Law School

The Law School of America
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Nov 25, 2022 • 13min

Intellectual Property: Author's rights

"Author's rights" is a term frequently used in connection with laws about intellectual property. The term is considered as a direct translation of the French term droit d’auteur (also German Urheberrecht). It was first (1777) promoted in France by Pierre-Augustin Caron de Beaumarchais, who had close relations with Benjamin Franklin. It is generally used in relation to the copyright laws of civil law countries and in European Union law. Authors' rights are internationally protected by the Berne Convention for the Protection of Literary and Artistic Works and by other similar treaties. “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country. Authors’ rights have two distinct components: the economic rights in the work and the moral rights of the author. The economic rights are a property right which is limited in time and which may be transferred by the author to other people in the same way as any other property (although many countries require that the transfer must be in the form of a written contract). They are intended to allow the author or their holder to profit financially from their creation, and include the right to authorize the reproduction of the work in any form (Article 9, Berne Convention). The authors of dramatic works (plays, etc.) also have the right to authorize the public performance of their works (Article 11, Berne Convention). The protection of the moral rights of an author is based on the view that a creative work is in some way an expression of the author's personality: the moral rights are therefore personal to the author, and cannot be transferred to another person except by testament when the author dies. The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to their honor or reputation (Article 6bis, Berne Convention). In many countries, the moral rights of an author are perpetual.
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Nov 24, 2022 • 10min

Criminal procedure (2023): Verdict + Conviction

In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, a coroner's findings used to be called verdicts but are, since 2009, called conclusions. Etymology. The term "verdict", from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver ("true", from the Latin vērus) and dit ("speech", from the Latin dictum, the neuter past participle of dīcere, to say). Criminal law. In a criminal case, the verdict, which may be either "not guilty" or "guilty"—except in Scotland where the verdict of "not proven" is also available—is handed down by the jury. Different counts in the same case may have different verdicts. A verdict of guilty in a criminal case is generally followed by a judgment of conviction rendered by the judge, which in turn is followed by sentencing. In U.S. legal nomenclature, the verdict is the finding of the jury on the questions of fact submitted to it. Once the court (the judge) receives the verdict, the judge enters judgment on the verdict. The judgment of the court is the final order in the case. If the defendant is found guilty, they can choose to appeal the case to the local Court of Appeals. Compromise verdict. A compromise verdict is a "verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not command the approval of the whole panel", and, as such, is not permitted. Directed verdict. In a jury trial, a directed verdict is an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case. A judge may order a directed verdict as to an entire case or only to certain issues. In a criminal case in the United States, once the prosecution has closed its case, the defendant may move for a directed verdict. If granted, the verdict will be "not guilty". The prosecution may never seek a directed verdict of guilty, as the defendant has a constitutional right to present a defense and rebut the prosecution's case and have a jury determine guilt or innocence (where a defendant has waived his/her right to a jury trial and allowed the judge to render the verdict, this still applies). In the American legal system, the concept of directed verdict has largely been replaced by judgment as a matter of law. General verdict. A general verdict is one in which the jury makes a complete finding and single conclusion on all issues presented to it. First, the jury finds the facts, as proved by the evidence, then it applies the law as instructed by the court, and finally it returns a verdict in one conclusion that settles the case. Such verdict is reported as follows: "We the Jury find the issues for the plaintiff (or defendant, as the case may be), and assess his damages at one hundred thousand dollars." Sealed verdict. A sealed verdict is a verdict put into a sealed envelope when there is a delay in announcing the result, such as waiting for the judge, the parties and the attorneys to come back to court. The verdict is kept in the sealed envelope until court reconvenes and then handed to the judge. This practice is virtually the default in many U.S. jurisdictions or may be the preference of the judge involved.
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Nov 23, 2022 • 14min

