractual negotiations.[5] Estoppel is an equitable doctrine that provides for the creation of legal obligations if a party has given another an assurance and the other has relied on the assurance to his detriment. Monetary value of consideration Generally, courts do not inquire whether the deal between two parties was monetarily fairmerely that each party passed some legal obligation or duty to the other party. The dispositive issue is presence of consideration, not adequacy of the consideration. The values between consideration passed by each party to a contract need not be comparable. For instance, if A offers B $200 to buy B's mansion, luxury sports car, and private jet, there is still consideration on both sides. A's consideration is $200, and B's consideration is the mansion, car, and jet. Courts in the United States generally leave parties to their own contracts, and do not intervene. The old English rule of consideration questioned whether a party gave the value of a peppercorn to the other party. As a result, contracts in the United States have sometimes have had one party pass nominal amounts of consideration, typically citing $1. Thus, licensing contracts that do not involve any money at all will often cite as consideration, "for the sum of $1 and other good and valuable consideration". However, some courts in the United States may take issue with nominal consideration, or consideration with virtually no value. Some courts have since thought this was a sham. Since contract disputes are typically resolved in state court, some state courts have found that merely providing $1 to another is not a sufficiently legal duty, and therefore no legal consideration passes in these kinds of deals, and consequently, no contract is formed. However, this is a minority position. Supreme Court of Texas (1464-EIGHT, LTD. & MILLIS MANAGEMENT CORP, v. GAIL ANN JOPPICH See section III) Pre-existing legal duties Main article: Pre-existing duty rule A party which already has a legal duty to provide money, an object, a service, or a forbearance, does not provide consideration when promising merely to uphold that duty. That legal duty can arise from law, or obligation under a previous contract. The prime example of this sub-issue is where an uncle gives his seven year old nephew (a resident of the US) the following offer: "if you do not smoke cigarettes or marijuana until your 18th birthday, then I will pay you $500" (assuming it is a criminal offense in the US for people under the age of 18 to smoke cigarettes, and for people of any age to smoke marijuana).

On the nephew's 18th birthday, he tells the uncle to pay up, and the uncle says no. In the subsequent lawsuit, the uncle will win, because the nephew, by U.S. law, already had a duty to refrain from smoking cigarettes or marijuana. The same applies if the consideration is a performance for which the parties had previously contracted. For example, A agrees to paint B's house for $500, but halfway through the job A tells B that he will not finish unless B increases the payment to $750. If B agrees, and A then finishes the job, B still only needs to pay A the $500 originally agreed to, because A was already contractually obligated to paint the house for that amount. An exception to this rule holds for settlements, such as an accord and satisfaction. If a creditor has a credit against a debtor for $10,000, and offers to settle it for $5,000, it is still binding, if accepted, even though the debtor had a legal duty to repay the entire $10,000. Pre-existing duties relating to at-will employment depend largely on state law. Generally, at-will employment allows the employer to terminate the employee for good or even no reason, and allows the employee to resign for any reason. There are no duties of continued employment in the future. Therefore, when an employee demands a raise, there is no issue with consideration because the employee has no legal duty to continue working. Similarly, when an employer demands a pay-cut, there is also no contractual issue with consideration, because the employer has no legal duty to continue employing the worker. However, certain states require additional consideration other than the prospect of continued employment, to enforce terms demanded later by the employer, in particular, non-competition clauses. Bundled terms Contracts where a legally valueless term is bundled with a term that does have legal value are still generally enforceable. Consider the uncle's situation above. If the same uncle had instead told his 17 year old nephew the following offer: "if you do not smoke cigarettes and do not engage females before your 18th birthday, then I will pay you $500". On the nephew's 18th birthday, he asks the uncle to pay up, and this time, in the subsequent lawsuit, the nephew may win.[citation needed] Although the promise of not smoking was not valuable consideration (it was already legally prohibited), virtually all states allow some sort of engagement by minors. Even though the engagement by minors is legally restricted, there are circumstances where it is legal, and thus the promise to forbear from it entirely has legal value. However, the uncle would still be relieved from the liability if his nephew smoked a cigarette, even though that consideration is valueless, because it was paired with something of legal value; therefore, adherence to the entire, collective agreement is necessary.

Past consideration Generally, past consideration is not a valid consideration and has no legal value. Past consideration therefore cannot be used as a basis when claiming damages. Roscorla v Thomas. Two exceptions to this rule include: 1. Where it was paid at the request of the offeror. 2. Where both parties had earlier on contemplated payment. Option contracts and conditional consideration Generally, conditional consideration is valid consideration. Suppose A is a movie script writer and B runs a movie production company. A says to B, "buy my script." B says "How about this I will pay you $5,000 so that you do not let anyone else produce your movie until one year from now. If I do produce your movie in that year, then I will give you another $50,000, and no one else can produce it. If I do not produce your movie in that year, then you're free to go." If the two subsequently get into a dispute, the issue of whether a contract exists is answered. B had an option contracthe could decide to produce the script, or not. B's consideration passed was the $5,000 down, and the possibility of $50,000. A's consideration passed was the exclusive rights to the movie script for at least one year. In settlements Suppose B commits a tort against A, causing $5,000 in compensatory damages and $3,000 in punitive damages. Since there is no guarantee that A would win against B if it went to court, A may agree to drop the case if B pays the $5,000 compensatory damages. This is sufficient consideration, since B's consideration is a guaranteed recovery, and A's consideration is that B only has to pay $5,000, instead of $8,000. Treatments by different legal systems

Consideration under English law Consideration under American law Consideration is not required for a contract under Scots contract law

CONTRA PRINCIPIA NEGANTEM NON EST DISPUTANDUM

Contra principia negantem non est disputandum (Latin, alternatively Contra principia negantem disputari non potest and Contra principia negantem disputari nequit; literally, "Against one who denies the principles, there can be no debate") is a principle of logic and law: in order to debate reasonably about a disagreement, there must be agreement about the principles or facts by which to judge the arguments. The maxim cannot be found in Aristotle, though scholars have pointed to some Aristotelian passages that approach it in spirit.[1][2] It is sometimes said to have been used in Medievalscholastic philosophy to refer to the authority of the Aristotelian system. Duns Scotus concludes one passage of his commentary on Peter Lombard's Sentences with the statement, "If this argument is not convincing, many principles supposed by the philosophers are called into doubt; and against one who denies commonly accepted principles, discussion is impossible (contra autem negantem principia communiter recepta, non est disputandum).[3] The maxim is sometimes cited from the seventeenth-century English legal treatise Coke on Littleton (Co. Litt. 343), where it explains the notion of a "maxime in law."[4] John Lacy has a character (a physician) quote the maxim in the fifth act of The Dumb Lady (1672). Arthur Schopenhauer refers to it in his "The Art of Controversy,"[5] and Lenin objected to Peter Berngardovich Struve's assertion of the principle, retorting, "That depends on how these principia are formulatedas general propositions and notes, or as a different understanding of the facts of Russian history and present-day reality."[6] Karl Popper thought the maxim expressed the relativist's irrationalist "doctrine of the impossibility of mutual understanding between different cultures, generations, or historical periods even within science, even within physics": "The myth of the framework is clearly the same as the doctrine that one cannot rationally discuss anything that is fundamental, or that a rational discussion of principles is impossible."[7]

CONTRA PROFERENTEM
Contra proferentem (Latin: "against [the] offeror"),[1] also known as "interpretation against the draftsman", is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.[2]

The doctrine is often applied to situations involving standardized contracts or where the parties are of unequal bargaining power, but is applicable to other cases.[3] However, the doctrine is not directly applicable to situations where the language at issue is mandated by law, as is often the case with insurance contracts and bills of lading.[4] The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as possible and to take into account as many foreseeable situations as it can. Additionally, the rule reflects the court's inherent dislike of standard-form take-it-orleave-it contracts also known as contracts of adhesion (e.g., standard form insurance contracts for individual consumers, residential leases, etc.). The court perceives such contracts to be the product of bargaining between parties in unfair or uneven positions. To mitigate this perceived unfairness, legal systems apply the doctrine of contra proferentem; giving the benefit of any doubt in favor of the party upon whom the contract was foisted. Some courts when seeking a particular result will use contra proferentem to take a strict approach against insurers and other powerful contracting parties and go so far as to interpretterms of the contract in favor of the other party, even where the meaning of a term would appear clear and unambiguous on its face, although this application is disfavored. Contra proferentem also places the cost of losses on the party who was in the best position to avoid the harm. This is generally the person who drafted the contract. An example of this is the insurance contract mentioned above, which is a good example of an adhesion contract. There, the insurance company is the party completely in control of the terms of the contract and is generally in a better position to, for example, avoid contractual forfeiture. This is a longstanding principle: see, for example, California Civil Code 1654 (In cases of uncertainty ... the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist"), which was enacted in 1872. Numerous other states have codified the rule as well. The principle has also been codified in international instruments the UNIDROIT Principles and the Principles of European Contract Law. such as

CONTRIBUTORY NEGLIGENCE
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has contributed to the accident, they cannot sue the driver for damages because the accident would not have occurred if it weren't for the pedestrian's own negligence.

Another example of contributory negligence is where a plaintiff voluntarily disregards warnings and assumes a certain level of risk, although accepting reasonable risk while attempting to rescue another person is not considered contributory negligence. Contributory negligence is sometimes regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely, which is known as pure contributory negligence.[1]:85 In the United States, the pure contributory negligence only applies in Alabama, the District of Columbia, Maryland, North Carolina, and Virginia. Indiana applies pure contributory negligence to malpractice cases. In England and Wales, it is not possible to defeat a claim under contributory negligence and therefore completely deny the victim compensation. It does however allow for a reduction in damages recoverable to the extent that the court sees fit.[2] [3] Contributory negligence can be compared with comparative negligence, where the negligence of the plaintiff is not a complete defense of the insured but can reduce the damages. Burden of proof In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In others, the burden of proof is on a plaintiff to disprove his or her own negligence. The tortfeasor may still be held liable, if he or she had the last clear chance to prevent the injury (the last clear chance doctrine). Availability Contributory negligence is generally a defense to a tort of negligence. The defense is not available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than to ordinary negligence. In England and Wales, it is not a defence to the tort of conversion or trespass to chattels. In the U.S., it is not a defense to any intentional tort. Culture "Contributory Negligence" was the title of a circa 1982 poem by Attila the Stockbroker, a performance poet in the U.K. The poem criticized a court decision where a rapist escaped heavy punishment and was ordered to pay only a fine on the ground that the women in some way provoked or contributed to the rape. History The doctrine of contributory negligence was dominant in U.S. jurisprudence in the 19th and 20th century.[1] The English case Butterfield v. Forrester is generally recognized as the first appearance, although ironically in this case the judge found the victim to be the sole proximate cause of the injury.[1]

CORPORATE OPPORTUNITY
The corporate opportunity doctrine is the legal principle providing that directors, officers, and controlling shareholders of a corporation must not take for themselves any business opportunity that could benefit the corporation.[1] The corporate opportunity doctrine is one application of the fiduciary duty of loyalty.[2] Application The corporate opportunity doctrine does not apply to all fiduciaries of a corporation; rather, it is limited to directors, officers, and controlling shareholders.[3] The doctrine applies regardless of whether the corporation is harmed by the transaction; indeed, it applies even if the corporation benefits from the transaction.[4] The corporate opportunity doctrine only applies if the opportunity was not disclosed to the corporation. If the opportunity was disclosed to the board of directors and the board declined to take the opportunity for the corporation, the fiduciary may take the opportunity for him- or herself.[5] When the corporate opportunity doctrine applies, the corporation is entitled to all profits earned by the fiduciary from the transaction.[6] Elements A business opportunity is a corporate opportunity if the corporation is financially able to undertake the opportunity, the opportunity is within the corporation's line of business, and the corporation has an interest or expectancy in the opportunity.[7] The Delaware Court of Chancery has stated, "An opportunity is within a corporation's line of business . . . if it is an activity as to which the corporation has fundamental knowledge, practical experience and ability to pursue."[8] In In re eBay, Inc. Shareholders Litigation, investing in various securities was held to be in a line of business of eBay despite the fact that eBay's primary purpose is to provide an online auction platform.[9] Investing was in a line of business of eBay because eBay "consistently invested a portion of its cash on hand in marketable securities."[10] A corporation has an interest or expectancy in a business opportunity if the opportunity would further an established business policy of the corporation.[11]

CORRELATIVE RIGHTS DOCTRINE

The correlative rights doctrine is a legal doctrine limiting the rights of landowners to a common source of groundwater (such as an aquifer) to a reasonable share, typically based on the amount of land owned by each on the surface above. This doctrine is also applied to oil and gas in some U.S. states. Under California law, the owners of overlying land own the subsurface water as tenants in common, and each is allowed a reasonable amount for his/her own use.

D
DESUETUDE
In law, desuetude (from the Latin desuetudo, outdated, no longer custom) is a doctrine that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are notrepealed when they become obsolete. It is the legal doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors. The policy of inserting sunset clauses into a constitution or charter of rights (as in Canada since 1982) or into regulations and other delegated/subordinate legislation made under an Act (as in Australia since the early 1990s) can be regarded as a statutory codification of the common-law doctrine. British law The doctrine of desuetude is not favoured in the common law tradition. In 1818, the English court of King's Bench held in the case of Ashford v Thornton that trial by combat remained available at a defendant's option in a case where it was available under the common law. The concept of desuetude has more currency in the civil law tradition, which is more regulated by legislative codes, and less bound by precedent. The doctrine has been applied in regard to acts of the pre-1707 Scottish Parliament. Hundreds of Acts dating back to the Middle Ages have also been amended or abolished in current and former British territories by numerous Statute Law Revision Acts from falling into desuetude. United States law Desuetude does not apply to violations of the United States Constitution. In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970), the United States Supreme Court asserted that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."

It may, however, have validity as a doctrine in defense of penal prosecution. In 1825, the Pennsylvania Supreme Court declined to enforce the traditional punishment of ducking for women convicted as common scolds, stating that "total disuse of any civil institution for ages past, may afford just and rational objections against disrespected and superannuated ordinances. "Wright v. Crane, 13 Serg. & Rawle 220, 228 (Pa. 1825). The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if: 1. The statute proscribes only acts that are malum prohibitum and not malum in se; 2. There has been open, notorious and pervasive violation of the statute for a long period; and 3. There has been a conspicuous policy of non-enforcement of the statute. This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)[1]. While it may not be a violation of due process to enforce a desuetudinal law, the fact that a law has long gone unenforced may present a bar to standing in a suit to prevent its future enforcement. In Poe v. Ullman, the Supreme Court refused to hear a challenge to Connecticut's ban on birth control, writing: The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis . . . . 'Deeply embedded traditional ways of carrying out state policy * * * 'or not carrying it out'are often tougher and truer law than the dead words of the written text.' Shortly thereafter, Connecticut's birth control law was enforced, and struck down,
in Griswold v. Connecticut.

DISCOVERY DOCTRINE
The Discovery doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign indigenous nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch.

The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments. The 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result.[1][2] John Marshall explained the Court's reasoning. The supposedly inferior character of native cultures was a reason for the doctrine having been used. Colonial history The origins of the doctrine can be traced to Pope Nicholas V's issuance of the papal bull Romanus Pontifex in 1455. The bull allowed Portugal to claim and conquer lands in West Africa. Pope Alexander VI extended to Spain the right to conquer newly-found lands in 1493, with the papal bull Inter caetera, after Christopher Columbus had already begun doing so. Arguments between Portugal and Spain led to the Treaty of Tordesillas which clarified that only non-Christian lands could thus be taken, as well as drawing a line of demarcation to allocate potential discoveries between the two powers.[3] United States law According to the United States Supreme Court's decision in Johnson v. M'Intosh, this theory of Christian expansion and possession of newly discovered lands, despite native presence, was one by which all colonial powers operated. Chief Justice Marshall, writing the decision, held that theUnited Kingdom had taken title to the lands which constituted the United States when the British discovered them. Marshall pointed to the exploration charters given to John Cabot as proof that the British had operated under the doctrine.[3] The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign and had no property rights but rather merely held a right of occupancy. Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase. Natives could not sell the land to private citizens but only to the discovering government.[citation needed] The doctrine was used in numerous other cases as well. With Cherokee Nation v. Georgia, it supported the concept that tribes were not independent states but "domestic dependent nations".[3] The decisions in Oliphant v. Suquamish Indian Tribe and Duro v. Reina used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who weren't a member of the prosecuting tribe.[4]

DOCTRINE OF CASH EQUIVALENCE

The Doctrine of Cash Equivalence states that the U.S. Federal income tax law treats certain non-cash payment transactions like cash payment transactions for federal income tax purposes.[1] The doctrine is used most often for deciding when cash method (as opposed to accrual method) taxpayers are to include certain non-cash income items. Another doctrine often used when trying to determine the timing of the inclusion of income is the constructive receipt doctrine.[2] Most individuals begin as cash method taxpayers because their first form of bookkeeping is a checkbook.[3] In contrast, some businesses start as accrual method taxpayers because businesses use different rules for recording income and expenditures.[4] The Internal Revenue Code (IRC) 446(a) states, however, that "[t]axable income shall be computed under the method of accounting on the basis which the taxpayer regularly computes his income in keeping his books." One of the major advantages to the cash method of accounting is the ability to defer taxation because the recognition of income applicable to amounts in accounts receivable can be deferred to a later year.[5] The Doctrine of Cash Equivalence is important because many people are cash method taxpayers and would be subject to this rule. Elements Cash method taxpayers include income items (cash and cash equivalents) in the year the items are received.[6] See also Treasury Regulations[7] Certain payment transactions involve cash equivalents, such as receipts of checks and credit card payments. The cash equivalence doctrine arose out of a need to determine whether certain items that were either actually or constructively received must be accrued as income. A dispute over timing of income recognition for tax purposes may arise when the thing received is really not much more than a promise of payment, such as a promissory note or a bond. If mere promises to pay were considered cash equivalents, then there would be little difference between the cash and accrual methods for tax purposes.[8] The United States Court of Appeals for the Fifth Circuit established the standard for applying the cash equivalence doctrine to promises of payment.[9] The court first noted that the principle that "[a] promissory note, negotiable in form, is not necessarily the equivalent of cash" remains true.[10] But that principle also has a true inversethat a non-negotiable instrument can be a cash equivalent if the following factors are met.[10] A promise to pay will be considered a cash equivalent for cash method taxpayers if:

1. the promise to pay is unconditional; 2. the promise is made by a solvent person; 3. the promise is assignable; 4. the promise is not subject to set-offs; and 5. the promise is marketable.[10] Since taxpayers generally prefer to defer recognition of income to subsequent tax years (due to the time value of money), a finding of cash equivalence will typically be to the disadvantage of the individual taxpayer. Mechanics To use the doctrine of cash equivalence, a taxpayer must have either actually received an item, or constructively received an item. If either of these situations exist, a taxpayer must determine whether the item received is cash equivalence, using the six factors described in Cowden v. Commissioner. If the item is deemed cash equivalent, then the taxpayer has income. If it is not cash equivalent, the taxpayer does not have income.

DOCTRINE OF CHANCES
In law, the doctrine of chances is a rule of evidence that allows evidence to show that it is unlikely a defendant would be repeatedly, innocently involved in similar, suspicious circumstances. Normally, under Federal Rule of Evidence 404, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Using the doctrine of chances allows a prosecutor to admit evidence of prior "accidents" that can persuade a jury that prior incidents are so similar that it is very improbable that the case at bar is actually accidental. The doctrine of chances was first developed by English courts in the case Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), better known as the "brides in the bath murder". In this case the defendant was accused of murdering his wife by drowning her in a bath. The defendant claimed that his wife had fainted in the bath. The prosecutor sought to include evidence in the trial that the defendant's two previous wives had both died in the same way. The evidence was allowed.

DOCTRINE OF COLOURABILITY
The doctrine of colourability is the idea that when the legislature wants to do something that it cannot do within the constraints of the constitution, it colours the law with a substitute purpose which will still allow it to accomplish its original goal.

India
Under the constitution of India [1] exclusive jurisdiction for the Union and the State has been conferred regarding subject matters of legislation. This has been provided by Article 246 [2] which has demarcated the legislative jurisdiction of the parliament and the state assemblies by outlining the different subjects under List I for the Union, List II for the State and List III for both, as given in the seventh schedule to the Indian Constitution. As a consequence the conflicts of jurisdiction arise, due to the very fact that we have separate lists for the Union and the State to legislate upon. It often happens that the strict constitutional boundaries are transgressed in legislation inviting judicial review of the said Bill/Act. The enactment of legislation is a function of the legislative power. In order to decide whether a particular legislation is unconstitutional for offending the constitutional limitations of distribution of powers, the Court examines the enactment with some strictness. The Legislature can only make laws within its legislative competence. The legislative competence may be limited by specific List entries, or be restricted by other constitutional limitations and prohibitions. It cannot over-step the area of its legislative capability. A simple rule is followed in this regard which is to find out if the legislating body had the power to legislate directly. If it is not so, then the legislature cannot hide its incompetence by purporting to legislate indirectly. What it cannot do directly, it cannot attempt to do indirectly. Therefore, the substance of the legislation must be articulated for the purpose of determining whether what it is enacted, it can really do. The question of colourable legislation was fully discussed by the Supreme Court in K.C. Gajapati Narayan Deo v. Orissa, a decision which has been treated as settling the law on the subject which was further approved in the Supreme Court decision of Sonapur Tea Co. v. Deputy Commissioner.

DISCOVERY (LAW)
In U.S. law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions.

Discovery can be obtained from non-parties using subpoenas. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Civil discovery in the United States Under the law of the United States, civil discovery is wide-ranging and can involve any material which is "reasonably calculated to lead to admissible evidence." This is a much broader standard than relevance, because it contemplates the exploration of evidence which might berelevant, rather than evidence which is truly relevant. (Issues of the scope of relevance are taken care of before trial in motions in limine and during trial with objections.) Certain types of information are generally protected from discovery; these include information which is privileged and the work product of the opposing party. Other types of information may be protected, depending on the type of case and the status of the party. For instance, juvenile criminal records are generally not discoverable, peer review findings by hospitals in medical negligence cases are generally not discoverable and, depending on the case, other types of evidence may be non-discoverable for reasons of privacy, difficulty and/or expense in complying and for other reasons. (Criminal discovery rules may differ from those discussed here.) Electronic discovery or "e-discovery" refers to discovery of information stored in electronic format (often referred to as Electronically Stored Information, or ESI). In practice, most civil cases in the United States are settled after discovery.[2] After discovery, both sides often are in agreement about the relative strength and weaknesses of each side's case and this often results in either a settlement or summary judgment, which eliminates the expense and risks of a trial. At the Federal level Discovery in the United States is unique compared to other common law countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" [1]. According to the Federal Rules of Civil Procedure, the plaintiff must initiate a conference between the parties after the complaint was served to the defendants, to plan for the discovery process.[3] The parties should attempt to agree on the proposed discovery schedule, and submit a proposed Discovery Plan to the court within 14 days after the conference.[3] After that, the main discovery process begins which includes: initial disclosures, depositions, interrogatories, request for admissions (RFA) and request for production of documents (RFP). In most of United States district (federal) courts the formal requests for interrogatories, request for admissions and request for production are exchanged between the parties and not filed with the court. Parties, however, can file motion to compel discovery if responses are not received within the FRCP time limit.

Parties can file a motion for a protective order if the discovery requests become unduly burdensome or for purpose of harassment. At the state level Many states have adopted discovery procedures based on the federal system; some closely adhere to the federal model, others not so closely. Some states take an entirely different approach to discovery. Many states have adopted the Uniform Uniform Interstate Depositions and Discovery Act to provide uniform process when discovery is to be done out of state. California In California state courts, discovery is governed by the Civil Discovery Act of 1986 (Title 4 (Sections 2016-2036) of the Code of Civil Procedure), as subsequently amended.[4] A significant number of appellate court decisions have interpreted and construed the provisions of the Act. California written discovery generally consists of four methods: Request for Production of Documents, Form Interrogatories, Special Interrogatories, and Requests for Admissions.[5]Responses to California discovery requests are not continuing: the responding party only needs to respond with the facts as known on the date of the response, and is under no obligation to update its responses as new facts become known.[6] This causes many parties to reserve one or two interrogatories until the closing days of discovery, when they ask if any of the previous responses to discovery have changed, and then ask what the changes are. California depositions are not limited to one day, and objections must be made in detail or they are permanently waived. A party may only propound thirty-five written special interrogatories on any other single party unless the propounding party submits a "declaration of necessity".[7]No "subparts, or a compound, conjunctive, or disjunctive question" may be included in an interrogatory.[8]However, "form interrogatories" which have been approved by the state Judicial Council[9] do not count toward this limit. In addition, no "preface or instruction" may be included in the interrogatories unless it has been approved by the Judicial Council; in practice, this means that the only instructions permissible with interrogatories are the ones provided with the form interrogatories. District of Columbia The District of Columbia follows the federal rules, with a few exceptions. Some deadlines are different, and litigants may only resort to the D.C. Superior Court. Forty interrogatories, including parts and sub-parts, may be propounded by one party on any other party. There is no requirement for a "privilege log": federal Rule 26(b)(5) was not adopted by the D.C. Superior Court. Where above is stated "litigants may only resort to the D.C. Superior Court" upon correction is found according to the District of Columbia Superior Court Rules of Civil Procedure Section 73(b)Judicial Review and Appeal which states: "Judicial review of a final order or judgement entered upon direction of a

hearing commissioner is available on motion of a party to the Superior Court judge designated by the Chief Judge to conduct such reviews...After that review has been completed, appeal may be taken to the District of Columbia Court of Appeals." This rule basically implies that in a civil action, if a hearing commissioner is authorized by all parties to conduct the proceedings instead of a judge, upon a request for a review or appeal, the motion must first be reviewed by a Superior Court judge to the same standard as a motion for appeal on a Superior Court Judge to the Court of Appeals, but the right to appeal to the higher courts still remains. Criticism of U.S. discovery The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other's financial resources in a war of attrition. For example, one can make information requests, which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands[citation needed] of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on. In a critique of the U.S. legal profession, attorney and writer Cameron Stracher described a variety of unpleasant tactics common in the United States, and concluded: With the noble sentiment of "levelling the playing field" so that no party has an undue information advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information-poor in the head and escape unscathed. "Discovery" is anything but ... Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible.The best minds of a generation thinking of new ways to manipulate, distort, and conceal.[10]

Tort reform supporters argue that such tactics are often used by plaintiffs' lawyers to impose costs on defendants to force settlements in unmeritorious cases to avoid the cost of discovery. Discovery in the United Kingdom The same process in England and Wales is known as "disclosure," and is always[citation needed] used in complex civil litigation. As in the USA, certain documents are privileged, such as letters between solicitors and experts. Full details are given in Legal professional privilege (England & Wales). For a comparison of English and American discovery law, see Discovery: A Comparison Between English and American Civil Discovery Law with Reform Proposals, Julius Byron Levine, Boston University School of Law

DOCTRINE OF EQUIVALENTS
The doctrine of equivalents is a legal rule in most of the world's patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention. U.S. judge Learned Hand has described its purpose as being "to temper unsparing logic and prevent an infringer from stealing the benefit of the invention".[1] The goal of the doctrine of equivalents is to provide patent owners with fair protection for their patents. Historically, courts took a literal approach to patent interpretation, based on established principles of legal interpretation. However, by the 18th and 19th centuries, this had come to be seen as unduly limiting on the scope of protection afforded a patent-holder, especially as patent applicants are often required to describe new technology for which an adequate vocabulary has not yet been developed.[citation needed] In response to this, the English courts developed a so-called 'pith and marrow' approach, which tried to distinguish between the essential and nonessential features of a patent claim when deciding infringement cases.[citation needed] At the same time, courts in other countries, notably the United States, developed slightly different approaches to claim interpretation, of which the 'doctrine of equivalents' is perhaps the most famous.[citation needed] The equivalents doctrine takes a more holistic approach when comparing the patented invention with an alleged infringing device than did the 'pith and marrow' approach.[citation needed] Attempts are ongoing at harmonizing the different approaches internationally (see below); however, progress is slow due to the long history of patent law in developed nations. The doctrine has been criticized[by whom?] as unduly vague, to the extent that it injects uncertainty and unpredictability to a patent system. Standards for determining equivalents France In France, the doctrine of equivalents can be invoked if the accused device contains means having the same function in order to obtain the same result as the claimed invention.[citation needed] Germany In Germany, a device is considered to be equivalent if there is identity between the device and the claimed invention with respect to the problem and the effect, but not necessarily the "solution principle" (the manner in which the device operates).[citation
needed]

Ireland Ireland appears to subscribe to a doctrine of equivalents. In Farbwerke Hoechst v Intercontinental Pharmaceuticals (Eire) Ltd (1968), a case involving a patent of a chemical process, the High Court found that the defendant had infringed the plaintiff's patent despite the fact that the defendant had substituted the starting material specified in the patent claim for another material. Expert evidence showed that any technician who failed to obtain a good result using the specified starting material would try the replacement material. The two materials were therefore held to be chemically equivalent, and the replacement of one with the other by the defendant did not prevent a finding and injunction against him. Japan Japan's doctrine of equivalents was first formalized in 1998, when Japan's Supreme Court held that equivalents are determined by considering (1) whether the difference relates to an important claim element, (2) the possibility for substitution without causing a failure to attain an invention's object and a change in the manner of attaining it, (3) obviousness of the substitution, (4) whether the accused item is an anticipated or obvious modification of state of the art, and (5) whether estoppel exists.[citation needed] United Kingdom The United Kingdom has never employed a doctrine of equivalents approach. This was most recently asserted by Lord Hoffmann in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004). As a signatory to the European Patent Convention (EPC), the UK follows the Protocol on the Interpretation of Article 69 of the EPC, which requires member states to draw a balance between interpreting patent claims with strict literalism (with the description and drawings only helping resolve ambiguity) and regarding the claims as a mere guideline only. The latest UK case law on claim interpretation is found in 'Improver Corp v Remington Consumer Products Ltd' (1990) and the House of Lords decision in 'Kirin-Amgen' (2004). The so-called 'Improver' (or Protocol) questions found in the former are a widely-used three-step test for deciding infringement. Their usefulness in high-tech cases was, however, called into doubt by Lord Walker in 'Kirin-Amgen'. United States In the United States, the doctrine of equivalents analysis is applied to individual claim limitations, not to the invention as a whole.[2] The legal test, articulated in WarnerJenkinson Co. v. Hilton Davis Chem. Co. (1997), is whether the difference between the limitation in the accused device and the limitation literally recited in the patent claim is "insubstantial."

One way of determining whether a difference is "insubstantial" or not is called the "triple identity" test. Under the triple-identity test, the difference between the limitation in the accused device and the limitation literally recited in the patent claim may be found to be "insubstantial" if the limitation in the accused device: 1. It performs substantially the same function 2. In substantially the same way 3. To yield substantially the same result as the limitation literally recited in the patent claim. See Graver Tank & Manufacturing Co. v. Linde Air Products Co., (1950). The Court also explained that the doctrine of equivalents applies if two elements are interchangeable and a person with ordinary skill in the art would have known that the elements were interchangeable at the time of infringement. [3] In the United States, the doctrine of equivalents is limited by prosecution history estoppel. Under prosecution history estoppel, if the patentee abandoned through an amendment to the patent application certain literal claim coverage (e.g., by narrowing the literal scope of the patent claim), then the patentee is estopped from later arguing that the surrendered coverage is insubstantially different from the literally claimed limitation.[4] Other more arcane limitations such as the ensnarement defense tend to be more difficult to apply.[5] The United States also has a statutory equivalents doctrine that is codified in 35 U.S.C. 112 6, which extends to structural equivalents. However, while the doctrine of equivalents for 6 extends to technological equivalents developed after the issuance of a claim, the structural equivalents of 6 only extends to equivalents available at issuance and disclosed in the application.[6] Harmonization attempts Attempts have been made to harmonize the doctrine of equivalents. For instance, Article 21(2) of 1991 WIPO's "Basic Proposal for a Treaty Supplementing the Paris Convention states: "(a) (...) a claim shall be considered to cover not only all the elements as expressed in the claim but also equivalents. (b) An element ("the equivalent element") shall generally be considered as being equivalent to an element as expressed in a claim if, at the time of any alleged infringement, either of the following conditions is fulfilled in regard to the invention as claimed:

(i) the equivalent element performs substantially the same function in substantially the same way and produces substantially the same result as the element as expressed in the claim, or (ii) it is obvious to a person skilled in the art that the same result as that achieved by means of the element as expressed in the claim can be achieved by means of the equivalent element." The EPC 2000, which came into effect on 13 December 2007, included an amended "Protocol on the interpretation of Article 69 EPC" intended to bring about uniformity at a national level between contracting states to the EPC when interpreting claims.[7] The amended text reads: For the purpose of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is an equivalent to an element specified in the claims. However, no definition of what was meant by an "equivalent" was included in the Protocol and it is expected that this lack of a binding definition will do little to achieve the desired uniform interpretation.[7] Landmark decisions

United States

Graver Tank & Manufacturing Co. v. Linde Air Products Co., (1950) Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997) Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., both Federal Circuit and Supreme Court decisions Honeywell International v Hamilton Sundstrand Corp.(doc) Catnic Components Ltd. v. Hill & Smith Ltd. (1982) Kirin-Amgen v Hoechst Marion Roussel (October 21, 2004, decision "UKHL 46", regarding European patent EP 148 605) Batteriekastenschnur decision Formstein decision

United Kingdom

Germany

DOCTRINE OF EXONERATION OF LIENS

The doctrine of exoneration of liens (sometimes simply referred to as "doctrine of exoneration") refers to a common law rule. The rule says that encumbrances (i.e. a mortgage) of a property conveyed by a will is discharged with funds from the originating estate, not from the property itself.[1]

DOCTRINE OF FOREIGN EQUIVALENTS

The doctrine of foreign equivalents is a rule applied in United States trademark law which requires courts and the TTAB to translate foreign words in determining whether they are registrable as trademarks, or confusingly similar with existing marks. The doctrine is intended to protect consumers within the United States from confusion or deception caused by the use of terms in different languages. In some cases, a party will use a word as a mark which is either generic or merely descriptive of the goods in a foreign language, or which shares the same meaning as an existing mark to speakers of that foreign language. Test applied The Trademark Manual of Examining Procedure ("TMEP") states the test for applying the doctrine of foreign equivalents is "whether, to those American buyers familiar with the foreign language, the word would denote its English equivalent".[1] With respect to descriptive or generic marks, the TMEP specifies that in determining whether a foreign term is entitled to registration, "[t]he test is whether, to those American buyers familiar with the foreign language, the word would have a descriptive or generic connotation".[2] However, "foreign words from dead or obscure languages may be so unfamiliar to the American buying public that they should not be translated into English for descriptiveness purposes." This test is also applied by courts to determine "whether that foreign word would be descriptive of the product to that segment of the purchasing public which is familiar with that language."[3] It is unclear whether the test differs for asserted cases of likelihood of confusion. The Federal Circuit has recently clarified the applicability of the doctrine of foreign equivalents in likelihood of confusion cases, stating that "When it is unlikely that an American buyer will translate the foreign mark and will take it as it is, then the doctrine of foreign equivalents will not be applied".[4] The court noted that "the doctrine of foreign equivalents is not an absolute rule and should be viewed merely as a guideline".[4] Instead "[t]he doctrine should be applied only when it is likely that the ordinary American purchaser would "stop and translate [the word] into its English

equivalent".[5] The Federal Circuit specifically found that "it is improbable that the average American purchaser would stop and translate 'VEUVE' into 'widow'".[6] The Palm Bay Imports case suggests that it is the same test stating "[u]nder the doctrine of foreign equivalents, foreign words from common languages are translated into English to determine genericness, descriptiveness, as well as similarity of connotation in order to ascertain confusing similarity with English word marks."[4] The Ordinary American Purchaser As noted above, in Palm Bay, the Federal Circuit held that the doctrine of foreign equivalents only applies when the ordinary American purchaser is likely to translate the foreign mark into English.[4] A short time after Palm Bay was decided, the T.T.A.B. interpreted "ordinary American purchaser" in In re Thomas and held that the ordinary American purchaser includes only purchasers "familiar with the foreign language."[7] This narrow definition of "ordinary American purchaser" effectively guaranteed that the doctrine would be applied in nearly every case involving a foreign word since "those proficient in a non-English language . . . would ordinarily be expected to translate words into English."[8] At its next opportunity, however, the Federal Circuit abrogated Thomas in part. In In re Spirits International, a geographic deceptiveness[9] case, the Federal Circuit held that the ordinary American purchaser "includes all American purchasers, including those proficient in a non-English language."[8] However, because the Spirits court limited its ruling to the doctrine's application with respect to the geographic deceptiveness bar,[10] the Board currently applies the Spirits definition of ordinary American purchaser in cases of geographic deceptiveness refusals and the Thomas definition to all other bars.[11] Status of words in foreign countries Cases have noted that the status accorded to words in foreign countries has no bearing on the registration of marks in the U.S. For example, in Anheuser-Busch, Inc. v. Stroh Brewery Co.,[12] the court rejected as irrelevant the generic usage of the phrase "L.A. beer" in Australia for low alcohol beer. In Seiko Sporting Goods USA, Inc. v. Kabushiki Kaisha Hattori Tokeiten,[13] the court stated that "[w]hile plaintiff has sought to show that Seiko is a generic term in Japanese, it is not so recognized in this country. Accordingly, the mark must still be regarded as arbitrary and fanciful in the United States."

Furthermore, "[a] number of cases hold that a term may be generic in one country and suggestive in another".[14] In Carcione v. The Greengrocer, Inc.,[15] a court rejected as irrelevant the generic use of the term "Greengrocer" in Britain for a retailer of fruit. The defendant argued that the trademark "Greengrocer", which is a generic term in Britain for a retailer of fruits and vegetables, was not entitled to protection as a trademark in the United States. The court rejected this argument on the ground that it is irrelevant how a term is used outside the United States: "The parties agree that the term is generic in Britain. Since we deal here with American trademark law, and thus American consumers, neither British usage nor the dictionary definition indicating such usage are determinative." Dead and obscure languages TMEP 1209.03(g) expresses the caveat that "foreign words from dead or obscure languages may be so unfamiliar to the American buying public that they should not be translated into English for descriptiveness purposes." Emphasis added. "Descriptiveness is evaluated according to 'that segment of the purchasing public which is familiar with that language.'" General Cigar Co. v. G.D.M. Inc., 988 F. Supp. 647, 660 (S.D.N.Y. 1997) (quoting 1 McCarthy 11.14, p. 464-65). In that case, the court found that the strength of the Cohiba mark was not diminished by the fact that Cohiba is the Taino Indian word for tobacco, because the Taino language was an obscure language. The court noted: A word which is not in general or common use, and is unintelligible and nondescriptive to the general public, although it may be known to linguists and scientist, may be properly regarded as arbitrary and fanciful and capable of being used as a trademark or trade-name.[16]

Nevertheless, cases exist where trademark registration has been rejected for a word that was generic or descriptive when translated from a language such as Latin or Ancient Greek. Transliterations versus translations Where a word is a foreign transliteration of an English mark, the TTAB has held that there is nothing to translate, and the doctrine of foreign equivalents is not invoked. In Green Spot (Thailand) Ltd. v. Vitasoy Int'l Holdings Ltd.,[17] the TTAB considered the application of the doctrine where Green Spot sought to register "Vitamilk", and was opposed by Vitasoy, which was the owner of a senior registration.

Green Spot also owned a mark in Chinese characters for which the first sets of characters were transliterations of "vi" and "ta" with no meaning in Chinese, while the third, (nai) was the Chinese word for "milk". Green Spot argued that its senior Chinese character mark was the equivalent of Vitamilk, and that Green Spot's ownership of the senior mark gave it the right to own the equivalent English mark. The TTAB refused to apply the doctrine of foreign equivalents, because the transliterations of "vi" and "ta" had no actual translation from Chinese to English. Criticism The doctrine has been criticized in recent years. Commentators have noted that courts have "reached irreconcilable holdings" in applying the doctrine.[18] It has also been suggested that the doctrine be abolished.[19]

DOCTRINE OF INDIVISIBILITY
The doctrine of indivisibility (or indivisibility doctrine) was a legal doctrine in United

States copyright law, which held that a copyright was a single, indivisible right that its owner could onlyassign as a whole. The doctrine was founded upon the policy concern that a defendant alleged to have infringed a single work might find himself facing claims from multiple plaintiffs, all claiming copyright in that same work. Despite the indivisibility doctrine, a copyright holder could still effectively assign certain rights. The assignees of those rights were held to be "mere licensees." The result of the doctrine could yield a harsh result for an exclusive licensee in a work. If a third party infringed the work, the copyright holder had no motivation to file suit---the work was no longer marketable. So courts allowed exclusive licensees to compulsively join the copyright holder as a plaintiff in such suits. Non-exclusive licensees could not forcefully join copyright holders, on the theory that in those cases, the work was still marketable and the copyright holder therefore had an interest in protecting his rights. In the case Goodis v. United Artists Television, Inc., 425 F.2d 397, the United States Court of Appeals for the Second Circuit held that the doctrine of indivisibility could not operate to wholly deprive an author of his copyright when a "mere licensee" secured a copyright in a collective work but the author never secured a separate copyright on his own. The doctrine of indivisibility was expressly eliminated in the Copyright Act of 1976. Assignees of rights in a copyrighted work now have standing to directly file suit against infringers.

DOCTRINE OF INHERENCY
In United States patent law, for a patent claim to be valid, its subject matter must be novel and non-obvious. The claim is anticipated (i.e will fail because its subject matter is not novel) if a single prior art reference, either expressly or inherently, discloses every feature of the claimed invention. The concept of inherency is predicated on the idea that a claim should not pass the test of anticipation merely because a feature of it is undisclosed or unrecognized in the prior art reference. A prior art source may thus still anticipate if an apparently missing element of the claim is inherent in that prior art source. Procedurally, to rely on the doctrine of inherency, one must provide a basis in fact and/or technical reasoning supporting a determination that an allegedly inherent characteristic necessarily would be present if the teachings of the prior art were followed, even if the inherent feature would not have been recognized. The fact that a certain result or characteristic may occur or be present in the prior art is not alone sufficient to establish inherency of that result or characteristic. To establish inherency, the evidence must make clear that the missing matter is necessarily present in the prior art reference. Inherency may not be established by probabilities or possibilities. Once the United States Patent and Trademark Office (USPTO) establishes that a product referenced in prior art appears to be substantially identical, the burden shifts to the applicant to show a non-obvious difference. The doctrine of inherency is typically invoked when an inventor tries to obtain a product patent for a product that had been unintentionally invented earlier ("accidental anticipation"). The United States Supreme Court held in Tilghman v. Proctor that where the first, accidental producer was not aware of the product and did not attempt to produce it, the first production did not bar a patent on the subsequent "invention" of the product. 102 U.S. 707 (1880). Recent[when?] case law[vague] holds that an inventor cannot obtain a product patent simply by putting the product to new use, even if the new use had not been previously contemplated. However, a recent Federal Circuit trend is to examine whether the previous invention actually benefited the public. If the public does not benefit from the previous product, then there is no inherency.

E
EXHAUSTION DOCTRINE
The exhaustion doctrine, also referred to as the first sale doctrine, is a common law patent doctrine that limits the extent to which patent holders can control an individual article of a patented product after an authorized sale. Under the doctrine, once an unrestricted, authorized sale of a patented article occurs, the patent holders exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint from patent law. Note, however, that under current law, the patent owner retains the right to exclude purchasers of the articles from making the patented invention anew, unless it is specifically authorized by the patentee.[1] Procedurally, the patent exhaustion doctrine operates as an affirmative defense, shielding authorized purchasers from infringement claims concerning the use or sale of a patented good after the patent owner authorized its sale. Because the doctrine is only triggered by a sale authorized by the patentee, it is often difficult to figure out if the exhaustion doctrine applies in a particular case, for example, when the patentee restricts or conditions the sale itself, or restricts the use or sale of the patented article once purchased and in the hands of an end user (post-sale restrictions). The 2008 Supreme Court decision in Quanta Computer, Inc. v. LG Electronics, Inc., leaves unclear the extent to which patentees can avoid the exhaustion doctrine through limited licenses. Since its development by the courts in the late 19th century, the patent exhaustion doctrine has raised questions regarding the scope of exclusive rights granted by patents and the extent to which a patent owner may extend those rights to control downstream use and sales of patented articles.

Overview
A patent gives the patent owner the right to exclude others from making, using, selling, offering for sale, or importing into the U.S. the patented invention during the term of the patent.[2] The conventional rationale behind providing these exclusive rights is to promote the Progress of Science and useful Arts[3] by providing inventors the incentive to invest in researching and developing innovative technology.[4] Providing these protections, however, comes with social costs and limits the publics ability to freely alienate patented goods. Thus, public policy dictates that the patent owners exclusive rights be limited in scope.

Generally, when a patent owner receives compensation for the use of his or her invention through sale of a good, the purpose of patent law is fulfilled with respect to that good.[5] Upon receiving compensation, the patent owner's rights to exclude others are exhausted and the patent law affords no basis for restraining the use and enjoyment of the thing sold.[6] Accordingly, a patent owner's voluntary introduction of a patented good into commerce without restriction prevents the patent owner from exercising his or her right to exclude others from using or reselling that good. The patent exhaustion doctrine has not been codified, and is thus still a common law doctrine. (Contrast first-sale doctrine in copyright). It was first recognized by the Supreme Court in 1873 in Adams v. Burke. In that case, the patentee authorized a licensee to make, use, and sell patented coffin lids only within a ten-mile radius in Boston. A customer of the licensee bought the coffin lids within the ten-mile radius, but later resold the lids outside of the ten-mile radius. The patentee sued the customer, but the Supreme Court found no infringement: Once the coffin lids were lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees. Because the sale was authorized (bought within the ten -mile radius), the defendant acquired the right to use the coffin lids free from any claim of the patentee, even though he used it outside the ten-mile radius.

