Law School

Restitutio ad integrum, or restitutio in integrum, is a Latin term that means "restoration to original condition". It is one of the primary guiding principles behind the awarding of damages in common law negligence claims. In European patent law, it also refers to a means of redress available to an applicant or patentee who has failed to meet a time limit despite exercising all due care. In ancient Roman law, it was a specific method of praetor intervention in an otherwise-valid legal action that was viewed as especially unjust or harmful. Common law negligence claims. Restitutio ad integrum is one of the primary guiding principles behind the awarding of damages in common law negligence claims. The general rule, as the principle implies, is that the amount of compensation awarded should put the successful plaintiff in the position that would have been the case if the tortious action had not been committed. Thus, the plaintiff should clearly be awarded damages for direct expenses such as medical bills and property repairs and the loss of future earnings attributable to the injury, which often involves difficult speculation on the future career and promotion prospects. Although monetary compensation cannot be directly equated with physical deprivation, it is generally accepted that compensation should also be awarded for loss of amenities, which reflects the decrease in expected standard of living from any injury suffered and pain and suffering. Damages awards in those categories are justified by the restitutio principle as monetary compensation provides the most practicable way of redressing the deprivation caused by physical injury. Cases. Graham v Egan (Louisiana 1860). In considering whether to give the mortgagor money damages or restore the property itself, the court said in regard to restitution: "He can restore the property itself, and place it in the same condition he would have occupied if he had not been harassed with an unfounded demand. This is precisely what is meant by the restitution in integrum. If there be grounds for restitution at all, there is the same ground for a complete restitution, a restitution in integrum". Livingstone v Rawyards Coal Co (House of Lords 1880) per Lord Blackburn, compensation should be "that sum of money which will put the party who has been injured in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation".

The United States of America has separate federal, state, and local governments with taxes imposed at each of these levels. Taxes are levied on income, payroll, property, sales, capital gains, dividends, imports, estates and gifts, as well as various fees. In 2010, taxes collected by federal, state, and municipal governments amounted to 24.8% of GDP. In the OECD, only Chile and Mexico are taxed less as a share of their GDP. Taxes fall much more heavily on labor income than on capital income. Divergent taxes and subsidies for different forms of income and spending can also constitute a form of indirect taxation of some activities over others. For example, individual spending on higher education can be said to be "taxed" at a high rate, compared to other forms of personal expenditure which are formally recognized as investments. Taxes are imposed on net income of individuals and corporations by the federal, most state, and some local governments. Citizens and residents are taxed on worldwide income and allowed a credit for foreign taxes. Income subject to tax is determined under tax accounting rules, not financial accounting principles, and includes almost all income from whatever source. Most business expenses reduce taxable income, though limits apply to a few expenses. Individuals are permitted to reduce taxable income by personal allowances and certain non-business expenses, including home mortgage interest, state and local taxes, charitable contributions, and medical and certain other expenses incurred above certain percentages of income. State rules for determining taxable income often differ from federal rules. Federal marginal tax rates vary from 10% to 37% of taxable income. State and local tax rates vary widely by jurisdiction, from 0% to 13.30% of income,[2] and many are graduated. State taxes are generally treated as a deductible expense for federal tax computation, although the 2017 tax law imposed a $10,000 limit on the state and local tax ("SALT") deduction, which raised the effective tax rate on medium and high earners in high tax states. Prior to the SALT deduction limit, the average deduction exceeded $10,000 in most of the Midwest, and exceeded $11,000 in most of the Northeastern United States, as well as California and Oregon. The states impacted the most by the limit were the tri-state area (NY, NJ, and CT) and California; the average SALT deduction in those states was greater than $17,000 in 2014.