Criminal law (2022): Crimes against property: Robbery

Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offense may vary between jurisdictions. Robbery is differentiated from other forms of theft (such as burglary, shoplifting, pickpocketing, or car theft) by its inherently violent nature (a violent crime); whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words (for example, deraubare) of Germanic origin, from Common Germanic raub "theft". Among the types of robbery are armed robbery, which involves the use of a weapon, and aggravated robbery, when someone brings with them a deadly weapon or something that appears to be a deadly weapon. Highway robbery or mugging takes place outside or in a public place such as a sidewalk, street, or parking lot. Carjacking is the act of stealing a car from a victim by force. Extortion is the threat to do something illegal, or the offer to not do something illegal, in the event that goods are not given, primarily using words instead of actions. Criminal slang for robbery includes "blagging" (armed robbery, usually of a bank) or "stick-up" (derived from the verbal command to robbery targets to raise their hands in the air), and "steaming" (organized robbery on underground train systems). Canada. In Canada, the Criminal Code makes robbery an indictable offense, subject to a maximum penalty of life imprisonment. If the accused uses a restricted or prohibited firearm to commit robbery, there is a mandatory minimum sentence of five years for the first offense, and seven years for subsequent offenses. United Kingdom. England and Wales. Robbery is a statutory offense, is provided by section 36(3) Archived 2017-05-01 at the Wayback Machine of that Act. It is created by section 8(1) of the Theft Act 1968 which reads: A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force
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Nov 22, 2022 • 18min

Civil procedure: Federal Rules of Civil Procedure: Joinder + indispensable party + Impleader + Intervention

In law, a joinder is the joining of two or more legal issues together. Procedurally, a joinder allows multiple issues to be heard in one hearing or trial and occurs if the issues or parties involved overlap sufficiently to make the process more efficient or fairer. That helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. The term is also used in the realm of contracts to describe the joining of new parties to an existing agreement. Criminal procedure. Joinder in criminal law refers to the inclusion of additional counts or additional defendants on an indictment. In English law, charges for any offense may be joined in the same indictment if those charges are founded on the same facts or form or are a part of a series of offenses of the same or a similar nature. A number of defendants may be joined in the same indictment even if no single count applies to all of them if the counts are sufficiently linked. The judge retains the option to order separate trials. Civil procedure. Joinder in civil law falls under two categories: joinder of claims and joinder of parties. Joinder of claims. Joinder of claims refers to bringing several legal claims against the same party together. In U.S. federal law, joinder of claims is governed by Rule 18 of the Federal Rules of Civil Procedure. These rules allow claimants to consolidate all claims that they have against an individual who is already a party to the case. Claimants may bring new claims even if these new claims are not related to the claims already stated; for example, a plaintiff suing someone for breach of contract may also sue the same person for assault. The claims may be unrelated, but they may be joined if the plaintiff desires. Joinder of claims requires that the court have jurisdiction over the subject matter of each of the new claims, and that joinder of claims is never compulsory. A party who sues for breach of contract can bring his suit for assault at a later date if he chooses. However, if the claims are related to the same set of facts, the plaintiff may be barred from bringing claims later by the doctrine of res judicata, for example if a plaintiff sues for assault and the case is concluded, he may not later sue for battery regarding the same occurrence.
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Nov 21, 2022 • 16min

Tort law (2022): Defense: Assumption of risk + necessity

Assumption of risk is a defense, specifically an affirmative 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 the plaintiff was participating at the time of their injury. Primary versus secondary. "Primary" assumption of risk occurs when the plaintiff knows about a particular risk and—through words or conduct—accepts that risk, thereby relieving the defendant of its duty of care. The primary assumption of risk defense operates as a complete bar to recovery. For example, someone who goes skiing assumes the risk that they will fall and break a bone and cannot sue a ski resort for such an injury in the absence of additional fault, such as the failure to properly maintain safety equipment. "Secondary" assumption of risk exists where the defendant has a continuing duty of reasonable care to the plaintiff, but the plaintiff knows about the risk caused by the defendant's negligence and proceeds despite that knowledge. For example, an employer supplies an employee with a defective piece of machinery, and knowing the machinery is defective, the employee proceeds to use it anyway (albeit carefully). If the machinery causes injury, the employer may have a secondary assumption of risk defense. In comparative negligence jurisdictions, secondary assumption of risk is applied as a factor that the jury can consider in apportioning fault, rather than a complete defense. The California Supreme Court explained the difference between primary and secondary assumption of risk (under California law) as follows: In cases involving 'primary assumption of risk'—where, 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 injury—the doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving 'secondary assumption of risk'—where 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 duty—the 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. Some states have abrogated the primary assumption-of-risk defense in certain situations because they have determined that the defendant in that situation should not be absolved of its duty of care, even if the plaintiff assumed the risk (such as by signing a premises liability waiver). States have, for example, passed laws abrogating primary assumption of risk for employers engaged in dangerous activities and for landlords with regard to safety conditions on their properties.
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Nov 18, 2022 • 11min