Limitations of the Exhaustion Doctrine

The exhaustion doctrine is triggered only by a sale authorized by the patent holder.[7] Thus, there are circumstances where it is difficult to determine whether the exhaustion doctrine is triggered, in light of the restrictions that the patentee has placed on the sale or use of the patented invention. Two general questions arise in these situations: (1) Was the sale authorized by the patentee? This can often be a complex factual question. (2) Even if not authorized by the patentee, are those restrictions valid and recognizable under the law? Generally, these cases involve one or more of the following scenarios: the patent owner: (1) sells one or more components of a multi-component patented good;[8] (2) licenses another to sell with certain restrictions on the sale itself;[9] or (3) sells the article with restrictions directly on the purchasers or end-users (post-sale restraint).[10] Sale of Incomplete Articles One scenario in which the exhaustion doctrine may or may not be triggered is when the patent holder sells an incomplete article that does not directly practice or embody the patent. In this situation, exhaustion is applicable to the authorized sale of an incomplete article if: (1) its only reasonable and intended use was to practice the patent, and (2) it embodies essential features of the patented invention.[11] Note that even if the exhaustion doctrine is applicable to the sale of an incomplete article, there is a separate analysis of whether the sale of that article was actually authorized, and therefore whether exhaustion was actually triggered.[12]

The applicability of exhaustion to the sale of an incomplete article was recognized by the Supreme Court in 1942 in United States v. Univis Lens Co.. In that case, the patent holder sold lens blanks which had to be grinded into the patented invention. The Court held that this sale exhausted the patents on the finished lenses because the lens blanks embodi[ed] essential features of the patented device and [were] without utility until . . . ground and polished as the finished lens of the patent.[13] The Court noted that the grinding process was standard and not central to the patents, indicating further that the lens blanks constituted a material part of the patented invention and all but completely practiced the patent. In Quanta, the Supreme Court applied the same test to determine whether exhaustion is triggered by the licensing of method patents. In that case, the patent holder (LGE) authorized the licensee (Intel) to manufacture and sell microprocessors and chipsets that used LGE method patents. The Court found that, even though the Intel products did not directly practice the method patents, they sufficiently embodied the patents, making the exhaustion doctrine applicable. First, the Court found that there was no reasonable use for the Intel products other than incorporating them into a computer system that practiced the LGE patents.[14] Second, the Intel products embodied essential features of the patented processes because the only necessary step to practice the patents was the addition of standard computer parts, like memory and buses.[15] Thus, under the Univis test, the Intel products sufficiently embodied the method patents, making the exhaustion doctrine applicable. Limitations on Sale Another scenario in which it may be difficult to determine if the sale of a patented article was authorized, and therefore if exhaustion is triggered, is when the patentee grants a license to sell with specific limitations on the seller, such as territorial, duration, or field-of-use limitations. If these restrictions have been imposed, the licensees sale to a purchaser only exhausts the patentees rights to restrict use and resale when the restrictions have not been violated. If the restrictions are violated, then exhaustion is not triggered and the patentee can sue the licensee and any downstream customers for patent infringement.[16] The Supreme Court has specifically upheld the legitimacy of field-of-use limitations in patent licensing. See General Talking Pictures doctrine. A licensee who violates a fieldof-use limitation by selling an article outside of the permissible field commits patent infringement. The exhaustion doctrine would provide no protection because the violation makes the sale unauthorized for the purposes of the exhaustion doctrine.[17] Note that limitations on sale (those imposed on the licensee in selling the patented articles) are different from post-sale limitations (those that purpose to restrict the use or sale of the patented article once purchased and in the hands of an end user, not a licensee or distributor).

Patentees can avoid the exhaustion doctrine by imposing the former, but it is unclear whether patentees can do so through the latter.[18] Limitations on sale must very explicitly bind the licensee or seller. For example, in Quanta, LGE licensed Intel to make products using LGEs method patents. The license expressly stated that LGE was not licensing third parties to combine licensed product with any non-Intel products, and it required Intel to notify customers of that. Intel sold products to Quanta, who combined the Intel products with non-Intel products. LGE sued Quanta for patent infringement. The Supreme Court found that the licensing agreement failed to explicitly impose a field-of-use limitation, and therefore found that there were no conditions limiting who Intel could sell to. The sale was thus authorized, and exhaustion was triggered. In the Courts words, The License Agreement authorized Intel to sell products that practiced the patents. No conditions limited Intels a uthority to sell products substantially embodying the patents. . . . Intels authorized sale to Quanta thus took its products outside the scope of the patent monopoly, and as a result, LGE can no longer assert its patent rights against Quanta.[19] Because the contractual documents in the Quanta case were insufficiently explicit, the Court applied the exhaustion doctrine, finding the sale "authorized" and unconditional, even though LGE attempted to impose some restrictions on use of the products. Therefore, purchasers of the patented product were free to use them without restrictions that the patentee sought to have imposed on them. The Court found that the licensing agreement did not impose any limitations on who the licensee could sell to. The Court did not decide, however, whether the restriction in the licensing agreement could constitute a valid post-sale limitation to make the sale unauthorized for the purposes of the exhaustion doctrine. This is discussed in the next section. Post-Sale Limitations The most difficult and unsettled area of the law regarding patent exhaustion are cases involving post-sale restrictions. Post-sale restrictions are those that purport to restrict the use or sale of the patented article once purchased and in the hands of an end user, rather than a licensee or distributor. Common post-sale restrictions include single use only and refill only with proprietary ink notices. Whether violations of such restrictions make a sale unauthorized, and therefore make patent exhaustion inappl icable, is still unclear.[20] In 1992, the Federal Circuit approved the use of post-sale restrictions in Mallinckrodt, Inc. v. Medipart, Inc.. Specifically, the court held that patent owners could condition the sale of patented goods with a restrictive notice and thereby restrict the disposition of the goods by the purchasers, with the exception of antitrust law violations, such as price-fixing and tie-in restrictions, or violations of "some other law or policy."[21]

The plaintiff in the case owned a patent on a medical device, which he sold to hospitals with a single use only notice label. The defendant purchased the used devices from hospitals, refurbished them, and resold them to hospitals. The Federal Circuit held that the single use restriction was enforceable in accordance with General Talking Pictures, because the restriction was reasonably within the patent grant. . . .[22] The Supreme Court did not discuss the Mallinckrodt case in Quanta. As one commentator noted: The Supreme Court, in Quanta, was widely expected to rule on whether Mallinckrodt was good law. But the Court sidestepped the issue by narrowly interpreting the license agreement so that it was not a conditional license. . . . Because the Supreme Court sidestepped the issue, it remains unclear to what extent a patentee can use a conditional license to impose restrictions on downstream purchasers. [23] At least one district court has concluded that Mallinckrodt is no longer good law after Quanta.[24] In Static Control Components, Inc. v. Lexmark Intl, Inc., the court concluded that the Supreme Court implicitly overruled Mallinckrodt. At issue in Static Control was Lexmarks so called prebate program, in which customers could buy cartridges that were subject to a single use for a discounted price. In its original order, before Quanta was decided, the court rejected Static Controls argument that Lexmarks patent rights were exhausted as a result of the authorized sale of the cartridges. Relying heavily on Mallinckrodt, the court found that the sales were valid post-sale restrictions that avoided exhaustion. After Quanta was decided, however, the court reversed its original order and concluded that Lexmarks single use restriction was not enforceable under patent law because the court was persuaded that Quanta overruled Mallinckrodt sub silentio.[25] The court explained, The Supreme Court's broad statement of the law of patent exhaustion simply cannot be squared with the position that the Quanta holding is limited to its specific facts. Further, the Federal Circuit relied in part on Mallinckrodt in reaching its decision in LG Electronics, Inc. v. Bizcom Electronics, Inc., 453 F.3d 1364, 1369 (Fed. Cir. 2006), the decision the Supreme Court reversed in Quanta. It is also worth noting that the Quanta decision did not mention a single Federal Circuit case.[26] The district courts conclusion, however, that Quanta overruled Mallinckrodt is ambiguous, and it reflects the ambiguity in Quanta itself. The Static Control court noted that [s]ales of Lexmark Prebate cartridges were unconditional because [n]o potential buyer was required to agree to abide by the Prebate terms before purchasing a cartridge. Thus, sales of Lexmark's Prebate toner cartridges were authorized and unconditional, just like sales of LGE's patented products in Quanta.[27] Therefore, both Quanta and Static Control can be seen as either cautionary tales about failed attempts to explicitly condition sales, without need to rule on whether the post-sale restrictions were valid, or as overruling Mallinckrodts approval of post-sale restrictions. Which interpretation is correct remains to be seen.

LACHES (EQUITY)
Laches (/ltz/; LA-chz; Law French: "remissness", "slackness", from Old French laschesse)[1][2] is an "unreasonable delay pursuing a right or claim...in a way that prejudices the [opposing] party" [1] When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the plaintiff's original claim. Put another way, failure to assert ones rights in a timely manner can result in a claim being barred by laches. Laches is a form of estoppel for delay. In Latin, Vigilantibus non dormientibus quitas subvenit. Equity aids the vigilant, not the sleeping ones (that is, those who sleep on their rights). Overview In most contexts, an essential element of laches is the requirement that the party invoking the doctrine has changed its position as a result of the delay. In other words, the defendant is in a worse position now than at the time the claim should have been brought. For example, the delay in asserting the claim may have caused a great increase in the potential damages to be awarded, or assets that could earlier have been used to satisfy the claim may have been distributed in the meantime, or the property in question may already have been sold, or evidence or testimony may no longer be available to defend against the claim. A defense lawyer raising the defense of laches against a motion for injunctive relief (a form of equitable relief) might argue that the plaintiff comes "waltzing in at the eleventh hour" when it is now too late to grant the relief sought, at least not without causing great harm that the plaintiff could have avoided. In certain types of cases (for example, cases involving time-sensitive matters, such as elections), a delay of even a few days is likely to be met with a defense of laches, even where the applicable statute of limitations might allow the type of action to be commenced within a much longer time period; however, in the United States, laches has historically not been applied if a statute of limitations exists.[3]:385 A successful defense of laches will find the court denying the request for equitable relief. However, even if equitable relief is not available, the party may still have an action at law if the statute of limitations has not run out. Under the United States Federal Rules of Civil Procedure, laches is an affirmative defense, which means that the burden of asserting laches is on the party responding to the claim to which it applies. When the defense of laches is clear on the face of the complaint, and where it is clear that the plaintiff can prove no set of facts to avoid the insuperable bar, a court may consider the defense on a motion to dismiss. Solow v.

Nine West Group, 2001 WL 736794, *3 (S.D.N.Y. June 29, 2001); Simons v. United States, 452 F.2d 1110, 1116 (2d Cir. 1971) (affirming Rule 12(b)(6) dismissal based, in part, on laches where papers reveal no reason for the inordinate and prejudicial delay). The United State Supreme Court case Costello v. United States (1961) is often cited for a definition of laches.[3] Compared to statute of limitations The defense of laches resembles, but is not entirely analogous to, a plea that the period of time allowed under a statute of limitations has expired. Laches essentially alleges prejudicial delay and unfairness in the context of a particular situation, whereas statutes of limitation tend to define a specific legally prescribed period of time (after the cause of action has accrued) within which a lawsuit for a particular type of cause of action may be commenced or after which the right to recovery is barred. Moreover, although a lawsuit commenced within the time allowed by a limitations period is valid no matter how long it takes for the action to proceed to trial, laches can sometimes be applied even in a situation where a lawsuit has been commenced and any delays would otherwise be reasonable. It is generally allowed by a court when a defendant could reasonably have believed that the plaintiff was not going to exercise his or her legal rights and acted on that belief to his or her detriment.

MERGER DOCTRINE
The phrase merger doctrine or doctrine of merger may refer to one of several legal doctrines:

Merger doctrine (antitrust law) Merger doctrine (civil procedure) Merger doctrine (copyright law) The merger doctrine in criminal law of lesser included offenses Merger doctrine (family law) Merger doctrine (property law) Merger doctrine (trust law)

DOCTRINE OF NON-DEROGATION FROM GRANTS

The doctrine of non-derogation from grants is a principle of the law of England and Wales. As the House of Lords explained in British Leyland Motor Corp. v. Armstrong Patents Co., it states that a seller of realty or goods is not permitted to take any action (such as bringing an infringement action) that will lessen the value to the buyer of the thing sold. United States federal law recognises similar doctrines such as the exhaustion doctrine or doctrine of implied license.[1] A similar effect has also been realised in United States patent lawunder the doctrine of repair and reconstruction.[2] An important difference between the doctrine of non-derogation from grants and other doctrines, particularly implied license, that are used to accomplish similar results is that the doctrine of non-derogation from grants is "inherent" as a matter of property law and apparently cannot be avoided by a seller's use of language attempting to negative application of the doctrine or by trial counsel's pointing to evidence of intent not to relinquish patent rights or copyright. In contrast, the other doctrines may be vulnerable to contractual disclaimers or evidence of intent not to grant intellectual property rights. The issue is discussed to some extent in the courts' opinions in British Leyland and Quanta Computer, Inc. v. LG Electronics, Inc.

PRIVITY OF CONTRACT
The doctrine of privity in the common law of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it. The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages as such. However, the doctrine has proven problematic due to its implications upon contracts made for the benefit of third parties who are unable to enforce the obligations of the contracting parties. Third-party rights Privity of contract occurs only between the parties to the contract, most commonly contract of sale of goods or services. Horizontal privity arises when the benefits from a contract are to be given to a third party. Vertical privity involves a contract between two parties, with an independent contract between one of the parties and another individual or company.

If a third party gets a benefit under a contract, it does not have the right to go against the parties to the contract beyond its entitlement to a benefit. An example of this occurs when a manufacturer sells a product to a distributor and the distributor sells the product to a retailer. The retailer then sells the product to a consumer. There is no privity of contract between the manufacturer and the consumer. This, however, does not mean that the parties do not have another form of action e.g. Donoghue v. Stevenson here a friend of Ms. Donoghue bought her a bottle of ginger beer, which was defective. Specifically, the ginger beer contained the partially decomposed remains of a snail. Since the contract was between her friend and the shop owner, Mrs. Donoghue could not sue under the contract, but it was established that the manufacturer has a duty of care owed to their consumers and she was awarded damages in tort. Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty. History Prior to 1861 there existed decisions in English Law allowing provisions of a contract to be enforced by persons not party to it, usually relatives of a promisee, and decisions disallowing third party rights.[1][2] The doctrine of privity emerged alongside the doctrine of consideration, the rules of which state that consideration must move from the promisee. That is to say that if nothing is given for the promise of something to be given in return, that promise is not legally binding unless promised as a deed. 1833 saw the case of Price v. Easton, where a contract was made for work to be done in exchange for payment to a third party. When the third party attempted to sue for the payment, he was held to be not privy to the contract, and so his claim failed. This was fully linked to the doctrine of consideration, and established as such, with the more famous case of Tweddle v. Atkinson. In this case the plaintiff was unable to sue the executor of his father-in-law, who had promised to the plaintiff's father to make payment to the plaintiff, because he had not provided any consideration to the contract. The doctrine was developed further in Dunlop Pneumatic Tyre v. Selfridge and Co. Ltd. through the judgment of Lord Haldane. Privity of Contract played a key role in the development of negligence as well. In the first case of Winterbottom v. Wright (1842), in which Winterbottom, a postal service wagon driver, was injured due to a faulty wheel, attempted to sue the manufacturer Wright for his injuries. The courts however decided that there was no privity of contract between manufacturer and consumer.

This issue appeared repeatedly until MacPherson v. Buick Motor Co. (1916), a case analogous to Winterbottom v Wright involving a car's defective wheel. Judge Cardozo, writing for theNew York Court of Appeals, decided that no privity is required when the manufacturer knows the product is probably dangerous if defective, third parties (e.g. consumers) will be harmed because of said defect, and there was no further testing after initial sale. Foreseeable injuries occurred from foreseeable uses. Cardozo's innovation was to decide that the basis for the claim was that it was a tort not a breach of contract. In this way he finessed the problems caused by the doctrine of privity in a modern industrial society. Although his opinion was only law in New York State, the solution he advanced was widely accepted elsewhere. Exceptions Common law exceptions There are exceptions to the general rule, allowing rights to third parties and some impositions of obligations. These are:

Collateral Contracts (between the third party and one of the contracting parties) Trusts (the beneficiary of a trust may sue the trustee to carry out the contract) Land Law (restrictive covenants on land are imposed upon subsequent purchasers if the covenant benefits neighbouring land) Agency and the assignment of contractual rights are permitted. Third-party insurance.a third party may claim under an insurance policy made for their benefit, even though that party did not pay the premiums. Contracts for the benefit of a group where a contract to supply a service is made in one person's name but is intended to sue at common law if the contract is breached; there is no privity of contract between them and the supplier of the service.

Attempts have been made to evade the doctrine by implying trusts (with varying success), constructing the Law of Property Act 1925 s. 56(1) to read the words "other property" as including contractual rights, and applying the concept of restrictive covenants to property other than real property (without success). Statutory exceptions The Contracts (Rights of Third Parties) Act 1999 now provides some reform for this area of law which has been criticised by judges such as Lord Denning and academics as unfair in places. The act states:

1. - (1) Subject to the provisions of this Act, a person who is not a party to a contract (a "third party") may in his own right enforce a term of the contract if(a) the contract expressly provides that he may, or (b) subject to subsection (2), the term purports to confer a benefit on him. (2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party. This means that a person who is named in the contract as a person authorised to enforce the contract or a person receiving a benefit from the contract may enforce the contract unless it appears that the parties intended that he may not. The Act enables the aim of the parties to be fully adhered to. Taking the situation in Beswick v Beswick whereby the only reason why Mr Beswick and his nephew contracted was for the benefit of Mrs Beswick. Under the Act Mrs Beswick would be able to enforce the performance of the contract in her own right. Therefore, the Act realises the intentions of the parties. The law has been welcomed by many as a relief from the strictness of the doctrine, however it may still prove ineffective in professionally drafted documents, as the provisions of this statute may be expressly excluded by the draftsmen. Third-party beneficiaries In Australia, it has been held that third-party beneficiaries may uphold a promise made for its benefit in a contract of insurance to which it is not a party (Trident General Insurance Co Ltd v. McNiece Bros Pty Ltd (1988) 165 CLR 107). It is important to note that the decision in Trident had no clear ratio, and did not create a general exemption to the doctrine of privity in Australia. Queensland, the Northern Territory and Western Australia have all enacted statutory provisions to enable third party beneficiaries to enforce contracts, and limited the ability of contracting parties to vary the contract after the third party has relied on it. In addition, section 48 of the Insurance Contracts Act 1984 (Cth) allows third-party beneficiaries to enforce contracts of insurance. Although damages are the usual remedy for the breach of a contract for the benefit of a third party, if damages are inadequate, specific performance may be granted (Beswick v. Beswick[1968] AC 59).

The issue of third-party beneficiaries has appeared in cases where a stevedore has claimed it is covered under the exclusion clauses in a bill of lading. In order for this to succeed, three factors must be made out:

The bill of lading must clearly intend to benefit the third party. It is clear that when the carrier contracts with the consignor, it also contracts as an agent of the stevedore. That is, either the carrier must have had authority by the stevedore to act on its behalf, or the stevedore must later ratify (endorse) the actions of the carrier. Any difficulties with consideration moving from the stevedores must be made out.

The last issue was explored in New Zealand Shipping Co Ltd v. A M Satterthwaite & Co Ltd [1975] AC 154, where it was held that the stevedores had provided consideration for the benefit of the exclusion clause by the discharge of goods from the ship. New Zealand has enacted the Contracts Privity Act 1982, which enables third parties to sue if they are sufficiently identified as beneficiaries by the contract, and in the contract it is expressed or implied they should be able to enforce this benefit.

DOCTRINE OF REPAIR AND RECONSTRUCTION

The doctrine of repair and reconstruction in United States patent law distinguishes between permissible repair of a patented article, which the right of an owner of property to preserve its utility and operability guarantees, and impermissible reconstruction of a patented article, which is patent infringement. The doctrine is explained in Aro Mfg. Co. v. Convertible Top Replacement Co.[1] The Aro case states the rule in these terms: The decisions of this Court require the conclusion that reconstruction of a patented entity, comprised of unpatented elements, is limited to such a true reconstruction of the entity as to "in fact make a new article," after the entity, viewed as a whole, has become spent. In order to call the monopoly, conferred by the patent grant, into play for a second time, it must, indeed, be a second creation of the patented entity. Mere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property.

LAND TENURE
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land (the French verb "tenir" means "to hold"; "tenant" is the present participle of "tenir"). The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants. The term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land. Over history, many different forms of land ownership, i.e., ways of owning land, have been established. A landholder or landowner is a holder of the estate in land with considerable rights of ownership or, simply put, an owner of land. Feudal tenure Historically in the system of feudalism, the lords who received land directly from the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This processthat of granting subordinate tenanciesis known as subinfeudation. In this way, all individuals except the monarch were said to hold the land "of" someone else. Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be by knight-service, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as leases and estates. Modes of ownership and tenure There are a great variety of modes of land ownership and tenure:

Traditional land tenure. For example, most of the indigenous nations or tribes of North America had no formal notion of land ownership. When Europeans first came to North America, they sometimes disregarded traditional land tenure and simply seized land; or, they accommodated traditional land tenure by recognizing it as aboriginal title. This theory formed the basis fortreaties with indigenous peoples. Ownership of land by swearing to make productive use of it. In several developing countries as Egypt, Senegal, ... this method is still presently in use. In Senegal, it is mentioned as "mise en valeur des zones du terroir"[1] and in Egypt, it is called Wadaa al-yad.[2]

Allodial title, a system in which real property is owned absolutely free and clear of any superior landlord or sovereign. True allodial title is rare, with most property ownership in the common law world (Australia, Canada, Ireland, New Zealand, United Kingdom, United States) being in fee simple. Allodial title is inalienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, but it may not be distressed and restrained for collection of taxes or private debts, or condemned (eminent domain) by the government. Feudal land tenure, a system of mutual obligations under which a royal or noble personage granted a fiefdom some degree of interest in the use or revenues of a given parcel of land in exchange for a claim on services such as military service or simply maintenance of the land in which the lord continued to have an interest. This pattern obtained from the level of high nobility as vassals of a monarch down to lesser nobility whose only vassals were their serfs. Fee simple. Under common law, this is the most complete ownership interest one can have in real property, other than the rare Allodial title. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage loan. This picture of "complete ownership" is, of course, complicated by the obligation in most places to pay a property tax and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lien. In modern societies, this is the most common form of land ownership. Land can also be owned by more than one party and there are various concurrent estate rules. Native title. In Australia, native title is a common law concept that recognizes that some indigenous people have certain land rights that derive from their traditional laws and customs.[3]Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. Life estate. Under common law, this is an interest in real property that ends at death. The holder has the use of the land for life, but typically no ability to transfer that interest or to use it to secure a mortgage loan. Fee tail. Under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civil and Roman law; the legitime limits the extent to which one may disinherit an heir. Leasehold or rental. Under both common law and civil law, land may be leased or rented by its owner to another party; a wide range of arrangements are possible, ranging from very short terms to the 99-year leases common in the United Kingdom, and allowing various degrees of freedom in the use of the property. Rights to use a common, which may include such rights as the use of a road or the right to graze one's animals on commonly owned land. Sharecropping, under which one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock.

Easements, which allow one to make certain specific uses of land that is owned by someone else. The most classic easement is right-of-way, but it could also include (for example) the right to run an electrical power line across someone else's land.

In addition, there are various forms of collective ownership, which typically take either the form of membership in a cooperative, or shares in a corporation, which owns the land (typically by fee simple, but possibly under other arrangements). There are also various hybrids; in many communist states, government ownership of most agricultural land has combined in various ways with tenure for farming collectives. Land tenure by country Canada Further information: Land ownership in Canada England and Wales For land ownership in England and Wales see Land tenure in England and History of English land law. Ireland

Land & Conveyancing Law Reform Bill, 2006[4]

Scotland

crofting aoghairean half-foot

Angola

Land tenure in Angola

Importance of tenure today Although the doctrine of tenure has little importance today, its influence still lingers in some areas. The concepts of landlord and tenant have been recycled to refer to the modern relationship of the parties to land which is held under a lease. It has been pointed out by Professor F.H. Lawson in Introduction to the Laws of Property (1958), however, that the landlord-tenant relationship never really fitted in the feudal system and was rather an "alien commercial element". The doctrine of tenure did not apply to personalty (personal property). However, the relationship of bailment in the case of chattels closely resembles the landlord-tenant relationship that can be created in land.

DUE PROCESS
Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Typically, "Due process" means 1) NOTICE, generally written, but some courts have determined, in rare circumstances, other types of notice suffice[citations needed]. Notice should provide sufficient detail to fully inform the individual of the decision or activity that will have an effect on his/her rights or property or person. 2) right to GRIEVE (that being the right to complain or to disagree with the governmental actor/entity which has decision making authority) and 3) the right to APPEAL if not satisfied with the outcome of the grievance procedure. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law. Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process), so that judges - instead of legislators - may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions. This interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. Due process is not used in contemporary English law, though two similar concepts are natural justice (which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others.[1] However, neither concept lines up perfectly with the American theory of due process, which, as explained below, presently contains many implied rights not found in the ancient or modern concepts of due process in England.[2] Due process developed from clause 39 of the Magna Carta in England.[citation needed] When English and American law gradually diverged, due process was not upheld in England, but did become incorporated in the Constitution of the United States. By jurisdiction England Magna Carta In clause 39 of the Magna Carta, John of England promised as follows: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."[3]

Magna Carta itself immediately became part of the "law of the land", and Clause 61 of that charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man."[3] Thus, Magna Carta established the rule of law in England by not only requiring the monarchy to obey the law of the land, but also limiting how the monarchy could change the law of the land. It should be noted, however, that in the thirteenth century these provisions may have been referring only to the rights of landowners, and not to ordinary peasantry or villagers.[4] Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39 of Magna Carta was renumbered "29."[5] The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."[6] In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.."[7] Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty.[8] In that case, the House of Commons had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts.[9] The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows: [I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority.[8] Chief Justice Holt dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords, ostensibly to regulate the election of its members.[10] Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.

English law and American law diverge Throughout centuries of British history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land". This view usually held in regards to what was required by existing law, rather than what was intrinsically required by due process itself. As the U.S. Supreme Court has explained, a due process requirement in Britain was not "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."[11] Ultimately, the scattered references to "due process of law" in English law did not limit the power of the government; about this, American law professor John Orth wrote that "the great phrases failed to retain their vitality."[12] Orth points out that this is generally attributed to the rise of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by hostility towards judicial review as an undemocratic foreign invention.[13] Scholars have occasionally interpreted Lord Coke's ruling in Dr. Bonham's Case as implying the possibility of judicial review, but by the 1870s, Lord Campbell was dismissing judicial review as "a foolish doctrine alleged to have been laid down extra-judicially in Dr. Bonham's Case..., a conundrum [that] ought to have been laughed at."[14] Lacking the power of judicial review, English courts possessed no means by which to declare government statutes or acts invalid as a violation of due process. As a consequence, English law and American law diverged, with American legislators possessing no means by which to declare judicial invalidation of statutes incorrect (with the sole exception of proposing a constitutional amendment, which is rarely successful).[clarification needed] In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers: An American constitutional lawyer might well be surprised by the elusiveness of references to the term 'due process of law' in the general body of English legal writing... Today one finds no space devoted to due process in Halsbury's Laws of England, in Stephen's Commentaries, or Anson's Law and Custom of the Constitution. The phrase rates no entry in such works as Stroud's Judicial Dictionary or Wharton's Law Lexicon.[15]

Two similar concepts in contemporary English law are natural justice (which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others.[1] However, neither concept lines up perfectly with the American conception of due process, which presently contains many implied rights not found in the ancient or modern concepts of due process in England.[2]

United States The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.[16] The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights. California During World War II, Judge Louis E. Goodman dismissed the case against native Californian Masaaki Kuwabara and 25 other draft resisters from Tule Lake Segregation Center on due process grounds.[17] His decision for the defense was unique among the Japanese-American draft resistance cases, and foreshadowed the cases on the Japanese evacuation andCalifornia's anti-Japanese Alien Land Law yet to be tried before the Supreme Court: Defendant was at all times with which we are concerned, in actual confinement pursuant to the President's Order. Whether such confinement is lawful or not, is beside the question. It does not follow that because the war power may allow the detention of defendant at Tulelake, the guarantees of the Bill of Rights and other Constitutional provisions are abrogated by the existence of war.... The defendant cannot be denied the protection of the guaranty of due process because of the war or danger to national security but only upon a valid declaration of martial law.... It is shocking to the conscience that an American citizen be confined on the ground of disloyalty, and then, while so under duress and restraint, be compelled to serve in the armed forces, or be prosecuted for not yielding to such compulsion. Certainly "fair and just" compulsory military training in a "free society" is wholly inconsistent with the instant proceeding. The issue raised by this motion is without precedent. It must be resolved in the light of the traditional and historic Anglo-American approach to the time-honored doctrine of "due process." It must not give way to overzealousness in an attempt to reach, via the criminal process, those whom we may regard as undesirable citizens. In a paper he prepared for Law Day in 1961, entitled "Why Due Process", Judge Goodman wrote, Inroads into, and shortcuts around our basic laws safeguarding individual rights, are too easily accepted - due to indifference, or callousness, or to too quick yielding to the clamor of those who seek to glorify an end, no matter what the means.

To proceed step by step in every process which affects life or liberty is, at times a tiresome and tedious procedure. The temptation to the short cuts I have mentioned is often strong. The hysteria and clamor of the moment are distracting. Temporary acclaim and momentary grandeur are very tempting fruits. NDAA controversy President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012 on December 31, 2011 which allows the United States Government to indefinitely detain Americans (Indefinite detention without trial: Section 1021) without the right to due process in the United States. If there is reason to suspect a person is collaborating with "...associated forces that are engaged in hostilities against the United States or its coalition partners", the law now states that the right to due process is "forfeited" and suspected terrorists will be detained "without trial, until the end of the hostilities authorized by the AUMF." Others Various countries recognize some form of due process under customary international law. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizensthe doctrine ofnational treatmentwhich also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use oftreaties to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives may be disappearing.

DUTY OF CARE
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring that they adhere 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 innegligence. 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 with 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 likeWinterbottom 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 landmark U.S. case ofMacPherson v. Buick Motor Co. (1916) and was imported into UK law by another landmark case, Donoghue v Stevenson [1932]. BothMacPherson and Donoghue were product liability cases. Scope Although the duty of care is easiest to understand in contexts like simple blunt trauma, it is important to understand that a 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 275 S.C. 395, 271 S.E.2d 768 (1980), later cited by the Supreme Court of Canada in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. [1995] 1 S.C.R. 85: 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.

Responsibility Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists.

Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems; as Justice Cardozo put it, to rule otherwise would be to expose defendants "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class."[1] There must be some reasonable limit to the duty of care; the problem is where to set that limit. United Kingdom The leading judicial test for a duty of care in the United Kingdom was found in the judgments of Caparo Industries plc v Dickman,[2] in which the House of Lords set out the following three-part test:

Harm must be a "reasonably foreseeable" result of the defendant's conduct; A relationship of "proximity" between the defendant and the claimant; It must be "fair, just and reasonable" to impose liability.

United States Because each of the 50 U.S. states is a separate sovereign free to develop its own tort law under the Tenth Amendment, and because Erie Railroad Co. v. Tompkins (1938) ruled that there is no general federal common law (thus implying no general federal tort law), there are several tests for finding a duty of care in United States tort law. Foreseeability test In several states, like Florida and Massachusetts, the only test is whether the harm to the plaintiff from the defendant's actions was foreseeable.[3][4] The Supreme Court of California, in a famous majority opinion by Justice David Eagleson, sharply criticized the idea that foreseeability, standing alone, constitutes an adequate basis on which to rest the duty of care: "Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages."[5] Multi-factor test Drawing upon the work of scholars such as Fowler V. Harper, Fleming James Jr., and William Prosser, California has developed a complex balancing test consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action. California Civil Code section 1714 imposes a general duty of ordinary care, which by default requires all persons to take reasonable measures to prevent harm to others. [6] In the 1968 case of Rowland v. Christian, the court held that judicial exceptions to this general duty of care should only be created if clearly justified based on the following public-policy factors:

the foreseeability of harm to the injured party; the degree of certainty he or she suffered injury; the closeness of the connection between the defendants conduct and the injury suffered; the moral blame attached to the defendants conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved.[7]

A 1997 case added to this:

the social utility of the defendant's conduct from which the injury arose.[8]

Contemporary California appellate decisions treat the Rowland decision as the "gold standard" for determining the existence of a legal duty of care, and generally refer to the criteria for determining the existence of a legal duty of care as the Rowland factors.[9] In California, the duty inquiry focuses on the general category of conduct at issue and the range of foreseeable harm it creates, rather than the specific actions or injuries in each case.[10] The California Supreme Court clarified the central importance of this distinction with its 2011 decision in Cabral v. Ralphs Grocery Co. which requires "no duty" rulings to be based on categorical public-policy rules that can be applied to a range of cases, without reference to detailed facts.[11] By requiring courts to apply the Rowland factors at this high level of factual generality, theCabral decision preserved the role of juries in determining whether the defendant breached its duty of care based on the unique circumstances of each case.[12] After the Rowland decision, the "overwhelming majority" of states eventually chose to follow California's lead and adopted some kind of multi-factor analysis based on the work of Prosser and others.[13] Some states simply copied California's factors but modified them, like Michigan (which deleted the insurance factor and never picked up the social utility factor),[14] while others developed different lists of factors, such as this one from Tennessee:

the foreseeability of the harm or injury; the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by the defendant; the usefulness of the conduct to the defendant; the feasibility of alternative conduct; the costs and burdens associated with the alternative conduct; the relative usefulness of the alternative conduct;

and the relative safety of the alternative conduct.[15]

A 2011 law review article identified 43 states that use a multifactor analysis in 23 various incarnations; consolidating them together results in a list of 42 different factors used by U.S. courts to determine whether a duty of care exists.[16] The Tennessee Court of Appeal has also recently followed the California Supreme Court's lead by citing Cabral for the proposition that duty determinations must be made at the highest level of factual generality.[17] Measurement Main articles: Standard of care and Reasonable person Once a duty exists, the plaintiff must show that the defendant breached it. This is generally treated as the second element of negligence in the United States. Breach involves testing the defendant's actions against the standard of a reasonable person, which varies depending on the facts of the case. For example, physicians will be held to reasonable standards for members of their profession, rather than those of the general public, in negligence actions for medical malpractice. In turn, once the appropriate standard has been found, the breach is proven when the plaintiff shows that the defendant's conduct fell below or did not reach the relevant standard of reasonable care.[18] However, it is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, yet the plaintiff was injured. If that is the case, then as a matter of law, the duty of care has not been breached and the plaintiff cannot recover in negligence.[19][20] This is the key difference between negligence and strict liability; if strict liability attaches to the defendant's conduct, then the plaintiff can recover under that theory regardless of whatever precautions were taken by the defendant. Examples Products Product liability was the context in which the general duty of care first developed. Manufacturers owe a duty of care to consumers who ultimately purchase and use the products. In the case ofDonoghue v Stevenson [1932] AC 562 of the House of Lords, Lord Atkin stated: My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which

they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

Land

A notice informing potential entrants of limits to the duty of care At common law, in the case of landowners, the extent of their duty of care to those who came on their premises varied depending on whether a person was classified as a trespasser, licensee, or invitee. This rule was eventually abolished in some common law jurisdictions. For example, England enacted the Occupiers Liability Act 1957. Similarly, in the 1968 landmark case of Rowland v. Christian,[21] the Supreme Court of California replaced the old classifications with a general duty of care to all persons on one's land, regardless of their status. After several highly-publicized and controversial cases, the California Legislature enacted a statute in 1985 that partially restored immunity to landowners from some types of lawsuits from trespassers.[22] Colorado's highest court adopted the Rowland unified duty of care analysis in 1971. The resulting explosion of lawsuits against Colorado landowners caused the state legislature to enact the Colorado Premises Liability Act in 1986, which enacted a cleaned-up statutory version of the common law classifications and simultaneously expressly displaced all common law remedies against landowners in order to prevent state courts from again expanding their liability. In the Republic of Ireland, under the Occupiers' Liability Act, 1995, the duty of care to trespassers, visitors and "recreational users" can be restricted by the occupier; provided

reasonable notice is given, for which a prominent notice at the usual entrance to the premises usually suffices.[23] Business See also: Business judgment rule In business, "the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions."[24] The "business judgment rule presumes that directors (and officers) carry out their functions in good faith, after sufficient investigation, and for acceptable reasons. Unless this presumption is overcome, courts abstain from second-guessing well-meaning business decisions even when they are flops. This is a risk that shareholders take when they make a corporate investment."[24]

DUTY TO RESCUE
A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party in peril. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue. This does not necessarily obviate a moral duty to rescue: though law is binding and carries government-authorized sanctions, there are also separate ethical arguments for a duty to rescue that may prevail even where law does not punish failure to rescue. Common law In the common law of most anglosphere countries, there is no general duty to come to the rescue of another.[1] Generally, a person cannot be held liable for doing nothing while another person is in peril.[2][3] However, such a duty may arise in two situations:

A duty to rescue arises where a person creates a hazardous situation. If another person then falls into peril because of this hazardous situation, the creator of the hazard who may not necessarily have been a negligent tortfeasor has a duty to rescue the individual in peril.[4] Such a duty also arises where a "special relationship" exists. For example:

Emergency workers (firefighters, emergency medical technicians, etc.) have a general duty to rescue the public within the scope of their employment. The District of Columbia Court of Appeals ruled in Warren v. DC that the police have no duty to protect any citizen not in custody, and cannot be sued for their failure to protect.[5] Parents have a duty to rescue their minor children. This duty also applies to those acting in loco parentis, such as schools or babysitters.[6]

Common carriers have a duty to rescue their patrons.[7] Employers have an obligation to rescue employees, under an implied contract theory.[8] Property owners have a duty to rescue invitees but not trespassers from all dangers on the property. Spouses have a duty to rescue each other in all U.S. jurisdictions.[9] In the United States, as of 2009 ten states had laws on the books requiring that people at least notify law enforcement of and/or seek aid for strangers in peril under certain conditions: California,[10][11] Florida,[10][12][13] Hawaii,[10][14] Massachusetts,[10][15]Minne sota,[10][16] Ohio,[10][17] Rhode Island,[10][18] Vermont,[10][19] Washington,[10][20][21] and Wisconsin.[10][22] These laws are also referred to as Good Samaritan laws, despite their difference from laws of the same name that protect individuals that try to help another person.[1] These laws are rarely applied, and are generally ignored by citizens and lawmakers.[1]

Where a duty to rescue arises, the rescuer must generally act with reasonable care, and can be held liable for injuries caused by a reckless rescue attempt. However, many states have limited or removed liability from rescuers in such circumstances, particularly where the rescuer is an emergency worker. Furthermore, the rescuer need not endanger himself in conducting the rescue. Civil law Many civil law systems, which are common in Continental Europe, Latin America and much of Africa impose a far more extensive duty to rescue.[3] The only exclusion is that the person must not endanger his own life or that of others, while providing rescue. This can mean that if a person finds someone in need of medical help, he must take all reasonable steps to seek medical care and render best-effort first aid. Commonly, the situation arises on an event of a traffic accident: other drivers and passers-by must take an action to help the injured without regard to possible personal reasons not to help (e.g. having no time, being in a hurry) or ascertain that help has been requested from officials.[citation needed] In practice however, almost all cases of compulsory rescue simply require the rescuer to alert the relevant entity (police, fire brigade, ambulance) with a phone call.[citation needed] Criminal law In some countries, there exists a legal requirement for citizens to assist people in distress, unless doing so would put themselves or others in harm's way. Citizens are often required to, at minimum, call the local emergency number, unless doing so would be harmful, in which case the authorities should be contacted when the harmful situation has been removed.

As of 2012, there were such laws in countries, [1] [23] [24] [25] including Albania, Andorra, Argentina, Austria, Belgium, Brazil, Bulgaria, Croatia ,[26] Czech Republic, Denmark, Finland, France,[27]Germany,[28] Greece, Hungary, Iceland, Israel, Ita ly, the Netherlands, Norway, Poland,[29] Portugal, Russia, Serbia, Spain, and Switzerland. France The photographers at the scene of Lady Diana's fatal car accident were investigated for violation of the French law of "non-assistance personne en danger" (deliberately failing to provide assistance to a person in danger), which can be punished by up to 5 years imprisonment and a fine of up to $100,000. Anyone who fails to render assistance to a person in danger will be found liable before French Courts (civil and criminal liability). The penalty for this offence in criminal courts is imprisonment and a fine (under article 2236 of the Criminal Code) while in civil courts judges will order payment of pecuniary compensation to the victims.[30] Germany In Germany, "Unterlassene Hilfeleistung" (failure to provide assistance) is an offense according to section 323c[31] of the Strafgesetzbuch; a citizen is obliged to provide help in case of accident or general danger if necessary, and is normally immune from prosecution if assistance given in good faith and following the average reasonable person's understanding of required measures turns out to be harmful.[32][33] Also the helper may not be held responsible if the action he should take in order to help is unacceptable for him and he is unable to act (for example when unable to act at the sight of blood). In Germany, knowledge of basic emergency measures and First Aid and CPR Certification is a prerequisite for the granting of a driving license. Serbia In Serbia, a citizen is required by law to provide help to anyone in need (after for example a major car accident) as long as providing help does not endanger him personally. Serbian criminal code Articles 126 and 127 state that should one abandon a helpless person and/or does not provide aid to a person in need, one could receive a prison sentence of up to one year. If the person dies of injuries due to no aid provided by the bystander, one can receive a sentence of up to 8 years in prison. Brazil In Brazil, a citizen is required by law to provide help to anyone under grave and imminent danger, the injured and disabled and abandoned children as long as it is safe to do so. Brazilian criminal code Article 135 establishes a prison sentence of 6 months to a year (doubled should the victim suffer serious bodily harm or death) for withholding help. Also, first aid and CPR are mandatory classes for obtaining a driver's license.

Canadian law In Quebec, which makes use of civil law, there is a general duty to rescue in its Charter of Rights: "Every human being whose life is in peril has a right to assistance...Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason."[34] Criminal law in Canada is under the exclusive jurisdiction of the federal government, so failure to comply with an article of the Charter in Quebec does not constitute a criminal offence except if by doing so a party also violates the Criminal Code of Canada. Other provinces follow common law. In Canadian air law it is mandatory to make oneself and their aircraft available to aid search and rescue efforts if they are in the immediate area and a distress signal is received.[citation needed] Ethical justifications Legal requirements for a duty to rescue do not pertain in all nations, states, or localities. However, a moral or ethical duty to rescue may exist even where there is no legal duty to rescue. There are a number of potential justifications for such a duty. One sort of justification is general and applies regardless of role-related relationships (doctor to patient; firefighter to citizen, etc.). Under this general justification, persons have a duty to rescue other persons in distress by virtue of their common humanity, regardless of the specific skills of the rescuer or the nature of the victim's distress. These would justify cases of rescue and in fact make such rescue a duty even between strangers. They explain why philosopher Peter Singer suggests that if one saw a child drowning and could intervene to save him, they should do so, no matter the damage to their clothing or shoes or how late it might make them for a meeting. Singer goes on to say that one should also attempt to rescue distant strangers, not just nearby children, because globalization has made it possible to do so.[35] Such general arguments for a duty to rescue also explain why after the2010 Haiti earthquake, Haitians were digging family members, friends, and strangers out of the rubble with their bare hands and carrying injured persons to whatever medical care was available.[36] They also explain why, while covering that same earthquake, journalist and physician Sanjay Gupta and a number of other MD-journalists began acting as physicians to treat injuries rather than remaining uninvolved in their journalistic roles. Similarly, they justify journalist Anderson Cooper's attempt to shepherd an injured young boy away from some "toughs" nearby in the aftermath of the Haiti earthquake.[37]

Specific arguments for such a duty to rescue include, but are not limited to:

The Natural Law Rule: treat others as one would wish to be treated. This assumes that all persons would wish to be rescued if they were in distress, and so they should in turn rescue those in distress to the best of their abilities. What counts as distress requiring rescue may, of course, differ from person to person, but being trapped or at risk of drowning are emergent situations which this position assumes all humans would wish to be rescued from. Utilitarianism: utilitarianism posits that those actions are right which best maximize happiness and reduce suffering ("maximize the good").[38] Utilitarian reasoning generally supports acts of rescue which contribute to overall happiness and reduced suffering. Rule utilitarianism would look not just at whether individual acts of rescue maximize the good, but whether certain types of acts do so. It then becomes one's duty to perform those types of actions. Generally, having strangers rescue those in distress maximizes good so long as the rescue attempt does not make things worse, so one has a duty to rescue to the best of their ability as long as doing so will not make things worse. Humanity: the rules of humanity advise that the essence of morality and right behavior is tending to human relationships. Therefore, virtues (desirable character traits) such as compassion, sympathy, honesty, and fidelity are to be admired and developed.[39] Acting out of compassion and sympathy will often require rescue where someone is in need. Indeed, it would not be compassionate to ignore someone's need, though the way one fulfills that need may vary. In cases of emergency, rescue would be the most compassionate act compared with allowing a person to remain trapped in rubble.

There are also ethical justifications for role-specific or skill-specific duties of rescue such as those described under the discussion of U.S. Common Law, above. Generally, these justifications are rooted in the idea that the best rescues, the most effective rescues, are done by those with special skills. Such persons, when available to rescue, are thus even more required to do so ethically than regular persons who might simply make things worse (for a utilitarian, rescue by a skilled professional in a relevant field would maximize the good even better than rescue by a regular stranger). This particular ethical argument makes sense when considering the ability firefighters to get both themselves and victims safely out of a burning building, or of health care personnel such as physicians, nurses, physician's assistants, and EMTs to provide medical rescue.[40] These are some of the ethical justifications for a duty to rescue, and they may hold true for both regular citizens and skilled professionals even in the absence of legal requirements to render aid.

Case law In an 1898 case, the New Hampshire Supreme Court unanimously held that after an eight year-old boy negligently placed his hand in the defendant's machinery, the boy had no right to be rescued by the defendant. Beyond that, the trespassing boy could be held liable for damages to the defendant's machine.[41] In the 1907 case, People v. Beardsley, Beardsley's mistress, Blanche Burns, passed out after overdosing on morphine. Rather than seek medical attention, Beardsley instead had a friend hide her in the basement, and Burns died a few hours later. Beardsley was tried and convicted of manslaughter for his negligence. However, his conviction was reversed by the Supreme Court of Michigan saying that Beardsley had no legal obligation to her.

