Chapter 8 American Property Law: Plenty of Old Wine In Both New and Old Bottles 38 results (showing 5 best matches)
- Of property, Sir William Blackstone, the eighteenth century commentator on the Laws of England commented that nothing captures the imagination of people as the sole dominion that individuals exercise over land and goods. While the desire for dominion over property also drives modern American property law and its theory (as it may have eighteenth century English society and its colonial American progeny on the verge of independence), the old wine, modern American property law focuses not only upon the owner’s dominion over property (the old bottles—sometimes referred to quaintly as the “bundle of sticks” that constitutes ownership), but also upon the limitations mandated by law on ownership rights. From air quality standards to zoning, property law with respect to land is as much about restrictions upon the use and enjoyment of property, the newer bottles, as it is upon protection of rights therein. Thus, as absolute as private property rights should be in ...of property...
- As the above sketch suggests, American property law is multi-faceted. It regulates rights in personal property as well as in real property. Recall how the remnants of the fox were disposed of by property . In addition, property law mandates the pattern of succession to property upon the death of its owner, and stipulates the form that intergenerational transfers must take in order for individuals to create “estate plans” for their wealth, both real and personal. Finally, property law governs the way in which ownership attaches to creativity, be it in the form of words or inventions or distinctive marks. But before delving into its mandates, let us begin with a consideration of one of its most basic principles: the distinction between possession and ownership.
- Like the American law of property, this sketch has ranged widely. Property law creates rights and defines their extent. This process can best be illustrated in the case of intellectual property rights. But when our consideration turned to real property, we observed that while the law establishes private rights, much property law, common law, statutory law, and the Constitution, imposes limitations upon its exploitation. While nothing may indeed capture our imagination like property, whether those dreams will come true is heavily dependant upon whether they are consistent with a vast body of regulatory law.
- Each spring semester, with boring regularity, I begin my first property class by wandering up the aisle of the lecture hall into the second row (the first is generally vacant), and surreptitiously tuck a student’s property casebook under my arm. A few minutes thereafter, I ask the class to whom the book belongs. With little dissent, all agree that the book is the property of the student whom I so deprived of her casebook. But when I ask the student to prove that the casebook is hers, she will usually say “I wrote my name in the book,” or “I briefed the case in the margin,” or “Here is my receipt.” While I agree that each response provides some evidence that the casebook is hers, I argue that they are not conclusive. If I cross her name out and insert mine, does the book become my property? What if I brief the next case in the margin? And the receipt: that merely shows that she bought property casebook, and not necessarily ...to most items of personal property, all that one who has...
- This discourse on estates in land has been largely historical, but its purpose is not solely antiquarian. It sets the stage for the modern law of inheritance in the United States. While the estates in land system has continued vitality, that is landowners can create a series of present and future interests in land, much wealth in America is held as personal property, rather than as real property. While there are patterns of succession to property directed by law in each state, property holders are free to determine to whom their property should pass by gift made during life or at death by will. In all states except Louisiana (which adopted and has modified the French ), a property owner is free to disinherit children and spouse. The spouse, however, may have a right in most states to “elect” against their deceased spouse’s will (a modern version of common law dower and curtesy), and receive a stipulated proportion of the deceased spouse’s estate. In some states, the community
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- Theft offenses have proliferated in recent years. The most common is larceny: the appropriation of property of another with the intent to deprive permanently. Even if a person comes into the possession of another’s property without dishonesty (for example, it is found or handed over by another in the mistaken belief that it is her property), one may be guilty of theft by not seeking to deliver it to the owner. Coming into property by false pretences and embezzlement are also larceny. Blackmail, bribery, and money laundering have been added to the list of traditional theft offenses.
- Crimes Against Property
- Crimes against property were traditionally divided into burglary and larceny. The former dealt with theft (originally, though no longer, from a dwelling in the nighttime), or entry in order to commit a felony on the premises, while the latter concerned other dishonest appropriations of property. For burglary to be proved in the past, it was necessary for the prosecutor to show both a “breaking” and an “entering.” Climbing through an open window would not suffice for the former, and remaining in the premises open to the public after they have been closed for the night might not suffice for the latter. Modern statutes have abrogated the need for a forcible breaking, and have defined an entry broadly. Likewise, it is no longer necessary to enter the premises at night, or for the premises to be a dwelling for an unlawful entry to be charged as a burglary.
- death or serious bodily harm. Under certain circumstances, force may also be used to defend others, to apprehend criminals, and to defend property. Again the force used in these situations must be measured; deadly force is generally not available to an individual unless deadly force is being marshaled against her. With respect to property, deadly force is rarely permitted, generally only to defend one’s home against a violent attack.