Intellectual property (Part Three)

Objections to overly broad intellectual property laws. Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health (in the case of pharmaceutical patents), preventing progress, and benefiting concentrated interests to the detriment of the masses, and argue that the public interest is harmed by ever-expansive monopolies in the form of copyright extensions, software patents, and business method patents. More recently scientists and engineers are expressing concern that patent thickets are undermining technological development even in high-tech fields like nanotechnology. Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation: Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation. In support of that argument, Jörg Baten, Nicola Bianchi and Petra Moser find historical evidence that especially compulsory licensing – which allows governments to license patents without the consent of patent-owners – encouraged invention in Germany in the early 20th century by increasing the threat of competition in fields with low pre-existing levels of competition. Peter Drahos notes, "Property rights confer authority over resources. When authority is granted to the few over resources on which the many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedom within a society." The World Intellectual Property Organization (WIPO) recognizes that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights. In 2001 the UN Committee on Economic, Social and Cultural Rights issued a document called "Human rights and intellectual property" that argued that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so, they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits. In 2004 the General Assembly of WIPO adopted The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development—not as an end in itself". Ethical problems are most pertinent when socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug. "An IPR driven regime is therefore not a regime that is conducive to the investment of R&D of products that are socially valuable to predominantly poor populations".
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Nov 17, 2022 • 10min

Criminal procedure (2023): Bail + Appeal

Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required. In some countries, especially the United States, bail usually implies a bail bond, a deposit of money or some form of property to the court by the suspect in return for the release from pre-trial detention. If the suspect does not return to court, the bail is forfeited and the suspect may possibly be brought up on charges of the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded. In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge. For minor crimes, a defendant may be summoned to court without the need for bail. For serious crimes, or for suspects who are deemed likely to fail to turn up in court, they may be remanded (detained) while awaiting trial. A suspect is given bail in cases where remand is not justified but there is a need to provide an incentive for the suspect to appear in court. Bail amounts may vary depending on the type and severity of crime the suspect is accused of; practices for determining bail amounts vary. Bail bond. In the United States, it is common for bail to be a cash (or other property) deposit. Cash bail in other countries is more limited. Known as a bail bond or cash bail, an amount of money is posted so that the suspect can be released from pre-trial detention. If the suspect makes all of their required court appearances, this deposit is refunded. In 46 US states, a commercial bail bondsman can be paid to deposit bail money on behalf of a detained individual. This practice is illegal in the rest of the world. Illinois, Kentucky, Oregon and Wisconsin have outlawed commercial bail bonds, while New Jersey and Alaska rarely permit money bail.
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Nov 16, 2022 • 11min