DUTY TO RETREAT
In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided conflict and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually using force. U.S. law Some U.S. jurisdictions require that a person retreat from an attack, and allow the use of deadly force in self-defense only when retreat is not possible or when retreat poses a danger to the person under attack. The duty to retreat is not universal, however. For example, police officers are not required to retreat when acting in the line of duty. Similarly, some courts have found no duty to retreat exists when a victim is assaulted in a place where the victim has a right to be, such as within one's own home.[1] The Model Penal Code[2] suggests statutory language that also recognizes an exception to the usual duty to retreat when the victim of the attack is in his or her own dwelling or place of work. It is common to exempt a person's home or car from the duty to retreat, known as the castle doctrine. Many states employ stand your ground laws that do not require an individual to retreat and allow one to match force for force, deadly force for deadly force. The Washington State Supreme Court, for example, has ruled "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be."[3][4]

Most state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II of 1381 (Forcible Entry Act 1381)which imposed criminal sanctions intending to discourage the resort to selfhelp.[5][6][7] This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means. Today, the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land.[8] English law In English law the focus of the test is whether the defendant is acting reasonably in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. In R v Bird[9] the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defense.[citation
needed]

Carrying weapons As to carrying weapons in anticipation of an attack, Evans v Hughes[10] held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried. Similarly, in Taylor v Mucklow[11] a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid. More dramatically, in AG's Reference (No 2 of 1983)[12]Lord Lane held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth riots could set up the defense of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defense to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.

E
ECONOMIC SUBSTANCE
Economic substance is a doctrine in the tax law of the United States under which a transaction must have an economic purpose aside from reduction of tax liability in order to be considered valid. This doctrine is used to determine whether tax shelters, or strategies used to reduce tax liability, are considered "abusive" by the Internal Revenue Service. It was adopted into law as part of the 2010 Patient Protection and Affordable Care Act.[1] Eggshell skull The eggshell skull rule (or thin skull rule or you take your victim as you find him rule of the common law) is a well established legal doctrine used in some tort law systems,[1] with a similar doctrine applicable to criminal law. It increases the liability of a person who may commit a tort against another, from results arising out of those tortious acts. The law This rule holds one liable for all consequences resulting from his or her tortious (usually negligent) activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a preexisting vulnerability or medical condition). The term implies that if a person had a skull as delicate as that of the shell of an egg, and a tortfeasor who was unaware of the condition injured that person's head, causing the skull unexpectedly to break, the defendant would be held liable for all damages resulting from the wrongful contact, even if the tortfeasor did not intend to cause such a severe injury. In criminal law, the general maxim is that the defendant must "take their victims as they find them", a quotation from the judgment of Lord Justice Lawton in R v. Blaue (1975), in which the defendant was held responsible for killing his victim, despite his contention that her refusal of a blood transfusion constituted novus actus interveniens. The doctrine is applied in all areas of torts - intentional torts, negligence, and strict liability cases - as well as in criminal law.

There is no requirement of physical contact with the victim - if a trespasser's wrongful presence on the victim's property so terrifies the victim that he has a fatal heart attack, the trespasser will be liable for the damages stemming from his original tort. The foundation for this rule is based primarily on policy grounds. The courts do not want the defendant or accused to rely on the victim's own vulnerability to avoid liability. The thin skull rule is not to be confused with the related crumbling skull rule in which the plaintiff suffers from a detrimental position (from a prior injury, for instance) pre-existent to the occurrence of the present tort. In the "crumbling skull" rule, the prior condition is only to be considered with respect to distinguishing it from any new injury arising from the present tort - as a means of apportioning damages in such a way that the defendant would not be liable for placing the plaintiff in a better position than they were in prior to the present tort.[2] Case illustrations (UK) In the case of Smith v. Leech Brain & Co.,[3] an employee in a factory was splashed with molten metal. The metal burned him on his lip, which happened to be premalignant tissue. He died three years later from cancer triggered by the injury. The judge held that as long as the initial injury was foreseeable, the defendant was liable for all the harm. (US) In 1891, the Wisconsin Supreme Court came to a similar result in Vosburg v. Putney.[4] In that case, a boy threw a small kick at another from across the aisle in the classroom. It turned out that the victim had an unknown microbial condition that was irritated, and resulted in him entirely losing the use of his leg. No one could have predicted the level of injury. Nevertheless, the court found that the kicking was unlawfulbecause it violated the "order and decorum of the classroom", and the perpetrator was therefore fully liable for the injury. (US) In Benn v. Thomas, the appellate court determined that the eggshell rule should have been applied to a case in which a man had a heart attack and died after being bruised in the chest during a rear-end car accident. Exception Intervening cause is typically an exception to the eggshell skull rule. If an injury is not immediate, but a separate situation agitates the injury, the tortfeasor is not liable. For example, if Matt assaults Neal, and Neal is hauled away on a stretcher, where he is struck by lightning, even though Matt's actions had caused Neal to be at the place and time of the bolt of lightning, the rule does not apply.

Emergency Dangers to life and health are serious enough that emergency response systems are considered vital. An emergency is a situation that poses an immediate risk to health, life, property, or environment.[1] Most emergencies require urgent intervention to prevent a worsening of the situation, although in some situations, mitigation may not be possible and agencies may only be able to offer palliative care for the aftermath. While some emergencies are self-evident (such as a natural disaster that threatens many lives), many smaller incidents require that an observer (or affected party) decide whether it qualifies as an emergency. The precise definition of an emergency, the agencies involved and the procedures used, vary by jurisdiction, and this is usually set by the government, whose agencies (emergency services) are responsible for emergency planning and management. Defining an emergency An incident, to be an emergency, conforms to one or more of the following, it:

Poses an immediate threat to life, health, property, or environment Has already caused loss of life, health detriments, property damage, or environmental damage has a high probability of escalating to cause immediate danger to life, health, property, or environment[citation needed]

In the United States, most states mandate that a notice be printed in each telephone book that requires that someone must relinquish use of a phone line , if a person requests the use of a telephone line (such as a party line) if someone requests access to the line to report an emergency. State statures typically define an emergency as, "...a condition where life, health, or property is in jeopardy, and the prompt summoning of aid is essential."[2] Whilst most emergency services agree on protecting human health, life and property, the environmental impacts are not considered sufficiently important by some agencies[citation needed]. This also extends to areas such as animal welfare, where some emergency organisations cover this element through the 'property' definition, where animals owned by a person are threatened (although this does not cover wild animals). This means that some agencies do not mount an 'emergency' response where it endangers wild animals or environment[citation needed], though others respond to such incidents (such as oil spills at sea that threaten marine life). The attitude of the agencies involved is likely to reflect the predominant opinion of the government of the area.

Types of emergency Dangers to life Many emergencies cause an immediate danger to the life of people involved. This can range from emergencies affecting a single person, such as the entire range of medical emergencies including heart attacks, strokes, and trauma, to incidents that affect large numbers of people such as natural disasters including tornadoes, hurricanes, floods, and mudslides. Most agencies consider these the highest priority emergency, which follows the general school of thought that nothing is more important than human life.[3] Dangers to health Some emergencies are not immediately threatening to life, but might have serious implications for the continued health and well-being of a person or persons (though a health emergency can subsequently escalate to life threatening). The causes of a 'health' emergency are often very similar to the causes of an emergency threatening to life, which includes medical emergencies and natural disasters, although the range of incidents that can be categorised here is far greater than those that cause a danger to life (such as broken limbs, which do not usually cause death, but immediate intervention is required if the person is to recover properly) Dangers to property Other emergencies do not threaten any people, but do threaten peoples' property. An example of this would be a fire in a warehouse that has been evacuated. The situation is treated as an emergency as the fire may spread to other buildings, or may cause sufficient damage to make the business unable to continue (affecting livelihood of the employees). Many agencies categorise property emergency as the lowest priority, and may not take as many risks in dealing with it. For instance, firefighters are unlikely to enter a burning building they know to be empty, as the risk is unjustified, but are more likely to enter a building where people are reported as trapped, unless they believe they can stop the spread of the fire, or "save" the building. Dangers to the environment Some emergencies do not immediately endanger life, health or property, but do affect the natural environment and creatures living within it. Not all agencies consider this a genuine emergency, but it can have far reaching effects on animals and the long term condition of the land. Examples would include forest fires and marine oil spills.

Systems of classifying emergencies Agencies across the world have different systems for classifying incidents, but all of them serve to help them allocate finite resource, by prioritising between different emergencies.[citation needed] The first stage of any classification is likely to define whether the incident qualifies as an emergency, and consequently if it warrants an emergency response. Some agencies may still respond to non-emergency calls, depending on their remit and availability of resource. An example of this would be a fire department responding to help retrieve a cat from a tree, where no life, health or property is immediately at risk. Following this, many agencies assign a sub-classification to the emergency, prioritising incidents that have the most potential for risk to life, health or property (in that order). For instance, many ambulance services use a system called the Advanced Medical Priority Dispatch System (AMPDS) or a similar solution.[4][5] The AMPDS categorises all calls to the ambulance service using it as either 'A' category (immediately life threatening), 'B' Category (immediately health threatening) or 'C' category (non-emergency call that still requires a response). Some services have a fourth category, where they believe that no response is required after clinical questions are asked. Another system for prioritizing medical calls is known as Emergency Medical Dispatch (EMD).[6][7] Jurisdictions that use EMD typically assign a code of "alpha" (low priority), "bravo" (medium priority), "charlie" (requiring advanced life support), delta (high priority, requiring advanced life support) or "echo" (maximum possible priority, e.g., witnessed cardiac arrests) to each inbound request for service; these codes are then used to determine the appropriate level of response.[8][9][10] Other systems (especially as regards major incidents) use objective measures to direct resource. Two such systems are SAD CHALET and ETHANE,[11] which are both mnemonics to help emergency services staff classify incidents, and direct resource.[12] Each of these acronyms helps ascertain the number of casualties (usually including the number of dead and number of non-injured people involved), how the incident has occurred, and what emergency services are required. Agencies involved in dealing with emergencies Main article: Emergency service Most developed countries have a number of emergency services operating within them, whose purpose is to provide assistance in dealing with any emergency. They are often government operated, paid for from tax revenue as a public service, but in some cases, they may be private companies, responding to emergencies in return for payment, or they may be voluntary organisations, providing the assistance from funds raised from donations.

Most developed countries operate three core emergency services[citation needed]:

Police who deal with security of person and property, which can cover all three categories of emergency. They may also deal with punishment of those who cause an emergency through their actions. Fire service who deal with potentially harmful fires, but also often rescue operations such as dealing with road traffic collisions. Their actions help to prevent loss of life, damage to health and damage to or loss of property. Emergency Medical Service (Ambulance / Paramedic service) These services attempt to reduce loss of life or damage to health. This service is likely to be decisive in attempts to prevent loss of life and damage to health. In some areas "Emergency Medical Service" is abbreviated to simply EMS.

In some countries or regions, two or more of these services may be provided by the same agency[13] (e.g. the fire service providing emergency medical cover), and under different conditions (e.g. publicly funded fire service and police, but a private ambulance service) There may also be a number of secondary emergency services, which may be a part of one of the core agencies, or may be separate entities who assist the main agencies. This can include services providing specialist rescue (such as mountain rescue[14] or mine rescue),[15] bomb disposal[16] or search and rescue.[17][18][19] The Military and the Amateur Radio Emergency Service (ARES) or Radio Amateur Civil Emergency Service (RACES) help in large emergencies such as a disaster or major civil unrest. Summoning emergency services Main article: Emergency telephone number Most countries have an emergency telephone number, also known as the universal emergency number, which can be used to summon the emergency services to any incident. This number varies from country to country (and in some cases by region within a country), but in most cases, they are in a short number format, such as 911 (United States and many parts of Canada),[20]999 (United Kingdom),[21][22] 112 (Europe)[23][24] and 000 (Australia).[25] The majority of mobile phones also dial the emergency services, even if the phone keyboard is locked, or if the phone has an expired or missing SIM card, although the provision of this service varies by country and network.[24]

Civil emergency services In addition to those services provided specifically for emergencies, there may be a number of agencies who provide an emergency service as an incidental part of their normal 'day job' provision. This can include public utility workers, such as in provision of electricity or gas, who may be required to respond quickly, as both utilities have a large potential to cause danger to life, health and property if there is an infrastructure failure.[26][27] Emergency action principles (EAP) Main article: Emergency action principles Emergency action principles are key 'rules' that guide the actions of rescuers and potential rescuers. Because of the inherent nature of emergencies, no two are likely to be the same, so emergency action principles help to guide rescuers at incidents, by sticking to some basic tenets. The adherence to (and contents of) the principles by would-be rescuers varies widely based on the training the people involved in emergency have received, the support available from emergency services (and the time it takes to arrive) and the emergency itself. Key emergency principle The key principle taught in almost all systems is that the rescuer, be they a lay person or a professional, should assess the situation for danger.[28][29] The reason that an assessment for danger is given such high priority is that it is core to emergency management that rescuers do not become secondary victims of any incident, as this creates a further emergency that must be dealt with. A typical assessment for danger would involve observation of the surroundings, starting with the cause of the accident (e.g. a falling object) and expanding outwards to include any situationalhazards (e.g. fast moving traffic) and history or secondary information given by witnesses, bystanders or the emergency services (e.g. an attacker still waiting nearby). Once a primary danger assessment has been complete, this should not end the system of checking for danger, but should inform all other parts of the process. If at any time the risk from any hazard poses a significant danger (as a factor of likelihood and seriousness) to the rescuer, they should consider whether they should approach the scene (or leave the scene if appropriate).

Managing an emergency

A graphic representation of the four phases in emergency management. Main article: Emergency management There are many emergency services protocols that apply in an emergency, which usually start with planning before an emergency occurs. One commonly used system for demonstrating the phases is shown here on the right. The planning phase starts at preparedness, where the agencies decide how to respond to a given incident or set of circumstances. This should ideally include lines of command and control, and division of activities between agencies. This avoids potentially negative situations such as three separate agencies all starting an official rest centre for victims of a disaster. Following an emergency occurring, the agencies then move to a response phase, where they execute their plans, and may end up improvising some areas of their response (due to gaps in the planning phase, which are inevitable due to the individual nature of most incidents). Agencies may then be involved in recovery following the incident, where they assist in the clear up from the incident, or help the people involved overcome their mental trauma. The final phase in the circle is mitigation, which involves taking steps to ensure no reoccurrence is possible, or putting additional plans in place to ensure less damage is done. This should feed back in to the preparedness stage, with updated plans in place to deal with future emergencies, thus completing the circle.

State of emergency Main article: State of emergency In the event of a major incident, such as civil unrest or a major disaster, many governments maintain the right to declare a state of emergency,[30] which gives them extensive powers over the daily lives of their citizens, and may include temporary curtailment on certain civil rights, including the right to trial (for instance to discourage looting of an evacuated area, a shoot on sight policy may be in force) Personal emergencies Some people believe they have an emergency in a situation that does not pose a risk to life, physical health, or property. In these instances, some people feel entitled to an emergency responsea view emergencies agencies may not share. Some of these cases may be genuine emergencies if they threaten the mental health and well-being of the person involved, but many agencies do not recognise this as valid. This is more likely to be dealt with by social services or a physician than by the traditional emergency service agencies.

EMINENT DOMAIN
Eminent domain (United States, the Philippines), compulsory purchase (United Kingdom, New Zealand, Ireland), resumption/compulsory acquisition (Australia), or expropriation(South Africa, Canada) is the power to take private property for public use by a state. However, it can be legislatively delegated by the state to municipalities, government subdivisions, or even private persons or corporations when they are authorized to exercise functions of public character.[1] The property may be taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development. The most common uses of property taken by eminent domain are for government buildings and other facilities, public utilities, highways, and railroads; however, it may also be taken for reasons of public safety, as in the case of Centralia, Pennsylvania. Some jurisdictions require that the condemnor offer to purchase the property before resorting to the use of eminent domain. Meaning The term "eminent domain" was taken from the legal treatise De Jure Belli et Pacis, written by the Dutch jurist Hugo Grotius in 1625,[2] which used the term dominium eminens (Latin forsupreme lordship) and described the power as follows:

"...The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property." Some U.S. states use the term appropriation (New York) or "expropriation" (Louisiana) as synonyms for the exercising of eminent domain powers. Condemnation The term "condemnation" is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government. This use of the word should not be confused with its sense of a declaration that property is uninhabitable due to defects. Condemnation via eminent domain indicates the government is taking ownership of the property or some lesser interest in it, such as an easement. After the condemnation action is filed the amount of just compensation is determined in trial. However, in some cases, the property owner challenges the right to take because the proposed taking is not for "public use", or the condemnor is not legislatively authorized to take the subject property, or has not followed the proper substantive or procedural steps as required by law. Other property The exercise of eminent domain is not limited to real property. Governments may also condemn personal property. Governments can even condemn intangible property such as contract rights, patents, trade secrets, and copyrights. Even the taking of professional sports team's franchise has been held by the California Supreme Court to be within the purview of the "public use" constitutional limitation, although eventually, that taking was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.[3] North America United States Constitution The practice of condemnation was transplanted into the American colonies with the common law. In the early years, unimproved land could be taken without compensation; this practice was accepted because land was so abundant that it could be cheaply replaced. When it came time to draft the United States Constitution, differing views on eminent domain were voiced.

Thomas Jefferson favored eliminating all remnants of feudalism, and pushed for allodial ownership.[4] James Madison, who wrote the Fifth Amendment to the United States Constitution, had a more moderate view, and struck a compromise that sought to at least protect property rights somewhat by explicitly mandating compensation and using the term "public use" rather than "public purpose," "public interest", or "public benefit".[5] The Fifth Amendment imposes limitations on the exercise of eminent domain: the taking must be for public use and just compensation must be paid. Some historians have suggested that these limitations on the taking power were inspired by the need to permit the army to secure mounts, fodder and provisions from local ranchers and the perceived need to assure them compensation for such takings. Similarly, soldiers forcibly sought housing in whatever homes were near their military assignments. To address the latter problem, the Third Amendment was enacted in 1791 as part of the US Constitution's Bill of Rights. It provided that the quartering of soldiers on private property could not take place in peacetime without the landowner's consent. It also required that, in wartime, established law had to be followed in housing troops on private property. Presumably, this would mandate "just compensation," a requirement for the exercise of eminent domain in general per the Fifth Amendment.[6] All U.S. states have legislation specifying eminent domain procedures within their respective territories.[7] The power of governments to take private real or personal property has always existed in the United States, being an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, "...nor shall private property be taken for public use, without just compensation." The Fifth Amendment did not create the national government's right to use the eminent domain power, it simply limited it to public use.[8] The U.S. Supreme Court has consistently deferred to the right of states to make their own determinations of public use, although the reason why the constitutional term "public use" should not be subject to federal judicial interpretation like other constitutional terms has not been explained. In 1832 the Supreme Court ruled that eminent domain could be used to allow a mill owner to expand his dam and operations by flooding an upstream neighbor. The court opinion stated that a public use does not have to mean public occupation of the land; it can mean a public benefit.[9] In Clark vs. Nash (1905), the Supreme Court acknowledged that different parts of the country have unique circumstances and the definition of public use thus varied with the facts of the case.

It ruled a farmer could expand his irrigation ditch across another farmer's land (with compensation), because that farmer was entitled to "the flow of the waters of the said Fort Canyon Creek... and the uses of the said waters... [is] a public use." Here, in recognizing the arid climate and geography of Utah, the Court indicated the farmer not adjacent to the river had as much right as the farmer who was, to access the waters.[10] However, until the 14th Amendment was ratified in 1868, the limitations on eminent domain specified in the Fifth Amendment applied only to the federal government and not to the states. That view ended in 1896 when in the Chicago, Burlington & Quincy Railroad v. Chicago case the court held that the eminent domain provisions of the Fifth Amendment were incorporated in the Due Process Clause of the Fourteenth Amendment and thus were now binding on the states, or in other words, when the states take private property they are required to devote it to a public use and compensate the property owner for his loss.[11] This was the beginning of what is now known as the "selective incorporation" doctrine. An expansive interpretation of eminent domain was reaffirmed in Berman v. Parker (1954), in which the U.S. Supreme Court reviewed an effort by the District of Columbia to take and raze blighted structures, in order to eliminate slums in the Southwest Washington area. After the taking, held the court, the taken and razed land could be transferred to private redevelopers who would construct condominiums, private office buildings and a shopping center. The Supreme Court ruled against the owners of a non-blighted property within the area on the grounds that the project should be judged on its plans as a whole, not on a parcel by parcel basis. In Hawaii Housing Authority v. Midkiff (1984), the Supreme Court approved the use of eminent domain to transfer a land lessor's title to its tenants who owned and occupied homes built on the leased land. The court's justification was to break up a housing oligopoly, and thereby lower or stabilize home prices, although in reality, following the Midkiff decision, home prices on Oahu escalated dramatically, more than doubling within a few years.[citation needed] The Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005) affirmed the authority of New London, Connecticut, to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. This 5-4 decision received heavy press coverage and inspired a public outcry criticising eminent domain powers as too broad. In reaction to Kelo, several states enacted or are considering state legislation that would further define and restrict the power of eminent domain. The Supreme Courts of Illinois, Michigan (County of Wayne v. Hathcock [2004]), Ohio (Norwood, Ohio v. Horney [2006]), Oklahoma, and South Carolina have recently ruled to disallow such takings under their state constitutions.

The redevelopment in New London, the subject of the Kelo decision, proved to be a failure and as of 2012 (seven years after the court's decision) nothing has been built on the taken land in spite of the expenditure of over $80 million in public funds. The Pfizer corporation, which owned a $300 million research facility in the area, and would have been the primary beneficiary of the additional development, announced in 2009 that it would close its facility, and did so shortly before the expiration of its 10year tax abatement agreement with the city.[12] The facility was subsequently purchased in 2010 for just $55 million by General Dynamics Electric Boat.[13] American libertarians argue that eminent domain is unnecessary. Bruce L. Benson notes that utilities, for instance, have a variety of methods at their disposal, such as option contracts and dummy buyers, to obtain the contiguous parcels of land needed to build pipelines, roads, and so forth. These methods are routinely used to acquire land needed for shopping malls and other large developments.[14] Walter Block argues that the problem of recalcitrant landowners ("holdouts") who refuse reasonable offers for the sale of their land is solved in the long term by the fact that their failure to accumulate wealth through such trades will give them a relative disadvantage in attempting to accumulate more land. Thus, the vast majority of land will tend to fall into the control of those who are willing to make profitable exchanges.[15] Compensation American courts have held that the preferred measure of "just compensation" is "fair market value," i.e., the price that a willing but unpressured buyer would pay a willing but unpressured seller in a voluntary transaction, with both parties fully informed of the property's good and bad features.[16] Also, this approach takes into account the property's highest and best use (i.e., its most profitable use) which is not necessarily its current use or the use mandated by current zoning if there is a reasonable probability of zone change. This measure of compensation has been severely criticized because it omits from consideration a variety of incidental economic losses that a taking of land inflicts on its owners when they are evicted from their homes and businesses. The most egregious example of such uncompensated losses is provided by the American law that denies any compensation to owners of businesses that are destroyed when land on which they are located is taken, and the business cannot relocate. A small minority of states have provided by statute that at least some business losses are compensable. Also, attorneys' and appraisers' fees are not recoverable (except in Florida) so the owners of the taken property never recover the full value of the taken land, even if they prevail in the valuation trial, because a part of their recovery must be used to pay their lawyers and appraisers. Some states do provide for limited recovery of such litigation expenses, typically when the owners' recovery substantially exceeds the amount of the condemnor's pretrial offer or the evidence presented by the condemnor at trial by a specified percentage.

Also, when a condemnation action is abandoned, the owners are typically entitled (by statute) to be paid reasonable attorneys' and appraisers' fee they had to incur in defending the condemnation action while it was pending. When payment of compensation is delayed, the owner of the taken land is entitled to receive interest on the award of compensation, that accrues from the time of taking to the time of payment. The interest must be reasonable, so that when prevailing market rates of interest exceed the statutory rate (as in inflationary times), the former have to be used. The U.S. Supreme Court takes the position that unlike the determination of what is a "public use," the determination of compensation is a judicial, not legislative, function, but legislatures are free to provide for more liberal awards of compensation than the constitutional minimum determined by courts. In cases of partial takings of land, the owners are entitled to compensation for the taken part, plus severance damages (the diminution of value of what remains of their property after the taking). If the partial taking creates special benefits (i.e., it causes an increase in the value of the remaining land) their value is offset against compensation, with the majority of states allowing such offsets only against severance damages, so in those states, the owner always gets paid for the taken land. When a partial taking causes impairment of access to the remainder land, that gives rise to a contentious issue because courts take the position that diminution in value caused by impaired access is compensable only when the impairment is substantial. Traffic regulations that affect access (one-way streets, median dividers, etc.) are deemed exercises of the police power and are not compensable. In addition to fee simple titles, all interests in property (easements, leaseholds, etc.) are compensable. The measure of value of a leasehold is the amount by which prevailing comparable rentals in the area exceed the actual contracted-for rent. This amount is known as "bonus value" of a lease. It is calculated over the remaining life of the lease and then reduced to its present value. The measure of compensation for an easement is the difference in the value of the subject land as unencumbered and as encumbered by the easement. In determining value, zoning and other land-use regulations are considered, but if it appears that there is a reasonable probability of zone change to a higher use, that may be shown and in that case the owner is entitled to an additional increment of value (the extra amount over and above the value under current zoning, that the market would pay now because of the probability of future rezoning).

The appraisal profession recognizes several different methods of calculating value, but courts are largely stuck in the convention of using three valuation approaches: (a) market data analysis or comparable sales value, (b) the capitalization of rentals, and (c) the reproduction-less-depreciation approach under which the cost of reproducing the improvements on the property is estimated and then depreciated to allow for wear and tear and functional or economic obsolescence. The value of the land is then added to the value of the reproduced, depreciated improvements. Some states allow compensation as the cost of reproduction without depreciation, but only in cases where the subject property, though privately owned, performs an important public or charitable function. The U.S. Supreme Court has indicated (U.S. v. Cors) that it is not its intention to make a "fetish" out of market value as the measure of compensation, and that other approaches may be used when conventional methods do not work, or if applied, would create an injustice (Pewee Coal v. United States). But this appears to be a hortatory, rather than doctrinal statement. These situations, however, are extremely rare. Studies in several parts of the country (California, Georgia, Minnesota, New York and Utah) have demonstrated that condemning agencies frequently undercompensate property owners, and that those owners who reject the pre-litigation offers and go to court tend to recover substantially higher awards, whether by judges or juries. Tax implications When private property is destroyed, stolen, condemned, or disposed of, the owner may receive a payment in property or money in the form of insurance or a condemnation award.[17] If property is compulsorily or involuntarily converted into money (as in eminent domain) the proceeds can be reinvested without payment of capital gains tax provided it is reinvested in property similar or related in service or use to the property so converted, no capital gain shall be recognized.[18] Bush executive order On June 23, 2006, the first anniversary of the Kelo decision (see above), President George W. Bush issued Executive Order 13406 which stated in Section I that the federal government must limit its use of taking private property for "public use" with "just compensation," which is also stated in the constitution, for the "purpose of benefiting the general public." The order limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."[19] However, eminent domain is more often exercised by local and state governments, albeit often with funds obtained from the federal government.

Canada In Canada, expropriation is governed by federal or provincial statutes. Under these statutory regimes, public authorities have the right to acquire private property for public purposes, so long as the acquisition is approved by the appropriate government body. Once property is taken, an owner is entitled to "be made whole" by compensation for: the market value of the expropriated property, injurious affection to the remainder of the property (if any), disturbance damages, business loss, and special difficulty relocating. Owners can advance claims for compensation above that initially provided by the expropriating authority by bringing a claim before the court or an administrative body appointed by the governing legislation. Europe In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home, and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions.". Again, this is subject to exceptions where state deprivation of private possessions is in the general or public interest, is in accordance with law, and, in particular, to secure payment of taxes. Settled case-law of ECHR provides that just compensation has to be paid in cases of expropriation.[20] France In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation; and a Dclaration d'utilit publique is commonly required, to demonstrate a public benefit. Notably, in 1945, by decree of General Charles de Gaulle based on the untried[21] accusations of collaboration, the Renault company was expropriated from Louis Renault posthumously and nationalised as Rgie Nationale des Usines Renault [21] without compensation.[22] United Kingdom See also: Compulsory purchase in England and Wales After his victory in 1066, William the Conqueror seized virtually all land in England. Although he maintained absolute power over the land, he granted fiefs to landholders who served as stewards, paying fees and providing military services.

During the Hundred Years War in the 14th century, Edward III used the Crown's right of purveyance for massive expropriations. Chapter 28 of Magna Carta required that immediate cash payment be made for expropriations. As the king's power was broken down in the ensuing centuries, tenants were regarded as holding ownership rights rather than merely possessory rights over their land. In 1427, a statute was passed granting commissioners of sewers in Lincolnshire the power to take land without compensation. After the early 16th century, however, Parliamentary takings of land for roads, bridges, etc. generally did require compensation. The common practice was to pay 10% more than the assessed value. However, as the voting franchise was expanded to include more non-landowners, the bonus was eliminated. In spite of contrary statements found in some American law, in the United Kingdom, compulsory purchase valuation cases were tried to juries well into the 19th century. DeKeyser's Royal Hotel v. The King (1919). Allodial title is the title to land generally held in fee simple by an individual or group that is sovereign on that land. Thus, in English law, only the monarch holds allodial title. All others are tenants of the sovereign through their feudal vassalages. Sovereigns generally gain allodial title either by grant of another sovereign to such title, or through right of conquest. In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is used. The landowner is compensated with a price agreed or stipulated by an appropriate person. Where agreement on price cannot be achieved, the value of the taken land is determined by the Lands Tribunal, a court consisting of one barrister and two chartered surveyors. The operative law is a patchwork of statutes and case law. The principal Acts are the Lands Clauses Consolidation Act 1845, the Land Compensation Act 1961, theCompulsory Purchase Act 1965, the Land Compensation Act 1973, the Acquisition of Land Act 1981, part IX of the Town and Country Planning Act 1990, the Planning and Compensation Act 1991, and the Planning and Compulsory Purchase Act 2004. Germany The Basic Law for the Federal Republic of Germany states in its Article 14 (3) that "an expropriation is only allowed for the public good" and just compensation must be made. It also provides for the right to have the amount of the compensation checked by a court. Italy Esproprio, or more formally espropriazione per pubblica utilit (literally "expropriation for public utility") in Italy takes place within the frame of civil law. The law regulating expropriation is the D.P.R. n.327 of 2001,[23] amended by D.Lgs. n.302 of 2002;[24] it supersedes the old expropriation law, the Royal Decree n.2359 of 1865.

Also other national and regional laws may apply. The general provisions for the expropriation stem from article 42 of the Italian Constitution and article 834 of the Codice Civile. Expropriation can be total (the whole property is expropriated) or partial; permanent or temporary. Nazionalizzazione ("nationalization"), instead, is provided for by article 43 of the Constitution; it transfers to governmental authority and property a whole industrial sector, if it is deemed to be a natural or de facto monopoly, and an essential service of public utility. The most famous nationalization in Italy was the 1962 nationalization of the electrical power sector. Australia Main article: Section 51(xxxi) of the Australian Constitution In Australia, section 51(xxxi) of the Australian Constitution permits the Commonwealth Parliament to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."[25] This has been construed as meaning that just compensation may not always include monetary or proprietary recompense, rather it is for the court to determine what is just. It may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated.[26] Property subject to resumption is not restricted to real estate as authority from the Federal Court has extended the states' power to resume property to any form of physical property.[citation needed] For the purposes of section 51(xxxi), money is not property which may be compulsorily acquired.[citation needed] A statutory right to sue has been considered "property" under this section.[27] The Commonwealth must also derive some benefit from the property acquired, that is, the Commonwealth can "only legislate for the acquisition of Property for particular purposes".[28]Accordingly, the power does not extend to allow legislation designed merely to seek to extinguish the previous owner's title.[29] The states and territories' powers of resumption on the other hand are not so limited. The section 43(1) of the Lands Acquisition Act 1998 (NT) grants the Minister the power to acquire land 'for any purpose whatever'.[30] The High Court of Australia interpreted this provision literally, relieving the Territory government of any public purpose limitation on the power.[31] This finding permitted the Territory government to acquire land subject to Native Title, effectively extinguishing the Native Title interest in the land. As noted by Kirby J in dissent and a number of commentators, this represents a missed opportunity to comment on the exceptional nature of powers of resumption exercised in the absence of a public purpose limitation.[32]

The term resumption is a reflection of the fact that, as a matter of Australian law, all land was originally owned by the Crown before it was sold, leased or granted [33] and that, through the act of compulsory acquisition, the Crown is "resuming" possession. South America Chile Art. 19, N 24, of the Chilean Constitution says in part, "anyone deprived of his property, of the assets affected or any of the essential faculties or powers of ownership, except by virtue of a general or a special law which authorizes expropriation for the public benefit or the national interest, duly qualified by the legislator. The expropriated party may protest the legality of the expropriation action before the ordinary courts of justice and shall, at all times, have the right to indemnification for patrimonial harm actually caused, to be fixed by mutual agreement or by a sentence pronounced by said courts in accordance with the law."[34] The vast majority of expropriated owners accept the amount of the indemnification, which usually is in line with real estate market values. ASIA India Main article: Land Acquisition Act The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to 'acquire, hold and dispose of property'. Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been 'taken possession of or acquired' for public purposes. In addition, both the state government as well as the union (federal) government were empowered to enact laws for the "acquisition or requisition of property" (Schedule VII, Entry 42, List III). It is this provision that has been interpreted as being the source of the state's 'eminent domain' powers.[35] The provisions relating to the right to property were changed a number of times. The 44th amendment act of 1978 deleted the right to property from the list of Fundamental Rights.[36] A new article, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus, if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.[37]

The liberalization of the economy and the Government's initiative to set up special economic zones have led to many protests by farmers and have opened up a debate on the reinstatement of the fundamental right to private property.[38] Pakistan Under the Land Acquisition Act, 1894, the government has the power to compulsorily acquire private land at the prevailing market rate for public purposes such as roads, highways, railways, dams, airports, etc. Other countries Many countries recognize eminent domain to a much lesser extent than the Englishspeaking world or do not recognize it at all. Japan, for instance, has very weak eminent domain powers, as evidenced by the high-profile opposition to the expansion of Narita International Airport, and the disproportionately large amounts of financial inducement given to residents on sites slated for redevelopment in return for their agreement to leave, one well-known recent case being that of Roppongi Hills. There are other countries such as the People's Republic of China that practice eminent domain whenever it is convenient to make space for new communities and government structures. Singapore practices eminent domain under the Land Acquisitions Act which allows it to carry out its Selective En bloc Redevelopment Scheme for urban renewal. The Amendments to the Land Titles Act allowed property to be purchased for purposes of urban renewal against an owner sharing a collective title if the majority of the other owners wishes to sell and the minority did not. Thus, eminent domain often invokes concerns of majoritarianism. Since the 1990s, the Zimbabwean government under Robert Mugabe has seized a great deal of land and homes of mainly white farmers in the course of the land reform movement in Zimbabwe. The government argued that such land reform was necessary to redistribute the land to Zimbabweans dispossessed of their lands during colonialism these farmers were never appropriately compensated for this seizure.[39] Examples

Controversy on the Delaware: A Look Upstream at the Tocks Island Dam Project United States v. Carmack United States v. Gettysburg Electric Railway Company 160 U.S. 668 (1896) Berman v. Parker, 348 U.S. 26 (1954) Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) Norwood, Ohio v. Horney Kelo v. City of New London

In popular culture As a controversial issue, compulsory acquisition has been a feature of movies and other pieces of fiction for many years. Instances of compulsory acquisition in literature and films include The Hitchhiker's Guide to the Galaxy, where first Arthur Dent's home is acquired for the building of a bypass road and then the Earth is acquired (demolished) to make way for a hyperspace bypass; and The Castle, an Australian film, where the Kerrigans' home is sought to be acquired to allow for an airport extension. In Stephen King's novel Roadwork, published in 1981, the protagonist's house is purchased to make way for a road extension. Throughout the Tremors franchise, the retreatist Burt Gummer warns his companions about abuse of government power with specific focus on eminent domain. Ian Anderson's song "Farm on the Freeway", recorded by Jethro Tull on their album Crest of a Knave (1987), is about the seizure of a farm by eminent domain. There is also an amusing British song, popularly rendered by the Clancy Brothers, entitled "They're Movin' Father's Grave to Build a Sewer." In the song "Here Come the People in Grey" from the album Muswell Hillbillies by The Kinks, the lyrics include the line, "the borough's surveyor has used compulsory purchase to acquire my domain".

ENROLLED BILL RULE

The enrolled bill rule, is a principle of judicial interpretation of rules of procedure in legislative bodies. Under the doctrine, once a bill passes a legislative body and is signed into law, the courts assume that all rules of procedure in the enactment process were properly followed. That is, "[i]f a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted."[1] United Kingdom The doctrine was adopted in The King v Arundel.[2] It was based on the proposition that when an Act was passed and assented to, it was affixed with the Great Seal, the "effective legal act of enactment".[3] It was "a regal act, and no official might dispute the king's word." The enrolled bill rule was restated by Lord Campbell in Edinburgh & Dalkeith Railway Co v Wauchope[4] In that case it was complained that the passage of a private bill was defective because proper notice had not been given. The House of Lords rejected the notion that the validity of an Act could be questioned.

United States In the United States, the rule was adopted by the Supreme Court in the 1892 case Field v. Clark.[5] In effect, the court ruled that the enrolled bill signed by the presiding officers of the two houses of Congress was the best evidence of what had been passed, being on balance better evidence than the journals of the respective houses, so it should not be called into question.[5] State law At the time of the decision in Field, nine states had adopted the doctrine, and thirteen had rejected it.[5] At least two states have weakened it:

The Supreme Court of Kentucky[6] has held that "there is a prima facie presumption that an enrolled bill is valid but such presumption may be overcome by clear, satisfactory and convincing evidence establishing that constitutional requirements have not been met." The Pennsylvania Supreme Court has limited the application of the [7] doctrine. Although it held that "When a law has been passed and approved and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage," the court also noted that "it would be a serious dereliction ... to deliberately ignore a clear constitutional violation."

ENTERPRISE LIABILITY
Enterprise liability is a legal doctrine under which individual entities (for example, otherwise legally unrelated corporations or people) can be held jointly liable for some action on the basis of being part of a shared enterprise. Enterprise liability is a form of secondary liability. For example, suppose high-risk manufacturing activities are shunted into one corporation, while a second "marketing" corporation keeps all the profits. In the case that someone was injured by the manufacturing activity, a court might apply the enterprise liability doctrine to allow recovery from the marketing corporation, which holds all the assets. The doctrine emerged from litigation in the wake of the 1977 Beverly Hills Supper Club fire.[1][2][3] The doctrine is examined in Walkovsky v. Carlton, 223 N.E.2d 6 (N.Y. 1966).

Enterprise Liability has been used as alternative terminology for Industry-Wide Liability.[4] Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) cites Hall v. E.I Du Pont De Nemours & Co., Inc., 345 F.Supp. 353 (E.D.N.Y. 1972) to explain Industry-Wide Liability, which was equated to Enterprise Liability: "In [Hall], plaintiffs were 13 children injured by the explosion of blasting caps in 12 separate incidents which occurred in 10 different states between 1955 and 1959. The defendants were six blasting cap manufacturers, comprising virtually the entire blasting cap industry in the United States, and their trade association. There were, however, a number of Canadian blasting cap manufacturers which could have supplied the caps. The gravamen of the complaint was that the practice of the industry of omitting a warning on individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm, resulting in the plaintiffs' injuries. The complaint did not identify a particular manufacturer of a cap which caused a particular injury. The court reasoned as follows: there was evidence that defendants, acting independently, had adhered to an industry-wide standard with regard to the safety features of blasting caps, that they had in effect delegated some functions of safety investigation and design, such as labeling, to their trade association, and that there was industry-wide cooperation in the manufacture and design of blasting caps. In these circumstances, the evidence supported a conclusion that all the defendants jointly controlled the risk. Thus, if plaintiffs could establish by a preponderance of the evidence that the caps were manufactured by one of the defendants, the burden of proof as to causation would shift to all the defendants. The court noted that this theory of liability applied to industries composed of a small number of units, and that what would be fair and reasonable with regard to an industry of five or ten producers might be manifestly unreasonable if applied to a decentralized industry composed of countless small producers." [4] The concept of Enterprise Liability is distinguished from Market share liability, a legal doctrine introduced in Sindell v. Abbott Laboratories.[4]

EQUITABLE TOLLING
Equitable tolling is a principle of law stating that a statute of limitations shall not bar a claim in cases where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. When the United States is a defendant, equitable tolling cannot be applied against the United States since the Spending Clause has been interpreted by the Supreme Court to only vest Congress with the authority to waive sovereign immunity, and statutes of limitation are interpreted as a condition on the waiver of sovereign immunity that limit the jurisdiction of a court to hear cases against the United States.

For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show:

Timely notice to the adverse party is given within applicable statute of limitations of filing first claim Lack of prejudice to the defendant Reasonable good faith conduct on part of the plaintiff.

It has been held that equitable tolling applies principally if the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his or her rights. However, it has also been held that the equitable tolling doctrine does not require wrongful conduct on the part of the defendant, such as fraud or misrepresentation.[1] In the United States The United States Supreme Court elucidated: Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. ... But the principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.[2] The Supreme Court of Alaska distinguished the concepts of equitable tolling and equitable estoppel: Federal precedent permits equitable estoppel or equitable circumstances to extend the three-year limitations period. Many federal cases seem to merge these two doctrines. For example, Seattle Audubon Society v. Robertson [931 F.2d 590 (9th Cir. 1991), rev'd on other grounds, 503 U.S. 429 (1992)] stated that equitable tolling may be applied when plaintiffs are prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant. But it is only equitable estoppel that requires wrongful conduct on the part of the defendant, i.e., fraud or misrepresentation. The federal equitable tolling doctrine, on the other hand, does not require any conduct by the defendant.[3]

Arizona courts have recognized and applied the equitable tolling doctrine. See Hosogai v. Kadota, 145 Ariz. 227, 229, 700 P.2d 1327, 1329 (1985) (applying doctrine when second wrongful death claim untimely filed after successful verdict on first claim overturned on appeal due to defective service of process); Kosman [v. State], 199 Ariz. 184, 6, 10, 16 P.3d at 213 (applying doctrine where plaintiff prisoner failed to timely file notice of claim against state because he first pursued claim through prison's administrative grievance procedure); Kyles v. Contractors/Eng'rs Supply, Inc., 190 Ariz. 403, 404, 406, 949 P.2d 63, 64, 66 (App.1997) (applying doctrine when right-to-sue letter from Arizona Attorney General's office contained incorrect date by which plaintiff was required to sue on his claim). See also McCloud v. State, Ariz. Dep't of Pub. Safety, 170 P.3d 691, 696 (Ariz. Ct. App. 2007). The Supreme Court of California enunciated: Equitable tolling is a judge-made doctrine which operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness. This court has applied equitable tolling in carefully considered situations to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice.[4] The Delaware Supreme Court examined the application of equitable tolling where defendants were subject to substituted service: In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service.[5] The Florida Supreme court observed, as an equitable remedy, the prejudice to the defendant must be considered before application: The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period. See Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1874). The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.' Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir.1987) (quoting Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981)). Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights.[6]

Maryland case law disfavors tolling the statute of limitations: We have long maintained a rule of strict construction concerning the tolling of the statute of limitations. Absent legislative creation of an exception to the statute of limitations, we will not allow any implied and equitable exception to be engrafted upon it.[7] Arguably, appellees were on notice of Walko's claim once the motion to intervene was filed. As we have indicated, however, Walko's approach to this case was hardly one of vigilance. The statute of limitations reflects a legislative judgment of what is deemed an adequate period of time in which a person of ordinary diligence should bring his action. Ferrucci v. Jack, 255 Md. 523, 526, 258 A.2d 414 (1969); McMahan v. Dorchester Fert. Co., 184 Md. at 159, 40 A.2d 313. The unexplained delay in bringing a timely action here hardly bespeaks the ordinary diligence required of one seeking to toll the statute of limitations. Cromwell v. Ripley, 11 Md.App. at 182, 273 A.2d 218. In a very real sense, Walko has slept on its rights, Johnson v. Railway Express Agency, 421 U.S. 454, 466, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), and cannot be heard to complain now for its own tarriance. See Braxton v. Virginia Folding Box Co., 72 F.R.D. at 126-27 (Before limitations had run, plaintiffs successfully intervened in pending civil rights action, but later voluntarily withdrew motion and commenced independent action seeking same relief after statutory period had expired; court held that limitations had not been tolled by timely and successful intervention, thus barring plaintiffs' independent action.).[8] The Court of Appeals of Michigan explicated that the plaintiff must exercise due diligence in order to invoke equitable tolling: In view of the strong policy considerations favoring statutes of limitation, we hold that plaintiff's reliance upon a misdated court order did not constitute due diligence sufficient to toll the running of the statutory period of limitation. Defendant Pukoff should not be denied the protections afforded by the statute on so casual a basis. We hold that a minimum standard of due diligence in the case at bar would have included an investigation by plaintiff of the primary source of records of liquor licensees as of the date of the accident. A plaintiff's right to obtain information as to the identity of liquor licensees from the Michigan Liquor Control Commission is provided by the Michigan Freedom of Information Act. . . .[9]

Mississippi courts require earnest efforts by plaintiffs seeking tolling: The parties do not provide nor can we find any instance where excusable neglect has tolled or otherwise stayed a statute of limitations. That today's decision works to preclude McKinley's and Dixon's representatives' day in court is of no consequence. Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996) (citing Traina v. United States, 911 F.2d 1155 (5th Cir. 1990)). There is nothing in the record to indicate that the representatives' failure to file was anything other than a result of their own inactions or omissions.[10] The Supreme Court of New Mexico opined: Equitable tolling is a non-statutory tolling theory which suspends a limitations period. See Gathman-Matotan Architects and Planners, Inc. v. State Dep't of Fin. & Admin., 109 N.M. 492, 494, 787 P.2d 411, 413 (1990). Equitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control. Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir.1984). However, where a plaintiff fails to receive notice of the right to sue through his or her own fault, equitable tolling does not apply. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.).[11] The North Dakota Supreme Court determined a plaintiff's failure to timely serve the defendants did not warrant equitable tolling: Even if we were to adopt the equitable tolling doctrine in this case, Riemers' failure to commence his action against the defendants within the statute of limitations was not the result of his timely pursuit of one of several other available legal remedies which may have tolled the statute of limitations. Rather, as in Reid, 2000 ND 108, 16, 611 N.W.2d 187, Riemers' failure to commence his action within the statute of limitations resulted from his failure to effectuate timely service of process on the defendants. We therefore conclude the equitable tolling doctrine would not apply to Riemers' claims.[12]

ERGA OMNES
Erga omnes is a Latin phrase which literally means "towards all" or "towards everyone". In legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party. In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]: " an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis--vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character." Examples

In its opinion of 9 July 2004 the International Court of Justice found "the right of peoples to self-determination" a right erga omnes.[1] The finding referred to article 22 of the Covenant of the League of Nations.