Easement by prescription: Easements by prescription, also called prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity. Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. But, before they become binding, they hold no legal weight and are broken if the true property owner takes appropriate acts to defend their ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription. Laws and regulations vary among local and national governments, but some traits are common to most prescription laws: open and notorious (for example, obvious to anyone). actual, continuous (for example, uninterrupted for the entire required time period); this does not necessarily require use daily, weekly, etcetera. adverse to the rights of the true property owner. hostile (for example, in opposition to the claim of another; this can be accidental, not "hostile" in the common sense), and, continuous for a period of time defined by statute or appellate case law. Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity. In states that do, such as Virginia, the exclusivity requirement has been interpreted to mean that the prescriptive user must use the easement in a different way from the general public, for example, a use that is "exclusive" to that user. The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (sometimes based on the statute of limitations on trespass). Generally, if the true property owner acts appropriately to defend their property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period will be reset to zero. In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. An example of this is the lengthy Irish Lissadell House rights of way case heard since 2010, that extended long-standing consents given to individuals into a public right of way. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement. Government- or railroad-owned property is generally immune from prescriptive easement in most cases, but some other types of government owned-property may be subject to prescription in certain instances. In New York, such government property is subject to a longer statute of limitations of action, 20 years instead of 10 years for private property. In most U.S. jurisdictions, a prescriptive easement can only be determined for an affirmative easement not a negative easement. In all U.S. jurisdictions, an easement for view (which is a negative easement) cannot be created by prescription. Prescription may also be used to end an existing legal easement. For example, if a servient tenement (estate) holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend their easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document. Failure to use an easement leading to loss of the easement is sometimes referred to as "non-user".

Adultery (from Latin adulterium) is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Judaism and Islam. Adultery is viewed by many jurisdictions as offensive to public morals, undermining the marriage relationship. Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalizing adultery. However, even in jurisdictions that have decriminalized adultery, it may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model. International organizations have called for the decriminalization of adultery, especially in the light of several high-profile stoning cases that have occurred in some countries. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakirana, has stated that: "Adultery must not be classified as a criminal offence at all". A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offence violates women’s human rights". In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning. There are fifteen countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia. Most countries that criminalize adultery are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines, and several U.S. states. In some jurisdictions, having sexual relations with the king's wife or the wife of his eldest son constitutes treason.

Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in the US), or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law. Sequence of events in conflict cases in Common Law jurisdictions: 1. Jurisdiction. The court selected by the plaintiff must decide both whether it has the jurisdiction to hear the case and, if it has, whether another forum is more suitable (the forum non conveniens issue relates to the problem of forum shopping) for the disposition of the case. Naturally, a plaintiff with appropriate knowledge and finance will always commence proceedings in the court most likely to give a favorable outcome. This is called forum shopping and whether a court will accept such cases is always determined by the local law. 2. Recognition of foreign judgments. Even where a conflict of laws exists, the court will recognize the validity of a foreign judgment in most cases. Under U.S. law, this authority is part of the Full Faith and Credit Clause of the U.S. Constitution. Under international law, this authority is part of the doctrine of comity. The court will invoke comity by its discretion and will usually look to two factors before using its discretionary powers: did the foreign court have jurisdiction, and were fair procedures used in adjudicating the case? Under English law, it is the doctrine of obligation. Within the European Union the Brussels Recast Regulation determines jurisdiction and recognition. 3. Characterization. The court then allocates each aspect of the case as pleaded to its appropriate legal classification. Each such classification has its own choice of law rules but distinguishing between procedural and substantive rules requires care. The court may have adopted a rule of law which prevents it from applying any procedural law other than its own. This can include the court's own choice of law rules. A danger exists if the choice of law requires that a case be heard elsewhere due to the forum's lack of expertise in deciding an issue of foreign law. 4. The court then applies the relevant choice of law rules. In a few cases, usually involving family law, an incidental question can arise which will complicate this process. The United States has adopted a law that almost universally eliminates incidental questions involving family law. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requires states to apply the law of the "home state;" that is, the forum which originally determined custody and maintenance. A state court will only apply its own law when no parent retains a connection with the original jurisdiction and when substantial evidence is available in its forum to make a custody or maintenance determination.