Criminal law (2022): Crimes against property: Possession of stolen goods

Possession of stolen goods is a crime in which an individual has bought, been given, or acquired stolen goods. In many jurisdictions, if an individual has accepted possession of goods (or property) and knew they were stolen, then the individual may be charged with a misdemeanor or felony, depending on the value of the stolen goods, and the goods are returned to the original owner. If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. However, it can be difficult to prove or disprove a suspect's knowledge that the goods were stolen. Nature of offense by country. United States. In the United States, receipt of stolen property is a federal crime under 18 U.S.C. § 2315, and is defined as knowingly receiving, concealing, or disposing of stolen property with a value of at least $5,000 such that it also constitutes interstate commerce (for example, has been transported across state lines). A person can be found guilty of that offense only if all of the following facts are proven: The person received or concealed or stored or disposed of items of stolen property. The items were moving as, or constituted a part of, interstate commerce. The items had a value in excess of $5,000. The person acted knowingly and willfully. The government must prove beyond a reasonable doubt that the person either received, concealed, stored, sold, or disposed of the stolen property. To be guilty of the offense, a person must know that the property had been stolen, but he need not know that it was moving as, or constituted a part of, interstate commerce. The term "interstate commerce" merely refers to the movement of property from one U.S. state into another; and it is sufficient if the property has recently moved interstate as a result of a transaction or a series of related transactions that have not been fully completed or consummated at the time of the person's acts as alleged. All U.S. states also have laws regarding receipt of stolen property. There is no minimum dollar amount in many jurisdictions, and in the case of state laws the requirement from Federal law regarding interstate commerce does not apply. In many states (Ohio, for example), the burden to prove criminal intent is not as stringent or is nonexistent. This means that one can be charged with the crime—usually a minor degree of felony—even if one did not know the item in question was stolen. In the Ohio case of State v Awad, the goods did not need to actually be stolen, just represented as such. Receiving stolen property and possession of stolen property are treated as separate offenses in some jurisdictions. What distinguishes the offenses is when the person became aware that the property was stolen. If the person knew that the property was stolen at the time he received it, the crime is receiving stolen property. If the person did not know the property was stolen at the time, she received it but found out after receiving possession, the crime is possession of stolen property. The state must prove that the defendant received or possessed the property for a dishonest purpose. If, for example, the person acquired possession for the purpose of returning the property to its lawful owner, no crime has been committed.
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Nov 15, 2022 • 13min

Civil procedure: Federal Rules of Civil Procedure: Answer + Affirmative defense + Reply + Counterclaim + Crossclaim

In law, an answer was originally a solemn assertion in opposition to someone or something, and thus generally any counter-statement or defense, a reply to a question or response, or objection, or a correct solution of a problem. In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. It may have been preceded by an optional "pre-answer" motion to dismiss or demurrer; if such a motion is unsuccessful, the defendant must file an answer to the complaint or risk an adverse default judgment. In a criminal case, there is usually an arraignment or some other kind of appearance before the defendant comes to court. The pleading in the criminal case, which is entered on the record in open court, is usually either guilty or not guilty. Generally speaking in private, civil cases there is no plea entered of guilt or innocence. There is only a judgment that grants money damages or some other kind of equitable remedy such as restitution or a permanent injunction. Criminal cases may lead to fines or other punishment, such as imprisonment. The famous Latin Responsa Prudentium ("answers of the learned ones") were the accumulated views of many successive generations of Roman lawyers, a body of legal opinion which gradually became authoritative. During debates of a contentious nature, deflection, colloquially known as 'changing the topic', has been widely observed, and is often seen as a failure to answer a question.
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Nov 14, 2022 • 13min

Tort law (2022): Defenses: Consent

Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a mental disorder, a low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law. United Nations agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial. Types of consent include implied consent, express consent, informed consent and unanimous consent. Types. An expression of consent is one that is unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally, for example by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a party denies that it was given. Implied consent is consent inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Examples include unambiguously soliciting or initiating sexual activity or the implied consent to physical contact by participants in a hockey game or being assaulted in a boxing match. Informed consent in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts, such as in social scientific research, when participants are asked to affirm that they understand the research procedure and consent to it, or in sex, where informed consent means each person engaging in sexual activity is aware of any positive statuses (for sexually transmitted infections and or diseases) they might expose themselves to. Unanimous consent, or general consent, by a group of several parties (for example, an association) is consent given by all parties. Substituted consent, or the substituted judgment doctrine, allows a decision maker to attempt to establish the decision an incompetent person would have made if they were competent.

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