ERIE DOCTRINE
In United States law, the Erie doctrine is a fundamental legal doctrine of civil procedure mandating that a federal court in diversity jurisdiction (and some allied state-law claims in federal-law actions) must apply state substantive law. The doctrine follows from Supreme Court landmark decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), decided on April 25, 1938, written by Justice Louis Brandeis. The case overturned Swift v. Tyson, which allowed federal judges sitting in a state to ignore the common law local decisions of state courts in the same state, in cases based on diversity jurisdiction. Scope The American Erie doctrine today applies regardless of how the federal court may hear a state claim. Whether the federal court decides a state law issue vis--vis diversity jurisdiction or bankruptcy jurisdiction, the federal court must honor state common law when deciding state law issues. See, generally, United Mine Workers v. Gibbs, 383 U.S. 715 (1966) and Butner v. United States, 440 U.S. 48 (1979). Where the Constitution did control and Congress could not legislate, the laws of the states necessarily governed, state judge-made rules were every bit as binding on the federal courts as were state statutory provisions. Origin The Erie case involved a fundamental question of federalism and the jurisdiction of federal courts in the United States. Congress passed a law still in effect today called the Rules of Decision Act (28 U.S.C. 1652), which states that the laws of a state furnish the rules of decision for a federal court sitting in that state. Thus, a federal court in Texas, hearing a case based on diversity (as opposed to a federal question), has to follow the laws of the applicable state in resolving a case before it. Swift v. Tyson The Supreme Court's decision in Swift v. Tyson had defined the laws of the state as meaning only laws passed by legislatures of that state (though Justice Joseph Story writing for the court suggested that federal courts should pay special attention to how the "local tribunals" of a state would resolve a dispute). Thus, on issues of "general common law," a federal court was free to ignore decisions by a state's highest court. Aftermath of Swift The decision in Swift resulted in inconsistent judicial rulings in the same state on the same legal issue depending on whether a plaintiff brought a case in state or federal court.

In one case, for example, Black and White Taxicab Co. v. Brown and Yellow Taxicab Co. 276 U.S. 518 (1928), the Brown and Yellow Cab Company, a Kentucky corporation, sought to create a business association with the Louisville and Nashville Railroad, where Brown and Yellow would have a monopoly on soliciting passengers of the railroad, effectively eliminating the competition, the Black and White Cab Co. Such an agreement was illegal under Kentucky common law, as interpreted by Kentucky's highest court. Brown and Yellow dissolved itself, reincorporated inTennessee, and executed the agreement there, where such an agreement was legal, bringing suit against Black and White in a Kentucky federal court to prevent them from soliciting passengers. The federal court upheld the agreement, citing Swift, and arguing that under general federal common law, the agreement was valid. If Brown and Yellow had brought suit in a Kentucky state court, the agreement would not have been upheld. Erie The decision in Erie involved a railroad accident. The plaintiff, Tompkins, was walking alongside Erie's railroad tracks in Pennsylvania when a train passed. An open door struck him and knocked him under the train, severing his arm. In most states, Tompkins could sue for negligence of the railroad and recover monetary damages for his loss. In Pennsylvania, however, Tompkins would have been considered a trespasser. He was not to recover for an ordinary negligence claim in the state court of Pennsylvania, because under the law of that state, a claimant had to show "wanton" negligence to recover. Thus, Tompkins brought his case in federal court to avoid the unfavorable state law. He subsequently won. However, on appeal the Supreme Court held, in an opinion drafted by Justice Brandeis, that such decisions and inconsistent rulings based on a general federal common law were unconstitutional, and that decisions by a state supreme court were "laws" that federal courts were bound to follow under the Rule of Decision Act. Brandeis noted that the Court felt that Swift allowed federal courts to make unconstitutional modifications of the substantive law of a state. He noted that it violated the right to equal protection under the law, although he did not mean it in the sense of the Fourteenth Amendment. The Court overturned Swift on its own initiative, since the parties in Erie did not ask the Court to do so. Development Several later cases have added to the vague Erie decision (Brandeis cited no provision of the Constitution that Swift violated, although theoretically it might have violated the Tenth Amendment's reservation of powers to the state). Speaking generally, there are two approaches in determining whether a federal court will apply a state law: (1) the Hanna & Rules Enabling Act approach, per 28 U.S.C. 2072 when there is a Federal Rule of Civil Procedure and statute that conflicts with a state law; and (2) the ByrdErie approach when there is not a conflict between a state and federal practice.

Byrd-Erie This approach suggests that unless there is a major countervailing federal policy that trumps the state practice, if ignoring the state law would lead to forum shopping by plaintiffs and unequal administration of the laws (like in Yellow Cab above), the court should apply the state law. In Byrd v. Blue Ridge Rural Electrical Cooperative, Inc., the Court decided that the federal policy allocating responsibilities between judge and jury, as embodied in the 7th Amendment of the US Constitution, outweighed the state rule requiring a judge to decide whether an employer was immune from suit. The main goal of the Erie decision was to prevent "forum-shopping," a practice where plaintiffs choose a legal forum simply because of the probability of a more favorable ruling. The main problem with the decision is that sometimes there is simply no state law or practice on which a federal court may defer. Federal judges are left to guess how a state court would rule on a given legal question, and a state court is in no way bound by a federal decision interpreting their own state law. Justice Frankfurter in Guaranty Trust Co. v. York, 326 U.S. 99 (1945) summarizes the main point of Erie differently... "In essence, the intent of that decision was to ensure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court...." This suggests that Erie's main goal was to achieve equal protection under the law. One way that equal protection is intentionally disregarded would be through "forum shopping," but the reduction of inequality was the main target of the doctrine. Hanna Under the approach in Hanna v. Plumer, the federal court of a state hearing a case based on diversity jurisdiction should apply state law in the event of conflict between state and federal law if the state law deals with substantive rights of state citizens. The Supreme Court has defined substantive rights as, "rights conferred by the law to be protected and enforced by the adjective law of judicial procedure." An example of a substantive right would be a state law on fraud, which may vary widely in composition depending on the jurisdiction. If the state law is merely procedural, or relating merely to the form and mode of judicial operations, then the federal court does not have to apply the conflicting state law. However, the substance-procedure distinction is a generality as the Court rejected any test based upon "litmus paper criterion." Thus, a choice between state and federal law must be made with reference to the underlying policy of the Erie decision. The Court announced a modification of the "outcomedeterminative" test in York, whereby the test must be applied in light of the twin aims of Erie, which are the discouragement of forum-shopping and avoidance of inequitable administration of the laws.

Under this rule, state procedural law would not supplant federal procedural law if the differences in the outcome are nonsubstantial or trivial, fail to raise Equal Protection concerns, and are unlikely to influence the choice of forum. Gasperini A recent Supreme Court case that addressed the Erie problem is Gasperini v. Center for Humanities, 518 U.S. 415 (1996). Gasperini is a post-Hanna decision addressing a conflict between state and federal law for review of jury verdicts. The plaintiff, a well-known artist and photographer from New York, sued a New York museum in federal court in New York, for damages arising from the loss of some photographs and slides he had loaned the museum. A jury found in his favor and awarded damages. The defendant appealed, and the U.S. Court of Appeals for the 2nd Circuit reduced the damages award on appeal. Gasperini appealed to the U.S. Supreme Court. The New York state provision, a "tort reform" measure, allowed reviewing appellate courts to overturn a jury verdict if it "deviates materially from what would be reasonable compensation." Pursuant to this law, the 2nd Circuit applied the state's appellate standard of review. However, the Supreme Court stated that federal courts, bound by the reexamination clause of the Seventh Amendment, could overturn a jury's finding of fact only if it "shocked the conscience." The Supreme Court could have resolved the case by reading the Seventh Amendment broadly, and treating it as controlling in federal court. However, instead, the Court opted for what can be described as a compromise, holding that the federal court should apply the state's lower standard review, but in a way that would not run afoul of the 7th Amendment: instead of the federal appeals court reviewing the jury finding, the trial judge would assume the role. Gasperini, and another recent Erie-area case, Semtek International Inc. v. Lockheed Martin Corp., have shown Erie has gone in a newer and even more complicated direction than the previous controlling cases, and that instead of selecting either federal or state law for a case, the federal court may be required to somehow blend federal and state law, depending on the issue. This is quite frustrating for those who wish to have a black-letter rule that will point them to the answer. However, the possibility of blending in Erie does not open up an infinitude of possibilities. In both Gasperini and Semtek, the common thread is that the blending is done in a way that is calculated to advance the aims of Erie (and York): non-discrimination between litigants, and nonencouragement of forum shopping. (Source: Allan Ides & Christopher May, Civil Procedure, 3d Edition).

ESSENTIAL FACILITIES DOCTRINE

The essential facilities doctrine (sometimes also referred to as the essential facility doctrine) is a legal doctrine which describes a particular type of claim of monopolization made under competition laws. In general, it refers to a type of anticompetitive behavior in which a firm with market power uses a "bottleneck" in a market to deny competitors entry into the market. It is closely related to a claim for refusal to deal. The doctrine has its origins in United States law, but it has been adopted (often with some modification) into the legal systems of the United Kingdom, Australia, South Africa, and the European Union.[citation needed] Overview The basic elements of a legal claim under this doctrine under United States antitrust law, which a plaintiff is required to show to establish liability, are: 1. control of the essential facility by a monopolist 2. a competitors inability to practically or reasonably duplicate the essential facility 3. the denial of the use of the facility to a competitor; and 4. the feasibility of providing the facility to competitors The U.S. Supreme Court's ruling in Verizon v. Trinko, 540 U.S. 398 (2004), in effect added a fifth element: absence of regulatory oversight from an agency (the Federal Communications Commission, in that case) with power to compel access. These elements are difficult for potential plaintiffs to establish for several reasons. It is quite difficult for a plaintiff to demonstrate that a particular facility is "essential" to entry into and/or competition within the relevant market. The plaintiff must demonstrate that the "facility" must be something so indispensable to entry or competition that it would be impossible for smaller firms to compete with the market leader. Likewise, the plaintiff must show that compelling the dominant firm to permit others to use the facility would not interfere with the ability of the dominant firm to serve its own customers. Development The first case to use the idea was the Supreme Court's judgment in United States v. Terminal Railroad Association, 224 U.S. 383 (1912). A group of railroads controlling all railway bridges and switching yards into and out of St. Louis prevented competing railway companies from offering transportation to and through that destination. The court held it to be an illegal restraint of trade.[1]

Similar decisions include,

Associated Press v. United States, 326 U.S. 1 (1945), in which the Supreme Court found that the Associated Press bylaws which limited membership and therefore access to copyrighted news services violated the Sherman Act. In Lorain Journal Co. v. United States, 342 U.S. 143, 146-49 (1951), the Lorain Journal was the only local business doing news and advertisements in town. The case was that refusing to place an ad for the customers of a small radio station was a Sherman Act violation. In the end, the court accepted an offer to simply accept the advertisements. Otter Tail Power Co. v. United States, 410 U.S. 366, 377-79 (1973), in which the Supreme Court found that Otter Tail, an electrical utility which sold electricity at both directly to consumers and to municipalities who resold to consumers, violated the Sherman Act by refusing to supply electricity at wholesale, instead serving customers directly itself. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 427 U.S. 585 (1985), upholding the Lorain Journal decision in holding that Aspen Skiing violated 2 of the Sherman Act by refusing to honor vouchers and ski lift tickets after it had previously done so. Hecht v. Pro Football where potential American Football League franchise did not show they needed Washington's RFK Stadium, the essential facilities doctrine was not met.

Application of the doctrine There is controversy about what exactly constitutes an "essential facility". While the doctrine has most frequently been applied to natural monopolies such as utilities and owners of transportation facilities, it has also been applied[specify] in situations involving intellectual property. For example, it is possible for a court to apply the doctrine in a case where one competitor refuses to sell materials protected by copyright or patent to potential competitors.

ESTOPPEL
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable[1] doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."[2] This term appears to come from the Old French estoupail (or variation), which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede." Overview Estoppel is essentially a rule of evidence[3] whereby a person is barred from denying the truth of a fact that has already been settled. Where a court finds that a party has done something warranting a form of estoppel, that party is said to be "estopped" from making certain related arguments or claiming certain related rights. The defendant is said to be "estopped" from presenting the related defence, or the plaintiff is said to be "estopped" from making the related argument against the defendant. Lord Coke stated, "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth."[4] The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day to day transactions.[5] Because estoppel is so factually dependent, it is perhaps best understood by considering specific examples such as the following:

Example 1: A city entered into a contract with another party. The contract stated that it had been reviewed by the city's counsel and that the contract was proper. Estoppel applied to estop the city from claiming the contract was invalid.[6] Example 2: A creditor unofficially informs a debtor that the creditor forgives the debt between them. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair. Example 3: A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this statement in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.

Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in many areas of law, including insurance, banking, employment, contracts, etc. In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel's counterpart in public law, although subtle but important differences exist. Promissory estoppel is often applied where there is an agreement without a consideration, or the consideration is future based; as a promise. When applied in defense by a defendant it may be called a 'shield', and where applied by a plaintiff it may be called a 'sword'.[7][8] It is most commonly used as a 'shield',[9] with some commentators stating that it can only be used as a shield, although this varies with jurisdictions.[10]

Major types The main species of estoppel under English, Australian, and American laws are:

Reliance-based estoppels: These involve one party relying on something the other party has done or said. The party who performed/spoke is the one who is estopped. Under English law, this class includes estoppel by representation of fact, promissory estoppel and proprietary estoppel (see Halsbury's Laws of England, Vol 16(2), 2003). Although some authorities have used language to suggest reliance-based estoppels are mere rules of evidence. They are rules of substantive law.

Estoppel by representation estoppel (American law)

of

fact (English law

name), equitable

Equitable estoppel (in English law), including Proprietary estoppel Promissory estoppel

Estoppel by record: This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from relitigating the same issues or causes of action, Estoppel by deed (often regarded as technical or formal estoppels)Where rules of evidence prevent a litigant from denying the truth of what was said or done Estoppel by silence or acquiescence: Estoppel that prevents a person from asserting something when he had the right and opportunity to do so earlier, and such silence put another person at a disadvantage. Laches: estoppel in equity by delay. Laches has been considered both a reliancebased estoppel, and a sui generis estoppel.

Reliance-based estoppels Reliance-based estoppels (at English law) include:[11]

by representation of fact, where one person asserts the truth of a set of facts to another; promissory estoppel, where one person makes a promise to another, but there is no enforceable contract; and proprietary estoppel, where the parties are litigating the title to land.

Both Halsbury's and Spencer Bower (see below) describe these three estoppels collectively as estoppels by representation. More simply, one party must say or do something and see the other party rely on what is said or done to change behavior. All reliance-based estoppels require the both inducement and detrimental reliance, i.e.:

victimised

party

to

show

there must be evidence to show that the representor actually intended the victim to act on the representation or promise, or the victim must satisfy the court that it was reasonable for him or her to act on the relevant representation or promise, and what the victim did must either have been reasonable, or the victim did what the representor intended, and the victim would suffer a loss or detriment if the representor was allowed to deny what was said or done detriment is measured at the time when the representor proposes to deny the representation or withdraw the promise, not at the time when either was made, and in all the circumstances, the behavior of the representor is such that it would be "unconscionable" to allow him or her to resile.

Simply put, promissory estoppel has four necessary elements which the plaintiff must prove:

there was a promise that was reasonably relied upon resulting legal detriment to the promisee justice requires enforcement of the promise

Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based on a representation of existing fact (or of mixed fact and law), while the latter is based on a promise not to enforce some pre-existing right (i.e. it expresses an intention as to the future). A proprietary estoppel operates only between parties who, at the time of the representation, were in an existing relationship, while this is not a requirement for estoppel by representation of fact.

The test for unconscionability in the English and Australian courts takes many factors into account, including the behavior, state of mind and circumstances of the parties. Generally, the following eight factors are determinative:[12]

how the promise/representation and reliance upon it were induced; the content of the promise/representation; the relative knowledge of the parties; the parties' relative interest in the relevant activities in reliance; the nature and context of the parties' relationship; the parties' relative strength of position; the history of the parties' relationship; and the steps, if any, taken by the promisor/representor to ensure he has not caused preventable harm.

But in Cobbe v Yeoman's Row,[13] Lord Scott of Foscote stated the following: the ingredients for a proprietary estoppel should include, in principle, a proprietary claim made by a claimant and an answer to that claim based on some fact, or point of mixed fact and law, which the person against whom the claim was made could be estopped from asserting. To treat a proprietary estoppel equity as requiring simply unconscionable behaviour was a recipe for confusion. The remedy to which, on the facts as found by the judge, the claimant was entitled could be described neither as based on an estoppel nor as proprietary in character. His Lordships present view was that proprietary estoppel could not be prayed in aid to render enforceable an agreement declared by statute (s. 2 of the Law Reform (Miscellaneous Provisions) Act 1989) to be void. A claim for the imposition of a constructive trust to provide a remedy for a disappointed expectation engendered by a representation made in the course of incomplete contractual negotiations was misconceived and could not be sustained by reliance on unconscionable behaviour. The claimant was, however, entitled to a quantum meruit payment for his services in obtaining the planning permission. Estoppel by representation of fact (Law of England and Wales) In English law, estoppel by representation of fact is a term coined by Spencer Bower. This species of estoppel is also referred to as "common law estoppel by representation" inHalsbury's Laws of England, vol 16(2), 2003 reissue.

Spencer Bower defines estoppel by representation of fact as follows:[14] Where one person (the representor) has made a representation of fact to another person (the representee) in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive) and with the result of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in proper manner, objects thereto. A second definition comes from Sean Wilken and Theresa Villiers:[15]:para. 9.02 An estoppel by representation [of fact] will arise between A and B if the following elements are made out. First, A makes a false representation of fact to B or to a group of which B was a member. [It is not necessary to demonstrate A knew that the representation was untrue.] Second, in making the representation, A intended or [in the alternatively,] knew that it was likely to be acted upon. Third, B, believing the representation, acts to its detriment in reliance on the representation. [It must have been reasonable to rely on the representation.] Fourth, A subsequently seeks to deny the truth of the representation. Fifth, no defence to the estoppel can be raised by A. A representation can be made by words or conduct. Although the representation must be clear and unambiguous, a representation can be inferred from silence where there is a duty to speak or from negligence where a duty of care has arisen. Under English law, estoppel by representation of fact usually acts as a defence, though it may act in support of a cause of action or counterclaim. Although there is some debate as to whether "unconscionability" is an element that English courts need to take into account when considering estoppel by representation of fact, the Australian courts clearly do.[15]:para. 9-03[16] Equitable estoppel (American law) American equitable estoppel is the counterpart to estoppel by representation, and its elements are summarized as:[17]

facts misrepresented or concealed knowledge of true facts fraudulent intent inducement and reliance injury to complainant clear, concise, unequivocal proof of actus (not by implication)

For example, in the case of Aspex Eyewear v. Clariti Eyewear,[18] eyeglass frame maker Aspex sued competitor Clariti for patent infringement. Aspex waited three years without responding to a question asking it to list the infringed patent claims before asserting its patent in litigation. During this prolonged silence, Clariti expanded its marketing and sales of the accused eyeglass frames. The Federal Circuit found Aspex guilty of misleading conduct because it led Clariti to believe it would not enforce its patent, and thus Aspex was estopped and could not proceed with the suit.[19] Equitable estoppel (English law) For the American doctrine of equitable estoppel, see Estoppel by representation of fact. Under English and Australian legal systems, estoppels in equity include promissory and proprietary estoppels. (Contrast with estoppel by representation, which is a claim (under the English system) at law.) For more information, see Promissory estoppel and Proprietary estoppel below. The status of estoppel by representation of fact is less clear in Australia. Two seminal decisions purport to fuse common law and equitable estoppels into a single unified doctrine,[20] but the New South Wales Court of Appeal[21] continues to treat estoppel by representation at common law as distinct from equitable estoppel.[22] This can be significant in deciding which court has jurisdiction to adjudicate on the issue. Proprietary estoppel Main article: Proprietary estoppel In English law, proprietary estoppel is distinct from promissory estoppel. Proprietary Estoppel is not a concept in American law, but a similar result is often reached under the general doctrine of promissory estoppel. Traditionally, proprietary estoppel arose in relation to rights to use the land of the owner, and possibly in connection with disputed transfers of ownership. Although proprietary estoppel was only traditionally available in disputes affecting title to real property, it has now gained limited acceptance in other areas of law. Proprietary estoppel is closely related to the doctrine of constructive trust.[13]

J. Fry summarized the five elements for proprietary estoppel as:[23]

the claimant

made a mistake as to his legal rights (typically because the actual owner attempted to convey the property, but the transfer is invalid or ineffective for some reason); did some act of reliance; knows of the existence of a legal right which he (the defendant) possesses, and which is inconsistent with the right claimed by the claimant; knows of the claimant's mistaken belief; and encouraged the claimant in his act of reliance.

the defendant

Example: A father promised a house to his son who took possession and spent a large sum of money improving the property, but the father never actually transferred the house to the son. Upon the father's death, the son claimed to be the equitable owner. The court found the testamentary trustees (as representatives of the deceased father's estate) were estopped from denying the son's proprietary interest, and ordered them to convey the land to the son.[24] Promissory estoppel The doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the latter has reasonably relied on that promise. English law Main article: Estoppel (English law) In English law, a promise made without consideration is generally not enforceable. It is known as a bare or gratuitous promise. Thus, if a car salesman promises not to sell a car over the weekend, but does so, the promise cannot be enforced. But should the car salesman accept even one penny in consideration for the promise, the promise will be binding and enforceable in court. Estoppel is not an exception to this rule. The doctrine of promissory estoppel was first developed in Hughes v. Metropolitan Railway Co [1877] but was lost for some time until it was resurrected by Lord Denning in the controversial case of Central London Property Trust Ltd v. High Trees House Ltd.[25] Promissory estoppel requires: 1. an unequivocal promise by words or conduct 2. evidence that there is a change in position of the promisee as a result of the promise (reliance but not necessarily to their detriment) 3. inequity if the promisor were to go back on the promise

In general, estoppel is 'a shield not a sword' it cannot be used as the basis of an action on its own.[26] It also does not extinguish rights. In High Trees the plaintiff company was able to restore payment of full rent from early 1945, and could have restored the full rent at any time after the initial promise was made provided a suitable period of notice had been given. In this case, the estoppel was applied to a 'negative promise', that is, one where a party promises not to enforce full rights. Estoppel is an equitable (as opposed to common law) construct and its application is therefore discretionary. In the case of D & C Builders v. Rees the courts refused to recognise a promise to accept a part payment of 300 on a debt of 482 on the basis that it was extracted by duress. In Combe v. Combe Denning elaborated on the equitable nature of estoppel by refusing to allow its use as a "sword" by an ex-wife to extract funds from the destitute husband. The general rule is that when one party agrees to accept a lesser sum in full payment of a debt, the debtor has given no consideration, and so the creditor is still entitled to claim the debt in its entirety. This is not the case if the debtor offers payment at an earlier date than was previously agreed, because the benefit to the creditor of receiving payment early can be thought of as consideration for the promise to waive the rest of the debt. This is the rule formulated in Pinnel's Case,[27] and affirmed in Foakes v. Beer.[28] The decision of the Court of Appeal in Collier v P & MJ Wright (Holdings) Ltd[29] suggests that the doctrine of promissory estoppel can now operate to mitigate the harshness of this common law rule. Moreover, Arden LJ held that allowing a creditor to renege on his promise to forebear seeking the balance of a debt in return for part payment would be, in and of itself, inequitable. Therefore, the only reliance that the promisee must demonstrate is the actual making of the part payment. This approach has been criticised as doing violence to the principle set down in Hughes and the extent to which the other members of the Court, namely Longmore LJ, agreed with it is uncertain. Australian law The doctrine of promissory estoppel was adopted into Australian law in Legione v. Hateley;[30] however, the plaintiffs were unsuccessful in that case because the reliance was unreasonable and the promise not unequivocal. In fact, now Australian law has gone beyond the position espoused in the High Trees case;[further explanation needed] it has been extended successfully to cases where there is no pre-existing legal relationship between the two parties, and promissory estoppel can be wielded as a "sword", not just as a "shield". Mason CJ and Wilson J in Waltons Stores (Interstate) Ltd v Maher[31]held that if estoppel is proven, it gives rise to an equity in favour of the plaintiff, and the court will do the minimum equity that is just in the circumstances. From this case, it is also possible for the promise to come from silence or inaction.

Stated by Brennan J in Waltons Stores: To establish an equitable estoppel, it is necessary for the plaintiff to prove that 1) the plaintiff assumed that a particular legal relationship would exist between them (and in the latter case) that the defendant would not be free to withdraw from that expected legal relationship; 2) the defendant has induced the plaintiff to adopt that assumption or expectation; 3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; 4) the defendant knew or intended him to do so; 5) the plaintiff's action or inaction will occasion detriment if the assumption of expectation is not fulfilled; and 6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation of otherwise. As noted above, in Australian law, there is an element of unconscionability, which is satisfied if one party encourages the other party to create assumptions that lead to reliance. Today, the principle of estoppel may give birth to an enforceable obligation even without a consideration under the following conditions: 1. promise 2. dishonest behaviour of the promittant 3. special relationship between the promittant and the beneficior (e.g.: duty of information) 4. irreversible changement of the situation of the beneficior of the promise American law In the many jurisdictions of the United States, promissory estoppel is generally an alternative to consideration as a basis for enforcing a promise. It is also sometimes referred to asdetrimental 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". The distinction between promissory estoppel and equitable estoppel should be noted: 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 Am Jur 2d Estoppel and Waiver 34 Suppose that B goes to a store and sees a sign that the price of a radio is $10. B tells the shopkeeper that he will get the money and come back later that day to purchase it; there is no discussion of price. The shopkeeper says that when B returns, he will be happy to deal with B as he deals with all his customers but that, if he sells all the radios (he has three), he will not be able to help B. Hearing this, B goes and sells his watch for $10 (it was really worth $15, but since B wanted the money right away, he chose not to wait for the best price). When B returns, the sign says $11, and the owner tells B that he has raised the price. In Equity, can you argue that the shopkeeper is estopped by conduct? B relied upon the implied representation that a radio would be sold for $10 when he returned with the money; B has sold his watch at a price lower than the market price, and thus he has acted to his detriment. (Note that if B's watch was worth $10, and he received a fair price, there would be no detriment.) But the problem is that the shopkeeper did not guarantee to hold one of the radios against the possibility of B's return nor did they agree a fixed price. The shopkeeper's conscience might have been affected if he had known that B was going home to collect the money and would definitely return to buy one of the three radios. Indeed, in some common law jurisdictions, a promise by the shopkeeper to hold a specific radio would create a binding contract, even if B had to go for the money. A promise to pay the owner in the future is good consideration if it is made in exchange for a promise to sell a specific radio (one from three is probably sufficiently specific): one promise in exchange for a second promise creates equal value. So the shopkeeper's actual words and knowledge are critical to deciding whether either a contract or an estoppel arises. For an example of promissory estoppel in the construction industry, suppose that B Ltd consolidates estimates from a number of subcontractors and quotes a single price on a competitive tender. The client accepts B Ltd's quote and construction begins. But one of the subcontractors then claims reimbursement above its original estimate and, because of this change, B Ltd cannot profit from the works. If both parties knew that the accuracy of the individual estimates was critical to the success of the tender and the profitability of the contract as a whole, a court might apply promissory estoppel and allow B Ltd to pay only what the subcontractor originally estimated rather than the new, higher price. But, if both parties hoped that there would be an opportunity to increase the contract prices to reflect additional expenditure, the subcontractor's conscience would not be as limited in seeking a higher payment and B Ltd might be penalized for not building an adequate contingency sum into the tendered price.

One contentious point during the drafting of the Restatement was how to calculate the amount of damages flowing from a promissory estoppel. During the deliberations, the following example was considered: a young man's uncle promises to give him $1,000 to buy a car. The young man buys a car for $500, but the uncle refuses to pay any money. One view was that the young man should be entitled to $1,000 (the amount promised), but many believed that the young man should only be entitled to $500 (the amount he actually lost). The language eventually adopted for the Second Restatement reads: "The remedy granted for breach may be limited as justice requires." a formula which leaves quantification to the discretion of the court. Indian Law Section 115 in the Indian Evidence Act defines Estoppel, to mean.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.[32] No estoppel against constitution or fundamental rights There can be no estoppel against the Constitution of India. The Constitution is not only the paramount law of the land, but is the source and substance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts, to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger Interests of the community. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution.[5]

Other estoppels Pais Estoppel in pais (literally by act of notoriety", or "solemn formal act) is the historical root of common law estoppel by representation and equitable estoppel. The terms Estoppel in pais and equitable estoppel are used interchangeably in American law. Convention Estoppel by convention in English law (also known as estoppel by agreement) occurs where two parties negotiate or operate a contract but make a mistake. If they share an assumption, belief or understanding of how the contract will be interpreted or what the legal effect will be, they are bound by that belief, assumption or understanding if:[citation
needed]

(i) they both knew the other had the same belief, and (ii) they both based their subsequent dealings on those beliefs.

Some say[who?][by whom?] that estoppel by convention is not truly an estoppel in its own right, but merely an instance of reliance-based estoppel (estoppel by [ who? ][ by whom? ] representation would be its most frequent form). Others see it as no more than an application of the rule of interpretation that, where words in a contract are ambiguous, one always interprets those words so as to give effect to the actual intentions of the parties even though that would not be the usual legal outcome.[citation
needed]

Estoppel by convention is most commonly invoked if one party wishes to rely on precontract negotiation as an aid to construction of the contract.[33] Acquiescence Main article: Estoppel by acquiescence Estoppel by acquiescence may arise when one person gives a legal warning to another based on some clearly asserted facts or legal principle, and the other does not respond within "a reasonable period of time". By acquiescing, the other person is generally considered to have lost the legal right to assert the contrary. As an example, suppose that Jill has been storing her car on Jack's land with no contract between them. Jack sends a registered letter to Jill's legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it.

If you need more time to make arrangements, please contact me within 30 days, and we can work something out." If Jill does not respond, she may be said to haverelinquished her ownership of the car, and estoppel by acquiescence may prevent any court from invalidating Jack's actions of registering the car in his name and using it as his own. Deed Main article: Estoppel by deed Estoppel by deed is a rule of evidence arising from the status of a contract signed under seal such agreements, called deeds, are more strictly enforced than ordinary contracts and the parties are expected to take greater care to verify the contents before signing them. Hence, once signed, all statements of fact (usually found in the opening recital which sets out the reason(s) for making the deed) are conclusive evidence against the parties who are estopped from asserting otherwise. Conflict estoppel "[An] inconsistent position, attitude or course of conduct may not be adopted to loss or injury of another".[34] For example, as between two or more claimants, a party that takes multiple and inconsistent legal positions is estopped to assert its positions against another consistent and certain claim, i.e. preferential treatment for certain over uncertain claims. Issue estoppel See also: Res judicata Issue estoppel (more commonly known as issue preclusion) prevents, in some cases, an issue that has already been litigated and decided on the merits from being re-litigated, even when the parties are different. In the world of crime, some cases have achieved notoriety, e.g. in the Birmingham Six saga, the House of Lords ruled in Hunter v. Chief Constable of the West Midlands Police (1982) that issue estoppel applied. Lord Diplock said: [This case] concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.[35]

ACQUIESCENCE
In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought makes a claim on their rights. Consequently, the person whose rights are infringed loses the ability to make a claim against the infringer, or succeed in an injunction suit due to the infringer's conduct. The term is most generally a kind of "permission" given by silence or passiveness. Overview The common law doctrine of estoppel by acquiescence is applied when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party is said to have acquiesced to the claim, and is estopped from later challenging it, or making a counterclaim. The doctrine is similar to, and often applied with, estoppel by laches. This occurred in the second Georgia v. South Carolina[1] case before the U.S. Supreme Court in 1990, when it was ruled that Georgia could no longer make any claim to an island in the Savannah River, despite the 1787 Treaty of Beaufort's assignment to the contrary. The court said that the state had knowingly allowed South Carolina to join the island as a peninsula to its own coast by dumping sand from dredging, and to then levy property taxes on it for decades. Georgia thereby lost the island-turned-peninsula by its own acquiescence, even though the treaty had given it all of the islands in the river (see adverse possession). The doctrine of acquiescence although typically not found in law, is found a lot in precedent. As seen by this search of US Supreme Court rulings, the doctrine of acquiescence has been mentioned over a thousand times. Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a related doctrine that can mean, and have the legal effect, that when confronted with a wrong or an act that can be considered a tortious act, where ones silence may mean that one accepts or permits such acts without protest or claim thereby loses rights to a claim of any loss or damage.[2] Evasion (law) In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and liabilities have been properly imposed or incurred. It is also a common principle in conflict of laws.

Definition This is a standard doctrine in most jurisdictions: in France, it is termed, fraude la loi, in Spain, fraude de ley, in Italy, violazione di norme di legge, in Germany, Rechtswidrige Umgehung eines Gesetzes. It reflects the need for governments to prevent their citizens from intentionally and improperly manipulating their behaviour to prevent mandatory provisions in the law from applying to them. As the translated names necessarily imply, the key is an intention to displace the normal operation of the legal system. Sometimes, this intention will be express. On other occasions, it will be for the courts to decide whether a sufficient intention can be imputed. Once the intention is established, the evasive manoeuvre will be void and the normal legal provisions will apply to the parties. Examples Taxation Almost all states operate a collection system for taxation revenues within a framework of law, and enforced through independent courts. Enabling statutes must be strictly applied, and it is generally against public policy to allow the tax administration to agree to reduce the amount of tax payable by any one individual. Like criminal law where agreements by the policing authorities to exempt a criminal are prohibited, tax law has a special status as being essential to an organized society in maintaining public trust through the policy of equal treatment in the legal system. Nevertheless, if a tax payer organizes his or her affairs so as to exploit a loophole in the law and avoid the incidence of tax liability, this will usually be pemitted. It is not for the courts to legislate and plug the gaps left by the legislature. The test of avoidance will be whether there is a legitimate purpose for the given behaviour. Many states adopt a "business purpose" test, decomposing the transaction into its component steps to determine the true purpose of the transaction(s) (see tax avoidance/evasion). Family law In Family Law, the citizens of one state are not allowed to evade, say, the rules relating to marriages by blood relatives or by persons of the same biological sex, simply by travelling to and going through a ceremony in a state that does permit such marriages. The policies underpinning such laws are so fundamental to the culture of a state that they acquire mandatory status (seenullity in the conflict of laws). The same applies to divorce. An early case in France (under the civil law system) known as the Princess Bauffremont Affair decided by the Cour de cassation in 1878 [Civ. 18 mars 1878, S.78.1.193 (note Labb)] saw the princess obtain citizenship in Germany for the purpose of obtaining a divorce there and then remarry, returning to France where she attempted to re-establish herself. Because the divorce was not recognised in France, her remarriage was declared null as a fraude la loi.

Contract law In Contract Law, as an exception to the principle of autonomy implicit in the policy of freedom of contract, the parties cannot by entering into a voluntary agreement evade obligations imposed by law nor prevent the courts from taking jurisdiction in the event that a dispute arises. And, as with tax, the courts will examine the entire context for any series of transactions that seeks to avoid the operation of law. Hence, if it is illegal to export particular goods from State X to State A, such a law cannot be evaded by entering into back-to-back agreements to export the goods first to State Y and thence to State A. Some laws are sufficiently fundamental that they can never be evaded. Thus, even though the contracts might be perfectly legal, they would be denied enforcement if the effect would be against public policy. The most common policies are those which:

protect against unreasonable restraints of trade, e.g. agreements not to compete after terminating employment or selling a business must allow individuals a reasonable opportunity to earn a living. protect family relationships, e.g. an agreement relating to the custody of a child and maintenance cannot exclude the power of a court to examine its terms and to judge whether it is in the best interests of the child. prevent the enforcement of contracts: involving commission of a tort or crime; inducing breach of fiduciary duties; inducing a breach in a contract with a third party; disclaiming liability for harm caused intentionally, recklessly or negligently (including liability for any misrepresentation). Liability for personal injuries arising from the use of products can be disclaimed only in rare circumstances (e.g., two merchants fairly bargain for it, and the product is experimental). involving the waiver or release of entrenched rights, e.g. in the United States, the release of rights granted by the Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. 621 will not be effective even if supported by consideration unless certain mandatory requirements set out in the Older Workers Benefit Protection Act are complied with.

Conflict of laws At either the characterisation or the choice of law stage, the most usual manipulation involves the way in which the connecting factors are pleaded as between the lex fori and the lex loci so that inconvenient local laws are evaded in favour of a "foreign" law.

Detection Under the law of the United States with the Drug Trafficking Vessel Interdiction Act, it is illegal to operate or embark in a submersible vessel or semi-submersible vessel without nationality on an international voyage[1] with the intent to evade detection.[2] This is curious because one of the required proofs of nationality are documents issued under the 1958 Convention on the High Seas,[3] a convention which Congress has refused to ratify[4] and therefore acknowledge.

EX TURPI CAUSA NON ORITUR ACTIO

Ex turpi causa non oritur actio (Latin for "from a dishonorable cause an action does not arise") is a legal doctrine which states that a claimant will be unable to pursue a cause of action if it arises in connection with his own illegal act. Particularly relevant in the law of contract,tort and trusts,[1] ex turpi causa is also known as the "illegality defence", since a defendant may plead that even though, for instance, he broke a contract, conducted himself negligently or broke an equitable duty, nevertheless a claimant by reason of her own illegality cannot sue. Development In the early case of Holman v Johnson[2] Lord Mansfield CJ set out the rationale for the illegality doctrine. The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both were equally in fault, potior est conditio defendentis.

English law Main article: Illegality in English law Tort See also: English tort law In the law of tort, the principle would prevent a criminal from bringing a claim against (for example) a fellow criminal. In National Coal Board v England[3] Lord Asquith said, If two burglars, Alice and Bob, agree to open a safe by means of explosives, and Alice so negligently handles the explosive charge as to injure Bob, Bob might find some difficulty in maintaining an action against Alice.

It is not absolute in effect. For example, in Revill v Newbery[4] an elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim. However, the Court of Appeal allowed the plaintiff's appeal, holding that the defendant was negligent to have shot blindly at body height, without shouting a warning or shooting a warning shot into the air, and that the response was out of all proportion to the threat. The precise scope of the doctrine is not certain. In some cases, it seems that the illegality prevents a duty of care arising in the first place. For example, in Ashton v Turner[5] the defendant crashed a car in the course of fleeing the scene of a burglary they had committed together, injuring the plaintiff. Ewbank J held that the court may not recognize a duty of care in such cases as a matter of public policy. Similarly, in Pitts v Hunt[6] the Court of Appeal rationalized this approach, saying that it was impossible to decide the appropriate standard of care in cases where the parties were involved in illegality.

Hewison v Meridian Shipping Services Pte Ltd [2002] EWCA Civ 1821

Trusts See also: English trusts law In other cases, the courts view ex turpi as a defence where otherwise a claim would lie, again on grounds of public policy. In Tinsley v Milligan[7] Nicholls LJ in the Court of Appeal spoke of the court having to "weigh or balance the adverse consequences of granting relief against the adverse consequences of refusing relief". The plaintiff was ultimately successful in Tinsley v Milligan in the House of Lords, which allowed the claim on the grounds that the plaintiff did not need to rely on the illegality. The recent case of Gray v Thames Trains[8] upheld the basic rule of public policy that disallowed recovery of anything stemming from Plaintiff's own wrongdoing.

Moore Stephens v Stone Rolls Ltd [2009] UKHL 39

EXCLUSIONARY RULE
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" and that no person "shall be deprived of life, liberty or property without due process of law". "The exclusionary rule is grounded in the Fourth Amendment and it is intended to protect citizens from illegal searches and seizures."[1] The exclusionary rule is also designed to provide a remedy and disincentive, which is short of criminal prosecution in response to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment in the Bill of Rights compelled to self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel. Most states also have their own exclusionary remedies for illegally obtained evidence under their state constitutions and/or statutes, some of which predate the federal constitutional guarantees against unlawful searches and seizures and compelled selfincrimination.[2]

This rule is occasionally referred to as a legal technicality because it allows defendants a defense that does not address whether the crime was actually committed. In this respect, it is similar to the explicit rule in the Fifth Amendment protecting people from double jeopardy. In strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal actionthis evidence is known as "fruit of the poisonous tree"can be thrown out from a jury (or be grounds for a mistrial if too much information has been irrevocably revealed). The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors. History of the rule Up until the independence of the United States, the courts of England excluded selfincriminating evidence that was provided as a result of official compulsion, regardless of its reliability.[3] In 1769, Lord Chief Justice Mansfield explained as follows: [I]n civil causes, the court will force parties to produce evidence which may prove against themselves; or leave the refusal to do it (after proper notice) as a strong presumption, to the jury....But in a criminal or penal cause, the defendant is never forced to produce any evidence; though he should hold it in his hands in court.[4]

Chief Justice Mansfield also explained that "If any evidence or confession has been extorted from her, it will be of no prejudice to her on the trial."[5] Additionally, a defendant could sue to suppress and regain possession of at least some types of illegally seized evidence, in a common law action for replevin.[6] Jonathan However, in the 1783 case of Ceglinski v. Orr, the English courts declined to suppress evidence obtained by illegal coercion. In the Warickshall case, evidence was gathered as a result of an involuntary confession, and the court held that the evidence (but not the confession itself) could be admitted.[7] It is questionable whether the Warickshall rule became known in the United States before 1789 (when the U.S. Bill of Rights was written), and whether it applied to confessions obtained by both governmental and private parties.[3] In any event, no decision by the Supreme Court of the United States has ever endorsed the Warickshall rule as a constitutional matter.[3] Generally speaking, English law before 1789 did not provide as strong an exclusionary rule as the one that later developed under the Fourth Amendment to the United States Constitution, regarding unlawful searches and seizures.[6] The Fourth Amendment, after all, was partly a reaction against English law including the general warrant and the writs of assistance.[6]

In the 1886 case of Boyd v. United States,[8] the U.S. Supreme Court addressed compulsory production of business papers, and the Court excluded those papers based on a combination of the Fourth and Fifth Amendments. Boyd was closely limited to its facts, and several years later the Court stated that the Fourth Amendment does not extend to "excluding testimony" about wrongful searches and seizures.[9] In 1897, the U.S. Supreme Court held, in Bram v. United States,[10] that involuntary confessions are inadmissible as evidence. The Court in Bram did not announce a strong version of the exclusionary rule that would apply uniformly to exclude all evidence gathered in violation of the Bill of Rights, but instead announced a weak version that excluded only self-incriminating testimony that was compelled in violation of the Fifth Amendment. The distinction between testimonial versus other self-incriminating evidence is a matter of continuing debate.[11] Before a strong version of the exclusionary rule was addressed and adopted by the federal courts, it had already been adopted by at least one state court, namely the Iowa Supreme Court, as that court would later describe: The genesis of Iowas exclusionary rule was a civil case, Reifsnyder v. Lee, 44 Iowa 101 (1876).... The first application of the exclusionary rule in a criminal context occurred in the Height case, decided in 1902. Height involved a physical exam of the defendant against his will. 117 Iowa at 652, 91 N.W. at 935. This court held that the examination of the defendant violated the due process clause of the Iowa Constitution, as well as article 1, section 8s prohibition of unreasonable searches.[12]

In 1914, the U.S. Supreme Court announced a strong version of the exclusionary rule, in the case of Weeks v. United States, under the Fourth Amendment prohibiting unreasonable searches and seizures.[13] This decision, however, created the rule only on the federal level. The "Weeks Rule", which made an exception for cases at the state level, was adopted by numerous states at a time during prohibition. In adopting the rule, actions by states often reflected attitudes towards prohibition, which was enacted by adoption of the Eighteenth Amendment and was enforced through the Volstead Act. Concerns about privacy violations also extended to other instances where criminal sanctions were permitted for "victimless" crime, such as illegal gambling or narcotics violations.[14] In 1920, the U.S. Supreme Court adopted the "fruit of the poisonous tree" doctrine in the case of Silverthorne Lumber Co. v. United States.[15] The Court stated that allowing evidence gathered as an indirect result of an unconstitutional search and seizure "reduces the Fourth Amendment to a form of words". Wolf v. Colorado 338 U.S. 25 (1949) ruled that states were not required to adopt the exclusionary rule. Despite the ruling, some states adopted the exclusionary rule.

The Supreme Court of California ruled in People v. Cahan (1955) that the exclusionary rule applied for cases in the state of California. By 1960, 22 states had adopted the rule without substantial qualifications: California, Delaware, Florida, Idaho, Illinois, Indiana, Kentucky, Mississippi, Missouri, Montana, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, Washington, Texas, West Virginia, Wisconsin, Wyoming. Michigan also had an exclusionary rule, but with limitations for some narcotics and firearms evidence. In Alabama, Maryland, and South Dakota, the exclusionary rule applied in some situations.[14] It was not until Mapp v. Ohio[16] that the exclusionary rule was also held to be binding on the states through the Fourteenth Amendment, which guarantees due process. Up until Mapp, the exclusionary rule had been rejected by most states.[17]

Limitations of the rule The exclusionary rule was passed in 1917, and it does not apply in a civil case, in a grand jury proceeding, or in a parole revocation hearing. Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment. In Hudson v. Michigan,[18]Justice Scalia wrote for the U.S. Supreme Court: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs," United States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautious against expanding" it, Colorado v. Connelly, 479 U.S. 157, 166 (1986), and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application," Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364365 (1998) (citation omitted). We have rejected "indiscriminate application" of the rule, Leon, supra, at 908, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served,"United States v. Calandra, 414 U.S. 338, 348 (1974) that is, "where its deterrence benefits outweigh its 'substantial social costs,'" Scott, supra, at 363, (quoting Leon, supra, at 907). Whether the exclusionary sanction is appropriately imposed in a particular case is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.