Res ipsa loquitur (Latin: "the thing speaks for itself") is a doctrine in the Anglo-American common law and Roman-Dutch law that says in a tort or civil lawsuit a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. Although modern formulations differ by jurisdiction, Anglo-American common law originally stated that the accident must satisfy the necessary elements of negligence: duty, breach of duty, causation, and injury. In res ipsa loquitur, the elements of duty of care, breach, and causation are inferred from an injury that does not ordinarily occur without negligence. History. The term comes from Latin and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself". The earliest known use of the phrase was by Cicero in his defense speech Pro Milone. The circumstances of the genesis of the phrase and application by Cicero in Roman legal trials has led to questions whether it reflects on the quality of res ipsa loquitur as a legal doctrine subsequent to 52 BC, some 1915 years before the English case Byrne v Boadle and the question whether Charles Edward Pollock might have taken direct inspiration from Cicero's application of the maxim in writing his judgment in that case. Elements. The injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and nature of said act. 1. The injury is caused by an agency or instrumentality within the exclusive control of the defendant. 2. The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff. 3. The defendant's non-negligent explanation does not completely explain plaintiff's injury. The first element may be satisfied in one of three ways: a. The injury itself is sufficient to prove blatant or palpable negligence as a matter of law, such as amputation of the wrong limb or leaving instruments inside the body after surgery. b. The general experience and observation of mankind is sufficient to support the conclusion that the injury would not have resulted without negligence, such as a hysterectomy (removal of the uterus) performed when the patient consented only to a tubal ligation (clipping of the fallopian tubes for purposes of sterilization). c. Expert testimony creates an inference that negligence caused the injury, such as an expert general surgeon testifying that he has performed over 1000 appendectomies (removal of the appendix) and has never caused injury to a patient's liver. He also does not know of any of his surgeon colleagues having inflicted injury to a patient's liver during an appendectomy. The testimony would create an inference that injuring the liver in the course of an appendectomy is negligence. The second element is discussed further in the section below. The third element requires the absence of contributory negligence from the plaintiff. The fourth element emphasizes that the defendant may defeat a res ipsa loquitur claim by producing evidence of a non-negligent scenario that would completely explain plaintiff's injury and negate all possible inferences that negligence could have occurred.

Undermining Reconstruction state governments. After the American Civil War, the United States government established Reconstruction era governments in the states of the former Confederacy that included black and carpetbagger representatives. The loss of political power by the formerly dominant white supremacists led to resentment, protest, and the formation of paramilitaries and parallel governments. Occasionally, tax resistance was used as a tactic to withdraw financial support and political legitimacy from the reconstruction governments in favor of the white supremacist parallel governments. For example, tax resistance was used as a tactic by South Carolina Democrats in the months leading up to the collapse of the carpetbagger administration of Republican Daniel Chamberlain and his replacement by former Confederate Army officer Wade Hampton III. White supremacist gubernatorial candidate John McEnery established a parallel government in Reconstruction Louisiana, in opposition to the carpetbagger government of governor William Pitt Kellogg, and urged sympathetic citizens to pay taxes to his government rather than the Kellogg "usurpation." Railroad bond shenanigans. In the 1870s a number of American localities were victims of railroad bond swindles. Promoters would ask the residents to vote to issue bonds to pay for the running of a railroad line to their area, these bonds being backed by the local tax base. In theory the economic growth that would come from the new rail line would more than pay for the bonds by the time they were mature and the bondholders needed to be paid off. In fact, the railroad never materialized and the bond promoters vanished with the money. Some of these localities organized and refused to honor the bonds they had issued. Because by the time the bonds had matured they had likely been sold to new owners who did not participate in the original fraud, the court system was not usually very sympathetic to the defrauded taxpayers. But this led to some notable examples of organized tax resistance in the United States. For instance, in Cass and St. Clair counties, Missouri, local judges were elected who refused to enforce higher court rulings in favor of the bondholders that would have forced the County to inflict a tax in order to pay off the bonds. For a time, the judges held court in a cave in order to evade their eventual jailings for contempt of court. In Steuben County, New York, the bondholders succeeded in forcing the community to create a property tax to pay off the bonds, but property owners refused to pay the tax and rallied to the support of those whose property was seized for failure to pay, successfully disrupting tax auctions. In Kentucky, refusal to assess or pay taxes to pay off the bond swindle persisted for decades. Some towns refused to elect sheriffs or public officials of any kind (or no candidates could be found for the positions) so that nobody was legally qualified to assess taxes or engage in property seizures for failure to pay taxes. Local judges went into hiding to evade the rulings of higher courts. Armed citizens intimidated outsiders who tried to come and collect taxes by force.