- lengthy prison terms, as well as the forfeiture of property and proceeds derived from the illegal enterprise.
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Chapter 6 Contract and Commercial Law: A Promise Is A Promise (Maybe) 7 results (showing 5 best matches)
- While requiring buyer to execute a negotiable instrument to facilitate transfer of the underlying receivable, seller still has no recourse against the goods that were the subject of the transaction unless the seller retains a security interest, a right that allows seller to claim back the goods or other collateral from the buyer without commencing a legal action. Sellers prefer these so-called “secured transactions.” The collateral for the transaction may be real property (in which case the real property is said to be subject to a mortgage and is covered under the land law of the jurisdiction in which it is located), fixtures (property which affixed to real property such as the gas boiler or hot water heater in a home), and most forms of personal property. The collateral may be the property of a third party.
- In order to be protected against purchasers or other transferees of the collateral, the secured party must undertake steps to perfect the security interest. Perfection is usually accomplished by filing a financing statement in a central office, usually that of the Secretary of State in the jurisdiction where the property is located. The need for perfection is particularly necessary if the debtor becomes insolvent. Unless perfected, the collateral will pass with other unsecured property to the trustee in bankruptcy
- Another possible remedy that would place me in the same position that I would have been in but for the breach would be to require the University to perform, a remedy known as specific performance. While contract law was being developed in one branch of the royal courts, the common law courts of Common Pleas and King’s Bench, the Court of Chancery was also intervening contract disputes. Typically the chancellor would take in cognizance of a contract dispute only in cases in which the remedy at law was inadequate. And because equity considered done that which ought to be done, the chancellor would order specific performance. The traditional example of a circumstance in which specific performance may be ordered is in contracts for the sale of real property, the law considering each parcel of land to be unique.
- Financing of commercial transactions is also encouraged through the recognition of the so-called “floating lien.” A single arrangement can provide for both present and future financings. Secured interests may be obtained by the creditor in a broad range of collateral, including property that has yet to be acquired by the debtor. Future advances by the creditor may also be covered by the agreement. The transactions are cross-collateralized so that a default by the debtor on one transaction allows the creditor to claim collateral secured by all transactions. This so-called “revolving credit arrangement” allows the creditor holding the “floating lien” to have priority over creditors who subsequently make loans secured on the same collateral, unless the loan is “purchase money financing” that allows the debtor to acquire new assets.
- Should the debtor default on its obligation, the secured party may either sue the creditor for the debt, or else take possession of the collateral. The defaulting party can use self-help, and seize the collateral, if such an action can be managed without a breach of the peace. The creditor may keep the collateral, or sell it at a public or private foreclosure sale, so long as the debtor is notified of the sale. Likewise, junior secured creditors must be informed of the sale. Any value received in a sale by the creditor that is in excess of the debt is paid over either to the other secured creditors or to the debtor. The creditor must conduct the foreclosure sale in a “commercially reasonable” fashion, in accordance with standard practice amongst dealers who trade in the particular type of property concerned.
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Chapter 7 American Tort Law: Venerable Common Law on The Eve of Reform? 12 results (showing 5 best matches)
- Where an individual carried away personal property, the chattels of another, a trespass was also committed. The common law provided two different forms of civil actions (in addition to possible criminal penalties) in cases in which a person intentionally carried off the goods of another. If the owner sought the value of the property taken from the individual who interfered with it, she maintained a cause of action in conversion; however, if she sought the return of the property itself, the action was one in replevin. Having abolished the forms of action, modern law allows an owner whose property is taken by another to sue and to select whichever remedy she prefers.
- In addition to these three intentional torts to the person, the common law recognized intentional civil wrongs to a person’s property called trespasses. Perhaps the more significant were trespasses to land, wrongs which were occasioned generally by a physical entry. Rights in property were regarded as sufficiently important to warrant protection even in cases in which the intentional intrusion was incidental or accidental. No damage to the property need be demonstrated for a trespass to be found; the physical intrusion was held to be sufficient to render the intrusion actionable, though the magnitude and the injury to the owner’s interest in land might be considered in assessing appropriate damages.
- Likewise, self-defense is a defense to an intentional tort. To claim self-defense, the force used must be commensurate with the threat perceived, so if at our barroom brawl, I raise my fist first, you cannot take out a pistol (Hollywood films to the contrary) and “fill me full of lead.” Only such force “reasonable” under the circumstances, and necessary to avoid the harm, are permitted. Self-defense also applies to defense of property, and the same limitation of reasonable force applies. Deadly force would not be permitted to defend property, though some states have by statute permitted deadly force to defend one’s home from intruders. Arguably, regardless of the law’s niceties, a jury would be disinclined to assess damages against a person defending herself against an intruder who is shot while “trespassing” upon her property.