Limitations on the exclusionary rule have included the following:

Evidence unlawfully obtained from the defendant by a private person is admissible. The exclusionary rule is designed to protect privacy rights, with the Fourth Amendment applying specifically to government officials.[19] Evidence can only be suppressed if the illegal search violated the person's own (the person making the court motion) constitutional rights. The exclusionary rule does not apply to privacy rights of a third party.[20] However, there is a narrow exception to this standing requirement, the jus tertii standing exception.[21] The defendant cannot take advantage of the situation (police breaching rules) to turn the case to his advantage, in face of other evidence against himself. This falls under the exigent circumstances exception.[22] The Silver Platter doctrine which was ruled unconstitutional in the case of Elkins v. United States in 1960. State officials that obtained evidence illegally were allowed to turn over evidence to federal officials, and have that evidence be admitted into trial.[23] Nix v. Williams held that if the evidence obtained in the unlawful search would almost definitely have been found eventually even without said search (inevitable discovery), the evidence may be brought forth in court. If police officers acting in good faith (bona fides) rely upon a defective search warrant, then the evidence acquired may still be used under the good-faith exception.

The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United States v. Alvarez-Machain,[24] the U.S. Supreme Court decided that property owned by aliens in a foreign country is admissible in court. Certain persons in the U.S. receive limited protections, such as prisoners, probationers, parolees, and persons crossing U.S. borders. Corporations, by virtue of being, also have limited rights under the Fourth Amendment (see corporate personhood). In the case of Florida v. Jimeno it was found that the evidence found to convict Jimeno, although at first was not admissible, later was found to in fact be admissible since it passed the test of reasonable standards. The defendant consented to a search of his car, and when the officer searched a package and found drugs, it was not said to be in violation because a reasonable person would expect illegal narcotics to be kept in a package or container.[25] Parallel construction The Special Operations Division of the U.S. Drug Enforcement Administration advises DEA agents to follow a process of parallel construction when launching criminal investigations of Americans based on SOD tips that may be based on warrantless surveillance.[26]

Criticism The exclusionary rule as it has developed in the United States has been long criticized, even by respected jurists and commentators. Judge Benjamin Cardozo then of the New York Court of Appeals and generally considered one of the most influential American jurists whose opinions in several cases pronounced lasting principles of American law stated that under the rule, "The criminal is to go free because the constable has blundered." He noted that many states had rejected the rule, but suggested that the adoption by the federal courts would affect the practice in the sovereign states.[27][28][29][30] In the 1970s, Dallin H. Oaks,[31] Malcolm Wilkey,[32] and others called for the exclusionary rule to be abolished. By the 1980s, the exclusionary rule remained controversial and was strongly opposed by President Ronald Reagan. But, some opponents began seeking to have the rule modified, rather than abolished altogether. The case, Illinois v. Gates, before the Supreme Court brought the exclusionary rule for reconsideration. The Supreme Court also considered allowing exceptions for errors made by police in good faith.[33] The Reagan administration also asked Congress to ease the rule.[34] It has been proposed that the exclusionary rule be replaced with restitution to victims of police misconduct.[35]

EXECUTIVE PRIVILEGE
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.[1] The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.

Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis. Early precedents Executive privilege is a specific instance of the more general common-law principle of deliberative process privilege and is believed to trace its roots to the English Crown Privilege.[2] In the context of privilege assertions by US Presidents, "In 1796, President George Washington refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty with the Kingdom of Great Britain. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House."[3] President Thomas Jefferson continued the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson complied with Marshall's order. In 1833, President Andrew Jackson cited executive privilege when Senator Henry Clay demanded he produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War. [4] Modern exercises During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous Hiss-Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems.[5] Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.

During the ArmyMcCarthy hearings in 1954, Eisenhower used the claim of executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions.[6] This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. In the end, Eisenhower would invoke the claim 44 times between 1955 and 1960. U.S. v. Nixon The Supreme Court addressed 'executive privilege' in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records. The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high officeholders charged with violating citizens' constitutional rights in the course of performing their duties. The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and non-diplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

"Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executives Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executives claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible. United States v. Nixon, supra, at 692."[7] Post-Nixon Clinton administration The Clinton administration invoked executive privilege on fourteen occasions. In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal.[8] Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear. Declaring that "absolutely no one is above the law", Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to an investigation. George W. Bush administration The Bush administration invoked executive privilege on six occasions. President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno,[2] the scandal involving Federal Bureau of Investigation (FBI) misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fundraising tactics, in December 2001.[9] Bush invoked executive privilege "in substance" in refusing to disclose the details of Vice President Dick Cheney's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953). Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor,[10] citing that:

The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch. On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel Fred F. Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff Joshua Bolten for contempt of Congress.[11][12] On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger Pat Tillman. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire shooting implicate Executive Branch confidentiality interests and would therefore not be turned over to the committee.[13] On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity...."[14] Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings comply "immediately" with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded about these incidents.[15][16][17][18] As of July 17, 2008, Rove is still claiming executive privilege to avoid a congressional subpoena. Rove's lawyer writes that his client is "constitutionally immune from compelled congressional testimony."[19]

House Investigation of the SEC Leaders of the U.S. Securities and Exchange Commission testified on February 4, 2009 before the United States House Committee on Financial Services subcommittee including Linda Chatman Thomsen S.E.C. enforcement director, acting General Counsel Andy Vollmer, Andrew Donohue, Erik Sirri, and Lori Richards and Stephen Luparello of FINRA. The subject of the hearings were on why the SEC had failed to act when Harry Markopolos, a private fraud investigator from Boston alerted the Securities and Exchange Commission detailing his persistent and unsuccessful efforts to get the SEC to investigate Bernard Madoff, beginning in 1999.[20] Vollmer claimed executive privilege in declining to answer some questions.[21][22]Subcommittee chairman Paul E. Kanjorski asked Mr. Vollmer if he had obtained executive privilege from the U.S. attorney general.[21] No ... this is the position of the agency, said Vollmer.[21] "Did the SEC instruct him not to respond to questions?" Mr. Kanjorski asked.[21] Vollmer replied that it was the position of the Commission and that the answer is no.[21] The SEC announced Vollmer would "leave the Commission and return to the private sector," just 14 days after making the claim.[23] Obama administration On June 20, 2012, President Barack Obama asserted executive privilege, his first, to withhold certain Department of Justice documents related to the ongoing Operation Fast and Furious controversy ahead of a United States House Committee on Oversight and Government Reform vote to hold Attorney General Eric Holder in Contempt of Congress for refusing to produce the documents.[24] Later the same day, the United States House Committee on Oversight and Government Reform voted 23-17 along party lines to hold Attorney General Holder in contempt of Congress over not releasing documents regarding Fast and Furious.[25]

EXHAUSTED COMBINATION DOCTRINE

The exhausted combination doctrine, also referred to as the doctrine of the Lincoln Engineering case, is the doctrine of U.S. patent law that when an inventor invents a new, unobvious device and seeks to patent not merely the new device but also the combination of the new device with a known, conventional device with which the new device cooperates in the conventional and predictable way in which devices of those types have previously cooperated, the combination is unpatentable as an "exhausted combination" or "old combination".[1] The doctrine is also termed the doctrine of the Lincoln Engineering case because the United States Supreme Court explained the doctrine in its decision in Lincoln Engineering Co. v. Stewart-Warner Corp.[2]

The Lincoln Engineering decision In Lincoln Engineering, the inventor invented a new and improved coupling device to attach a nozzle to a grease gun. The patent, however, claimed the whole combination of grease gun, nozzle, and coupling. The Supreme Court stated that "the improvement of one part of an old combination gives no right to claim that improvement in combination with other old parts which perform no new function in the combination".[3] It then concluded that the inventor's "effort, by the use of a combination claim, to extend the monopoly of his invention of an improved form of chuck or coupler to old parts or elements having no new function when operated in connection with the coupler renders the claim void."[4] This way of claiming an invention was termed overclaiming, because it inflated the royalty base for licensing and potentially effectuated a tie-in by means of which the patentee required users, for example, to purchase not only the couplings but the whole grease gun as well in order to use the invention.[5] Is the Lincoln Engineering doctrine obsolete? The Federal Circuit held in 1984 that this doctrine is outdated and no longer reflects the law.[6] In effect, the Federal Circuit overruled the Supreme Court on this point or claimed that the passage of the 1952 patent recodification law had done so. In its decision in Quanta Computer, Inc. v. LG Electronics, Inc.,[7] however, the Supreme Court seems to have assumed without any discussion that its old precedents such as Lincoln Engineering (uncited in the Quanta opinion) are still in force, as least with regard to the exhaustion doctrine. In Quanta, the Court considered the sale of a patented microprocessor to "exhaust" not only the patent on the microprocessor but the patent on a conventional personal computer (PC) containing the microprocessor, since the PC patent had essentially the same inventive concept (or departure from the prior art) as the microprocessor patent. After 1984 it appeared that it was possible to obtain patents on old combinations, for example not only a new motor but also an otherwise conventional disc drive containing the new motor. It has also been held that the sale of the motor, in such a case, does not exhaust the patent on the disc drive containing the new motor. Hence, a purchaser of the motor who incorporated it into a disk drive would infringe the disk drive patent.[8] It is now uncertain whether such patents are valid. In any event, the Quanta decision appears to hold that the exhaustion doctrine shields from infringement liability the foregoing motor purchaser that incorporates the motor into a disk drive.[9]

Exhausted combinations and nonstatutory subject matter Claiming a computer-related advance as an exhausted combination may provide a way to prevent the claimed advance from being classified as non-statutory subject matter under section 101 of the US patent law. Placing a process that fails the machineor-transformation test in a machine environment may overcome the absence of implementation by a specific machine, as required by In re Bilski and the Supreme Court decisions on which it is based.[10] (The successfulness of this expedient depends on acceptance of the Federal Circuit's abolition of the exhausted combination doctrine.[11]) For example, the form of the processes claimed in Diamond v. Diehr,[12] Parker v. Flook,[13] and Gottschalk v. Benson[14] may appropriately be compared. In Diehr, the claim is to a method of operating a rubber-molding press and the claim contains at least minimal references to the press and other apparatus. In Flook, the claim is to a "method for updating the value of at least one alarm limit," where an alarm limit is a number. The claim does not say anything about a reaction vessel or even temperature measuring devices. In Benson, the claim is to a data processing method for converting binary coded decimal number representations into binary number representations. One claim mentions a reentrant shift register and the other claim mentions no apparatus at all. In Flook, the claim could have instead been to a method of operating a hydrocracking plant wherein hydrocarbon feedstock is placed into a chemical reactor, heat is applied, etc. The claim, although to an exhausted combination,[15] would have required apparatus as did that in the Diehr case. Similarly, the claim in Benson could have been to a method of operating a telephone switch box or perhaps even a method of providing binary-coded-decimal numerical signals to a binary-coded operating device. Again, by providing a mechanical environment, even though it was an exhausted combination, the claims drafter might have avoided the holding of non-statutory subject matter. It is possible that careful claims drafting techniques will succeed in elevating form over substance, to avoid the impact of the machine-or-transformation test.

EXHAUSTION DOCTRINE
The exhaustion doctrine, also referred to as the first sale doctrine, is a common law patent doctrine that limits the extent to which patent holders can control an individual article of a patented product after an authorized sale. Under the doctrine, once an unrestricted, authorized sale of a patented article occurs, the patent holders exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint from patent law.

Note, however, that under current law, the patent owner retains the right to exclude purchasers of the articles from making the patented invention anew, unless it is specifically authorized by the patentee.[1] Procedurally, the patent exhaustion doctrine operates as an affirmative defense, shielding authorized purchasers from infringement claims concerning the use or sale of a patented good after the patent owner authorized its sale. Because the doctrine is only triggered by a sale authorized by the patentee, it is often difficult to figure out if the exhaustion doctrine applies in a particular case, for example, when the patentee restricts or conditions the sale itself, or restricts the use or sale of the patented article once purchased and in the hands of an end user (post-sale restrictions). The 2008 Supreme Court decision in Quanta Computer, Inc. v. LG Electronics, Inc., leaves unclear the extent to which patentees can avoid the exhaustion doctrine through limited licenses. Since its development by the courts in the late 19th century, the patent exhaustion doctrine has raised questions regarding the scope of exclusive rights granted by patents and the extent to which a patent owner may extend those rights to control downstream use and sales of patented articles. Overview A patent gives the patent owner the right to exclude others from making, using, selling, offering for sale, or importing into the U.S. the patented invention during the term of the patent.[2] The conventional rationale behind providing these exclusive rights is to promote the Progress of Science and useful Arts[3] by providing inventors the incentive to invest in researching and developing innovative technology.[4] Providing these protections, however, comes with social costs and limits the publics ability to freely alienate patented goods. Thus, public policy dictates that the patent owners exclusive rights be limited in scope. Generally, when a patent owner receives compensation for the use of his or her invention through sale of a good, the purpose of patent law is fulfilled with respect to that good.[5] Upon receiving compensation, the patent owner's rights to exclude others are exhausted and the patent law affords no basis for restraining the use and enjoyment of the thing sold.[6] Accordingly, a patent owner's voluntary introduction of a patented good into commerce without restriction prevents the patent owner from exercising his or her right to exclude others from using or reselling that good. The patent exhaustion doctrine has not been codified, and is thus still a common law doctrine. (Contrast first-sale doctrine in copyright). It was first recognized by the Supreme Court in 1873 in Adams v. Burke. In that case, the patentee authorized a licensee to make, use, and sell patented coffin lids only within a ten-mile radius in Boston. A customer of the licensee bought the coffin lids within the ten-mile radius, but later resold the lids outside of the ten-mile radius.

The patentee sued the customer, but the Supreme Court found no infringement: Once the coffin lids were lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees. Because the sale was authorized (bought within the ten-mile radius), the defendant acquired the right to use the coffin lids free from any claim of the patentee, even though he used it outside the ten-mile radius. Limitations of the Exhaustion Doctrine The exhaustion doctrine is triggered only by a sale authorized by the patent holder.[7] Thus, there are circumstances where it is difficult to determine whether the exhaustion doctrine is triggered, in light of the restrictions that the patentee has placed on the sale or use of the patented invention. Two general questions arise in these situations: (1) Was the sale authorized by the patentee? This can often be a complex factual question. (2) Even if not authorized by the patentee, are those restrictions valid and recognizable under the law? Generally, these cases involve one or more of the following scenarios: the patent owner: (1) sells one or more components of a multi-component patented good;[8] (2) licenses another to sell with certain restrictions on the sale itself;[9] or (3) sells the article with restrictions directly on the purchasers or end-users (post-sale restraint).[10] Sale of Incomplete Articles One scenario in which the exhaustion doctrine may or may not be triggered is when the patent holder sells an incomplete article that does not directly practice or embody the patent. In this situation, exhaustion is applicable to the authorized sale of an incomplete article if: (1) its only reasonable and intended use was to practice the patent, and (2) it embodies essential features of the patented invention.[11] Note that even if the exhaustion doctrine is applicable to the sale of an incomplete article, there is a separate analysis of whether the sale of that article was actually authorized, and therefore whether exhaustion was actually triggered.[12] The applicability of exhaustion to the sale of an incomplete article was recognized by the Supreme Court in 1942 in United States v. Univis Lens Co.. In that case, the patent holder sold lens blanks which had to be grinded into the patented invention. The Court held that this sale exhausted the patents on the finished lenses because the lens blanks embodi[ed] essential features of the patented device and [were] without utility until . . . ground and polished as the finished lens of the patent.[13] The Court noted that the grinding process was standard and not central to the patents, indicating further that the lens blanks constituted a material part of the patented invention and all but completely practiced the patent.

In Quanta, the Supreme Court applied the same test to determine whether exhaustion is triggered by the licensing of method patents. In that case, the patent holder (LGE) authorized the licensee (Intel) to manufacture and sell microprocessors and chipsets that used LGE method patents. The Court found that, even though the Intel products did not directly practice the method patents, they sufficiently embodied the patents, making the exhaustion doctrine applicable. First, the Court found that there was no reasonable use for the Intel products other than incorporating them into a computer system that practiced the LGE patents.[14] Second, the Intel products embodied essential features of the patented processes because the only necessary step to practice the patents was the addition of standard computer parts, like memory and buses.[15] Thus, under the Univis test, the Intel products sufficiently embodied the method patents, making the exhaustion doctrine applicable. Limitations on Sale Another scenario in which it may be difficult to determine if the sale of a patented article was authorized, and therefore if exhaustion is triggered, is when the patentee grants a license to sell with specific limitations on the seller, such as territorial, duration, or field-of-use limitations. If these restrictions have been imposed, the licensees sale to a purchaser only exhausts the patentees rights to restrict use and resale when the restrictions have not been violated. If the restrictions are violated, then exhaustion is not triggered and the patentee can sue the licensee and any downstream customers for patent infringement.[16] The Supreme Court has specifically upheld the legitimacy of field-of-use limitations in patent licensing. See General Talking Pictures doctrine. A licensee who violates a fieldof-use limitation by selling an article outside of the permissible field commits patent infringement. The exhaustion doctrine would provide no protection because the violation makes the sale unauthorized for the purposes of the exhaustion doctrine.[17] Note that limitations on sale (those imposed on the licensee in selling the patented articles) are different from post-sale limitations (those that purpose to restrict the use or sale of the patented article once purchased and in the hands of an end user, not a licensee or distributor). Patentees can avoid the exhaustion doctrine by imposing the former, but it is unclear whether patentees can do so through the latter.[18] Limitations on sale must very explicitly bind the licensee or seller. For example, in Quanta, LGE licensed Intel to make products using LGEs method patents. The license expressly stated that LGE was not licensing third parties to combine licensed product with any non-Intel products, and it required Intel to notify customers of that. Intel sold products to Quanta, who combined the Intel products with non-Intel products. LGE sued Quanta for patent infringement. The Supreme Court found that the licensing agreement failed to explicitly impose a field-of-use limitation, and therefore found that there were no conditions limiting who Intel could sell to. The sale was thus authorized, and exhaustion was triggered.

In the Courts words, The License Agreement authorized Intel to sell products that practiced the patents. No conditions limited Intels authority to sell products substantially embodying the patents. . . . Intels authorized sale to Quanta thus took its products outside the scope of the patent monopoly, and as a result, LGE can no longer assert its patent rights against Quanta.[19] Because the contractual documents in the Quanta case were insufficiently explicit, the Court applied the exhaustion doctrine, finding the sale "authorized" and unconditional, even though LGE attempted to impose some restrictions on use of the products. Therefore, purchasers of the patented product were free to use them without restrictions that the patentee sought to have imposed on them. The Court found that the licensing agreement did not impose any limitations on who the licensee could sell to. The Court did not decide, however, whether the restriction in the licensing agreement could constitute a valid post-sale limitation to make the sale unauthorized for the purposes of the exhaustion doctrine. This is discussed in the next section. Post-Sale Limitations The most difficult and unsettled area of the law regarding patent exhaustion are cases involving post-sale restrictions. Post-sale restrictions are those that purport to restrict the use or sale of the patented article once purchased and in the hands of an end user, rather than a licensee or distributor. Common post-sale restrictions include single use only and refill only with proprietary ink notices. Whether violations of such restrictions make a sale unauthorized, and therefore make patent exhaustion inapplicable, is still unclear.[20] In 1992, the Federal Circuit approved the use of post-sale restrictions in Mallinckrodt, Inc. v. Medipart, Inc.. Specifically, the court held that patent owners could condition the sale of patented goods with a restrictive notice and thereby restrict the disposition of the goods by the purchasers, with the exception of antitrust law violations, such as price-fixing and tie-in restrictions, or violations of "some other law or policy."[21] The plaintiff in the case owned a patent on a medical device, which he sold to hospitals with a single use only notice label. The defendant purchased the used devices from hospitals, refurbished them, and resold them to hospitals. The Federal Circuit held that the single use restriction was enforceable in accordance with General Talking Pictures, because the restriction was reasonably within the patent grant. . . .[22] The Supreme Court did not discuss the Mallinckrodt case in Quanta. As one commentator noted: The Supreme Court, in Quanta, was widely expected to rule on whether Mallinckrodt was good law. But the Court sidestepped the issue by narrowly interpreting the license agreement so that it was not a conditional license. . . . Because the Supreme Court sidestepped the issue, it remains unclear to what extent a patentee can use a conditional license to impose restrictions on downstream purchasers. [23]

At least one district court has concluded that Mallinckrodt is no longer good law after Quanta.[24] In Static Control Components, Inc. v. Lexmark Intl, Inc., the court concluded that the Supreme Court implicitly overruled Mallinckrodt. At issue in Static Control was Lexmarks so called prebate program, in which customers could buy cartridges that were subject to a single use for a discounted price. In its original order, before Quanta was decided, the court rejected Static Controls argument that Lexmarks patent rights were exhausted as a result of the authorized sale of the cartridges. Relying heavily on Mallinckrodt, the court found that the sales were valid post-sale restrictions that avoided exhaustion. After Quanta was decided, however, the court reversed its original order and concluded that Lexmarks single use restriction was not enforceable under patent law because the court was persuaded that Quanta overruled Mallinckrodt sub silentio.[25] The court explained, The Supreme Court's broad statement of the law of patent exhaustion simply cannot be squared with the position that the Quanta holding is limited to its specific facts. Further, the Federal Circuit relied in part on Mallinckrodt in reaching its decision in LG Electronics, Inc. v. Bizcom Electronics, Inc., 453 F.3d 1364, 1369 (Fed. Cir. 2006), the decision the Supreme Court reversed in Quanta. It is also worth noting that the Quanta decision did not mention a single Federal Circuit case.[26] The district courts conclusion, however, that Quanta overruled Mallinckrodt is ambiguous, and it reflects the ambiguity in Quanta itself. The Static Control court noted that [s]ales of Lexmark Prebate cartridges were unconditional because [n]o potential buyer was required to agree to abide by the Prebate terms before purchasing a cartridge. Thus, sales of Lexmark's Prebate toner cartridges were authorized and unconditional, just like sales of LGE's patented products in Quanta.[27] Therefore, both Quanta and Static Control can be seen as either cautionary tales about failed attempts to explicitly condition sales, without need to rule on whether the post-sale restrictions were valid, or as overruling Mallinckrodts approval of post-sale restrictions. Which interpretation is correct remains to be seen.

EXHAUSTION DOCTRINE
The exhaustion doctrine, also referred to as the first sale doctrine, is a common law patent doctrine that limits the extent to which patent holders can control an individual article of a patented product after an authorized sale. Under the doctrine, once an unrestricted, authorized sale of a patented article occurs, the patent holders exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint from patent law.

Note, however, that under current law, the patent owner retains the right to exclude purchasers of the articles from making the patented invention anew, unless it is specifically authorized by the patentee.[1] Procedurally, the patent exhaustion doctrine operates as an affirmative defense, shielding authorized purchasers from infringement claims concerning the use or sale of a patented good after the patent owner authorized its sale. Because the doctrine is only triggered by a sale authorized by the patentee, it is often difficult to figure out if the exhaustion doctrine applies in a particular case, for example, when the patentee restricts or conditions the sale itself, or restricts the use or sale of the patented article once purchased and in the hands of an end user (post-sale restrictions). The 2008 Supreme Court decision in Quanta Computer, Inc. v. LG Electronics, Inc., leaves unclear the extent to which patentees can avoid the exhaustion doctrine through limited licenses. Since its development by the courts in the late 19th century, the patent exhaustion doctrine has raised questions regarding the scope of exclusive rights granted by patents and the extent to which a patent owner may extend those rights to control downstream use and sales of patented articles. Overview A patent gives the patent owner the right to exclude others from making, using, selling, offering for sale, or importing into the U.S. the patented invention during the term of the patent.[2] The conventional rationale behind providing these exclusive rights is to promote the Progress of Science and useful Arts[3] by providing inventors the incentive to invest in researching and developing innovative technology.[4] Providing these protections, however, comes with social costs and limits the publics ability to freely alienate patented goods. Thus, public policy dictates that the patent owners exclusive rights be limited in scope. Generally, when a patent owner receives compensation for the use of his or her invention through sale of a good, the purpose of patent law is fulfilled with respect to that good.[5] Upon receiving compensation, the patent owner's rights to exclude others are exhausted and the patent law affords no basis for restraining the use and enjoyment of the thing sold.[6] Accordingly, a patent owner's voluntary introduction of a patented good into commerce without restriction prevents the patent owner from exercising his or her right to exclude others from using or reselling that good. The patent exhaustion doctrine has not been codified, and is thus still a common law doctrine. (Contrast first-sale doctrine in copyright). It was first recognized by the Supreme Court in 1873 in Adams v. Burke. In that case, the patentee authorized a licensee to make, use, and sell patented coffin lids only within a ten-mile radius in Boston. A customer of the licensee bought the coffin lids within the ten-mile radius, but later resold the lids outside of the ten-mile radius.

The patentee sued the customer, but the Supreme Court found no infringement: Once the coffin lids were lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees. Because the sale was authorized (bought within the ten-mile radius), the defendant acquired the right to use the coffin lids free from any claim of the patentee, even though he used it outside the ten-mile radius. Limitations of the Exhaustion Doctrine The exhaustion doctrine is triggered only by a sale authorized by the patent holder.[7] Thus, there are circumstances where it is difficult to determine whether the exhaustion doctrine is triggered, in light of the restrictions that the patentee has placed on the sale or use of the patented invention. Two general questions arise in these situations: (1) Was the sale authorized by the patentee? This can often be a complex factual question. (2) Even if not authorized by the patentee, are those restrictions valid and recognizable under the law? Generally, these cases involve one or more of the following scenarios: the patent owner: (1) sells one or more components of a multi-component patented good;[8] (2) licenses another to sell with certain restrictions on the sale itself;[9] or (3) sells the article with restrictions directly on the purchasers or end-users (post-sale restraint).[10] Sale of Incomplete Articles One scenario in which the exhaustion doctrine may or may not be triggered is when the patent holder sells an incomplete article that does not directly practice or embody the patent. In this situation, exhaustion is applicable to the authorized sale of an incomplete article if: (1) its only reasonable and intended use was to practice the patent, and (2) it embodies essential features of the patented invention.[11] Note that even if the exhaustion doctrine is applicable to the sale of an incomplete article, there is a separate analysis of whether the sale of that article was actually authorized, and therefore whether exhaustion was actually triggered.[12] The applicability of exhaustion to the sale of an incomplete article was recognized by the Supreme Court in 1942 in United States v. Univis Lens Co.. In that case, the patent holder sold lens blanks which had to be grinded into the patented invention. The Court held that this sale exhausted the patents on the finished lenses because the lens blanks embodi[ed] essential features of the patented device and [were] without utility until . . . ground and polished as the finished lens of the patent.[13] The Court noted that the grinding process was standard and not central to the patents, indicating further that the lens blanks constituted a material part of the patented invention and all but completely practiced the patent.

In Quanta, the Supreme Court applied the same test to determine whether exhaustion is triggered by the licensing of method patents. In that case, the patent holder (LGE) authorized the licensee (Intel) to manufacture and sell microprocessors and chipsets that used LGE method patents. The Court found that, even though the Intel products did not directly practice the method patents, they sufficiently embodied the patents, making the exhaustion doctrine applicable. First, the Court found that there was no reasonable use for the Intel products other than incorporating them into a computer system that practiced the LGE patents.[14] Second, the Intel products embodied essential features of the patented processes because the only necessary step to practice the patents was the addition of standard computer parts, like memory and buses.[15] Thus, under the Univis test, the Intel products sufficiently embodied the method patents, making the exhaustion doctrine applicable. Limitations on Sale Another scenario in which it may be difficult to determine if the sale of a patented article was authorized, and therefore if exhaustion is triggered, is when the patentee grants a license to sell with specific limitations on the seller, such as territorial, duration, or field-of-use limitations. If these restrictions have been imposed, the licensees sale to a purchaser only exhausts the patentees rights to restrict use and resale when the restrictions have not been violated. If the restrictions are violated, then exhaustion is not triggered and the patentee can sue the licensee and any downstream customers for patent infringement.[16] The Supreme Court has specifically upheld the legitimacy of field-of-use limitations in patent licensing. See General Talking Pictures doctrine. A licensee who violates a fieldof-use limitation by selling an article outside of the permissible field commits patent infringement. The exhaustion doctrine would provide no protection because the violation makes the sale unauthorized for the purposes of the exhaustion doctrine.[17] Note that limitations on sale (those imposed on the licensee in selling the patented articles) are different from post-sale limitations (those that purpose to restrict the use or sale of the patented article once purchased and in the hands of an end user, not a licensee or distributor). Patentees can avoid the exhaustion doctrine by imposing the former, but it is unclear whether patentees can do so through the latter.[18] Limitations on sale must very explicitly bind the licensee or seller. For example, in Quanta, LGE licensed Intel to make products using LGEs method patents. The license expressly stated that LGE was not licensing third parties to combine licensed product with any non-Intel products, and it required Intel to notify customers of that. Intel sold products to Quanta, who combined the Intel products with non-Intel products. LGE sued Quanta for patent infringement. The Supreme Court found that the licensing agreement failed to explicitly impose a field-of-use limitation, and therefore found that there were no conditions limiting who Intel could sell to. The sale was thus authorized, and exhaustion was triggered.

In the Courts words, The License Agreement authorized Intel to sell products that practiced the patents. No conditions limited Intels authority to sell products substantially embodying the patents. . . . Intels authorized sale to Quanta thus took its products outside the scope of the patent monopoly, and as a result, LGE can no longer assert its patent rights against Quanta.[19] Because the contractual documents in the Quanta case were insufficiently explicit, the Court applied the exhaustion doctrine, finding the sale "authorized" and unconditional, even though LGE attempted to impose some restrictions on use of the products. Therefore, purchasers of the patented product were free to use them without restrictions that the patentee sought to have imposed on them. The Court found that the licensing agreement did not impose any limitations on who the licensee could sell to. The Court did not decide, however, whether the restriction in the licensing agreement could constitute a valid post-sale limitation to make the sale unauthorized for the purposes of the exhaustion doctrine. This is discussed in the next section. Post-Sale Limitations The most difficult and unsettled area of the law regarding patent exhaustion are cases involving post-sale restrictions. Post-sale restrictions are those that purport to restrict the use or sale of the patented article once purchased and in the hands of an end user, rather than a licensee or distributor. Common post-sale restrictions include single use only and refill only with proprietary ink notices. Whether violations of such restrictions make a sale unauthorized, and therefore make patent exhaustion inappl icable, is still unclear.[20] In 1992, the Federal Circuit approved the use of post-sale restrictions in Mallinckrodt, Inc. v. Medipart, Inc.. Specifically, the court held that patent owners could condition the sale of patented goods with a restrictive notice and thereby restrict the disposition of the goods by the purchasers, with the exception of antitrust law violations, such as price-fixing and tie-in restrictions, or violations of "some other law or policy."[21] The plaintiff in the case owned a patent on a medical device, which he sold to hospitals with a single use only notice label. The defendant purchased the used devices from hospitals, refurbished them, and resold them to hospitals. The Federal Circuit held that the single use restriction was enforceable in accordance with General Talking Pictures, because the restriction was reasonably within the patent grant. . . .[22] The Supreme Court did not discuss the Mallinckrodt case in Quanta. As one commentator noted: The Supreme Court, in Quanta, was widely expected to rule on whether Mallinckrodt was good law. But the Court sidestepped the issue by narrowly interpreting the license agreement so that it was not a conditional license. . . . Because the Supreme Court sidestepped the issue, it remains unclear to what extent a patentee can use a conditional license to impose restrictions on downstream purchasers.[23]

At least one district court has concluded that Mallinckrodt is no longer good law after Quanta.[24] In Static Control Components, Inc. v. Lexmark Intl, Inc., the court concluded that the Supreme Court implicitly overruled Mallinckrodt. At issue in Static Control was Lexmarks so called prebate program, in which customers could buy cartridges that were subject to a single use for a discounted price. In its original order, before Quanta was decided, the court rejected Static Controls argument that Lexmarks patent rights were exhausted as a result of the authorized sale of the cartridges. Relying heavily on Mallinckrodt, the court found that the sales were valid post-sale restrictions that avoided exhaustion. After Quanta was decided, however, the court reversed its original order and concluded that Lexmarks single use restriction was not enforceable under patent law because the court was persuaded that Quanta overruled Mallinckrodt sub silentio.[25] The court explained, The Supreme Court's broad statement of the law of patent exhaustion simply cannot be squared with the position that the Quanta holding is limited to its specific facts. Further, the Federal Circuit relied in part on Mallinckrodt in reaching its decision in LG Electronics, Inc. v. Bizcom Electronics, Inc., 453 F.3d 1364, 1369 (Fed. Cir. 2006), the decision the Supreme Court reversed in Quanta. It is also worth noting that the Quanta decision did not mention a single Federal Circuit case.[26] The district courts conclusion, however, that Quanta overruled Mallinckrodt is ambiguous, and it reflects the ambiguity in Quanta itself. The Static Control court noted that [s]ales of Lexmark Prebate cartridges were unconditional because [n]o potential buyer was required to agree to abide by the Prebate terms before purchasing a cartridge. Thus, sales of Lexmark's Prebate toner cartridges were authorized and unconditional, just like sales of LGE's patented products in Quanta.[27] Therefore, both Quanta and Static Control can be seen as either cautionary tales about failed attempts to explicitly condition sales, without need to rule on whether the post-sale restrictions were valid, or as overruling Mallinckrodts approval of post-sale restrictions. Which interpretation is correct remains to be seen.

F
FAIR USE
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil lawjurisdictions have other limitations and exceptions to copyright. Fair use is one of the traditional safety valves. Fair use under United States law The legal concept of "test copyright" was first ratified by the United Kingdom of Great Britain's Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts created a doctrine of "Fairness Abridgement" in Gyles v Wilcox,[1] which eventually evolved into the modern concept of "fair use", that recognized the utility of such actions. The doctrine only existed in the US as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. 107. 17 U.S.C. 107 Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[2] The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in Folsom v. Marsh ,[3] in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own.[4] The court rejected the defendant's fair use defense with the following explanation: [A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ... In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. Once these factors were codified as guidelines in 17 U.S.C. 107, they were not rendered exclusive.[citation needed] The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well. Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the US Constitution defines as the promotion of "the Progress of Science and useful Arts" (Art. I, 8, cl. 8). This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes faire doctrine. Purpose and character The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie" (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like), Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[5] When Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.[6] However, since this case, courts have begun to emphasize the first fair use factor assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval.[7] More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch,[8] regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative. The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes", has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use".[9] More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use", it alone is not determinative. For example, not every educational usage is fair.[10] See also L.A. Times v. Free Republic, described below. Nature of the copied work Although the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.[11] To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyrightonly their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc v. Bernard Geis Associates.[12]

Following the decisions of the Second Circuit in Salinger v. Random House[13] and in New Era Publications Int'l v. Henry Holt & Co,[14] the aspect of whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all". However, the influential U.S. federal judge Pierre N. Leval views this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect.[15] This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." Amount and substantiality The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, ex: a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. of America v. Universal City Studios, Inc. for a case in which substantial copyingentire programs for private viewingwas upheld as fair use, at least when the copying is done for the purposes of time-shifting. Likewise, see Kelly v. Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use". Conversely, in Harper & Row Publishers Inc v. Nation Enters,[16] the use of fewer than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial. Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records Inc.[17] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[18] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles."

The recent Sixth Circuit Court decision in the appeal to Bridgeport Music, Inc. v. Dimension Films has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use. Effect upon work's value The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests not on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp v. Universal City Studios,[19] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc[20] that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation. In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct marketsubstitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.[21] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licencing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.[22] Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Fair use and professional communities Courts, when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.[23] Among the communities are documentarians, librarians, makers of Open Courseware, visual art educators, and communications professors.[24][25][26][27] Such codes of best practices have permitted communities of practice to make more informed risk assessments in employing fair use in their daily practice.[28] For instance, documentarians must obtain errors and omissions insurance before most broadcasters and cablecasters will accept it. Before they created a code of best practices in 2005, no errors and omissions insurance routinely accepted fair use claims. Now, all such insurers in the U.S. accept fair use claims within the terms of their code.[29] Practical effect of fair use defense The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial. Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."[30]

The April 2000 opinion ruled concerning the four factors of fair use that 1) defendants' use of plaintiffs' articles is minimally, if at all, transformative, 2) the factual content of the articles copied "weighs in favour of finding of fair use of the news articles by defendants in this case", though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use", and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants did not rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim". Fair use as a defense The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.[20] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. Since the defendant has the burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law. (See Strategic lawsuit against public participation). Since paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability. The frequent argument over whether fair use is a "right" or a "defense"[31] is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of artfrom litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses", and so it does not characterize the substance of the defendant's actions as "not a right but a defense".

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use ofcease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations. In 2009, fair use appeared as a defense in lawsuits against filesharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum.[32]Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.[33] On September 2, 2009 Israeli District court ruled out a detailed decision[34] not allowing disclosure of "John Doe"'s details for the request of the FA Premier League based on several reasons, but the most interesting were that "fair use" under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public's right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair. The economic benefit of fair use A balanced copyright law provides an economic benefit to many high-tech businesses such as search engines and software developers. Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers.[35] On September 12, 2007, the Computer and Communications Industry Association (CCIA),[35] a group representing companies [36] including Google Inc., Microsoft Inc., Oracle Corporation, Sun Microsystems, Yahoo![37] and other high-tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 billion dollars in annual revenue for the United States economy representing one-sixth of the total US GDP.[35] The study was conducted using a methodology developed by the World Intellectual Property Organization.[35]

The study found that fair use dependent industries are directly responsible for more than eighteen percent of US economic growth and nearly eleven million American jobs.[35] "As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy," said Ed Black, President and CEO of CCIA.[35] "Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and unlicenced manner."[35] Fair use and parody Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors. In Campbell v. Acuff-Rose Music Inc[20] the Supreme Court recognized parody as a potential fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc, had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work. A number of appellate decisions have recognized that a parody may be a protected fair use, including both the Second (Leibovitz v. Paramount Pictures Corp.) and Ninth Circuits (Mattel v. Walking Mountain Productions). Most recently, in Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was fair use, and vacated the district court's injunction against its publication.

Fair use on the Internet A US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. On appeal, the 9th Circuit Court of Appeals found in favour of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the photographs had already been published diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Last, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement. In August 2008 US District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song.[38] For more information, see Lenz v. Universal Music Corp.

Common misunderstandings Fair use is commonly misunderstood because of its deliberate ambiguity[citation needed]. Here are some of the more common misunderstandings with explanations of why they are wrong:

Any use that seems fair is fair use. In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law. Fair use interpretations are unique and limited. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.[17][citation needed] If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.[39] It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, defining some types of uses of those works as non-infringing; in effect, it limits copyright's scope and describes conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law. Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters-both can, at times, involve failure to properly credit sources -they are not identical. Plagiarismusing someone's words, ideas, images, etc. without acknowledgmentis a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is an insufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.

Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of LA Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. Strict adherence to fair use protects you from being sued. Fair use is an affirmative defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use does not guarantee that a lawsuit will be prevented. The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989, has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required[40] and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the US copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT32 synthesizer. It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.511inch photo is more substantial than copying a square foot of an 810-foot painting. In 1985, the US Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.[41]

You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works.[citation needed] However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.[42] If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use. If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the case Campbell v. Acuff-Rose Music, Inc., it was ruled that commercial parody can be fair use. Hip-hop group 2 Live Crew successfully made a parody, sold for profit, of the song "Oh, Pretty Woman".

Influence internationally While many other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.[43] While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use. However, many countries have some reference to an exemption for educational use, although the extent of this exemption may vary widely.[44] Fair dealing in Canada The Copyright Act establishes fair dealing in Canada, which allows specific exceptions to copyright protection. The open-ended concept of fair use is not observed in Canadian law. In 1985, the Sub-Committee on the Revision of Copyright rejected replacing fair dealing with an open-ended system, and in 1986 the Canadian government agreed that "the present fair dealing provisions should not be replaced by the substantially wider 'fair use' concept".[45] CCH Canadian Ltd v. Law Society of Upper Canada [2004] 1 S.C.R. 339,2004 SCC 13 is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

Israel In November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which took effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution.[46] The law sets up four factors, similar to those of section 107 under American law, to determine whether a use is fair use. See also "Fair use as a defense" above and the Fapl v. Ploni decision.[34][47] Poland Fair use exists in the Polish law and are covered by the Polish copyright law articles 23 to 35. Compared to the United States, Polish fair use distinguishes between private and public use. In Poland, when the use is public, its use risks fines. The defendant must also prove that his use was private when accused that it was not, or that other mitigating circumstances apply. Finally, Polish law treats all cases in which private material was made public as a potential copyright infringement, where fair use cannot apply. South Korea The Korean Copyright Act as amended in 2011, in articles 23~38 of section 4-2 (Limitation to the author's property rights), defines the exceptional use of copyrighted material without permission from copyright holders. A broad concept of fair use as in the above countries was stipulated in article 35-3 since 2011.[citation
needed]

FAIRNESS DOCTRINE
The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC), introduced in 1949, that required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was, in the Commission's view, honest, equitable and balanced. The FCC decided to eliminate the Doctrine in 1987, and in August 2011 the FCC formally removed the language that implemented the Doctrine.[1] The Fairness Doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters.

Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented.[2] The main agenda for the doctrine was to ensure that viewers were exposed to a diversity of viewpoints. In 1969 the United States Supreme Court upheld the FCC's general right to enforce the Fairness Doctrine where channels were limited. But the courts did not rule that the FCC was obliged to do so.[3] The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the Doctrine. However, the proliferation of cable television, multiple channels within cable, public-access channels, and the Internet have eroded this argument, since there are plenty of places for ordinary individuals to make public comments on controversial issues at low or no cost at all. The Fairness Doctrine should not be confused with the Equal Time rule. The Fairness Doctrine deals with discussion of controversial issues, while the Equal Time rule deals only with political candidates. Origins The 1949 FCC Commission Report served as the foundation for the Fairness Doctrine. It established two forms of regulation on broadcasters: to provide adequate coverage of public issues, and to ensure that coverage fairly represented opposing views.[4] The second rule required broadcasters to provide reply time to issue-oriented citizens. Broadcasters could therefore trigger Fairness Doctrine complaints without editorializing. The commission required neither of the Fairness Doctrine's obligations before 1949. Until then broadcasters had to satisfy only general public interest standards of the Communications Act.[5][6] The doctrine remained a matter of general policy and was applied on a case-by-case basis until 1967, when certain provisions of the doctrine were incorporated into FCC regulations.[7] Application of the Doctrine by the FCC In 1974, the Federal Communications Commission stated that the Congress had delegated it the power to mandate a system of "access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue..." but that it had not yet exercised that power because licensed broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It warned that:

Should future experience indicate that the doctrine [of 'voluntary compliance'] is inadequate, either in its expectations or in its results, the Commission will have the opportunityand the responsibilityfor such further reassessment and action as would be mandated.[8]

In one landmark case, the FCC argued that teletext was a new technology that created soaring demand for a limited resource, and thus could be exempt from the Fairness Doctrine. The Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) argued that teletext transmissions should be regulated like any other airwave technology, hence the Fairness Doctrine was applicable (and must be enforced by the FCC). In 1986, Judges Robert Bork and Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit concluded that the Fairness Doctrine did apply to teletext but that the FCC was not required to apply it.[9] In a 1987 case, Meredith Corp. v. FCC, two other judges on the same court declared that Congress did not mandate the doctrine and the FCC did not have to continue to enforce it.[10] Decisions of the United States Supreme Court In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8-0) the constitutionality of the Fairness Doctrine in a case of an on-air personal attack, in response to challenges that the doctrine violated the First Amendment to the U.S. Constitution. The case began when journalist Fred J. Cook, after the publication of his Goldwater: Extremist of the Right, was the topic of discussion by Billy James Hargis on his daily Christian Crusade radio broadcast on WGCB in Red Lion, Pennsylvania. Mr. Cook sued arguing that the Fairness Doctrine entitled him to free air time to respond to the personal attacks.[11] Although similar laws are unconstitutional when applied to the press, the Court cited a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in this way because of the limited public airwaves at the time. Writing for the Court, Justice Byron White declared: A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.[3]

The Court warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered. However, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court): Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.

This decision differs from Red Lion v. FCC in that it applies to a newspaper, which, unlike a broadcaster, is unlicensed and can theoretically face an unlimited number of competitors. In 1984, the Supreme Court ruled that Congress could not forbid editorials by non-profit stations that received grants from the Corporation for Public Broadcasting (FCC v. League of Women Voters of California, 468 U.S. 364 (1984)). The Court's 5-4 majority decision by William J. Brennan, Jr. stated that while many now considered that expanding sources of communication had made the Fairness Doctrine's limits unnecessary: We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required. (footnote 11)

After noting that the FCC was considering repealing the Fairness Doctrine rules on editorials and personal attacks out of fear that those rules might be "chilling speech", the Court added: Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine '[has] the net effect of reducing rather than enhancing' speech, we would then be forced to reconsider the constitutional basis of our decision in that case. (footnote 12)[12]

Revocation Basic doctrine In 1985, under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's presidential campaign staff in 1976 and 1980, the FCC released a report stating that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment. In August 1987, under FCC Chairman Dennis R. Patrick, the FCC abolished the doctrine by a 4-0 vote, in the Syracuse Peace Council decision, which was upheld by a panel of the Appeals Court for the D.C. Circuit in February 1989.[13] The FCC suggested in Syracuse Peace Council that because of the many media voices in the marketplace, the doctrine be deemed unconstitutional, stating that: The intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.