An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions. An easement is similar to real covenants and equitable servitudes. In the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes. Easements are helpful for providing access across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. The rights of an easement holder vary substantially among jurisdictions. Types: Historically, common law courts would enforce only four types of easement: Right-of-way (easements of way). Easements of support (pertaining to excavations). Easements of "light and air", and, Rights pertaining to artificial waterways. Courts now recognize more varieties of easements, but these original categories still form the foundation of easement law. Affirmative and negative easements: An affirmative easement is the right to use another property for a specific purpose while a negative easement is the right to prevent another from performing an otherwise lawful activity on their own property. For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B. Conversely, a negative easement might restrict land owner A from putting up a wall of trees that would block the adjacent land owner B's mountain view. A is subject to a negative easement from B. Dominant and servient estate: As defined by Evershed M R in Re Ellenborough Park, an easement requires the existence of at least two pieces of land. The land with the benefit of the easement is the dominant estate or dominant tenement, while the land burdened by the easement is the servient estate or servient tenement. For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden. Public and private easements: A private easement is held by private individuals or entities. A public easement grants an easement to the public, for example, to allow public access over a parcel owned by an individual. Appurtenant and in gross easements: In the US, an easement appurtenant is one that benefits the dominant estate and "runs with the land" and so generally transfers automatically when the dominant estate is transferred. An appurtenant easement allows property owners to access land that is only accessible through a neighbor's land. Conversely, an easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use (for example, an easement to use a boat ramp) or a commercial use (for example, an easement to a railroad company to cross property to build and maintain a rail line). Historically, an easement in gross was neither assignable nor inheritable, but commercial easements are now freely transferable to a third party. They are divisible but must be exclusive (the original owner no longer uses it and exclusive to the easement holder) and all holders of the easement must agree to divide. If subdivided, each subdivided parcel enjoys the easement.

Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time, and unlawful sexual acts are also called sex crimes. Some laws regarding sexual activity are intended to protect one or all participants, while others are intended to proscribe behavior that has been defined as a crime. For example, a law may proscribe unprotected sex if one person knows that he or she has a sexual disease or to protect a minor; or it may proscribe non-consensual sex, or because of a relationship between the participants, et cetera. In general, laws may proscribe acts which are considered either sexual abuse or behavior that societies consider to be inappropriate and against the social norms. Sexual abuse is unwanted sexual contact between two or more adults or two or more minors, and, depending on laws with regard to age of consent, sexual contact between an adult and a minor. Definitions. Sex crimes are forms of human sexual behavior that are considered sufficiently unacceptable and harmful to society to be regarded as criminal. Someone who commits one is said to be a sex offender. Some sex crimes are crimes of violence that involve sex. Others are violations of social taboos, such as incest, sodomy, indecent exposure or exhibitionism. There is much variation among cultures as to what is considered a crime or not, and in what ways or to what extent crimes are punished. Western countries are often far more tolerant of acts, such as oral sex, that have traditionally been held to be crimes in some countries, but combine this with lesser tolerance for the remaining crimes. By contrast, many cultures with a strong religious tradition consider a far broader range of activities to be serious crimes. As a general rule, the law in many countries often intervenes in sexual activity involving young or adolescent children below the legal age of consent, non-consensual deliberate displays or illicit watching of sexual activity, sex with close relatives (incest), harm to animals, acts involving the deceased (necrophilia), and also when there is harassment, nuisance, fear, injury, or assault of a sexual nature, or serious risk of abuse of certain professional relationships. Separately, the law usually regulates or controls the censorship of pornographic or obscene material as well. A rape charge can only be issued when a persons of any age does not provide consent for sexual activity.

In conflict of laws, renvoi (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. The procedure for conflict cases. 1. The court must first decide whether it has the jurisdiction to hear the case (which will involve addressing the question of whether the plaintiff is attempting to manipulate the judicial system by forum shopping). 2. Characterization. The court must analyze the case as pleaded and allocate each component to its appropriate legal classification, each of which will have one or more choice of law rules attached to it. 3. The court will then apply the choice of law rules. In a limited number of cases, usually involving Family Law issues, an incidental question may arise which will complicate this process. In the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. The forum court will have already decided that it has jurisdiction to hear the case (resolving any issue relating to forum shopping) and will be working through the next two stages of the conflict process, namely: characterisation and choice of law. For example, the court may classify the cause as "succession", but it notes that the plaintiff brings the claim for relief as the deceased's widow. Before the court can adjudicate on the main issue, it must first decide whether the plaintiff actually has the status claimed, i.e. the incidental question would be the validity of the claimed marriage. The inconvenient reality is that many lawsuits involve a number of interdependent legal issues. In purely domestic cases, this poses no difficulty because a judge will freely move from one domestic law to another to resolve the dispute. But in a conflict case, the question is whether the incidental question is resolved by reference either to its own choice of law rules, or to the same law that governs the main issue (the lex causae). States have not formulated a consistent answer to this question.