- Necessity can also be claimed when property is damaged, again in order to prevent greater loss. So firemen may in fact burn down your house or yard in order to slow the progress of a conflagration, thereby destroying your property, if they deem it necessary to protect the property of another. Reasonableness counts in applying the necessity defense (and indeed all other defenses) to a particular factual circumstance that is raised in an individual case; the jury will be instructed on the law by the judge, and will use their judgment to determine whether the specific context should excuse the harmful conduct undertaken.
- The invasion need not be a physical intrusion by a person, nor need it touch the land. A trespass may occur when an individual causes smoke or other pollutants to cross a property line; these acts may give rise to actions in tort for a private nuisance. Even blocking the sunlight by a neighboring property owner or the impeding the flow of water downstream by an upstream landowner might be considered trespasses at common law. Indeed, modern environmental law developed in part from the common law of trespass, and new actions were created to ameliorate some of its shortcomings.
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Chapter 2 The Sources of Law and Common Law Reasoning 7 results (showing 5 best matches)
- the formulaic allegations in the writ. Writs were specific to a particular cause of action. They outlined the elements of a particular claim. To prevail on an action in trespass on the case, the plaintiff, huntsman Post had to allege and prove that another, here the defendant, the interloper Pierson, had interfered with his property. Because the huntsman Post never had the poor reynard in hand, he must have claimed that he acquired his property right by merely chasing it to the point at which interloper Pierson intervened for him to have had property in the fox. Counsel for Pierson, on the other hand, argued that Post could have acquired no such right by merely chasing the fox, and that the clever beast remained “unowned” until he caught it, and carried it away. So the judges were rightly presented with what one of the learned judges, Justice Livingston, called a “knotty problem:” when does a person acquire property in a wild animal? Or to phrase the issue in more abstract and...
- Neither the progress of the action, nor indeed its outcome is in itself remarkable. The huntsman Post sued the interloper Pierson for the fox (or more specifically its value since it had probably long since been made into a hat or stole) on the grounds that Pierson had appropriated his property. Stated simply, Post’s counsel alleged that the fox was his client’s property, and that Pierson had wrongfully carried it away. Pierson’s counsel response was equally straightforward: “No, it wasn’t.” The trial court awarded the value of the fox to the huntsman Post, but the Supreme Court of New York reversed, and oddly enough in a split decision, the majority held for the interloper Pierson, though Justice Tompkins, who wrote for the majority, duly noted that Pierson’s conduct was discourteous.
- , the founders and early American legislators were occupied with other more trying issues. Federal law, though admittedly supreme, was decidedly silent. And indeed, since the ambit of federal law is limited by the Constitution to particular subject matters, and property in wild animals was not one of them, Congress probably would have had no business allocating rights in property in foxes on public beaches in the state of New York anyway. The American system of law, we shall refer to it as “our federalism”, allows the states to make law in most areas of property rights. So the focus of the judges shifted down a jurisdictional notch. New York law should resolve the knotty problem. But unhappily, neither the constitution nor the legislature of the state of New York had turned its attention to the issue. And municipal law was likewise silent; ownership of the fox was a
- The majority valued something else. Justice Tompkins wrote that rules ought to be made in such a way that they are easily enforced. Modern legal academics call such rules administratively efficient. Were the rule of the dissent adopted, that pursuit with a reasonable chance of physical appropriation be sufficient to accord property to the huntsman, how would a person know when his or her chase was sufficiently far enough along to be certain that property rights would be accorded to him or her? And how could an interloper like Pierson know when the chase was too far along for him to intercede? The standard of “depriving the wild animal of its natural liberty” is bright-line rule. It is easy to apply, it is “administratively efficient.”
- ...looked to logic in order to decide the case. They applied predispositions, perhaps differing ones since one judge dissented, about what the law should do. In his dissent, Justice Livingston was persuaded that economic efficiency mandated a judgment for Pierson. While Law and Economics is a formal area of study in the legal academy, the common law has probably considered the effects, economic and otherwise, of a judgment and a rule before instructed to so by modern law professors. Justice Livingston’s logic went like this: foxes are noxious beasts; they disturb farming, a noble and necessary occupation in our state; who would hunt, expend labor (not to mention keep numerous hounds to assist in the chase) to rid the country of these noxious animals if the fruits of such effort could be whisked away by another? Allowing the huntsman a property right in the fox after having chased him for a good long time, until upon the verge of reducing the beast to possession, would provide...