At the 4-0 vote, Chairman Patrick said, We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception.[14]

The FCC vote was opposed by members of Congress who said the FCC had tried to "flout the will of Congress" and the decision was "wrongheaded, misguided and illogical.".[15] The decision drew political fire and tangling, where cooperation with Congress was at issue.[16] In June 1987, Congress attempted to preempt the FCC decision and codify the Fairness Doctrine,[17] but the legislation was vetoed by President Ronald Reagan. Another attempt to revive the doctrine in 1991 was stopped when President George H.W. Bush threatened another veto.[18] Fowler said in February 2009 that his work toward revoking the Fairness Doctrine under the Reagan Administration had been a matter of principle (his belief that the Doctrine impinged upon the First Amendment), not partisanship. Fowler described the White House staff raising concerns, at a time before the prominence of conservative talk radio and during the preeminence of the Big Three television networks and PBS in political discourse, that repealing the policy would be politically unwise. He described the staff's position as saying to Reagan:

The only thing that really protects you from the savageness of the three networksevery day they would savage Ronald Reaganis the Fairness Doctrine, and Fowler is proposing to repeal it![19]

Instead, Reagan supported the effort and later vetoed the Democratic-controlled Congress's effort to make the doctrine law. Corollary rules Two corollary rules of the doctrine, the personal attack rule and the "political editorial" rule, remained in practice until 2000. The "personal attack" rule applied whenever a person (or small group) was subject to a personal attack during a broadcast. Stations had to notify such persons (or groups) within a week of the attack, send them transcripts of what was said and offer the opportunity to respond on-the-air. The "political editorial" rule applied when a station broadcast editorials endorsing or opposing candidates for public office, and stipulated that the unendorsed candidates be notified and allowed a reasonable opportunity to respond. The U.S. Court of Appeals for the D.C. Circuit ordered the FCC to justify these corollary rules in light of the decision to repeal the Fairness Doctrine. The FCC did not provide prompt justification and ultimately ordered their repeal in 2000. Reinstatement considered Support In February 2005, U.S. Representative Louise Slaughter (Democrat of New York) and 23 co-sponsors introduced the Fairness and Accountability in Broadcasting Act (H.R. 501)[20] in the 1st Session of the 109th Congress of 2005-7 (when Republicans held a majority of both Houses). The bill would have shortened a station's license term from eight years to four, with the requirement that a license-holder cover important issues fairly, hold local public hearings about its coverage twice a year, and document to the FCC how it was meeting its obligations.[21] The bill was referred to committee, but progressed no further.[22] In the same Congress, Representative Maurice Hinchey (another Democrat from New York) introduced legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, had 16 co-sponsors in Congress.[23] In June 2007, Senator Richard Durbin (D-Illinois) said, "It's time to reinstitute the Fairness Doctrine,"[24] an opinion shared by his Democratic colleague, Senator John Kerry of Massachusetts.[25] However, according to Marin Cogan of The New Republic in late 2008:

Senator Durbin's press secretary says that Durbin has 'no plans, no language, no nothing. He was asked in a hallway last year, he gave his personal view'that the American people were served well under the doctrine'and it's all been blown out of proportion.'[26]

On June 24, 2008, U.S. Representative Nancy Pelosi of San Francisco, California (who had been elected Speaker of the House in January 2007) told reporters that her fellow Democratic Representatives did not want to forbid reintroduction of the Fairness Doctrine, adding "the interest in my caucus is the reverse." When asked by John Gizzi of Human Events, "Do you personally support revival of the 'Fairness Doctrine?, the Speaker replied "Yes."[27] On October 22, 2008, Senator Jeff Bingaman (Democrat of New Mexico) told a conservative talk radio host in Albuquerque, New Mexico: I would want this station and all stations to have to present a balanced perspective and different points of view. All Im saying is that for many, many years we operated under a Fairness Doctrine in this country, and I think the country was well-served. I think the public discussion was at a higher level and more intelligent in those days than it has become since.[28]

On December 15, 2008, U.S. Representative Anna Eshoo (Democrat of California) told The Daily Post in Palo Alto, California that she thought it should also apply to cable and satellite broadcasters. Ill work on bringing it back. I still believe in it. It should and will affect everyone.[29]

On February 11, 2009, Senator Tom Harkin (Democrat of Iowa) told Press, "...we gotta get the Fairness Doctrine back in law again." Later in response to Press's assertion that "...they are just shutting down progressive talk from one city after another," Senator Harkin responded, "Exactly, and that's why we need the fairthat's why we need the Fairness Doctrine back."[30]Former President Bill Clinton has also shown support for the Fairness Doctrine. During a February 13, 2009, appearance on the Mario Solis Marich radio show, Clinton said: Well, you either ought to have the Fairness Doctrine or we ought to have more balance on the other side, because essentially there's always been a lot of big money to support the right wing talk shows.

Clinton cited the "blatant drumbeat" against the stimulus program from conservative talk radio, suggesting that it doesn't reflect economic reality.[31]

Opposition The Fairness Doctrine has been strongly opposed by prominent conservatives and libertarians who view it as an attack on First Amendment rights and property rights. Editorials in The Wall Street Journal and The Washington Times in 2005 and 2008 said that Democratic attempts to bring back the Fairness Doctrine have been made largely in response to conservative talk radio.[32][33] In 2007, Senator Norm Coleman (Republican, Minnesota) proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule."[34] It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee's jurisdiction". In the same year, the Broadcaster Freedom Act of 2007 was proposed in the Senate by Senators Coleman with 35 co-sponsors (S.1748) and John Thune (R-SD) with 8 cosponsors (S.1742)[35] and in the House by Republican Representative Mike Pence of Indiana with 208 co-sponsors (H.R. 2905).[36] It provided that: The Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part) the requirement that broadcasters present opposing viewpoints on controversial issues of public importance, commonly referred to as the `Fairness Doctrine', as repealed in General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985).[37]

Neither of these measures came to the floor of either house. On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet.[38] It could also include "government dictating content policy".[39] The conservative Media Research Center's Culture & Media Institute argued that the three main points supporting the Fairness Doctrine media scarcity, liberal viewpoints being censored at a corporate level, and public interest are all myths.[40]

On February 16, 2009, Mark Fowler said: I believe as President Reagan did, that the electronic pressand you're included in thatthe press that uses air and electrons, should be and must be as free from government control as the press that uses paper and ink, Period.[19]

In the 111th Congress (January 2009 to January 2011), the Broadcaster Freedom Act of 2009 (S.34, S.62, H.R.226) was introduced to block reinstatement of the Doctrine. On February 26, 2009, by a vote of 87-11, the Senate added that act as an amendment to the District of Columbia House Voting Rights Act of 2009 (S.160),[41] [a bill which later passed the Senate 61-37, but not the House of Representatives].[42] The Associated Press reported that the vote on the Fairness Doctrine rider was: In part a response to conservative radio talk show hosts who feared that Democrats would try to revive the policy to ensure liberal opinions got equal time.

The AP report went on to say that President Obama had no intention of reimposing the doctrine, but Republicans (led by Sen. Jim DeMint, R-S. Carolina) wanted more in the way of a guarantee that the doctrine would not be reimposed.[43] Suggested alternatives Not to be confused with Unfairness doctrine. Media reform organizations such as Free Press feel that a return to the Fairness Doctrine is not as important as setting stronger station ownership caps and stronger "public interest" standards enforcement (with funding from fines given to public broadcasting).[44] In June 2008, Barack Obama's press secretary wrote that Obama (then a Democratic U.S. Senator from Illinois and candidate for President): Does not support reimposing the Fairness Doctrine on broadcasters ... [and] considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible. That is why Sen. Obama supports mediaownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets.[45]

In February 2009, a White House spokesperson said that President Obama continues to oppose the revival of the Doctrine.[46]

Public opinion In an August 13, 2008 telephone poll released by Rasmussen Reports, 47% of 1,000 likely voters supported a government requirement that broadcasters offer equal amounts of liberal and conservative commentary, while 39% opposed such a requirement. In the same poll, 57% opposed and 31% favored requiring Internet web sites and bloggers that offer political commentary to present opposing points of view. By a margin of 71%-20% the respondents agreed that it is "possible for just about any political view to be heard in todays media" (including the Internet, newspapers, cable TV and satellite radio), but only half the sample said they had followed recent news stories about the Fairness Doctrine closely. (The margin of error was 3%, with a 95% confidence interval.)[47] Formal revocation In June 2011, the Chairman and a subcommittee chairman of the House Energy and Commerce Committee, both Republicans, said that the FCC, in response to their requests, had set a target date of August 2011 for removing the Fairness Doctrine and other "outdated" regulations from the FCC's rulebook.[48] On August 22, 2011, the FCC formally voted to repeal the language that implemented the Fairness Doctrine, along with removal of more than eighty other rules and regulations, from theFederal Register following a White House executive order directing a "government-wide review of regulations already on the books", to eliminate unnecessary regulations.[1]

FINALITY (LAW)
Finality, in law, is the concept that certain disputes must achieve a resolution from which no further appeal may be taken, and from which no collateral proceedings may be permitted to disturb that resolution. For example, in some jurisdictions, a person convicted of a crime may not sue their defense attorney for incompetence or legal malpractice if the civil lawsuit would call into question the finality of the criminal conviction.[1][2] Finality is considered to be important because, absent this there would be no certainty as to the meaning of the law, or the outcome of any legal process. The importance of finality is the source of the concept of res judicata - that the decisions of one court are settled law, and may not be retried in another case brought in a different court.[3]

FIRM OFFER
A firm offer means an irrevocable offer made by a merchant. As a general rule, all offers are revocable at any time prior to acceptance, even those offers that purport to be irrevocable on their face. An exception to this general rule exists under the Merchants Firm Offer Rule:[1] A firm offer in effect creates an option contract without requiring any consideration from the prospective buyer. Because the firm offer holds the seller to a higher standard than the potential buyer, it reflects a change from traditional common law, which treated all parties to a contract the same way, to a more modern view that holds certain parties to a higher standard of behavior. UCC 2-205 Firm Offers An offer (A) by a merchant to buy or sell goods (B) in a signed record that by its terms gives assurance that it will be held open is not revocable for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; Any such term of assurance in a form supplied by the offeree must be separately signed by the offeror. Note: That when the period of irrevocability expires, the offer may still remain open until revoked or rejected according to the general rules regarding termination of an offer. UCC 2-205 states that an offer is firm and irrevocable if:

it is an offer to buy or sell goods it is made by a merchant it is a signed writing

FIRST-SALE DOCTRINE
The first-sale doctrine plays an important role in copyright and trademark law by limiting certain rights of a copyright or trademark owner. The doctrine enables the distribution chain of copyrighted products, library lending, gifting, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others). In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder put the products on the market. The doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule." The first-sale doctrine is one of the traditional safety valves.

Overview Copyright law grants a copyright owner an exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. 106(3). This is called "distribution right" and differs from the copyright owner's "reproduction right" which involves making copies of the copyrighted works. Rather than the right to copy, the distribution right involves the right to transfer physical copies or phonorecords (i.e., recorded music) of the copyrighted work. For example, the distribution right could be infringed when a retailer acquires and sells to public unlawfully made audio or video tapes. Although the retailer may not have copied the work in any way and may not have known that the tapes were made unlawfully, he nevertheless infringes the distribution right by the sale. The distribution right allows the copyright owner to go after any member in the chain of distribution. The first-sale doctrine creates a basic exception to the copyright holder's distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. Thus, one who buys a copy of a book is entitled to resell it, rent it, give it away, or destroy it. However, the owner of the copy of the book will not be able to make new copies of the book because the first-sale doctrine does not limit copyright owner's reproduction right. The rationale of the doctrine is to prevent the copyright owner from restraining the free alienability of goods. Without the doctrine, a possessor of a copy of a copyrighted work would have to negotiate with the copyright owner every time he wished to dispose of his copy. After the initial transfer of ownership of a legal copy of a copyrighted work, the first-sale doctrine exhausts copyright holder's right to control how ownership of that copy can be disposed of. For this reason, this doctrine is also referred to as "exhaustion rule." The doctrine was first recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976, 17 U.S.C. 109. In the Bobbs-Merrill case, the publisher, Bobbs-Merrill, had inserted a notice in its books that any retail sale at a price under $1.00 would constitute an infringement of its copyright. The defendants, who owned Macy's department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrill's consent. The Supreme Court held that the exclusive statutory right to "vend" applied only to the first sale of the copyrighted work. Section 109(a) provides: "Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

The elements of the first sale doctrine can be summarized as follows: (1) the copy was lawfully made with the authorization of the copyright owner; (2) ownership of the copy was initially transferred under the copyright owner's authority; (3) the defendant is a lawful owner of the copy in question; and (4) the defendant's use implicates the distribution right only; not the reproduction or some other right given to the copyright owner. Application to public display right 17 U.S.C. 109(c) creates a limited exception to a copyright owner's public display right. Owner of a lawful copy of a copyrighted work can, without permission from the copyright owner, display that copy to viewers present at the place where the copy is located. For example, an owner of copy of a computer program (and only a computer program under 109(c)) cannot display the copy publicly on a website under this provision. An amicus brief in Kirtsaeng v. John Wiley & Sons, Inc. argued that Section 109 was a key provision for US art museums: Most U.S. art museums have permanent collections that were acquired through purchases, gifts, and bequests, and on which they draw for exhibitions to the public. Museums also present special exhibitions, largely made up of works not in their collections, through loans from private collectors, galleries, and other institutions. For all these activities museums depend on the protections afforded by Section 109. Section 109(c) provides that the owner of a particular copy lawfully made under this title is entitled to display that copy publicly without the copyright owners permission. Section 109(a) similarly allows museums to buy, borrow, loan, and sell such lawfully made artworks.[1] Limitations The first sale doctrine only limits copyright holders' distribution right. However, occasionally this principle clashes with the copyright owner's other rights such as reproduction and adaptation rights. For example, in Lee v. A.R.T. Co., the defendant bought plaintiff's artworks in the form of notecards and then mounted them on ceramic tiles, covering the artworks with transparent epoxy resin. Despite plaintiff's assertion of violation of his adaptation right, the 7th Circuit held that the adaptation right was not violated and that defendant's sale of the tiles was protected under the first sale doctrine. However, based on very similar facts, the 9th Circuit in Mirage Editions, Inc. v. Albuquerque A.R.T. Company held that plaintiff's adaptation right was infringed and that the first sale doctrine did not protect the defendant under such circumstances.

Application to digital copies Application of the first-sale doctrine to digital copies of copyrighted works poses difficult policy questions. In today's world, copies of copyrighted works, music, movies, and software, are increasingly bought by downloading through the Internet. For example, can a lawful purchaser of a song in the AAC format from the iTunes Store be allowed, consistent with the first sale doctrine, to resell or distribute that copy to others? Digital copies of copyrighted works do not comfortably fit within the constraints of the first-sale doctrine. Unlike transactions where a tangible copy changes hands, a digital transfer results in a reproduction of the work through the electronic transmission of a new copy of the work to its recipient. In other words, transferor retains the source copy unless deleted from the hard disk manually or through some special technology. By sending a copy to the transferee, the transferor infringes both the reproduction and distribution rights, but the first-sale doctrine provides no defense to the infringement of the reproduction right. For example, this exact issue is playing out in the ongoing litigation against ReDigi, an online marketplace for pre-owned digital music. The question is whether the first-sale doctrine should be retooled to reflect the realities of the digital age. Physical copies degrade over time, whereas digital information does not. Works in digital format can be reproduced without any flaws and can be disseminated worldwide without much difficulty. Thus, applying the first-sale doctrine to digital copies affect the market for the original to a greater degree than transfers of physical copies. The U.S. Copyright Office stated that "[t]he tangible nature of a copy is a defining element of the first-sale doctrine and critical to its rationale."[2] However, in Europe, the European Court of Justice ruled on July 3, 2012, that it is indeed permissible to resell software licenses even if the digital good has been downloaded directly from the Internet, and that the first-sale doctrine applied whenever software was originally sold to a customer for an unlimited amount of time, as such sale involves a transfer of ownership, thus prohibiting any software maker from preventing the resale of their software by any of their legitimate owners.[3][4][5] The court requires that the previous owner must no longer be able to use the licensed software after the resale, but finds that the practical difficulties in enforcing this clause should not be an obstacle to authorizing resale, as they are also present for software which can be installed from physical supports, where the first-sale doctrine is in force.[6][7] The ruling applies to the European Union, but could indirectly find its way to North America; moreover the situation could entice publishers to offer platforms for a secondary market.[4]

Ownership requirement For the first sale doctrine to apply, lawful "ownership" of the copy or phonorecord is required. As 109(d) prescribes, first sale doctrine does not apply if the possession of the copy is "by rental, lease, loan, or otherwise without acquiring ownership of it." Some software and digital content publishers claim in their end-user license agreements (EULA) that their software or content is licensed, not sold, and thus the first sale doctrine does not apply to their works. These publishers have had some success in contracting around first sale doctrine through various clickwrap, shrink wrap, and other license agreements. For example, if you buy MP3 songs from Amazon.com, the MP3 files are merely licensed to you and hence you may not be able to resell those MP3 files. However, MP3 songs bought through iTunes Storemay be characterized as "sales" because of Apple's language in its EULA and hence they maybe resell-able, if other requirements of first sale doctrine are met. Courts have struggled and taken dramatically different approaches to sort out when only a license was granted to the end user as compared to ownership. Most of these cases involved software-licensing agreements. In general, courts look beneath the surface of the agreements to conclude whether the agreements create licensing relationship or if they amount to, in substance, sales subject to first sale doctrine under 109(a). Thus, specifying that the agreement grants only a "license" is necessary to create the licensing relationship, but not sufficient. Other terms of the agreement should be consistent with such a licensing relationship. In Vernor v. Autodesk, Inc. the 9th Circuit created a three-factor test to decide whether a particular software licensing agreement is successful in creating a licensing relationship with the end user. The factors include: 1) whether copyright owner specifies that a user is granted a license; 2) whether the copyright owner significantly restricts the user's ability to transfer the software to others; and 3) whether the copyright owner imposes notable use restrictions on the software. In Vernor, Autodesk's license agreement specified that it retains title to the software and the user is only granted a non-exclusive license. The agreement also had restrictions against modifying, translating, or reverse-engineering the software, or removing any proprietary marks from the software packaging or documentation. The agreement also specified that software could not be transferred or leased without Autodesk's written consent, and could not be transferred outside the Western Hemisphere. Based on these facts, the 9th Circuit held that the user is only a licensee of Autodesk's software, not an owner and hence the user could not resell the software on eBay without Autodesk's permission. However, the same 9th Circuit panel that decided Vernor v. Autodesk, refused to apply Vernor's three-factor test in UMG v. Augusto to a purported licensing agreement created when UMG sent unsolicited promotional CDs to music critics.

The promotional CDs' packaging contained the language: "This CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws." Augusto tried to sell these CDs on eBay and UMG argued that first sale doctrine did not apply since the CDs were not sold and only a licensing relationship was created. However the court held that first sale doctrine applies when a copy is given away and that recipients of the promotional CDs did not accept the terms of the license agreement by merely not sending back the unsolicited CDs. In the case UsedSoft v Oracle, the European Court of Justice ruled that the sale of a software product, either through a physical support or download, constituted a transfer of ownership in EU law, thus the first sale doctrine applies; the ruling thereby breaks the "licensed, not sold" legal theory, but leaves open numerous questions.[8] Importation of copies Section 602(a)(1) of the Copyright statute states that "importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords." This provision provides copyright owner an opportunity to stop goods from entering the United States market altogether. Application of this provision created difficult legal issues in the context of gray market products. Gray market dealers buy the genuine goods in foreign countries at a significant discount from U.S. prices. They then import these genuine goods into the U.S. and sell them at discount prices, undercutting the authorized U.S. dealers. The gray market exists where the price for goods outside the US is lower than the price inside. On the surface, 602(a), barring unauthorized importation, would seem to clash with the first-sale doctrine, which permits the resale of lawfully made copies. The issue comes down to whether 602(a) creates an affirmative right to bar all unauthorized importation, or does the first-sale doctrine limit the reach of 602(a), thus permitting the resale of at least some lawfully made imported copies. In 1998 the U.S. Supreme Court in Quality King v. L'Anza found that first-sale doctrine applied to imported goods at least where the imported goods are first lawfully made in the United States, shipped abroad for resale, and later reenter the United States. That case involved importation of hair care products bearing copyrighted labels. A unanimous Supreme Court found that the first-sale doctrine does apply to importation into the US of copyrighted works (the labels), which were made in the US and then exported.

However, the Supreme Court did not decide the issue where gray-market products are initially manufactured abroad and then imported into the US. The Court indicated that importation of goods made outside the US could perhaps be barred under 602(a), since such goods would not be "lawfully made under this title." Such products might be lawfully made, either by the copyright owner or a licensee, but they would not be lawfully made under US copyright law. Rather, they would be lawfully made under the copyright laws of the other country; and the first-sale doctrine would therefore not limit the 602 importation restriction. The 2008 Omega v. Costco case involved this exact unresolved issue, where the defendant Costco obtained authentic Omega watches, which feature a copyrighted design on the back of the watches, through the gray market and resold them in its stores in the US. Omega manufactured these watches outside the US and did not authorize their importation into the US. Based on the Quality King case, the 9th Circuit held that "application of first-sale doctrine to foreign-made copies would impermissibly apply" the Copyright Act extraterritorially. However, the court stated that first-sale doctrine might still apply to a foreign manufactured copy if it was imported "with the authority of the U.S. copyright owner." The Supreme Court granted certiorari toOmega v. Costco, and affirmed 4-4. However, as an evenly split decision, it set precedent only in the 9th Circuit, not nationwide.[9] However, in Kirtsaeng v. John Wiley & Sons, Inc.,[10] in 2013, the United States Supreme Court held in a 6-3 decision that the first-sale doctrine applies to goods manufactured abroad, even if they were manufactured abroad with the copyright owner's permission and imported into the US. The case involved a plaintiff who imported Asian editions of textbooks that were manufactured abroad with the publisher-plaintiff's permission. The defendant then without permission from the publisher imported the textbooks and resold on eBay. The Supreme Court's holding severely limits the ability of copyright holders to charge vastly different prices in different markets due to ease of arbitrage. The decision does remove incentives to US manufacturers to shift the manufacturing abroad to attempt to circumvent the first-sale doctrine altogether. Exceptions Record rentals The Record Rental Amendment of 1984, codified in 17 USC 109(b) prohibits an owner of a phonorecord that embodies a sound recording or musical work from renting it to the public for direct or indirect commercial advantage. This exception was designed to prevent music stores from renting records and thereby facilitating home copying. Section 109(b) is an exception to the first sale doctrine, but it is limited in several ways. It applies only to rentals, and not to resale or other transfers. It is also limited to a subset of sound recordingsonly those sound recordings that contain only a musical work.

It does not apply to sound recordings that contain other content, such as commentaries or dialog soundtrack, or to non-musical sound recordings, for example audiobooks. Lastly, libraries and educational institutions are exempt from this restriction, and may rent or loan musical sound recordings. Software rentals The Copyright Software Rental Amendments Act of 1990 amended 109(b) further to prohibit rentals of computer software for direct or indirect commercial advantage. The exception does not apply to lending of a copy by a nonprofit library for nonprofit purposes, provided the library affixes an appropriate warning. The amendment also specifically excluded:

A computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or A computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.

Application in trademark law With reference to trade in tangible merchandise, such as the retailing of goods bearing a trademark, the first sale doctrine serves to immunize a reseller from infringement liability. Such protection to the reseller extends to the point where said goods have not been altered so as to be materially different from those originating from the trademark owner.

FLEEING FELON RULE

At Common law, the Fleeing Felon Rule permits the use of force, including deadly force, against an individual who is suspected of a felony and is in clear flight.[citation needed] Force may be used by the victim, bystanders, or police officers. [citation needed] In some jurisprudence failure to use such force was a misdemeanor which could result in a fine or imprisonment.[citation needed]According to David Caplan "Immediate stopping of the fleeing felon, whether actually or presumably dangerous, was deemed absolutely necessary for the security of the people in a free state, and for maintaining the "public security." ... "[citation needed] Indeed, it has been said that the social policy of the common law in this matter was not only to threaten dangerous felons and hence deter them, but was also to induce them to "surrender peaceably" if they dared commit inherently dangerous felonies, rather than allow them to "escape trial for their crimes." [1]

U.S. Law Under U.S. law the fleeing felon rule was limited to non-lethal force in most cases by Tennessee v. Garner, 471 U.S. 1 (1985). The justices held that deadly force "may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Fleeing felons may be followed into places not open to the public without a warrant if the officer is in "hot pursuit." See Warden, Md. Penitentiary v. Hayden (1967),[2] 87 S.Ct. 1642, 18 L.Ed.2d 782. Deadly force executed by a co-defendant against an accomplice is not justified by the fleeing felon rule. Campbell v. State (MD, 1982) [3] Case Law

Samuel Alito's memo written while working in the Solicitor General's office regarding Memphis Police v. Garner which was the Sixth Circuit appellate case leading to Tennessee v. Garner.[4] (May 18, 1984) (PDF) People v. Crouch[5] (1990) in the Michigan Supreme Court held that Tennessee v. Garner was 1. civil rather than criminal action; 2. did not affect Michigan's Fleeing Felon Rule; and 3. that a citizen may use deadly force when restraining a fleeing felon in a criminal matter.

State v. Weddell,[6] The Nevada Supreme Court ruled that a private citizen may not use deadly force under the common law fleeing felon rule.

FORUM NON CONVENIENS

Forum non conveniens (Latin for "forum not agreeing") (FNC) is a (mostly) common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. A concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction.

The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity, also apply incivil law systems in the form of the legal doctrine of lis alibi pendens. Forum non conveniens is not exclusive to common law nations: the maritime courts of the Republic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions.[1] Explanation A country, state, or other jurisdiction enacts laws which are interpreted and applied through a system of courts. The laws applied by a particular system of courts or legal system are termed the lex fori, or law of the forum. As a matter of civil procedure, courts must decide whether and in what circumstances they will accept jurisdiction over parties and subject matter when a lawsuit begins. This decision will be routine, or not raised at all, if the relevant elements of the case are within the territorial jurisdiction of the court. If one or more of the parties resides outside the territorial jurisdiction or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled. Historical origin Scholars and jurists seem to find a Scottish origin prior to the first American use of the concept.[2][3][4][5] Some writers see the doctrine of FNC as having developed from an earlier doctrine of forum non competens ("non-competent forum"). Many early cases in the U.S. and Scotland involving FNC were cases under admiralty law. FNC thus may ultimately have a civil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts. The doctrine of FNC originated in the United States in Willendson v Forsoket 29 Fed Cas 1283 (DC Pa 1801) (No 17,682) where a federal district court in Pennsylvania declined to exercise jurisdiction over a Danish sea captain who was being sued for back wages by a Danish seaman, stating that "[i]f any differences should hereafter arise, it must be settled by a Danish tribunal." In Scotland, the concept is first recorded in MacMaster v MacMaster (Judgment of 7 June 1833, Sess, Scot 11 Sess Cas, First Series 685.) United Kingdom The doctrine has limited application in most civil law jurisdictions which prefer lis alibi pendens, although the principle behind FNC is acknowledged. As a member of the European Union, theUnited Kingdom signed the Brussels Convention. The Civil Jurisdiction and Judgments Act (1982) as amended by the Civil Jurisdiction and Judgments Act (1991)) states:

"Nothing in this Act shall prevent any court in the UK from staying, sisting [staying or stopping a process, or summoning a party[6]], striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 [Brussels] Convention or, as the case may be, the Lugano Convention." The case of Owusu v Jackson and Others[7] before the European Court of Justice, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the European Community. In Owusu, the English Court of Appeal asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU. If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46, the ECJ held: the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.[8] However, some UK commentators argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. What is certain is that a Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction.[9] Australia In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum. Courts have been split in their applications of the rule. In Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills (1990) 171 CLR 538 the High Court of Australia refused to adopt the "most suitable forum" approach and instead devised its own "clearly inappropriate forum" test. Nevertheless, the Australian courts balanced the foreign and local factors, and a dismissal would only be granted if the defendant could show that he was "oppressed" or "harassed" by the plaintiff's choice of Australia for legal action. This retained the rationale of the traditional doctrine, making it impossible for Australian defendants to obtain a dismissal from their own courts on FNC grounds. In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, the High Court affirmed the "clearly inappropriate forum" test as Australian law, while stating that even where the law of a foreign country had to be applied to decide a case, Australia would not be a "clearly inappropriate" forum for hearing the

matter.[10] However, with the advent of the Civil Procedure Act (2005), this common law position in Australia has changed. Canada The doctrine of FNC in Canada was considered in Amchem Products Inc. v. British Columbia Worker's Compensation Board, [1993] 1 S.C.R. 897. The Court held that the test for striking out a claim for FNC is where "there is another forum that is clearly more appropriate than the domestic forum." If the forums are both found to be equally convenient, the domestic forum will always win out. Convenience is weighed, using a multi-factored test that includes elements such as: the connection between the plaintiff's claim and the forum, the connection between the defendant and the forum, unfairness to the defendant by choosing the forum, unfairness to the plaintiff in not choosing the forum, involvement of other parties to the suit (i.e. location of witnesses), and issues of comity such as reciprocity and standard of adjudication. The Supreme Court has underlined that FNC inquiries are similar to but distinct from the "real and substantial connection" test used in challenges to jurisdiction. The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue. The law of the province of Quebec, Canada is slightly different. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides: "Even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide." The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., see H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada (1995) R.J.Q. 213 (Quebec. Supr. Ct.); Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. (1997) R.J.Q. 58 (Quebec. C.A.); Spar Aerospace v. American Mobile Satellite (2002) 4 S.C.R. 205, and Grecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.) United States The defendant may move to dismiss an action on the ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiffs choice of forum. In other words, if the plaintiffs choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If a transfer would simply shift the inconvenience from one party to the other, the plaintiffs choice of forum should not be disturbed.

Generally, a corporation sued in the jurisdiction of its headquarters is not entitled to seek an FNC dismissal. Thus if an American corporation is sued in an area where it only transacts business but not where it has its headquarters, and the court dismisses based upon FNC, the plaintiff may refile the action in the jurisdiction of the corporations headquarters. In deciding whether to grant the motion, the court considers:

The location of potential witnesses. The defendant must make a full and candid showing, naming the potential witnesses for the defense, specifying their location, specifying what their testimony may be and how crucial it is for the defense, and setting forth how exactly they may be inconvenienced by having to testify in the court chosen by plaintiff. The location of relevant evidence and records. The defendant must identify the records; explain who is in charge of the records; address necessity, language, and translation problems; address the volume of such records; address the law governing these records; and rule out the existence of duplicate records in the jurisdiction chosen by the plaintiff. The mere fact that records need to be translated is not sufficient grounds to invoke FNC. Possible undue hardship for the defendant. The defendant must explain what the hardship is and how material the costs are. If there are costs involved, they need to be spelled out. If there is a difficulty in getting witnesses out of a foreign court and into the original court, this needs to be revealed to the court. The defendant must explain why the use of letters rogatory or other judicial reciprocity tools are not sufficient and cannot replace actual transfer of the case. The standard that the defendant must meet is overwhelming hardship if they are required to litigate in the forums State. Availability of adequate alternative forums for the plaintiff. Merely pointing out that the plaintiff could have sued somewhere else is not sufficient to succeed on an FNC motion. The expeditious use of judicial resources. In practice, this is just boilerplate language that comes along with the application. However, sometimes the court chosen by the plaintiff may be logistically or administratively unfit or illequipped for the case; for example, a case may involve a large number of torts. The choice of law applicable to the dispute. If all other factors weigh in favor of keeping the case in the jurisdiction where it was filed, then the court may choose between application of local law (lex fori) or relevant foreign law. Thus, the mere fact that foreign law may apply to the event, circumstances, accident, or occurrence is not a strong reason to dismiss the case on FNC grounds. Questions of public policy. In analyzing the factors, the subject matter of the complaint may touch on a sensitive issue that is important to the laws of either the original jurisdiction or the alternative forum. Those public policy issues must be pinpointed, analyzed and briefed in a way that makes it clear why this issue overrides the other

factors. For example, an employee suing a foreign corporation in a state of employment, may enjoy the public policy to protect local employees from foreign abusers. See the Federal Employers Liability Act (FELA) for further reference. Additional factors include:

The location where the cause of action arose. In most states, defendant must usually show that the cause of action arose outside of the jurisdiction. The identities of the parties. Who is suing whom? Is the plaintiff suing an individual defendant or a small company without financial means as a method to oppress the defendant with financial and legal costs by litigating in a remote court? Is the defendant a conglomerate making the FNC application simply to force the plaintiff to bear expensive costs of travel and retainer of foreign lawyers? A plaintiff who is a resident in the state where action was filed is normally entitled to have his case heard in his home state. Vexatious motive. Where there is no evidence that the plaintiff had improper intent in bringing the case specifically in a particular forum, courts usually deny the FNC motion. Jurisprudential development and political conditions at the foreign forum. Is the court going to send the plaintiff to a land where the law is underdeveloped, uncivilized, or where there is noequal protection or due process? Is the court going to send the plaintiff to another court in a country where violence is rampant or in the middle of a war? A suit will not be dismissed if the foreign court does not permit litigation of the subject matter of the complaint, no live testimony of the plaintiff is required by appearance, or if the foreign law is otherwise deficient in its protocols or procedures. The determination of the court may not be arbitrary or abusive as this is a drastic remedy to be applied with caution and restraint. As for the transfer of a trial to a jurisdiction outside of the U.S., courts will only grant the transfer if a foreign court is more appropriate, and there may be a real opportunity to obtain justice there. In New York, for example, there is a strong presumption in favor of the plaintiffs choice of forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1947); R. Maganlal & Co., 942 F.2d 164, 167 (2nd Cir. 1991); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000); and Maran Coal Corp. V. Societe Generale de Surveillance S.A., No. 92 CIV 8728, 1993 US.Dist. LEXIS 12160 at *6 (S.D.N.Y. September 2, 1993). A defendant must show compelling evidence in order to disturb the choice of forum. The burden of proof is on the defendant: Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S.D.N.Y. 2006). The court must also consider the defendants vast resources compared with the plaintiffs limited resources as an aggrieved individual: See Wiwa at 107: defendants have not demonstrated that these costs [of shipping documents and witnesses] are excessively burdensome, especially in view of defendants vast

resources. Also, Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003) at 341: A countervailing factor is the relative means of the parties. In 2006, the 2nd Circuit Federal Court in New York issued a decision in the famous Coca Cola case. Coca Cola took over assets of Jews expelled from Egypt in the 1950s and was sued in New York. Bigio v. Coca Cola Company, 448 F.3d 176 (2d Cir. 2006), certiorari to Sup. Ct. denied. In that case, the plaintiffs were Canadians and non residents of New York. The court denied Coca Colas FNC motion and the U.S. Supreme Court denied certiorari. The 2nd Circuit stated that the fact that the New York court would need to apply modest application of Egyptian law was not a problem because courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity. Also, the fact that there were witnesses abroad was not a problem either. They could be flown into the U.S. or Letters Rogatory could be issued to the Egyptian courts to collect their testimony. Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for legitimate reasons. The fact that plaintiffs could sue in Canada was not relevant because Coca Cola was a U.S. company and it was perfectly reasonable to sue in the US. European Union The doctrine of FNC gained little footing in the civil law world, which prefers the approach of lis pendens (see Articles 21-23 Brussels Convention). The civil law jurisdictions generally base jurisdiction on the residence of the defendant and on choice of law rules favouring the habitual residence of the parties, the lex situs, and the lex loci solutionis (applying actor sequitur forum rei). This reflects an expectation that a defendant should be sued at his "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2 Brussels I Regulation provides: Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State. Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State. But this is subject to the substantial exceptions contained in Articles 3-6, the limitations on insurance actions in Articles 7-12, and consumer contracts in Articles 13-15. Article 16 also grantsexclusive jurisdiction to specified jurisdictions as the lex situs of immovable property and a res, and for the status of companies, the validity of public registers with particular reference to the registration and validity of patents, and the enforcement of judgments. Subsequent articles allow forum selection clauses and other forms of agreement between the parties to confer jurisdiction on a given forum. The Brussels

Regime therefore represents a harmonised set of rules for the determination of all questions of jurisdiction throughout the EU excluding FNC. Hypothetical An Israeli businessman sues an American national with a domicile in New York State, in a court of that latter state for breach of contract. The contract was for the performance of constructionservices in Israel, the loss alleged to flow from the breach was sustained in Israel, all the potential witnesses live in Israel, the proper law is Israeli law, and all relevant documentation is inHebrew. Although the New York court could base jurisdiction on the defendant's domicile and residence, it might apply FNC, reasoning that an Israeli court would be a more convenient forum. It is alleged that a key factor will be whether the defendant has any assets in Israel. If not, the case will have to return to New York as a foreign judgment for enforcement. This need to return to New York in any event might persuade the New York court to accept the initial jurisdiction. In reality, a New York defendant would rarely make an FNC motion seeking voluntarily to send the case to a foreign country. This would mean that the defendant would have to travel to Israel for pretrial conferences every time his affidavits must be crossexamined, rather than take the subway. He would also have to hire foreign lawyers, which means less control over their work because of language and communication problems, lack of familiarity with the foreign system, less physical access to legal advice, and also taking a risk that the foreign systems contain unpredictable legal pitfalls. In addition, a foreign court might show favoritism to the foreign plaintiff and against the New York defendant. Thus, in reality a New York defendant would almost always prefer to defend the case on familiar turf. One mechanism is to ask the New York Court to instruct the Israeli plaintiff to deposit a bond to secure costs and fees to secure recovery if the case is unsuccessful. Also, the availability of future recovery in a foreign Court is not a critical factor in the FNC analysis, as foreign judgments can be returned to New York for domestication under the principle of comity by making a motion in lieu of complaint to recognize the foreign judgment.

Shipping The issue of FNC arises in shipping cases since different parties may be involved as charterers or consignees and because of the international nature of the law of the sea and maritimetrade. Despite several different conventions dealing with aspects of international trade, jurisdictional disputes are common. Moreover, in some instances, a case in the United States may be initiated under U.S. state law when Admiralty law (which is a Federal jurisdiction) would be the more appropriate forum. If this occurs, the case may be removed to the Federal Courts or to the courts of another state on FNC grounds.

For example, suppose that a container ship comes into port in Miami, Florida, USA. The ship, which is Liberian-registered, is wanted as security for various debts incurred by its Master while in Denmark. Made aware of the ship's presence, a local lawyer moves to impose a lien which involves a form of arrest by means of de novo proceedings in rem. The local Federal district sitting in Admiralty determines that the ship's Master had ostensible authority as an agent to pledge the credit of the ship's owners (who are English). It also determines that neither the ship nor its owners have violated American law in any way, and the local court is not in a good position to hear witnesses who are all resident in other states. Further, major liability in demurrage to the innocent charterers, forwarders, etc. will be incurred if the ship is detained without just cause, so it would not be unreasonable for the Federal Court to decline jurisdiction. Whether there is subsequent litigation in another state will depend on the tactics of the creditors. Without a lien over the ship or the ability to obtain some form of control over the assets of the debtor, making a claim for money owing may not be cost-effective. But if there have already been proceedings on the issue of liability before a court of competent jurisdiction in another state so that the action in Miami is purely by way of enforcement, the Miami jurisdiction, whether it be state or federal would be the forum conveniens because the ship is physically within the jurisdiction.

FRUIT OF THE POISONOUS TREE

Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally.[1] The logic of the terminology is that if the source of the evidence or evidence itself (the "tree") is tainted, then anything gained from it (the "fruit") is tainted as well. The term fruit of the poisonous tree was first used in Nardone v. United States[2] in the opinion by Justice Felix Frankfurter.[3] Such evidence is not generally admissible in court.[4] For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a train station locker, and evidence of a crime came from the locker, that evidence would most likely be excluded under the fruit of the poisonous tree legal doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and his or her own statements. The doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial. Like the exclusionary rule, the fruit of the poisonous tree doctrine is intended to deter police from using illegal means to obtain evidence. The doctrine was amended to prove that the use of video evidence is illegal during cases involving profanity searches on internet search engines.

The doctrine is subject to four main exceptions. The tainted evidence is admissible if: 1. it was discovered in part as a result of an independent, untainted source; or 2. it would inevitably have been discovered despite the tainted source; or 3. the chain of causation between the illegal action and the tainted evidence is too attenuated; or 4. the search warrant not based on probable cause was executed by government agents in good faith (called the good-faith exception). The fruit of the poisonous tree doctrine stems from the 1920 case of Silverthorne Lumber Co. v. United States.[5]

FRUSTRATION OF PURPOSE
In the law of contracts, frustration of purpose is a defense to enforcement of the contract. Frustration of purpose occurs when an unforeseen event undermines a party's principal purpose for entering into a contract, and both parties knew of this principal purpose at the time the contract was made. Despite frequently arising as a result of government action, any third party (or even nature) can frustrate a contracting party's primary purpose for entering into the contract. This concept is also called commercial frustration. For example, if Joe gets a mortgage for a new home, and, after three years, the house is destroyed, for whatever reason, at no fault of Joe's. Without a hell or high water clause, Joe might be exempt from the remainder of the mortgage, as the principal purpose of the contract (to have a house to live in) has been compromised. However, he might still have a foreclosure on his credit rating. Frustration of purpose is often confused with the closely related doctrine of impossibility. The distinction between the two is that impossibility concerns the duties specified in the contract, whereas frustration of purpose concerns the reason a party entered into the contract. For example, suppose entrepreneur Emily leases space from landlord Larry so she can open a restaurant that only serves Tibetan Speckled Lizard meat. If the city rezones the property to forbid commercial uses, or if the property is destroyed by a tornado, then both Larry and Emily are excused from performing the contract by impossibility. However, if the Tibetan Speckled Lizard suddenly goes extinct, then Emily may be excused from performing the contract because Larry knew her primary purpose for entering into the lease was to serve Tibetan Speckled Lizard, and that purpose has been frustrated. In the second scenario, the parties could still carry out their obligations under the lease, but one of them no longer has a reason to. The Restatement of Contracts, Second 265 defines frustration of purpose:

Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or circumstances [of the contract] indicate the contrary.

A circumstance is not deemed to be a "basic assumption on which the contract is made" unless the change in circumstances could not have been reasonably foreseen at the time the contract was made. As a result, it is rarely invoked successfully. Successful invocations usually come in waves during times of substantial tumult, such as after the passage of Prohibition, when bars and taverns no longer had a reason for their leases, or during major wars, when demand for many consumer goods and services drops far below normal. If successfully invoked, the contract is terminated, and the parties are left as they are at the time of the litigation. In English law Main article: Frustration in English law See also: Coronation cases The leading case in English law on the subject is the famous 1903 case of Krell v. Henry, which concerned a party who had rented a room for the purpose of watching the coronation procession of Edward VII. When the king fell ill, the coronation was indefinitely postponed. The hirer refused to pay for the room; the owner sued for breach of contract and the hirer then counter-sued for the return of his 25 deposit. The court determined that the cancellation of the coronation was unforeseeable by the parties, and discharged the contract, leaving the parties as they were: the hirer lost his one third deposit and the owner lost the rest of the rent. In addition, the Court also noted that the doctrine of 'impossibility' could not be applied in this manner, because it would not have technically been 'impossible' for the lessee (the 'renter') to take possession of the flat on that prescribed day and merely sit in front of the window and view the street where the coronation parade was to have occurred. The point the Court was making is this: The illness of the King did not make the execution of the contract 'impossible.' Rather, the cancellation of the parade merely frustrated the purpose for which both men originally contracted.

FUNCTIONALITY DOCTRINE

In United States trademark law, the functionality doctrine prevents manufacturers from protecting specific features of a product by means oftrademark law.[1] There are two branches of the functionality doctrine: utilitarian functionality and aesthetic functionality. Utilitarian functionality provides grounds to deny trademark protection to features which do something useful. Patent law, not trademark, protects useful processes,machines, and material inventions. Patented designs are presumed to be functional until proven otherwise.[2] Aesthetic functionality provides grounds to deny trademark protection to design features which are included to make the product more aesthetically appealing and commercially desirable. Aesthetic features are within the purview of copyright law, which provides protection to creative and original works of authorship.[3]

Functionality is met if:

A feature is essential to the use or purpose of the product; or A feature affects the cost or quality of the product; or Exclusive use of the feature would put competitors at a significant non-reputation related disadvantage[4]

Essentially, functionality is grounds for denying trademark protection to a feature which grants a competitive advantage which is not related entirely to its function as a brand identifier. Trademarks serve to protect a firm's reputation and goodwill. The rationale behind functionality doctrine is that product markets would not be truly competitive if newcomers could not make a product with a feature that consumers demand.

G
GOOD FAITH
In philosophy, the concept of good faith (Latin: bona fides, or bona fide for "in good faith") denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides (duplicity) and perfidy (pretense). In law, bona fides denotes the mental and moral states of honesty and conviction regarding either the truth or the falsity of a proposition, or of a body of opinion; likewise regarding either the rectitude or the depravity of a line of conduct. As a legal concept bona fides is especially important in matters [1][2] of equity (see Contract). Linguistically, in the U.S., American English usage of bona fides applies it as synonymous with credentials, professional background, and documents attesting a person's identity, which is not synonymous with bona fide occupational qualifications.[3] Good faith effort In the United States, the federal government and some state governments are required to look for disabled, minority, and veteran business enterprises when bidding public jobs.[4] In law Main article: Good faith (law)

In contract law, the implied covenant of good faith is a general presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as not to destroy the right of the other party or parties to receive the benefits of the contract. In Wikipedia Public wikis such as Wikipedia depend on implicitly or explicitly assuming that their users are acting in good faith. The concept appears in Wikipedia's principle of "Assume good faith" (AGF), which has been a stated guideline since 2005.[5] AGF has been described as "the first principle in the Wikipedia etiquette".[6][dead link] According to one study of users' motives for contributing to Wikipedia, "while participants have both individualistic and collaborative motives, collaborative (altruistic) motives dominate."[7] Users are expected to "assume good faith" when interacting with one another even when it is argued that some users deserve karma points to differentiate their contributions.[8] Wikipedia's AGF policy asks editors to assume that fellow editors contribute 'in good faith' and therefore behave in a civil manner even when an 'obvious' problem such as individual 'ownership' of a page (a person reverting edits to 'his' article - which could affect the aim of clarity and utility, in pursuit of the literary glory).[9] To be clear, at Wikipedia, ownership behavior even subtle ways of acting proprietary about entries is prohibited.

GOOD-FAITH EXCEPTION
In United States constitutional law, the good-faith exception (also good-faith doctrine) is a legal doctrine providing an exemption to the exclusionary rule. The exemption allows evidence collected in violation of privacy rights as interpreted from the Fourth Amendment to be admitted at trial if police officers acting in good faith (bona fides) relied upon a defective search warrant that is, they had reason to believe their actions were legal (measured under the reasonable person test). The rule was established in the two companion cases decided by the U.S. Supreme Court in 1984: United States v. Leon (468 U.S. 902) and Massachusetts v. Sheppard (468 U.S. 981). The exception permits the courts to consider the mental state of the police officer.