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- Over time, the interpretation of the Fourteenth Amendment’s words “nor shall any state deprive any person of life, liberty or property without due process of law,” has varied. Does it simply mean that individuals have procedural rights when government acts against their perceived personal or property interest: that states must adopt a fair judicial or administrative process when interfering with Fifth Amendment rights of the accused or of property holders? Alternatively, does the recitation accord some substantive rights: that government may not intrude into areas of personal autonomy, particularly where economic freedom is at stake? If the latter, then, for example, the regulation of working conditions, wages and hours, even where they are protective, might violate the clause, because such a limitation might infringe upon one’s own ability to negotiate individual terms of employment. While the content of procedural due process has varied only slightly over time (though modern...
- The First Amendment guarantee also prevents government from becoming excessively entangled in religion. Government should not further a particular faith or religion in general. The current benchmark rule considers three factors: whether the government’s action, arguably supporting religion, is secular in purpose; does not unduly advance religion; and does not result in excessive entanglement in religion. So sanctioning a particular prayer or allowing a reading from the Bible in public school violates the establishment clause. But government may “accommodate” religion, by, for example, allowing religious displays on public property (though not at government’s expense) or by providing free transportation or educational services for students in religious schools where the same is offered to those in public schools. Likewise, religious student groups must be permitted to use school property on the same basis as other student organizations.
- enforcement, and protects both personal privacy and private property.
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- The limits of federal jurisdiction, alluded to above, is a complex area of law. Unlike state court jurisdiction, federal jurisdiction is limited, and both the defendant and the court may challenge the plaintiff’s allegation of federal jurisdiction. Simply put, Federal courts have subject matter jurisdiction over claims based upon Federal law, and controversies between states, and the United States and foreign sovereigns. Important areas of federal jurisdiction include federal crimes, cases involving federal laws, bankruptcy, cases involving the regulation of interstate and international commerce, securities regulation, mergers and acquisitions of publicly-traded companies, admiralty cases, intellectual property cases, bankruptcy, and offences committed on federal property. If the Federal judge concludes that federal jurisdiction is lacking, the case will either be dismissed, and the plaintiff required to re-file in state court, or directly remand it to state court.
- At this juncture, it may be helpful to list, albeit incompletely, matters that are heard in state courts, absent diversity of citizenship. Most crimes are defined by state law, and are prosecuted in state court; family law issues (including marriage, divorce, property settlements, and child custody), cases involving rights in land (including landlord-tenant disputes), probate and inheritance, private contracts, personal injury, and corporate governance issues.
- In every Federal case in which final judgment is issued there is a right to appeal to one of the 12 regional Courts of Appeal (28 U.S.C. § 1291). The 94 District Courts are organized into circuits, and the appropriate appeals court hears cases from its circuit, including in some instances appeals from administrative courts. Congress has created a separate Court of Appeals for the Federal Circuit which entertains intellectual property cases, and appeals from the Court of International Trade (trade and customs issues) and the Court of Federal Claims (jurisdiction over federal contracts and claims against the federal government) (28 U.S.C. § 1295).
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Outline 5 results
Index 34 results (showing 5 best matches)
- When the police undertake a search, they are usually searching property, the suspect’s house, her car or even a public place in which she may frequent, to find something, to uncover evidence of a crime. Certain areas are protected from police investigation without a warrant issued by a judge upon a showing of probable cause. So if Lt. Briscoe gets a warrant to search the house of a murder suspect, finds nothing, but upon leaving the house, notices a garbage bag out in front of the house, and finds the same rat poison that killed the victim, was the search of the bag constitutional permissible?
- Upon conviction, the judge hands down a sentence, consistent with the guidelines established by law. Both the prosecutor and defense counsel have an opportunity to make sentence recommendations. Inquiry will be made into the defendant’s background, and in particular, any previous convictions. Because the vast majority of cases involve minor offenses, a term of probation, rather than incarceration, is the sentence most frequently meted out by judges, and for minor offences a fine and court costs may be assessed. In addition, a forfeiture of property illegally acquired and/or used in the crime may be ordered. The probationer must follow the terms and conditions (often very detailed and restrictive) established by the judge, and have her conduct monitored by a probation officer. A violation of the terms of probation, a failure to adhere to the requirements and restrictions mandated by the court, may result in its revocation, and usually lands the probationer in prison.