GREENHOUSE EFFECT (JUDICIAL DRIFT)

The Greenhouse Effect is a term coined by Hoover Institution economist Thomas Sowell and popularized by D.C. Court of Appeals Senior Judge Laurence Silberman in a speech to The Federalist Society in 1992.[1][2] In this speech, Silberman used the term to

postulate a tendency of conservative Supreme Court Justices to vote with the liberals more often as their careers progress due to a desire for favorable press coverage. He said "It seems that the primary objective of The Times's legal reporters is to put activist heat on recently appointed Supreme Court justices."[3] The existence of the Greenhouse Effect has been challenged by some commentators, who note it presumes a vast, hegemonic liberal control over the media and academia[4] and question whether professional decision makers who have "come to their views despite years of elite education and exposure to elite opinion" are really so malleable.[5] However, the evidence below suggests that conservative justices become liberal more often than liberals become conservative. Further, the existence of a more general version of the Greenhouse Effect, one not restricted to the media but rather "elites" in general or legal elites, is less controversial. Though this does not show causation, 75% of law professors who began their careers after 1986 identify as liberal, while only 10% identify as conservative. [6] Evidence suggests more "elite" journalists identify as liberal than conservative. [6] Origins of the term The Greenhouse Effect refers to Linda Greenhouse, a Pulitzer Prize winning New York Times Supreme Court reporter for over three decades, currently a Senior Fellow at Yale Law School. Greenhouse came under fire from conservatives for publicly espousing liberal viewpoints by participating in a 1989 pro-choice march and in remarks at the Radcliffe Institute in 2006.[7] [8] [9] Greenhouse herself commented on the origins of the term in an interview with NPR: Ms. Wertheimer: In a 1992 speech to the Federalist Society, Lawrence Silberman, who is an appeals court judge, referred to the greenhouse effect. By which he partly meant you, and he partly meant activist heat, he said, that the Times legal reporters put on recently appointed justices to try to influence their opinions. It certainly did kind of single you out as being an influential player in the world of the court. Ms. Greenhouse: Well, Judge Silberman is giving credit for coming up with that snarky phrase, but actually, he swiped it off from Tom Bethell, the economist, who had put it in a column shortly before.[10] It is unclear whether Ms. Greenhouse meant to refer to Mr. Bethell or Mr. Sowell. Mr. Bethell, an editor at the American Standard and another Hoover Institution fellow, started the "Strange New Respect Awards", which are given to conservatives who have become more liberal.[11] Ms. Greenhouse is said by some to have inspired the award.[12] Mr. Sowell is more often cited as the origin of the term. Example of usage of the term

Pat Buchanan, a conservative political commentator, offers a typical usage of the term after quoting Linda Greenhouse in reference to Justice John Paul Stevens' advocating for a reconsideration of the death penalty in Kennedy v. Louisiana: For his defection to the abolitionist camp, the 88-year-old justice was rewarded with her patented deep massage by Linda Greenhouse, the veteran and after 30 years retiring Supreme Court reporter of The New York Times: When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight. ... But had Stevens moved fr om left to right, rather than the reverse, one imagines Greenhouses enthusiasm for the master strategist would have been well contained. What we see here is a textbook example of what U.S. Judge Laurence Silberman calls The Greenhouse Effect."[13] The Supreme Court and the media Supreme Court author, Larry Berkson, holds that the Supreme Court has two audiences: the highly attentive legal profession and the less engaged general public.[14] If the Supreme Court is without the general publics backing, its authority may be eroded. However, the Court must remain independent of the ongoing political process. Richard Davis discusses this relationship with the Court and the public as, the paradox of imagemaking to engage in imagemaking while denying its existence to maintain the image.[15] Since the majority of the general public does not have the time, interest or expertise to read the opinions for themselves, they must depend on newspapers, periodicals, radio and TV for its information.[16] Justices have also been known to survey reporters to determine if they were interpreting their opinions as intended. In these ways and more the Court also tried to shape the way the media covers the justices and their decisions.[17] The Supreme Court also receives news of the public's reactions to its decisions through the press. Some scholars have postulated that swing justices, who have disproportionate influence over the court, may be more attuned to public opinion since their own policy preferences are weaker than their colleagues.[15] The Demographics of the Supreme Court reveal that Justices tend to be more highly educated and wealthy relative to the rest of the nation. In 2007, 7 of the 9 justices had a net worth of over a million dollars[18] and all of the justices attended an Ivy League law school. [19] Social psychological theory holds that we seek approval from those similar to us, and those we interact with more often. In the courts case, this means Justices may be more influenced by elites than by the public. [20] Empirical evidence of the effect's existence

Regardless of the cause, is well established that many Supreme Court Justices exhibit sizable shifts in voting patterns over their careers, much more so than would be expected for experienced jurists who are chosen for life service on the nation's highest court. [21] Lawrence Baum found some evidence that supports the Effect's existence. However, the research is not definitive at this point in time, as it is hampered by the small sample size of Supreme Court justices in the modern era. Furthermore, it is important to note that much of Baum's research focuses on the influence of "elite" opinion, not just the media. However, the evidence for the influence of "elite" opinion is more robust than the evidence for media specifically. Amicus Curiae briefs and law review articles can influence the court by providing precedents or reasoning to support a position. In West Virginia State Board of Education v. Barnette the court overturned the precedent relating to school prayer that it had established in Minersville School District v. Gobitis just three years earlier, ruling that students did not have to salute the flag, which was applauded by liberals. Notably, 31 out of the 39 law review articles commenting on Gobitis condemned the decision. Justice Hugo Black was said by Justice William Douglas to have changed his mind because he had been reading the papers.[6] In Grutter v. Bollinger, an affirmative action case, 83 out of the 102 amicus briefs supported affirmative action, and briefs filed by "elites" such as Fortune 500 companies, colleges, and states displayed even higher levels for support for affirmative action.[22] In Gannett Co. v. Depasquale the court held that the 6th Amendment didnt guarantee public access to trials. The media erupted in a firestorm of criticism, prompting four Justices to make public statements about the meaning of the case. However, one year later, the court reversed itself in Richmond Newspapers v. Virginia. [6] Throughout the modern era and in a variety of cases, Supreme Court decisions better reflect the opinions of the highly educated than general public opinion. For example, in 1964, 41.4% of those with post-graduate degrees agreed with the court's position on school prayer compared to only 14.9% of those with lower levels of education. [23] There was an equivalent gulf for Texas v. Johnson, the 1990 decision concerning flag burning. [24] In 2003, in Lawrence v. Texas, which legalized homosexual intercourse in states that had anti-sodomy laws, 75% of people with post-graduate degrees agreed with the court, whereas 51% of those with lower levels of education agreed. [25] Some of the strongest empirical evidence concerns the difference between conservative Justices who lived in Washington, D.C. before they were nominated and those who did not. The evidence from the modern era is summarized in the table below. The table displays the change in pro-civil liberties votes from Justice's early terms and later terms. A higher percentage of pro-civil liberties votes is generally regarded as more liberal.

Change in percentage of pro-civil liberties votes from terms 12 to terms 710[6] Justice Percentage change

Republican Newcomers Average = +11.1

Warren

+34.8

Harlan

-.3

Stewart

+10.4

Blackmun

+8.9

Powell

+3.3

Stevens

+3.8

O'Connor

+1.4

Kennedy

+13

Souter

+24.4

D.C. Republicans

Average = -4.7

Burger

-6.9

Rehnquist

-3.7

Scalia

-2.3

Thomas

-5.9

Democrats

Average = -1.5

Brennan

+2

White

-11.6

Marshall

Ginsburg

+6.9

Breyer

-4.6

Notable affected justices Only four of the twenty-six Justices serving since 1937 remained relatively stable.[26] Justice Harry Blackmun was famously said to have evolved over his career, becoming much more liberal in later decades; Linda Greenhouse herself wrote an article about Blackmun called "The Evolution of A Justice."[27] Notably, he wrote the opinion in favor of legalizing abortion in Roe v. Wade. This is despite the fact that President Richard Nixon asked Justice Harry Blackmun if "he could resist the Washington cocktail party circuit" before his nomination. [28] President Eisenhower said that his nomination of Earl Warren, who went on to dramatically expand the court's power and shifted significantly to the left, was "the biggest damn fool mistake I ever made."[29] Several other Republican presidents' nominees shifted to the left, such as Brennan, O'Connor, Souter and Stevens. [30] Some justices have shifted to the right, such as Felix Frankfurter and Byron White, but on the whole in the modern era there have

been more shifts to the left than the right. Frankfurter began his career in the 1938 term as a slightly left-of-center Justice, closer to the terms likely median. Virtually from the start of his second term, however, Frankfurter appears to have drifted right. By the conclusion of his tenure, Frankfurter was second only to John M. Harlan II as the Courts most extreme conservative voter; he actually ended his service more firmly planted on the right than Chief Justice Rehnquist.[31] Justice Blacks movement to the right was not missed by some commentators. As James F. Simon once wrote, Blacks increasingly brittle, unmistakably conservative tilt actually proved embarrassing to many of his admirers. [32] [33] Of sitting justices as of 2012, Justice Anthony Kennedy is noted for having become much more liberal.[34] Kennedy had been expected to be the swing vote overturning Roe v. Wade inPlanned Parenthood v. Casey, but instead voted to uphold it, with the evidence suggesting he changed his mind between conference and the final vote.[35] Kennedy had previously changed his mind in Lee v. Weisman, concerning school prayer. Kennedy has been observed to be concerned with how he will go down in history. In an interview given just minutes before Casey was handed down, he said "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line." Kennedy displays the concern with his historical image that would lend credence to the Greenhouse Effect, for example by having his clerks clip all news stories about him. [36]

H
HABITABILITY
For habitability of planets, see Planetary habitability. For habitability of planet systems, see Habitable zone. Habitability is the conformance of a residence or abode to the implied warranty of habitability. A residence that complies is said to be "habitable". It is an implied warranty or contract, meaning it does not have to be an express contract, covenant, or provision of a contract. It is a common law right of a tenant or legal doctrine.[1] In order to be habitable, such housing usually:

must provide shelter, with working locks must be heated in the winter months (typically between October 1 and May 31 in the Northeastern United States)[2] must not be infested with vermin, such as mice, roaches, termites, mold,[3] etc. requires the landlord to stop other tenants from making too much noise (as measured by the decibel scale), second-hand smoke,[4] or from selling narcotics must provide potable water each jurisdiction may have various rules.[5][6][7][8][9][10][11]

New York law Some states, such as New York, have given additional statutory protections in addition to those created by caselaw.[12] These statutes include:

1. Lobby attendant service by a concierge or landlord [13] 2. Elevator mirrors [14] 3. Smoke detectors[15] 4. Window guards[16] 5. Intercoms and self-locking doors[17] 6. Protection from lead paint [18] Consequences Violation of the warranty of habitability results in constructive eviction, whereby the landlord or lessor has, in effect, evicted the tenant or lessee.[19] The tenant may remedy the problem,[20][21]or complain to local government authorities for remedies.[22] HOMESTEAD PRINCIPLE Under the homestead ownership over it. principle a farmer putting unowned land to use gains

The homestead principle in law and in ethics is the principle by which one gains ownership of an unowned natural resources by performing an act of original appropriation. Appropriation could be enacted by putting an unowned resource to active use (as with using it to produce aproduct), joining it with previously acquired property or by marking it as owned (as with livestock branding). Proponents of intellectual propertyhold that ideas can also be homesteaded by originally creating a virtual or tangible representation of them. Others however argue that since tangible manifestations of a single idea will be present in many places, including within the minds of people, this precludes their being owned in most or all cases. Homesteading is one of the foundations of the capitalist ideology.[1] In philosophy John Locke Enlightenment philosopher John Locke in his work Second Treatise of Government, published in 1690 advocated the lockean proviso, which allows for homesteading. Locke famously sees the "mixing of labour" with land as the source of ownership via homesteading. He writes: Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person." This nobody has any right to but himself. The "labour" of his body and the "work" of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property.[2]

Murray Rothbard Libertarian philosopher and Austrian School economist Murray Rothbard argues that homesteading includes all the rights needed to engage in the homesteading action, including nuisance and pollution rights. He writes: Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. ... Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses. Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now "owns the right" to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of "prescription," in which a certain activity earns a prescriptive property right to the person engaging in the action.[3] Rothbard interprets the physical extent to which a homesteading act establishes ownership in terms of the relevant "technological unit", which is the minimal amount necessary for the practical use of the resource. He writes: If A uses a certain amount of a resource, how much of that resource is to accrue to his ownership? Our answer is that he owns the technological unit of the resource. The size of that unit depends on the type of good or resource in question, and must be determined by judges, juries, or arbitrators who are expert in the particular resource or industry in question.[3] Anthony de Jasay Hungarian political philosopher Anthony de Jasay argued that a homesteader, having a claim prior to any other, must be prima facie considered the owner of the resource, in accordance with the principle "let ownership stand". He writes: [if] taking first possession of a thing is a feasible act of his that is admissible if it is not a tort (in this case not trespass) and violates no right; but this is the case by definition, i.e., by the thing being identified as unowned. Taking exclusive possession of it is, in terms of our classification of possible acts, a liberty, and as such only a contrary right can obstruct or oppose it. 14 The opponent of this simple thesis is trying to have it both ways: he is both asserting that the thing has no legitimate first owner from whom a second or nth owner could have legitimately obtained it by agreed transfer, and that there is nevertheless somebody who has been and still is entitled to use the thing and therefore

can validly object to being excluded from it. But an entitlement to use the thing is an at least partial antecedent ownership claim needing an owner, or the permission of an owner, before it can be made; ownership cannot both exist yet not exist. If, on the other hand, the objectors have been using the thing without being entitled to it, because no third party had excluded them by taking first possession, and because they were unable, unwilling, or uninterested to perform the act of taking first possession themselves (whatever that act may consist of), their enjoyment of the thing was precarious, not vested. Its appropriation by a third party may have deprived them of an uncovenanted advantage, but it did not violate their rights.[4]

Hans Hermann Hoppe Main article: Argumentation ethics Similarly to de-Jasay, Hans Hermann Hoppe argues that the denial of the homesteading rule entails a performative contradiction. That is because honest argumentation must presuppose an intersubjectively ascertainable norm (i.e. justifiable), and all norms not relying on the original establishment of a physical (and therefore evident) link to the owner are subjective in nature, and therefore contradict the presuppositions of argumentation. He writes: Further, if one were not allowed to appropriate other resources through homesteading action, i.e., by putting them to use before anybody else does, or if the range of objects to be homesteaded were somehow limited, this would only be possible if ownership could be acquired by mere decree instead of by action. However, this does not qualify as a solution to the problem of ethics, i.e., of conflict-avoidance, even on purely technical grounds, for it would not allow one to decide what to do if such declarative claims happened to be incompatible. More decisive still, it would be incompatible with the already justified self-ownership, for if one could appropriate resources by decree, this would imply that one could also declare another persons body to be ones own. Thus, anyone denying the validity of the homesteading principlewhose recognition is already implicit in arguing two persons mutual respect for each others exclusive control over his own bodywould contradict the content of his proposition through his very act of proposition making.[5] Ayn Rand Ayn Rand has not elaborated on the characteristics of homesteading, but had expressed support for compatible laws, such as favourably citing the Homestead Act (1862). She writes:

A notable example of the proper method of establishing private ownership from scratch, in a previously ownerless area, is the Homestead Act of 1862, by which the government opened the Western frontier for settlement and turned "public land" over to private owners. The government offered a 160-acres farm to any adult citizen who would settle on it and cultivate it for five years, after which it would become his property. Although that land was originally regarded, in law, as "public property," the method of its allocation, in fact, followed the proper principle (in fact, but not in explicit ideological intention). The citizens did not have to pay the government as if it were an owner; ownership began with them, and they earned it by the method which is the source and root of the concept of "property": by working on unused material resources, by turning a wilderness into a civilized settlement. Thus, the government, in this case, was acting not as the owner but as the custodian of ownerless resources who defines objectively impartial rules by which potential owners may acquire them.[6] Linda and Morris Tannehill Linda and Morris Tannehill argue in The Market for Liberty that physically claiming the land (e.g. by fencing it in or prominently staking it out) should be enough to obtain good title: An old and much respected theory holds that for a man to come into possession of a previously unowned value it is necessary for him to "mix his labor with the land" to make it his own. But this theory runs into difficulties when one attempts to explain what is meant by "mixing labor with land." Just how much labor is required, and of what sort? If a man digs a large hole in his land and then fills it up again, can he be said to have mixed his labor with the land? Or is it necessary to effect a somewhat permanent change in the land? If so, how permanent?...Or is it necessary to effect some improvement in the economic value of the land? If so, how much and how soon?...Would a man lose title to his land if he had to wait ten months for a railroad line to be built before he could improve the land?...And what of the naturalist who wanted to keep his land exactly as it was in its wild state to study its ecology?...[M]ixing one's labor with the land is too ill-defined a concept and too arbitrary a requirement to serve as a criterion of ownership.[7] In law Common law[edit source | editbeta]

Under the ad coelum doctrine land ownership extends in a cone from theearth's core up to the exosphere. Common law provides the ad coelum doctrine by which landlords own everything below and above the land, up to the sky and below the earth to its core, with the exception of volatile minerals such as natural gas. The rules governing what constitutes homesteading were not specified by common law but by the local statutory law. Common law also recognizes the concept of adverse possessions ("squatters rights").[8] Rothbardcriticized this doctrine as incompatible with his own homestead principle, as a literal application prevent aircraft from traveling over someone's land. Further: But is the practical problem of aviation the only thing wrong with the ad coelum rule? Using the homesteading principle, the ad coelum rule never made any sense, and is therefore overdue in the dustbin of legal history. If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn't.[9] So long as the aircraft did not damage or disturb the land, the owner would not have a claim. By the same principle, ownership of mineral and water resources on or under the land would also require homesteading, otherwise being left unowned. Statutory law In the 19th century, a number of governments formalized the homestead principle by passing laws that would grant property of land plots of certain standardized size to people who would settle on it and "improve" it in certain ways (typically, built their residence and started to farm at least a certain fraction of the land). Typically, such laws would apply to territories recently taken from its indigenous inhabitants, and which the state would want to have populated by farmers. Examples:

United States: Florida Armed Occupation Act (1842), Homestead Act (1862) Canada: Dominion Lands Act (1872) Australia: Crown Lands Acts (1861)

IDEAEXPRESSION DIVIDE
The ideaexpression divide or ideaexpression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea. The European Union Software Directive, Article 1.2, for example, expressly provides that ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.[1][2] In the United States the 1879 opinion of the Supreme Court in the case of Baker v. Selden[3] elaborated this doctrine, holding that while exclusive rights to the "useful art" (in this case bookkeeping) described in a book might be available by patent; only the description itself was protectable by copyright. In Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985), the Supreme Court stated that "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'" (internal citation omitted). Additionally, in Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the ideanot the idea itself." Some of the criticism directed at "intellectual property" is based on the confusion between patents, which may confer proprietary rights in relation to general ideas and concepts per se when construed as methods, and copyrights, which cannot confer such rights. An adventure novel provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any artwork contained in the book, but generally not in the idea or genre of the story. Copyright therefore may not subsist in the idea of a man venturing out on a quest, but may subsist in a particular story which follows that pattern. Similarly, if the methods or processes described in a work are patentable, they may be the subject of various patent claims, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C. Clarke, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that it was not considered patentable in 1954 when it was developed (independently[citation needed]) at Bell Labs. In the English decision of Donoghue v. Allied Newspapers Limited (1938) Ch 106, the court illustrated the concept by stating that "the person who has clothed the idea in form, whether by means of a picture, a play or a book" owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937) 58 CLR 479 at 498, Latham CJ used the analogy of reporting a person's

fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact. Some courts have recognized that there are particular ideas that can be expressed intelligibly only in one or a limited number of ways. The French name for this doctrine is Scnes faire. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. This is true in the United Kingdom and most Commonwealth countries.[4]In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. United States courts are divided on whether merger constitutes a defense to infringement or prevents copyrightability in the first place[citation needed], but it is often pleaded as an affirmative defense to copyright infringement.

IGNORANTIA JURIS NON EXCUSAT

Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for "ignorance of the law does not excuse" or "ignorance of the law excuses no one") is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content. In the United States, exceptions to this general rule are found in cases such as Lambert v. California (knowledge of city ordinances) and Cheek v. United States (willfulness requirement in U.S. federal tax crimes). European-law countries with a tradition of Roman law may also use an expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful). Explanation The rationale of the doctrine is that if ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit would merely claim that he or she is unaware of the law in question to avoid liability, even though the person really does know what the law in question is. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state's activities, this is the price paid to ensure that willful blindness cannot become the basis of exculpation. Thus, it is well settled that persons engaged in any undertakings outside what is common for a normal person, such as running a nuclear power plant, will make themselves aware of the laws necessary to engage in that undertaking. If they do not, they cannot complain if they incur liability. The doctrine assumes that the law in question has been properly published and distributed, for example, by being printed in a government gazette, made available

over the internet, or printed in volumes available for sale to the public at affordable prices. In the criminal law, although ignorance may not clear a defendant of guilt, it can be a consideration in sentencing, particularly where the law is unclear or the defendant sought advice from law enforcement or regulatory officials. For example, in one Canadian case, a person was charged with being in possession of gambling devices after they had been advised by customs officials that it was legal to import such devices into Canada.[citation needed] Although the defendant was convicted, the sentence was an absolute discharge. In addition, there were, particularly in the days before satellite communication and cellular phones, persons who could genuinely be ignorant of the law due to distance or isolation. For example, in a case in British Columbia, a pair of hunters were acquitted of game offenses where the law was changed during the period they were in the wilderness hunting.[citation needed] In reaching this decision, the court refused to follow an early English law case in which a seaman on a clipper before the invention of radio was convicted even though the law had been changed while he was at sea (Bailey (1800) Russ & Ry 1). An alternate explanation of the origin of the maxim, though not particularly relevant to the modern context, can be found with the philosophy of the Greeks and Romans. These were cultures heavily influenced by customary legal systems. Within such a system, law is learned as a person participates in the culture and customs of the community. Thus it is unreasonable to believe a person could have avoided learning them. These rules and customs were also interwoven with ethical and religious dialog so that laws expressed what is right and good and deviation that which is not. We find that Cicero wrote the following in De re publica (On the Republic): "There is a true law, right reason, agreeable to nature, known to all men, constant and eternal, which calls to duty by its precepts, deters from evil by its prohibition. This law cannot be departed from without guilt. Nor is there one law at Rome and another at Athens, one thing now and another afterward; but the same law, unchanging and eternal, binds all races of man and all times." Plato wrote similarly in Minos: "Whats right is right and whats wrong is wrong. And isnt this believed by everyone ... even among the Persians, and always? ... What is fine, no doubt, is everywhere legislated as fine, and what is shameful as shameful; but not the shameful as fine or the fine as shameful." An unintended consequence of believing in the legal maxim gives everyone lawyer status by proxy whether or not they have any knowledge of law, hence the parody, "Everything about law I learned from one legal maxim".[citation needed]

Translation Presumed knowledge of the law is the principle in jurisprudence that one is bound by a law even if one does not know of it. It has also been defined as the "prohibition of ignorance of the law". The concept comes from Roman law, and is expressed in the brocard ignorantia legis non excusat. The essential public character of a law requires that the law must apply to anyone in the jurisdiction where the law applies. Thus, no one can justify his conduct on the grounds that he was not aware of the law. Generally, a convention exists by which the laws are issued and rendered accessible by methods, authors and means that are simple and well known: the law is readable in certain places (some systems prescribe that a collection of the laws is copied in every local city council), is made by certain authorities (usually sovereign, government, parliament, and derivative bodies), and enters into effect in certain ways (many systems for instance prescribe a certain number of days - often 15 - after issue). This is commonly intended as a constitutional regulation, and in fact many constitutions or statutes exactly describe the correct procedures. However, some recent interpretations weaken this concept. Particularly in civil law, regard can be had to the difficulty of being informed of the existence of a law considering the lifestyle of the average citizen. On the penal side, the quality of the knowledge of the law can affect the evaluation of the animus nocendi or the mens rea, in that certain subjective conditions can weaken personal responsibility. The theme was widely discussed, also for political reasons, at the time of the Enlightenment and in the 18th century, given the heavy proportion of illiterate citizens in European countries (who would have some difficulties being aware of all the laws in a country). It was then argued that both the presumed knowledge and the heavily increasing corpus of national legislation were working in favour of lawyers rather than citizens. In recent times, some authors have considered this concept as an extension of (or at least as analogous to) the other ancient concept (typical of criminal law) that no one can be punished under a law that was issued after the action was committed (nonretroactivity of the law. See ex post facto). This interpretation is however disputed, given that the matter would hierarchically more properly refer to a constitutional doctrine rather than to a civil or penal one. Some modern criminal statutes contain language such as stipulating that the act must be done "knowingly and wittingly" or "with unlawful intent," or some similar language. Into law

This principle is also stated into law:

Canada: Criminal Code (RSC 1985, c. C-46), section 19[1] United States: Model Penal Code Section 2.02(9) states that knowledge that an activity is unlawful is not an element of an offense unless the statute creating the offense specifically makes it one. Virtually all states that adopt the Model Penal Code do not modify this provision.

ILLINOIS BRICK CO V. ILLINOIS

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) is a US Supreme Court case on US antitrust law which set out the "Illinois Brick doctrine". It prohibited indirect purchasers of goods or services from recovering antitrust damages from antitrust violators. Thus, if manufacturer A sells bricks to contractor B who builds a house and sells it to customer C, and A engages in a price fixing conspiracy with other brick manufacturers, C cannot sue A and recover damages for the overcharges resulting from the antitrust violation. Facts A manufacturer sold bricks to a contractor, who built houses and sold them to consumers. The manufacturers had conspired to raise prices. Judgment The Supreme Court held that indirect victims of a price fixing conspiracy had no standing to sue for antitrust violations for raised prices. It held that if an indirect purchaser of overpriced goods could sue, then it would open the door to multiple recovery. An overcharge might be collected if more than one entity in the chain of distribution of the product could recover for the same violation. Signficance Many state antitrust laws reject the Illinois Brick doctrine. Thus, in California v. ARC America Corp.,[1] the Supreme Court rejected arguments that Illinois Brick preempted broader state antitrust laws such as that of California, which rejected the doctrine. A 2007 Antitrust Modernization Commission Report proposed that Congress should abandon the Illinois Brick doctrine.[2] The proposal, if adopted, would weaken the federal right of action for direct purchasers by reviving as a defense the fact that the direct purchaser had passed on the overcharge instead of absorbing it, while creating a federal right of action for indirect purchasers. Federal rights of action under the proposal would not be exclusive, but state law claims would be subject to expanded federal jurisdiction to allow consolidation of all claims from a price fix in a single court for

both discovery and trial. All recoveries in the consolidated actions would be limited to the initial overcharge, trebled.

IMMINENT PERIL
Imminent peril, or imminent danger, is the legal concept of unacceptable conditions urgently needing corrective action. The principle allows people to act instinctively, without concern forrecrimination. The actions are exempt from ordinary standards of reasonable care when the action meets a sudden and urgent need. For example, a person performing cardiopulmonary resuscitation (CPR) on a patient in cardiac arrest need not fear if in so doing he or she breaks some of the patient's ribs. Because of the doctrine, the person will not be liable for the injuries, as the CPR was performed to meet an urgent need.[1] Imminent peril is "certain danger, immediate, and impending; menacingly close at hand, and threatening."[2] In many states in the USA, a mere necessity for quick action does not constitute an emergency within the doctrine of imminent peril, where the situation calling for the action is one which should reasonably have been anticipated and which the person whose action is called for should have been prepared to meet;[3] the doctrine of imminent peril does not excuse one who has brought about the peril by her own negligence.[4] Legislation In California, legislation authorizes a person to use deadly force to defend against death or serious injury if they believe they are in imminent peril.[5] Raymond L. Middleton, Warden v. Sally Marie McNeil is a California case that espouses this doctrine.[6] The 2012 Florida Statutes lay measurable conditions to determine if the "fear of imminent peril" is reasonable under the law.[7] Both the International Court of Justice (ICJ) and the International Law Commission (ILC) have recognized the profound motivations of one's lawful fear of imminent peril and have adopted measures to define consequences, of self-defense against such peril, as reasonable.[8] Peril Peril is synonymous with danger[9] but lacks the suddenness of the "imminent" qualifier. The Occupational Safety and Health Administration (OSHA) regulates safety standards for workplaces in the United States. Their charter obligation is to identify dangerous conditions in the workplace with a potential for sudden peril, and to require employers to actively mitigate the risks.[10]

IMPLIED LICENSE

An implied license is an unwritten license which permits a party (the licensee) to do something that would normally require the express permission of another party (the licensor). Implied licenses may arise by operation of law from actions by the licensor which lead the licensee to believe that it has the necessary permission. Implied licenses often arise where the licensee has purchased a physical embodiment of some intellectual property belonging to the licensor, or has paid for its creation, but has not obtained permission to use the intellectual property. Examples

A person who purchases a record album does not explicitly purchase a right to perform that album by playing it on a record player, but this right is implied.[1] A person who posts a lengthy comment to an internet forum may claim copyright to that post. However, if posters in that forum commonly copy the entire text to which they are responding into a later post, the original poster will be deemed to have given an implied license for his text to be copied into the later post.[citation needed] In a non-IP context, a person who holds a party on their house gives all of the invited guests an implied license to enter their property, and to enter those parts of the property that would usually be made available to guests, such as the bathrooms.[citation needed] Where an employee invents something while on company time, the employer receives an implied license to use the invention, even if no contract exists to assign rights to the employer. This is sometimes referred to as shop right.[2] Where a copyrighted work has been commissioned, the law in the United Kingdom is that the creator retains rights in the commissioned work. Unauthorised use of the work would therefore infringe the creator's copyright. Nevertheless, the commissioner may have an implied license to use the commissioned work, although only for the particular purpose under which the commission was originally agreed.[3][4]

Implication: from surrounding circumstances or by operation of law? In the United States, implied licenses are usually considered to be of two kinds: either they reflect the intention of the parties, which is inferred from a fact-specific inquiry into the surrounding circumstances, or else they are constructive agreements, in which case the intention of the parties is likely to be immaterial. In reality, there is a continuum between these kinds of implied license and it may be difficult to determine whether the license or contract in question is one which the law implies, irrespective of any protests by the unwilling licensor, or instead one inferred from the whole pattern of factual circumstances including the evidence of intent. In England, there is more of a tendency to regard all implied licenses as matters of fact and intent, while what would be a license implied by law in the US is treated under

some other branch of substantive law such as the doctrine of non-derogation from grants.[5] In both countries, the exhaustion doctrine has the effect of creating an implied license to use a product sold under the "authority" of the patentee. It is controversial whether and to what extent contractual expedients can successfully limit the scope of such implied licenses. Express license The opposite of an implied license is an express license, which must be in writing, for some forms of intellectual property. Oral exclusive licenses were permitted, however, under US copyright law before 1978.[6] Oral nonexclusive copyright licenses remain valid under US law.[7] Patent licenses may be oral.[8] Licenses under the Semiconductor Chip Protection Act must be in writing.[9]

IMPLIED POWERS
Implied powers, in the United States, are those powers authorized by a legal document (from the Constitution) which, while not stated, seem to be implied by powers expressly stated. When George Washington asked Alexander Hamilton to defend the constitutionality of the First Bank of the United States against the protests[1] of Thomas Jefferson, James Madison, and Attorney General Edmund Randolph, Hamilton produced what has now become the classic statement for implied powers.[2] Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends. Although the United States government was sovereign only as to certain objects, it was impossible to define all the means which it should use, because it was impossible for the founders to anticipate all future exigencies. Hamilton noted that the "general welfare clause" and the "necessary and proper clause" gave elasticity to the constitution. Hamilton won the argument with Washington, who signed his Bank Bill into law. Later, directly borrowing from Hamilton, Chief Justice John Marshall invoked the implied powers of government in the court decision of McCulloch v. Maryland. This was used to justify the denial of the right of a state to tax a bank, the Second Bank of the United

States, using the idea to Congress creating it in 1816.

argue

the

constitutionality

of

the United

States

In the case of the United States government, implied powers are the powers exercised by Congress which are not explicitly given by the constitution itself but necessary and proper to execute the powers which are.

Notes Implied powers are which can reasonably be assumed to flow from express powers, though not explicitly mentioned. The legitimacy of these powers flows from the "General Welfare" clause in the Preamble, the "Necessary & Proper Clause", and the "Commerce Clause." 1. ^ they implie powers into the united states.......Against the Constitutionality of the Bank of the United States, Thomas Jefferson. 2. ^ For the Constitutionality of the Bank of the United States, Alexander Hamilton.

IMPLIED REPEAL
The doctrine of implied repeal is a concept in constitutional theory which states that where an Act of Parliament or an Act of Congress conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e., no longer law). This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".[1] Constitutional statutes In the U.K. case of Thoburn v Sunderland City Council (the so-called 'Metric Martyrs' case), Lord Justice Laws ruled that some constitutionally significant statutes held a higher status in UK law and were not subject to the doctrine of implied repeal and would therefore require Parliament to expressly repeal the Act. The case specifically dealt with s.2(2) of the European Communities Act, but in his judgment, Lord Justice Laws also named the Parliament Act and the Human Rights Act as other 'constitutional statutes' and therefore not subject to the doctrine. Constitutional statutes can still be expressly repealed if Parliament wishes, but unless the words doing so are totally unambiguous, the courts will follow the precedent established in Thoburn.

Express repeal is carried out by judges in the same method as above, however, Parliament or Congress expressly orders judges to allow a statute to prevail over a previous statute. Under United States law, "implied repeal" is a disfavored doctrine. That is, if a court can reconcile the two statutes with any reasonable interpretation, that interpretation is favorable to one that deems the earlier statute to have been invalidated by the later one.[2]

CONTRACTUAL TERM A contractual term is "Any provision forming part of a contract"[1] Each term gives rise to a contractual obligation, breach of which can give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as they are peripheral to the objectives of the contract. Classification of term Condition or Warranty Conditions are terms that go to the very root of a contract. Breach of these terms repudiates the contract, allowing the other party to discharge the contract. A warranty[2] is less imperative than a condition, so the contract will survive a breach. Breach of either a condition or a warranty will give rise to damages. It is an objective matter of fact whether a term goes to the root of a contract. By way of illustration, an actress's obligation to perform the opening night of a theatrical production is a condition,[3] whereas a singer's obligation to perform during the first three days of rehearsal is a warranty.[4] Statute may also declare a term or nature of term to be a condition or warranty. For example, the Sale of Goods Act 1979 s15A[5] provides that terms as to title, description, quality, and sample (as described in the Act) are conditions save in certain defined circumstances. Innominate term Lord Diplock, in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd,[6] created the concept of an innominate term, breach of which may or may not go to the root of the contract depending upon the nature of the breach. Breach of these terms, as with all terms, will give rise to damages. Whether or not it repudiates the contract depends upon whether legal benefit of the contract has been removed from the innocent party. Megaw LJ, in 1970, preferred the use of the classic categorizing into condition or warranty due to legal certainty.[7] This was interpreted by the House of Lords as merely restricting its application in Reardon Smith Line Ltd. v Hansen-Tangen.[8]

Enforceability In general, parties can only sue for enforcement of valid contractual terms as opposed to representations or mere puffs. Statements Only certain statements create contractual obligations. Statements can be split into the following types:

Puff (sales talk): If no reasonable person hearing this statement would take it seriously, it is a puff, and no action in contract is available if the statement proves to be wrong. It may also be referred to as "puffery". This is common in television commercials. Representation: A representation is a statement of fact which does not amount to a term of the contract but it is one that the maker of the statement does not guarantee its truth. This gives rise to no contractual obligation but may amount to a tort, for example misrepresentation. Term: A term is similar to a representation, but the truth of the statement is guaranteed by the person who made the statement therefore giving rise to a contractual obligation. For the purposes of Breach of Contract, a term may further be categorized as a condition, warranty or innominate term.

Determination of nature of a statement There are various factors that a court may take into account in determining the nature of a statement. These include:

Timing: If the contract was concluded soon after the statement was made, this is a strong indication that the statement induced the person to enter into the contract. Lapse of a week within the negotiations of a car sale was held to amount only to a representation in Routledge v McKay[9] Content of statement: It is necessary to consider what was said in the given context, which has nothing to do with the importance of a statement. Knowledge and expertise: In Oscar Chess Ltd v. Williams,[10] a person selling a car to a second-hand car dealer stated that it was a 1948 Morris, when in fact it was a 1939 model car. It was held that the statement did not become a term because a reasonable person in the position of the car dealer would not have thought that an inexperienced person would have guaranteed the truth of the statement. Reduction into Writing: Where the contract is consolidated into writing, previous spoken terms, omitted from the consolidation, will probably be relegated to representations.[11] The old case of Birch v Paramount Estates Ltd.[12] provided that a

very important spoken term may persist even if omitted from the written consolidation; this case concerned the quality of a residential house. The parol evidence rule limits what things can be taken into account when trying to interpret a contract. This rule has practically ceased operation under UK law, but remains functional in Australian Law.

Implied terms
See also: Implied terms in English law A Term may either be expressed or implied. An Express term is stated by the parties during negotiation or written in a contractual document. Implied terms are not stated but nevertheless form a provision of the contract. Terms implied in fact The Privy Council established a five stage test in BP Refinery Western Port v Shire of Hastings.[13] However, the English Court of Appeal sounded a note of caution with regard to BPcase inPhilips Electronique Grand Public SA v British Sky Broadcasting Ltd[14] in which the Master of the Rolls described the test as "almost misleading" in its simplicity.[15] 1. Reasonableness and equitableness: The implied term must be reasonable and equitable. 2. Business efficacy: The implied term must be necessary for the business efficacy of the contract. For instance, if the term simply causes the contract to operate better, that does not fit this criterion. This is the principle laid out in The Moorcock.[16] The presiding judge created a quaint concept of an officious bystander; if the officious bystander were to propose a term and both the parties would be likely to reply with a testy "oh, of course", the term is implied. 3. Obviousness: The term is so obvious that it goes without saying. Furthermore, there must be one and only one thing that would be implied by the parties. For example, in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales,[17] a term regarding the inability of construction company to work three shifts a day could not be implied because it was unclear what form it would have taken. In English law, This principle was established in the case of Spring v NASDS,[18] in the context of a trade union membership contract. 4. Clear expression: The term must be capable of clear expression. No specific technical knowledge should be required. 5. Consistency: The implied term may not contradict an express term.

The High Court of Australia has ruled that the test in BP applies only to formal contracts, while the test in Byrne and Frew v Australian Airlines Ltd[19] shall apply to informal contracts:

Necessity: The term must be necessary to ensure reasonable or effective operation of a contract of the nature before the court. Consistency: The implied term may not contradict an express term (same as for formal contracts). Clear expression: The term must be capable of clear expression (same as for formal contracts). Obvious: McHugh and Gummow JJ have stated that it must also be obvious to all the people involved.

Terms implied in law These are terms that have been implied into standardized relationships. Common law

Liverpool City Council v. Irwin[20] established a term to be implied into all contracts between tenant and landlord that the landlord is obliged to keep the common areas in a reasonable state of repair. Wong Mee Wan v Kwan Kin Travel Services Ltd.[21] established that when a tour operator contracts to for the sale of goods. The most important legislation under United Kingdom law is the Sale of Goods Act 1979, the Consumer Protection (Distance Selling) Regulations 2000 and the Supply of Goods and Services Act 1982 which imply terms into all contracts whereby goods are sold or services provided.

These terms will be implied into all contracts of the same nature as a matter of law. Statutory The rules by which many contracts are governed are provided in specialized statutes that deal with particular subjects. Most countries, for example, have statutes which deal directly with sale of goods, lease transactions, and trade practices. For example, each American state except Louisiana has adopted Article 2 of the Uniform Commercial Code, which regulates contracts for the sale of goods.[22] The most important legislation implying terms under United Kingdom law are the Sale of Goods Act 1979, the Consumer Protection (Distance Selling) Regulations 2000and the Supply of Goods and Services Act 1982 which imply terms into all contracts whereby goods are sold or services provided. Terms implied by custom or trade

One is generally bound by the custom of the industry that one is in. To imply a term due to custom or trade, one must prove the existence of the custom, which must be notorious, certain, legal and reasonable[23][24] Course of dealing If two parties have regularly conduct business on certain terms, the terms may be assumed to be same for each contract made, if not expressly agreed to the contrary. The parties must have dealt on numerous occasions and been aware of the term purported to be implied. In Hollier v Rambler Motors Ltd.[25] four occasions over five years was held to be sufficient. In British Crane Hire Corp. Ltd. v Ipswitch Plant Hire Ltd.[26] written terms were held to have been implied into an oral in which there was no mention of written terms. Good faith Main article: Good faith It is common for lengthy negotiations to be written into a heads of agreement document that includes a clause to the effect that the rest of the agreement is to be negotiated. Although these cases may appear to fall into the category of agreement to agree, Australian courts will imply an obligation to negotiate in good faith provided that certain conditions are satisfied[27]

Negotiations were well-advanced and the large proportion of terms have been worked out; and There exists some mechanism to resolve disputes if the negotiations broke down.

The test of whether one has acted in good faith is a subjective one; the cases suggest honesty, and possibly also reasonableness. There is no such implied term under UK common law: an attempt was made by Lord Denning in a series of case during the 70s and 80s but they are no longer considered 'good law'. European legislation imposes this duty, but only in certain circumstances. The Unfair Terms in Consumer Contracts Regulations 1999[28] reg 8 renders ineffective any 'unfair' contractual term if made between a seller or supplier and a consumer.[29] Regulation 5 of the statutory instrument further elaborates upon the concept of 'unfair', which is rather novel to English law. 'Unfair' is a term that was not individually negotiated (i.e. standard form) that "causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer".[30] This is not possible if the term is not contrary to 'good faith'; such as in Director General of Fair Trading v First National Bank,[31] wherein the lack of a seemingly unfair interest term would leave the bank open to a very poor deal whereby no interest could be charged. "Subject to" contracts

If a contract specifies "subject to contract", it may fall into one of three categories:[32] 1. The parties are immediately bound to the bargain, but they intend to restate the deal in a formalized contract that will not have a different effect; or 2. The parties have completely agreed to the terms, but have made the execution of some terms in the contract conditional on the creation of a formalized contract; or 3. It is merely an agreement to agree, and the deal will not be concluded until the formalized contract has been drawn up. If a contract specifies "subject to finance", it imposes obligations on the purchaser:[33]

The purchaser must seek finance; and When offers of finance arrive, the purchaser must make a decision as to whether the offers of finance are suitable.

This may also refer to contingent conditions, which come under two categories: condition precedent and condition subsequent. Conditions precedent are conditions that have to be complied with before performance of a contract With conditions subsequent, parties have to perform until the condition is not met. Failure of a condition repudiates the contract this is not to necessarily discharge it. Repudiation will always give rise to a lawsuit for damages.

IMPUTATION (LAW) In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusatignorance of the law does not excuse. All laws are published and available for study in all developed states. The content of the law is imputed to all persons who are within the jurisdiction, no matter how transiently. This fiction tries to negate the unfairness of someone avoiding liability for an act or omission by simply denying knowledge of the law. The principle also arises in specific areas of law, such as criminal law and commercial law, to describe the need for the law to hold a person liable, even when they may not have known the particular circumstances that caused another person to sustain loss or damage. Criminal law Corporate liability To incur liability for a crime, a person must have both committed a prohibited act (the actus reus, which must be willed: see automatism) and have had an appropriate mental element (themens rea) at the relevant time (see the technical requirement

for concurrence). A key component of the mens rea is any knowledge that the alleged criminal might have had. For these purposes, knowledge can be both actual and constructivei.e., the court can impute knowledge where appropriate. There is no problem when the alleged criminal actually intended to cause the particular harm. Things are more difficult when the defendant denies actual knowledge. When evaluating behavior, the legal process assumes the defendant was aware of their immediate physical surroundings and understood practical cause and effect. A mens rea is imputed when a person with reasonable foresight in the same circumstances would have foreseen that the actus reus would occur. This prevents a person from raising a defence based on willful blindness (note that in the United States, wilful blindness has a slightly different meaning). A problem arises when the defendant is a corporation. By its nature, a fictitious person can only act through the human agency of the natural persons that it employs. Equally, it has no mind to constitute the mens rea. Hence, the notion of vicarious liability for companies and other business entities exclusively depends on the ability to impute knowledge. The test is one of identification. If the natural person who acts can be "identified with the mind of the company" when performing the actions forming the actus reus, all the relevant mental elements will be imputed to the company. This test, sometimes termed the alter ego test, is objective and cannot be distracted by the job title or description formally held by the human agent. This prevents evasion of liability by the simple expedient of naming the real director of affairs as the janitor. However, not all actions trigger this transference. When acting, the human agent identified as the mind must be promoting the company's interests in some practical way. If they are engaged in an entirely personal activitye.g., attacking a fellow employee out of anger or stealing from the companythe courts do not impute the relevant mens rea to the company. In the United States, the courts use a three-pronged test to determine whether a corporation is vicariously liable for the acts of its employees: 1. The employee must have acted within the scope of employment. 2. The employee must have acted, at least partly, to benefit the corporation. 3. It must be reasonable to impute the employee's acts and intentions to the corporation. Joint principals A standard example of imputation arises through the principle of joint endeavour. Where two or more people embark on a joint exercise, they are equally liable for everything that happens during the execution of their plan. For this purpose, joint principals are treated as knowing everything that happens, whether they were present

or not. The requisite mens rea formed by one is imputed to the others to enable a conviction. For example, suppose that a gang conspire to rob a bank. One remains outside in the car to ensure a quick escape. If the others kill a guard inside the bank, the driver is jointly liable for the homicide. Agency In the majority of agency situations, Agents must be allowed some degree of discretion in the conduct of routine transactions. Hence, there is no need to seek specific authorisation for every deal or detail within a deal. But, when the Agent acts with actual or apparent authority, all the Agent's knowledge will be imputed to the Principal. If Principals were allowed to hide behind their agents' ignorance, mistakes, or failures to communicate, they could achieve better results than if they acted personally. For example, if the particular deal turned out well, the Principal could adopt the transactionif it turned out badly, the Principal could disavow it. If not for imputation, there would be a perverse incentive to conduct business through Agents rather than personally. Consequently, the Principal cannot exploit ignorance to advantage by instructing the Agent to withhold key information, or by appointing an Agent known to be secretive. This rule in favour of imputation relates to the generality of the duties an Agent owes to a Principal, in particular the Agent's duty to communicate material facts to the Principal. Since the purpose of the law is to offer protection to Third Parties who act in good faith, it is reasonable to allow them to believe that, in most cases, the Agents have fulfilled this duty. After all, the Principal selects the Agents and has the power to control their actions both through express instructions and incentives intended to influence their behaviour which will include laying down routines for how Agents should handle information, and the extent to which Agents will be rewarded for transmitting information of commercial value. The result is a form of strict liability in which the legal consequences of an Agent's acts or omissions are attributed to a Principal even when the Principal was without fault in appointing or supervising the Agent. The liability of corporations in tort In English law, a corporation can only act through its employees and agents so it is necessary to decide in which circumstances the law of agency or vicarious liability will apply to hold the corporation liable in tort for the frauds of its directors or senior officers. If liability for the particular tort requires a state of mind, then to be liable, the director or senior officer must have that state of mind and it must be attributed to the company. In Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500, two employees of the company, acting within the scope of their authority but unknown to the directors, used company funds to acquire some shares. The question was whether the company knew, or ought to have known that it had acquired those shares. The Privy Council held that it did. Whether by virtue of their actual or ostensible

authority as agents acting within their authority (see Lloyd v Grace, Smith & Co. [1912] AC 716) or as employees acting in the course of their employment (see Armagas Limited v Mundogas S.A. [1986] 1 AC 717), their acts and omissions and their knowledge could be attributed to the company, and this could give rise to liability as joint tortfeasors where the directors have assumed responsibility on their own behalf and not just on behalf of the company. So, if a director or officer is expressly authorised represent a particular class on behalf of the company, and makes a fraudulent representation that causes loss to a Third Party, the company is liable, even though the representation was an improper way of doing what he was authorised to do. The extent of authority is a question fact and is significantly more than the fact of an employment that gave the employee the opportunity to carry out the fraud. In Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited [1971] 2 QB 711, a company secretary fraudulently hired cars for his own use without the managing director knowing. A company secretary routinely enters into contracts in the company's name and has administrative responsibilities that would give apparent authority to hire cars. Hence, the company was liable.

IN LOCO PARENTIS the term in loco parentis, latin for "in the place of a parent""[1] refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Originally derived from english common law, it is applied in two separate areas of the law. first, it allows institutions such as colleges and schools to act in the best interests of the students as they see fit, although not allowing what would be considered violations of the students' civil liberties.[1] second, this doctrine can provide a non-biological parent to be given the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.[2] the in loco parentis doctrine is distinct from the doctrine of parens patriae, the psychological parent doctrine, and adoption.[3] in the united states, the parental liberty doctrine imposes constraints upon the operation of the in loco parentis doctrine.[3] primary and secondary education cheadle hulme school, founded in manchester, england, in 1855; adopted in loco parentis as its motto, well before the world's first public education act of 1870. the school was established to educate and care for orphans and children of distressed

parents; during times when the average longevity of manchester factory workers was twenty years old. in loco parentis had only precedent legal meaning for wards of court. the founding of cheadle hulme school, otherwise known as manchester warehousemen and clerks orphans schools, became the first time the expression was used with legal standing in the educational field. the first major limitation to this came in the u.s. supreme court case west virginia state board of education v. barnette (1943), in which the court ruled that students cannot be forced to salute the american flag. more prominent change came in the 1960s and 1970s in such cases as tinker v. des moines independent community school district (1969), when the supreme court decided that "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." adult speech is also limited by "time, place and manner" restrictions and therefore such limits do not rely on schools acting in loco parentis. the provisions of in loco parentis have generally not been upheld over time. in new jersey v. t.l.o. (1985) justice white wrote: "in carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the state, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the fourth amendment." the case upheld the search of a purse while on public school property based upon reasonable suspicion, indicating there is a balancing between the student's legitimate expectation of privacy and the public school's interest in maintaining order and discipline. however, in hazelwood school district v. kuhlmeier (1987) the supreme court ruled that "first amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment" and schools may censor school-sponsored publications (such as a school newspaper) if content is "...inconsistent with its basic educational mission." other student issues such as school dress codes along with locker, cell phone, and personal laptop computer searches by public school officials have not yet been tested in the supreme court. private institutions are given significantly more authority over their students than public ones, and are generally allowed to arbitrarily dictate rules. in the kentucky state supreme court casegott v. berea college, it was upheld that a "college or university may prescribe requirements for admission and rules for the conduct of its students, and one who enters as a student implicitly agrees to conform to such rules of government", while publicly funded institutions could not claim the same ability. criticism of the tinker doctrine by justice clarence thomas

justice clarence thomas has argued that tinkers ruling contradicted the traditional understanding of the judiciarys role in relation to public schooling, and ignored the history of public education (127 s.ct. 2634). he believed the judiciarys role to determine whether students have freedom of expression was limited by in loco parentis. he cited lander v. seaver (1859) which held that in loco parentis allowed schools to punish student expression that the school or teacher believed contradicted the schools interests and educational goals. this ruling declared that the only restriction the doctrine imposed were acts of legal malice or acts that caused permanent injury. neither of these were the case with tinker. higher education though in loco parentis continues to apply to primary and secondary education in the u.s., application of the concept has largely disappeared in higher education. however, this was not always the case. prior to the 1960s, undergraduates were subject to many restrictions on their private lives. Women were generally subject to curfews as early as 10:00, and dormitories were usually entirely one-sex. Some universities expelled studentsespecially female studentswho were somehow "morally" undesirable. more importantly, universities saw fit to restrict freedom of speech on campus, often forbidding organizations dealing with "off-campus" issues from organizing, demonstrating, or otherwise acting on campus. these restrictions were severely criticized by the student movements of the 1960s, and the free speech movement at the university of california at berkeley formed partly on account of them, inspiring students elsewhere to step up their opposition.[4] The landmark 1961 case dixon v. alabama was the beginning of the end for in loco parentis in u.s. higher education. The united states court of appeals for the fifth circuit found thatalabama state college could not summarily expel students without due process.[5] references in popular culture in the episode "man jam" of the seventh season of the british sitcom peep show, the fictional band "man feelings", with super hans as vocalist, play a song (title unknown) with the lyrics: i am in loco parentis; i am the last remaining contestant on the apprentice; i am the home-trained dentist; ay yay yay yay. in scent of a woman school inquiry scene, al pacino character claims to represent the main characters parents using the term to state his claim. Although he doesn't really know them.

INEQUALITY OF BARGAINING POWER

Results after unequal bargaining

In social sciences, inequality of bargaining power is where one party to a "bargain", or some kind of contract or agreement, has more and better alternatives than the other party. This results in one party having greater "power" than the other to choose not to take the deal and makes it more likely that this party will gain more favourable terms. Inequality of bargaining power is where freedom of contract ceases to be real andmarkets fail. Where bargaining power is persistently unequal, the concept of inequality of bargaining power serves as a justification for the implication of mandatory terms into contracts by law, or the non-enforcement of a contract by the courts. Historical development The concept of inequality of bargaining power was long recognised, particularly with regard to workers. In the Wealth of Nations Adam Smith wrote, It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily; and the law, besides, authorizes, or at least does not prohibit their combinations, while it prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work; but many against combining to raise it. In all such disputes the masters can hold out much longer. A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without employment.

In the long run the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate.[1] Beatrice Webb and Sidney Webb in their treatise Industrial Democracy significantly expanded on the critique of 19th century labour conditions and advocated a comprehensive system oflabour law contained a chapter called, "The Higgling of the Market". They argued that the labour market was dominated by employers, and therefore had the same effect as monopsony. Workers generally are more under pressure to sell their labour than an employer is under to buy it. An employer can hold out longer, because typically he will have greater financial reserves. This means that much labour is supplied merely out of necessity, than free choice (shifting the supply curve to the right) and it is a false kind of competitive environment. The Webbs also pointed out that discrimination can decrease job opportunities for women or minorities, and that the legal institutions underpinning the market were skewed in favour of employers. Most importantly, they believed that a large pool of unemployed people was a constant downward drag on the ability of workers to bargain for better conditions. When the unemployed are crowding round the factory gates every morning, it is plain to each man that, unless he can induce the foreman to select him rather than another, his chance of subsistence for weeks to come may be irretrievably lost. Under these circumstances bargaining, in the case of the individual isolated workmen, becomes absolutely impossible.[2]

The Webbs felt that these factors all added up to systemic inequality of bargaining power between workers and employers. The first ever use of the phrase "inequality of bargaining power", however, appears to have been by the British philosopher, John Beattie Crozier in The Wheel of Wealth.[3] There must always be an inequality of bargaining power between masters and men in every contract, until that day shall arrive when the sacrifices of each master in a strike or lock out will affect his present comfort and future destiny as seriously, in its way, as it does that of each of his workmen.

Max Weber, The Theory of Social and Economic Organization (1915, translated 1947) 152, Power is the probability that one actor within a social relationship will be in a position to carry out his own will, despite resistance, regardless of the basis on which this probability rests. JR Commons, JR Andrews, American Bureau of Industrial Research, Principles of Labor Legislation (1916) 28, 30, 245

JR Commons, History of Labour in the United States (1918) 34 AC Pigou, The Economics of Welfare (1920) Robert Dahl, The Concept of Power (1957) 2(3) Behavioral Science 201, 202-203, power is when A can get B to do something that B would not otherwise do. MJ Trebilcock, An Economic Approach to the Doctrine of Unconscionability in BJ Reiter and J Swan (eds) Studies in Contract (1980)

"The real measure of market power is not whether a supplier presents his terms on a take-it-or-leave basis but whether the consumer, if he decides to leave it has available to him a workably competitive range of alternative sources of supply. Whether this is or is not so simply cannot be derived intuitively from the fact that a particular supplier is offering non-negotiable standard-form terms. It is a matter for independent inquiry. If the market is workably competitive, any supplier offering uncompetitive standard form terms will have to reformulate his total package of price and non-price terms to prevent consumers (at least consumers at the margin, which are the decisive consideration in such a market) from switching their business to other competitors.... Non-economists often overlook the importance of marginal analysis in this context. For example, if only 10 per cent of the buyers of insurance policies or dry-cleaning services studied all terms scrupulously before contracting an were influence in their choice of policy by their evaluation of the so-called fine print clauses, and if no supplier of insurance or drycleaning services was able to term discriminate between these consumers and other consumers in the market, there would be strong competitive pressures on each supplier to adjust the terms of his contracts so as to avoid losing this potential business.... When one asks why, many consumers probably rely in part on the constraints imposed by other consumers at the margin (ie, they let the market shop for them)."

H Beale, Inequality of bargaining power (1986) 6(1) OJLS 123, 127

"The point is obvious but worth making because it affects the conditions under which relief should be given: whereas advice as to value will normally save the contract with the poor and ignorant person, the master of the ship drifting onto the rocks would still have been open to exploitation even if he had had the entire House of Lords on board to advise him." Legal use

Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308, 1316, per Lord Diplock: To be in a position to adopt this [take it or leave it] attitude toward a party desirous of entering into a contract to obtain goods or services provides a classic instance of superior bargaining power.

Consumer laws See also: Contract law and Consumer law

F Kessler, Contracts of Adhesion--Some thoughts about Freedom of Contract (1943) 43 Columbia Law Review 629, 631-2

"In so far as the reduction of costs of production and distribution thus achieved is reflected in reduced prices, society as a whole ultimately benefits from the use of standard contracts The use of contracts has, however, another aspect which has become increasingly important. Standard contracts are typically used by enterprises with strong bargaining power. The weaker party, in need of the goods or services, is frequently not in a position to shop around for better terms, either because the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses. His contractual intention is but a subjection more or less voluntary to terms dictated by the stronger party, terms whose consequences are often understood only in a vague way, if at all."

Lowe v Lombank [1960] 1 WLR 196, Diplock J talking about ignorant consumers getting hire purchase goods not being of equal bargaining power Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (CA DC 1965) a loan agreement made so no furniture bought could be paid off unless the whole lot was. Uniform Commercial Code 2-302 Lloyds Bank Ltd v Bundy [1975] QB 326 Law Commission, Second Report on Exemption Clauses in Contracts (No 69) Unfair Contract Terms Act 1977

Labour laws See also: Labour law

Holden v. Hardy 169 US 366 (1898) Utah law limiting work hours upheld, Brown J

"The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority."

Adair v. United States, 209 U.S. 161, 175 (1908) "the employer and the employee have equality of right and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in our free land.

Coppage v. Kansas, 236 U.S. 1 (1915) United States. Commission on Industrial Relations; Francis Patrick Walsh, Basil Maxwell Manly, Industrial relations: Final report and testimony (1916) Topeka Laundry Co. v. Court of Intl Relations, 237 P. 1041, 1044 (Kan. 1925) Each statute undertook to remedy the mischief [of substandard wages for women and minors] by fixing a standard below which wages might not be depressed . . . because of inequality of bargaining power between employer and employee . . . . France v James Coombes & Co [1929] AC 496, 505-6, in a case restricting the definition of employee for the purpose of s 8 Trade Boards Act 1909, 1918, for an order to give a minimum wage to boot workers, where the worker was not working all the time when he was in the shop Lord Atkin said, the presumed necessity for fixing any minimum wage rate at all in any particular trade is due to the apprehension on the part of the Minister that in its absence workmen in that trade may have imposed upon them wages which they ought not to be asked to accept, but which, either as a result of competition in the labour market or deficient bargaining power, they are not in a position to refuse National Labor Relations Act of 1935 Section 1, at 29 U.S.C. 151

"The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries."

NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938) where the US Supreme Court held employers can replace striking workers, though workers remain employees during a strike and can get a reinstatement remedy. Radcliffe v Riddle Motor Services Ltd [1939] AC 215, 241, Lord Wright in a judgment restricting common employment notes how little bargaining power a workman possessed Rookes v Barnard [1964] AC 1129, 1219, Lord Hodson,

"It is easy now to see that Parliament in 1906 might have felt that the only way of giving labour an equality of bargaining power with capital was to give it special immunities which the common law did not permit. Even now, when the scales have been redressed, it is easy to see that Parliament might think that a strike, whether

reprehensible or not, ought not to be made a ground for litigation and that industrial peace should be sought by other means." Landlord and tenant

Rugby Joint Water Board v Footit [1973] AC 202, Lord Simon, landlord and tenant Attorney General of Canada v Nav Canada (2008) FC 71, [19] Hugessen J of the Canadian Federal Court, approved the purpose of the Residential Tenancy Act in the Northwest Territories (replicated across Canadian provinces) as follows: Bearing in mind the usual disparity of bargaining power and financial resources between such tenants and their landlords, the Act is evidently intended to restore the balance of power through the public employment of a rental officer to try and mediate and, if necessary, to adjudicate disputes between them. The Canadian Residential Tenancy Acts say residential tenancies can only be terminated with good reasons, and limit annual rental increases to a figure set by a Central Board. It should be appreciated how this differs from rent control laws, which place inflexible ceilings on any increases.

INEVITABLE DISCLOSURE Inevitable disclosure is a legal doctrine through which an employer can use trade secret law to enjoin a former employee from working in a job that would inevitably result in the use of trade secrets. INEVITABLE DISCOVERY Inevitable discovery is a doctrine in United States criminal procedure that allows evidence of a defendant's guilt that would otherwise be considered inadmissible under the exclusionary rule to be admitted into evidence in a trial. The doctrine was adopted first by the United States Supreme Court in Nix v. Williams in 1984. It holds that evidence obtained in violation of the defendant's constitutional rights is admissible in court if it can be established, by a preponderance of the evidence, that normal police investigation would have inevitably led to the discovery of the evidence. The rationale for the rule is that police misconduct is sufficiently deterred and the interests of society are better served by putting police in the same position that they would have been in without the rights violation, not a worse position.

INHERENT JURISDICTION Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. The term is also used when a governmental institution derives its jurisdiction from a fundamental governing instrument

such as aconstitution. In the English case of Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd, Lord Diplock described the court's inherent jurisdiction as a general power to control its own procedure so as to prevent its being used to achieve injustice. Inherent jurisdiction appears to apply to an almost limitless set of circumstances. There are four general categories for use of the court's inherent jurisdiction: 1. 2. 3. 4. to ensure convenience and fairness in legal proceedings; to prevent steps being taken that would render judicial proceedings inefficacious; to prevent abuses of process; to act in aid of superior courts and in aid or control of inferior courts and tribunals.

As such, the exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own processes and to control the procedures before it. The power stems not from any particular statute or legislation, but rather from inherent powers invested in a court to control the proceedings brought before it.

Inherent jurisdiction in Canada According to the case law in Canada, the key restriction on the application of inherent jurisdiction is that the doctrine cannot be used to override an existing statute or rule. The clearest articulation of such restriction is set out in the Supreme Court of Canada decision in College Housing Co-operative Ltd. v Baxter Student Housing Ltd. (1976) which was a case dealing with whether a judge had exceeded jurisdiction in determining the mortgagee should have priority over other charges and encumbrances. The Supreme Court of Canada stated that a court cannot negate the unambiguous expression of legislative will and further held that: Inherent jurisdiction cannot, of course, be exercised so as to conflict with statute or rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case. Another restriction on the application of the doctrine of inherent jurisdiction appears to be that inherent jurisdiction cannot be used to create new rules of substantive law. The Rules of Civil Procedure in various provinces in Canada have varying relationships with the inherent jurisdiction of their courts. In Ontario the Rules of Civil Procedure are considered to be regulations of the Courts of Justice Act, and thus an expression of legislative will. They are created and amended by a "Civil Rules Committee" which consists of fourteen judges and thirteen other persons involved in the legal community including the Attorney General or his representative. The rules are subject to the approval of the Lieutenant Governor in Council. The judges of the Court obviously have a part in the making of the rules, but the rules are regulations under the Act. Inherent jurisdiction cannot be used to conflict with the unambiguous expression of the Rules. In Nova Scotia, on the other hand, the Rules of Civil Procedure are made by the judges of the Superior Court and the Court of Appeal pursuant to s.46 of the Judicature Act. The Attorney

General does not have a hand in their creation, and they are not subject to approval by the Lieutenant Governor in Council. The Court of Appeal for Nova Scotia has taken the position that a single judge of the court may use the inherent jurisdiction of the court to manage its own procedures.

INHERENT POWERS (UNITED STATES)

Inherent powers are powers held by a sovereign state. In the United States, the President derives these powers from the loosely-worded statements in the Constitution that "the executive Power shall be vested in a President" and the president should "take care that the laws be faithfully executed" (defined in practice, rather than by constitutional or statutory law). In re Debs, 158 U.S. 564 (1895)[1] was a Supreme Court decision involving Eugene V. Debs and labor unions. Debs (president of the American Railway Union) was involved in the Pullman Strike earlier in 1894, and challenged the federal injunction ordering the strikers back to work. The injunction had been issued because of the hindrance to transportation of U.S. Mail. However, Debs refused to end the strike and was cited for contempt of court; he appealed the decision to the courts. The main question was whether the President had a right to issue the injunction, which dealt with the lives of the supreme justices and the international chamber choir (both of which interfered with the necessary and proper clause of the Constitution: interstate and intrastate commerce, and shipping by rail cars). The legislative branch had never delegated to the President the power to issue and injunction. However, in a unanimous decision written by Justice David Josiah Brewer the court ruled in favor of the U.S. government. Joined by Chief Justice Melville Fuller and Associate Justices Stephen Johnson Field, John Marshall Harlan, Horace Gray, Henry Billings Brown, George Shiras, Jr., Howell Edmunds Jackson and Edward Douglass White, the court ruled that the government had a right to regulate interstate commerce and ensure the operations of the Postal Service, along with a responsibility to "ensure the general welfare of the public." The constitution is interpreted by the government and the people. However, the limits of inherent powers were articulated in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)[1]. This case was a Supreme Court decision limiting the power of the president to seize private property in the absence of either specifically-enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress. However, Justice Black's majority decision was qualified by separate concurring opinions of five other members of the Court; this made it difficult to determine the details and limits of the president's power to seize private property in emergencies. Justice Jackson's concurring opinion provided three categories to be considered:

Congress authorizes (express or implied) Congress disapproves (express or implied) Congress does nothing (which can invite judicial consideration of the president's actions)

INTERNAL AFFAIRS DOCTRINE

The internal affairs doctrine is a choice of law rule in corporations law. Simply stated, it provides that the "internal affairs" of a corporation (e.g. conflicts between shareholders and management figures such as the board of directors and corporate officers) will be governed by the corporate statutes and case law of the state in which the corporation is incorporated, sometimes referred to as the lex incorporationis.[1][2] Practical effects of the doctrine The internal affairs doctrine ensures that such issues as voting rights of shareholders, distributions of dividends and corporate property, and the fiduciary obligations of management are all determined in accordance with the law of the state in which the company is incorporated. On the other hand, the "external affairs" of a corporation, such as labor and employment issues and tax liability, are typically governed by the law of the state in which the corporation is doing business. Some issues and activities, such as contracts, mergers and acquisitions, and sales of securities to third parties, may be governed both by the laws of the state of incorporation and by the laws of the state in which the transaction takes place, and in some cases, by federal law as well (for example, United States securities law and antitrust law). Relation to federalism See also: Federalism in the United States In the United States, each state has the power to set its own corporate law. Because of this, and the fact that the internal affairs doctrine has been used by courts to allow application of the lex incorporationis, this has created a competitive market for incorporations among the states. Several states have taken advantage of this situation by becoming corporate havens, particularly Delaware and Nevada. Likewise, many jurisdictions apply the internal affairs doctrine internationally, which has permitted offshore financial centres to flourish.

INVITATION TO TREAT

Invitation to treat (or invitation to bargain in the United States) is a contract law term. It comes from the Latin phrase invitatio ad offerendum and means "inviting an offer". Or as Andrew Burrows writes, an invitation to treat is "an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed."[1] Contract lawyers distinguish this from a binding offer, which can be accepted to form a contract (subject to other conditions being met). The distinction between an offer and invitation to treat is best understood through the categories that the courts create. Invitations to treat include the display of goods; the advertisement of a price or an auction; and an invitation for tenders (or competitive bids). There may however be statutory or complementary obligations, so consumer protection laws prohibit misleading advertising and at auctions without reserve there is always a duty to sell to the highest bona fide bidder.

Case law The clearest example of an invitation to treat is a tender (or bidding in the U.S.) process. This was illustrated in the case of Spencer v Harding (1870) LR 5 CP 561, where the defendants offered to sell by tender their stock and the court held that they had not undertaken to sell to the person who made the highest tender, but were inviting offers which they could then accept or reject as they saw appropriate. In certain circumstances though, an invitation for tenders may be an offer. The clearest example of this was seen in Harvela Investments Ltd v Royal Trust of Canada (CI) Ltd [1986] AC 207, where the defendants had made it clear that they were going to accept the highest tender; the court held that this was an offer which was accepted by the person who made the highest tender and that the defendants were in breach of contract by not doing so. An auction may be more ambiguous. Generally an auction may be seen as an invitation to treat, with the property owner asking for offers of a certain amount and then selecting which to accept as illustrated in Payne v Cave (1789) 3 TR 148. However, if it is stated by the owner that there is no reserve price or that there is a reserve price beyond which offers will be accepted then the auction is most likely a contractual offer which is accepted by the highest bidder; this was affirmed in the Court of Appeal in Barry v Davies [2000] 1 WLR 1962. A shop owner displaying their goods for sale is generally making an invitation to treat (Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd[1953] 1 QB 401). They are not obliged to sell the goods to anyone who is willing to pay for them, even if additional signage such as "special offer" accompanies the display of the goods. (But see bait and switch.) This distinction was legally relevant in Fisher v Bell [1961] 1 QB 394, where it was

held that displaying a flick knife for sale in a shop did not contravene legislation which prohibited offering for sale such a weapon. The distinction also means that if a shop mistakenly displays an item for sale at a very low price it is not obliged to sell it for that amount.[2] Generally, advertisements are invitations to treat, so the person advertising is not compelled to sell to every customer. In Partridge v Crittenden [1968] 1 WLR 1204, it was held that where the appellant advertised to sell wild birds, was not offering to sell them. Lord Parker CJ commented that it did not make "business sense" for advertisements to be offers, as the person making the advertisement may find himself in a situation where he would be contractually obliged to sell more goods than he actually owned. In certain circumstances however, an advertisement can be an offer, a well-known example being the case of Carlill v Carbolic Smoke Ball Company[1893] 1 QB 256, where it was held that the defendants, who advertised that they would pay anyone who used their product in the prescribed manner and caught influenza 100 and said that they had deposited 1,000 in the bank to show their good faith, has made an offer to the whole world and were contractually obliged to pay 100 to whoever accepted it by performing the requested acts. For an offer to be capable of becoming binding on acceptance, the offer must be definite, clear, and final. If it is a mere preliminary move into negotiation which may lead to a contract, it is not an offer but an invitation to treat. The offerer must have been initiating negotiations from which an agreement may or may not in time result. The important point to note is that, since an invitation to treat is not an offer, but rather a phenomenal preliminary to an offer, an invitation to treat is not capable of an acceptance which will result in a contract.

J
JENKINSLAPORTE DOCTRINE
In United States copyright law and jurisprudence established under the doctrine of stare decisis by the case of Netbula, LLC v. Symantec Corp., 516 F. Supp.2d 1137 (N.D.Cal. 2007)[1] and related cases.[2] The cases defined the boundaries of property rights and contractual rights in the licensing of digital works. It is so called because the cases were decided by two renowned American judges and leading jurists, former U.S. District Judge Martin Jenkins (now a Justice in California Courts of Appeal) and Magistrate Judge Elizabeth D. Laporte. The basic principles of the doctrine can be summarized: (1) If an accused infringer did not see or agree to copy restriction, there was no infringement; (2) A "one user on one computer" restriction does not limit the scope of a software license, it's an independent contractual covenant;

(3) A termination clause in the license agreement does not limit the scope of the license, it's an independent contractual covenant. The ingenious observation Justice Jenkins made was that in a copyright action, although license is an affirmative defense to infringement, the "plaintiffs initial hurdle is proving the terms of the license." 516 F. Supp. 2d at 1151. The JenkinsLaporte doctrine provides a legal foundation for circumvention of the exclusive rights provided by the Copyright Act, as the doctrine requires the copyright owner to prove the negative.

JUDICIAL DEFERENCE
Judicial deference is a doctrine by which judges seek to avoid frustrating the will of the legislature when deciding cases [1]. It is most commonly found in countries, such as the United Kingdom, which lack anentrenched constitution, as the essential purpose of such documents is to limit the power of the legislature. There are some examples, however, of the occurrence of judicial deference in the United States, such as on immigration case law, wherein the judiciary has (historically) sought to not impede explicit constitutionalCongressional authority; see Fiallo v. Bell (1977). In Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others [1999], Lord Hope explained that courts should "defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society." Nevertheless the doctrine has been criticised for representing a way in which the courts should act obediently to Parliament in order to uphold the doctrine of Parliamentary Sovereignty. However, any suggestions that the House of Lords was being unduly servile to Parliament were overturned by the decision in A v Home Secretary [2005]. In the case, a group of detainees who had been imprisoned without charge under s.23 of the Anti-terrorism, Crime and Security Act 2001 on the grounds that they posed a threat to national security, appealed successfully against their detention. The court held that the powers of detention without charge violated Convention rights because of their discriminatory impact (articles 5 and 14 Human Rights Act 1998).

JUDICIAL DISCRETION
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Where

appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions. However, where the exercise of discretion goes beyond constraints set down by legislation, by binding precedent, or by a constitution, the court may be abusing its discretion and undermining the rule of law. In that case, the decision of the court may be ultra vires, and may sometimes be characterized as judicial activism. Chief Justice John Marshall wrote the following on this subject: Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.[1] Concerns with regard to recidivism and other law and order issues have led to the introduction of mandatory sentencing laws which significantly limit judicial discretion in sentencing, particularly in the United States.

Jurisprudence constante
Jurisprudence constante is a legal doctrine according to which a long series of previous decisions applying a particular rule of law is very important and may be determinative in subsequent cases. This doctrine is recognized in most civil law jurisdictions, in the civil law of Louisiana, for example. The rule of law applied in the jurisprudence constante directly compares with stare decisis. But the Louisiana Supreme Court notes the principal difference between the two legal doctrines: a single court decisioncan provide sufficient foundation for stare decisis, however, "a series of adjudicated cases, all in accord, form the basis for jurisprudence constante." [1] Moreover, the Louisiana Court of Appeals has explicitly noted that jurisprudence constante is merely a secondary source of law, which cannot be authoritative and does not rise to the level of stare decisis. [2]

JUST WAR THEORY

Just war theory (or Bellum iustum) is a doctrine of military ethics of Roman philosophical and Catholic origin,[1][2] studied by moral theologians, ethicists and internationalpolicy makers, which holds that a violent conflict ought to meet philosophical, religious or political criteria.

Origins The Indian epic, the Mahabharata, offers one of the first written discussions of a 'just war'. In it, one of five ruling brothers asks if the suffering caused by war can ever be justified, and then a long discussion ensues between the siblings, establishing criteria like proportionality (chariots cannot attack cavalry, only other chariots, no attacking people in distress), just means (no poisoned or barbed arrows), just cause (no attacking out of rage), and fair treatment of captives and the wounded.[3] The war in Mahabharata is preceded by context that develops the "just cause" for the war including last minute efforts to reconcile differences to avoid war. At the beginning of the war, there is the discussion of "just conduct" appropriate to the context of war. In ancient Rome, a "just cause" for war might include the necessity of repelling an invasion, or retaliation for pillaging or a breach of treaty.[4] War was always potentially nefas, "wrong, forbidden", and risked religious pollution and divine disfavor.[5] A just war (bellum iustum) thus required a ritualized declaration by the fetial priests.[6] More broadly, conventions of war and treaty-making were part of the ius gentium, the "law of nations", the customary moral obligations regarded as innate and universal to human beings.[7] The quintessential explanation of just war theory in the ancient world is found in Cicero's De Officiis, Book 1, sections 1.11.331.13.41 Saints Augustine and Aquinas Christian theory of the just war begins with Augustine of Hippo[8] and Thomas Aquinas.[9] Augustine of Hippo, generally considered one of the first and greatest Christian theologians, was one of the first to assert that a Christian could be a soldier and serve God and country honorably. He claimed that, while individuals should not resort immediately to violence, God has given the sword to government for good reason. Christians as part of government should not be ashamed to protect peace and punish wickedness.[citation needed] Augustine asserted that this was a personal, philosophical stance: "What is here required is not a bodily action, but an inward disposition. The sacred seat of virtue is the heart."[10] Nonetheless, he asserted, peacefulness in the face of a grave wrong that could only be stopped by violence would be a sin. Defense of one's self or others could be a necessity, especially when authorized by a legitimate authority: "The commandment forbidding killing was not broken by those who have waged wars on the authority of God, or those who have imposed the death-penalty on criminals when representing the authority of the state, the justest and most reasonable source of power."[citation needed]

While not breaking down the conditions necessary for war to be just, Augustine nonetheless originated the very phrase, itself, in his work The City of God: "But, say they, the wise man will wage just wars. As if he would not all the rather lament the necessity of just wars, if he remembers that he is a man; for if they were not just he would not wage them, and would therefore be delivered from all wars."[11] Thomas Aquinas Nine hundred years later, Thomas Aquinas an immensely influential philosopher and theologian in the tradition of scholasticism used the authority of Augustine's arguments as he laid out the conditions under which a war could be just:[12]

First, war must occur for a good and just purpose rather than for self-gain (for example, "in the nation's interest" is not just) or as an exercise of power. (Proper Authority is first: represents the common good: which is peace for the sake of man's true endGod.) Second, just war must be waged by a properly instituted authority such as the state. (Just Cause: for the sake of restoring some good that has been denied. i.e., lost territory, lost goods, punishment for an evil perpetrated by a government, army, or even citizen population.) Third, peace must be a central motive even in the midst of violence.[13] (Right Intention: an authority must fight for the just reasons it has expressly claimed for declaring war in the first place. Soldiers must also fight for this intention.) School of Salamanca Growing from Aquinas arguments was the School of Salamanca, which expanded on Thomistic understanding of natural law and just war. Given that war is one of the worst evils suffered by mankind, the adherents of the School reasoned that it ought to be resorted to only when it was necessary in order to prevent an even greater evil. A diplomatic agreement is preferable, even for the more powerful party, before a war is started. Examples of "just war" are:

In self-defense, as long as there is a reasonable possibility of success. Preventive war against a tyrant who is about to attack. War to punish a guilty enemy. A war is not legitimate or illegitimate simply based on its original motivation: it must comply with a series of additional requirements:

It is necessary that the response be commensurate to the evil; use of more violence than is strictly necessary would constitute an unjust war. Governing authorities declare war, but their decision is not sufficient cause to begin a war. If the people oppose a war, then it is illegitimate. The people have a right to depose a government that is waging, or is about to wage, an unjust war.

Once war has begun, there remain moral limits to action. For example, one may not attack innocents or kill hostages. It is obligatory to take advantage of all options for dialogue and negotiations before undertaking a war; war is only legitimate as a last resort. Under this doctrine, expansionist wars, wars of pillage, wars to convert infidels or pagans, and wars for glory are all inherently unjust. Formally described Just War The first work dedicated specifically to it was De bellis justis of Stanisaw of Skarbimierz, who justified war of the Kingdom of Poland with Teutonic Knights.[citation needed] Francisco de Vitoria criticized the conquest of America by the Kingdom of Spain.[citation needed] With Alberico Gentili and Hugo Grotius just war theory was replaced by international law theory, codified as a set of rules, which today still encompass the points commonly debated, with some modifications.[14] The importance of the theory of just war faded with revival of classical republicanism beginning with works of Thomas Hobbes. The Just War theory is an authoritative Catholic Church teaching confirmed by the United States Catholic Bishops in their pastoral letter, The Challenge of Peace: God's Promise and Our Response, issued in 1983. More recently, the Catechism of the Catholic Church, in paragraph 2309, lists four strict conditions for "legitimate defense by military force":

the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain; all other means of putting an end to it must have been shown to be impractical or ineffective; there must be serious prospects of success; the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power as well as the precision of modern means of destruction weighs very heavily in evaluating this condition. Although the criticism can be made that the application of Just War is relativistic, one of the fundamental bases of the tradition is the Ethic of Reciprocity, particularly when it comes to in bello considerations of deportment during battle. If one set of combatants promise to treat their enemies with a modicum of restraint and respect, then the hope is that other sets of combatants will do similarly in reciprocation, (a concept not unrelated to the considerations of Game Theory). Just War theorists combine both a moral abhorrence towards war with a readiness to accept that war may sometimes be necessary. The criteria of the just war tradition act as an aid to determining whether resorting to arms is morally permissible. Just War theories are attempts "to distinguish between justifiable and unjustifiable uses of

organized armed forces"; they attempt "to conceive of how the use of arms might be restrained, made more humane, and ultimately directed towards the aim of establishing lasting peace and justice".[15] The Just War tradition addresses the morality of the use of force in two parts: when it is right to resort to armed force (the concern of jus ad bellum) and what is acceptable in using such force (the concern of jus in bello).[16] In more recent years, a third category jus post bellum has been added, which governs the justice of war termination and peace agreements, as well as the prosecution of war criminals. Anarcho-capitalist scholar Murray Rothbard stated, "a just war exists when a people tries to ward off the threat of coercive domination by another people, or to overthrow an already-existing domination. A war is unjust, on the other hand, when a people try to impose domination on another people, or try to retain an already existing coercive rule over them."[17] Jonathan Riley-Smith writes, The consensus among Christians on the use of violence has changed radically since the crusades were fought. The just war theory prevailing for most of the last two centuries that violence is an evil which can in certain situations be condoned as the lesser of evils is relatively young. Although it has inherited some elements (the criteria of legitimate authority, just cause, right intention) from the older war theory that first evolved around A.D. 400, it has rejected two premises that underpinned all medieval just wars, including crusades: first, that violence could be employed on behalf of Christ's intentions for mankind and could even be directly authorized by him; and second, that it was a morally neutral force which drew whatever ethical coloring it had from the intentions of the perpetrators.[18] Criteria of Just War theory Just War Theory has two sets of criteria, the first establishing jus ad bellum (the right to go to war), and the second establishing jus in bello (right conduct within war).[19] Jus ad bellum Main article: Jus ad bellum Just cause The reason for going to war needs to be just and cannot therefore be solely for recapturing things taken or punishing people who have done wrong; innocent life must be in imminent danger and intervention must be to protect life. A contemporary view of just cause was expressed in 1993 when the US Catholic Conference said: "Force may be used only to correct a grave, public evil, i.e., aggression or massive violation of the basic human rights of whole populations." Comparative justice

While there may be rights and wrongs on all sides of a conflict, to overcome the presumption against the use of force, the injustice suffered by one party must significantly outweigh that suffered by the other. Some theorists such as Brian Orend omit this term, seeing it as fertile ground for exploitation by bellicose regimes. Competent authority Only duly constituted public authorities may wage war. "A just war must be initiated by a political authority within a political system that allows distinctions of justice. Dictatorships (e.g. Hitler's Regime) or deceptive military actions (e.g. the 1968 US bombing of Cambodia) are typically considered as violations of this criterion. The importance of this condition is key. Plainly, we cannot have a genuine process of judging a just war within a system that represses the process of genuine justice. A just war must be initiated by a political authority within a political system that allows distinctions of justice".[20] Right intention Force may be used only in a truly just cause and solely for that purpose correcting a suffered wrong is considered a right intention, while material gain or maintaining economies is not. Probability of success Arms may not be used in a futile cause or in a case where disproportionate measures are required to achieve success; Last resort Force may be used only after all peaceful and viable alternatives have been seriously tried and exhausted or are clearly not practical. It may be clear that the other side is using negotiations as a delaying tactic and will not make meaningful concessions. Proportionality The anticipated benefits of waging a war must be proportionate to its expected evils or harms. This principle is also known as the principle of macro-proportionality, so as to distinguish it from the jus in belloprinciple of proportionality. In modern terms, just war is waged in terms of self-defense, or in defense of another (with sufficient evidence). Jus in bello Once war has begun, just war theory (Jus in bello) also directs how combatants are to act or should act: Distinction Just war conduct should be governed by the principle of distinction. The acts of war should be directed towards enemy combatants, and not towards noncombatants caught in circumstances they did not create. The prohibited acts include bombing civilian residential areas that include no military targets and committing acts of terrorism or reprisal against civilians. Moreover, combatants are not permitted to target

with violence enemy combatants who have surrendered or who have been captured or who are injured and not presenting an immediate lethal threat. Proportionality Just war conduct should be governed by the principle of proportionality. An attack cannot be launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality). Military necessity Just war conduct should be governed by the principle of minimum force. An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. This principle is meant to limit excessive and unnecessary death and destruction. Fair treatment of prisoners of war Enemy soldiers who surrendered or who are captured no longer pose a threat. It is therefore wrong to torture them or otherwise mistreat them. No means malum in se Soldiers may not use weapons or other methods of warfare which are considered evil, such as mass rape, forcing soldiers to fight against their own side or using weapons whose effects cannot be controlled (e.g. nuclear/biological weapons). Official positions World War I In April 1917, two weeks after President Woodrow Wilson declared war on Germany, Cardinal James Gibbons of Baltimore, the de facto head of the U.S. Catholic church, issued a letter that all Catholics were to support the war.[21] The Episcopalian Archbishop of New York, William Manning said in the following: Our Lord Jesus Christ does not stand for peace at any price...Every true American would rather see this land face war than see her flag lowered in dishonor...I wish to say that, not only from the standpoint of a citizen, but from the standpoint of a minister of religion...I believe there is nothing that would be of such great practical benefit to us as universal military training for the men of our land. If by Pacifism is meant the teaching that the use of force is never justifiable, then, however well meant, it is mistaken, and it is hurtful to the life of our country. And the Pacifism which takes the position that because war is evil, therefore all who engage in war, whether for offense or defense, are equally blameworthy, and to be condemned, is not only unreasonable, it is inexcusably unjust.[22] Ending a war: Jus post bellum

In recent years, some theorists, such as Gary Bass, Louis Iasiello and Brian Orend, have proposed a third category within Just War theory. Jus post bellum concerns justice after a war, including peace treaties, reconstruction, war crimes trials, and war reparations. Orend, for instance, proposes the following principles: Just cause for termination A state may terminate a war if there has been a reasonable vindication of the rights that were violated in the first place, and if the aggressor is willing to negotiate the terms of surrender. These terms of surrender include a formal apology, compensations, war crimes trials and perhaps rehabilitation. Alternatively, a state may end a war if it becomes clear that any just goals of the war cannot be reached at all or cannot be reached without using excessive force. Right intention A state must only terminate a war under the conditions agreed upon in the above criteria. Revenge is not permitted. The victor state must also be willing to apply the same level of objectivity and investigation into any war crimes its armed forces may have committed. Public declaration and authority The terms of peace must be made by a legitimate authority, and the terms must be accepted by a legitimate authority. Discrimination The victor state is to differentiate between political and military leaders, and combatants and civilians. Punitive measures are to be limited to those directly responsible for the conflict. Truth and reconciliationmay sometimes be more important than punishing war crimes. Proportionality Any terms of surrender must be proportional to the rights that were initially violated. Draconian measures, absolutionist crusades and any attempt at denying the surrendered country the right to participate in the world community are not permitted. Alternative theories

Militarism Militarism is the belief that war is not inherently bad but can be a beneficial aspect of society. Realism The core proposition of realism is a skepticism as to whether moral concepts such as justice can be applied to the conduct of international affairs. Proponents of realism believe that moral concepts should never prescribe, nor circumscribe, a state's behaviour. Instead, a state should place an emphasis on state security and self-interest. One form of realism descriptive realism proposes that states cannot act morally, while another form prescriptive realism argues that the motivating factor for a state is selfinterest. Just wars that violate Just Wars principles effectively constitute a branch of realism.

Revolution and Civil War Just War Theory states that a just war must have just authority. To the extent that this is interpreted as a legitimate government, this leaves little room for revolutionary war or civil war, in which an illegitimate entity may declare war for reasons that fit the remaining criteria of Just War Theory. This is less of a problem if the "just authority" is widely interpreted as "the will of the people" or similar. Article 3 of the 1949 Geneva Conventions side-steps this issue by stating that if one of the parties to a civil war is a High Contracting Party (in practice, the state recognised by the international community,) both Parties to the conflict are bound "as a minimum, the following [humanitarian] provisions". Article 4 of the Third Geneva Convention also makes clear that the treatment of prisoners of war is binding on both parties even when captured soldiers have an "allegiance to a government or an authority not recognized by the Detaining Power". Nonviolent struggle The "just war" criterion of "last resort" requires believers to look for alternative means of conflict. The methods of nonviolent action permit the waging of political struggle without resort to violence. Historical evidence and political theory can be examined to determine whether nonviolent struggle can be expected to be effective in future conflicts. If nonviolent action is determined effective, then the requirements for "just war" are not met.[23] Absolutism Absolutism holds that there are various ethical rules that are absolute. Breaking such moral rules is never legitimate and therefore is always unjustifiable. A "just war" if there could be such a thing would not require conscription. Volunteers would be plentiful. Ben Salmon, An Open Letter to President Wilson (October 14, 1919)

Pacifism Pacifism is the belief that war of any kind is morally unacceptable and/or pragmatically not worth the cost. Pacifists extend humanitarian concern not just to enemy civilians but also to combatants, especially conscripts. For example, Ben Salmon believed all war to be unjust. He was sentenced to death during World War I (later commuted to 25 years hard labor) for desertion and spreading propaganda.[24] Right of self-defence The theory of self-defence based on rational selfinterest maintains that the use of retaliatory force is justified against repressive nations that break the zero aggression principle. In addition, if a free country is itself subject to foreign aggression, it is morally imperative for that nation to defend itself and its citizens by whatever means necessary. Thus, any means to achieve a swift and complete victory over the enemy is imperative. This view is prominently held by Objectivists.[25] Consequentialism The moral theory most frequently summarized in the words "the end justifies the means", which tends to support the just war theory (unless the just war causes less beneficial means to become necessary, which further requires worst actions for selfdefense with bad consequences).

K
KERFRISBIE DOCTRINE
The Ker-Frisbie doctrine is applied in the context of extradition and generally holds that criminal defendants may be prosecuted in United States courts regardless of whether their presence has been obtained through the use of applicable extradition treaties. History In Ker v. Illinois, 119 U.S. 436 (1886), a messenger forcibly kidnapped the defendant from Peru and brought him back to the United States, even though he had been sent to Peru with a valid warrant and instructions to obtain the defendant with the cooperation of the local authorities. Addressing Ker's due process challenge, the Supreme Court of the United States held that "such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court." Frisbie v. Collins, 342 U.S. 519 (1952), presented a case in which the defendant was tried in Michigan after being abducted by Michigan authorities in Chicago. Applying its decision in Ker, the Supreme Court upheld the conviction over challenges based on due process and federal kidnapping laws. More recently, the Supreme Court relied on the KerFrisbie doctrine in United States v. Alvarez-Machain, 504 U.S. 655 (1992). lvarez Machan, a Mexican citizen who was abducted and brought to the United States at the direction of the Drug Enforcement Administration. The Court rejected the argument that such abductions undermine the usefulness of extradition treaties, and it refused to read general principles ofinternational law weighing against such abductions into the Mexican extradition treaty.

KNOCK AND TALK

Knock and Talk or Tap and Rap is a law enforcement tactic used when there is not sufficient evidence, probable cause, or reasonable suspicion to obtain a search warrant. It is held to not implicate the Fourth Amendment to the United States Constitution if consent is given by the citizen to enter the residence and perform a search.[1] A consent to search must be unequivocal and specific. It must be given voluntarily, intelligently, and knowingly.[2] Officers described the procedure as going to

the suspect house, engaging in conversation and attempting to gain consent to search.[3] Generally, courts examine every aspect of a knock and talk for any hint that the reasonable person would not feel free to decline the officers requests as knock and talk carries a great risk for abuse. In addition, there are no scholarly studies to show how often a so-called "knock-andtalk" develops into a "knock-and-enter." It has been suggested by civil liberty watchdog groups that all police encounters with citizens be video recorded in order to objectively have a record in order to independently verify the status of the interaction. A hypothetical situation might be as follows: malice on the part of either an individual law enforcement officer, his supervisor, or a snitch-turned-search-agent could be used as a vehicle to enter a citizen's house, find any contraband, or plant any contraband; a confident police force then goes to the citizen's residence and overwhelms anyone who answers the door in response to the police "knock-and-talk" and the police storm the house, finding what they already "know" is there by way of an illegal "search" which has occurred. The homeowner is now arrested and in jail; if this homeowner has the money and/or knowledge to fight, he can prevail, however, this court battle will probably be anchored by police claiming to have had a warrant; there is nothing to prevent this claim of possession of a warrant by police. Police do not have to display a warrant upon its so-called service execution (the very reason it is suggested that video recording should be mandatory at all "warrant executions" and "knock-and-talks"). Police do not have to include material information in a so-claimed search warrant. A purported warrant-issuing judge may not be questioned in any way and has absolute judicial immunity in this judicial duty. The SCOTUS has ruled that it is a constitutional violation to have media ride-along and video "warrant executions." Behind this warrant, attempted to defend police action which has occurred well prior to any claimed warrant, police defense firms move for "qualified immunity," which should be inapplicable in this instance given the potentially provable actions of police.