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- In addition to responses to interrogatories, a party can be required to produce documents relating to the lawsuit. If, for example, the landlord’s contractor had informed the landlord by letter that due to some design flaw, she was unable to secure the roof tiles, tenant would be able to obtain useful evidence, perhaps, of negligently done repairs. Pending tobacco litigation provides a far better example. During the fifties and sixties, studies were thought to have been undertaken by the tobacco companies that demonstrated the dangerous properties of cigarette smoke. The studies, and the responses to them by corporate executives, provide evidence of knowledge
- liability for tenant’s injuries, defendant must counterclaim for the loss suffered to his property or she will be deemed to have waived his right to do so in a subsequent law suit. The logic that supports the notion that a counterclaim is compulsory is that of efficiency: to allow the court to deal with all claims arising out of the same transaction in a single lawsuit. Defendant may, though she need not, counterclaim if she has other claims against plaintiff unrelated to the plaintiff’s claim. Suppose for example, plaintiff has not paid the rent for two months; defendant may, but she is not required, to counterclaim for the amount due if it exceeds the jurisdictional requirement. A counterclaim differs from an affirmative defense in that it does not provide the basis for denying plaintiff’s claim; rather, it raises separate legal grounds for relief against the plaintiff.
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- In addition to making rules, agencies adjudicate disputes arising over the application of rules to individuals. By law, certain acts by an agency against an individual or business entity require a formal adjudication affording the private party some rights, because the Constitution (Fifth Amendment) protects against deprivations of personal “liberty” or “private property” without “due process of law.” This due process right has been rather broadly construed to attach to most governmental action that allocates entitlements. Though a complex area of constitutional law, the due process standard that is required depends upon the nature of the right infringed. The court will balance the character and importance of the individual interest that is at stake with the government’s not inconsequential need to act efficiently and expeditiously.
- the power of judicial review is implied in the enabling legislation passed by Congress. Even where the legislation creating the agency mandates that an agency decision is “final,” the courts have been reluctant to determine that review by the courts is precluded, particularly where personal liberties or property rights protected by the Constitution are at stake. At the very least, the courts will intervene to insure that procedural due process rights have been respected by the agency’s tribunal: that the party had the opportunity to present its case, and the review process was fair.
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Chapter 1 Introduction to American Law 2 results
- In his study of law on the Oregon Trail and in the mining camps (in the middle years of the nineteenth century), where in some sense Americans were beyond the law (and formal law enforcement), there was, Hollywood to the contrary, very little evidence of violent crime against persons and property. Americans beyond the law were largely self-regulating. Law was a part of their psyche; today one might say it was in their DNA.
- Likewise, much the same can be said about a variety of areas of private law. Oliver Cromwell referred to the common law of England as an “ungodly jumble.” It still is; and American law, though no longer strictly speaking governed by the common law, remains at the very least complicated. I defy one to try to explain (as I must do to my Property law class) the difference between the following two future interests in land: a vested remainder subject to divestment, and a contingent remainder. Similarly, statute law is complex, and for law student and citizen alike, unreadable. When you have a moment, browse the United States Tax Code. If American law began with the notion that it should be a law
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- Given the options discussed above, it is likely that one or the other will suffice in forming your budding law practice. But for more grandiose business schemes, the corporate form may be necessary. Corporations are distinct legal entities, and therefore have financial liability independent of their shareholders. Shareholders own shares of the corporation, stakes which represent ownership in the business entity, but they are not personally liable for its debts. Corporations own property, and can sue and be sued in their own name and right. Corporate law is largely (though not exclusively) state law, though (as we shall see) many aspects of securities law are federal. The law of the state in which the entity is incorporated controls its governance, even though it may operate its business in other states. Because its law was “corporate friendly” early on, many large corporations are incorporated in the small American state of Delaware, which has as a consequence
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- The power of judicial review of legislative, and by analogy executive acts, establishes a significant check by the courts on the power of the other two branches. Any judge, federal or state, can set aside an act of Congress, though the ultimate arbiters of constitutionality are the nine justices of the United States Supreme Court. Moreover, the power of judicial review is even more significant given the terse language of many clauses of the Constitution. Consider, for example, the so-called “takings clause” of the Fifth Amendment to the Constitution: “nor shall private property be taken for a public use without just compensation.” Suppose the local government decides to acquire my house to allow private developers to build a mixed-use urban renewal project. Is that a “public use”? If so what is the “just compensation” that is required to be paid? Much ink has been split by the Supreme Court in determining the meaning of this clause, and indeed many others of the Constitution.
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- Publication Date: April 5th, 2006
- ISBN: 9780314150165
- Subject: Introduction to U.S. Law
- Series: Nutshells
- Type: Overviews
- Description: This book, suitable as a primer for foreign LLMs — or as an introductory survey for American students of both procedural and substantive law — is a comprehensive, though concise, survey of the American legal system — its structure and its methodology.