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The Law School of America podcast is designed for listeners who what to expand and enhance their understanding of the American legal system. It provides you with legal principles in small digestible bites to make learning easy. If you're willing to put in the time, The Law School of America podcasts can take you from novice to knowledgeable in a reasonable amount of time.
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The Law School of America podcast is designed for listeners who what to expand and enhance their understanding of the American legal system. It provides you with legal principles in small digestible bites to make learning easy. If you're willing to put in the time, The Law School of America podcasts can take you from novice to knowledgeable in a reasonable amount of time.
Support this podcast: https://anchor.fm/law-school/support

    Tort law (2022): Property torts: Trespass to chattels

    Tort law (2022): Property torts: Trespass to chattels

    Trespass to chattels is a tort whereby the infringing party has intentionally (or, in Australia, negligently) interfered with another person's lawful possession of a chattel (movable personal property). The interference can be any physical contact with the chattel in a quantifiable way, or any dispossession of the chattel (whether by taking it, destroying it, or barring the owner's access to it). As opposed to the greater wrong of conversion, trespass to chattels is argued to be actionable per se.

    The origin of the concept comes from the original writ of trespass de bonis asportatis. As in most other forms of trespass, remedy can only be obtained once it is proven that there was direct interference regardless of damage being done, and the infringing party has failed to disprove either negligence or intent.

    In some common-law countries, such as the United States and Canada, a remedy for trespass to chattels can only be obtained if the direct interference was sufficiently substantial to amount to dispossession, or alternatively where there had been an injury proximately related to the chattel. (Restatement (Second) of Torts, 1965.)

    United States law.

    The Restatement of Torts, Second § 217 defines trespass to chattels as "intentionally… dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another." Harm to personal property or diminution of its quality, condition or value as a result of a defendant's use can also result in liability under § 218(b) of the Restatement.

    Certain specific circumstances may lend themselves to liability for the action. The Restatement (Second) of Torts § 218 states further that:

    One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

    a. he dispossesses the other of the chattel, or

    b. the chattel is impaired as to its condition, quality, or value, or

    c.  the possessor is deprived of the use of the chattel for a substantial time, or

    d. bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

    The trespass to chattels cause of action, frequently asserted in recent years against Internet advertisers and email spammers, is often included in complaints against spyware companies. These electronic messaging cases, and their progeny, which have cropped up over the last decade, will typically turn on the situations described in (b) or (d), and, as detailed below, the question of harm caused is a big issue.

    In sum, the basic elements of a claim of trespass to chattels are: 1) the lack of the plaintiff's consent to the trespass, 2) interference or intermeddling with possessory interest, and 3) the intentionality of the defendant's actions. Actual damage is not necessarily a required element of a trespass to chattels claim.

    Features of the claim.

    Lack of consent.

    A vendor can attempt to dispute a trespass claim on the grounds that the user consented to the terms of the contract. Even if consent was given for certain access, a user may still have a valid trespass to chattels complaint if the vendor has exceeded the contractual terms, if the contract is found to misrepresent the actual functioning of the product, or if the consent has been withdrawn. A vendor can be held liable for "any use exceeding the consent" given.


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    • 18 min
    Taxation in the US: Estate tax (Part 2)

    Taxation in the US: Estate tax (Part 2)

    Exemptions and tax rates.

     As noted before, a certain amount of each estate is exempted from taxation by the law. Below is a table of the amount of exemption by year an estate would expect. Estates above these amounts would be subject to estate tax, but only for the amount above the exemption.

    For example, assume an estate of $3.5 million in 2006. There are two beneficiaries who will each receive equal shares of the estate. The maximum allowable credit is $2 million for that year, so the taxable value is therefore $1.5 million. Since it is 2006, the tax rate on that $1.5 million is 46%, so the total taxes paid would be $690,000. Each beneficiary will receive $1,000,000 of untaxed inheritance and $405,000 from the taxable portion of their inheritance for a total of $1,405,000. This means the estate would have paid a taxable rate of 19.7%.

    As shown below, the 2001 tax act would have repealed the estate tax for one year (2010) and would then have readjusted it in 2011 to the year 2002 exemption level with a 2001 top rate. That is, had no further legislation been passed, the estate of a person who died in the year 2010 would have been entirely exempt from tax while that of a person who died in the year 2011 or later would have been taxed as heavily as in 2001. However, on December 17, 2010, Congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Section 301 of the 2010 Act reinstated the federal estate tax. The new law set the exemption for U.S. citizens and residents at $5 million per person, and it provided a top tax rate of 35 percent for the years 2011 and 2012.

    On January 1, 2013, the American Taxpayer Relief Act of 2012 was passed which permanently establishes an exemption of $5 million (as 2011 basis with inflation adjustment) per person for U.S. citizens and residents, with a maximum tax rate of 40% for the year 2013 and beyond.

    The permanence of this regulation is not ensured: the fiscal year 2014 budget called for lowering the estate tax exclusion, the generation-skipping transfer tax and the gift-tax exemption back to levels of 2009 as of the year 2018. The exemption amounts of $11,180,000 in 2018 and $11,400,000 in 2019 are also currently (as of December 2018) scheduled to sunset 12/31/2025 (Tax Cuts and Jobs Act of 2017).

    Puerto Rico and other U.S. possessions.

    A decedent who is a U.S. citizen born in Puerto Rico and resident at the time of death in a U.S. possession (i.e., PR) is generally treated, for federal tax purposes, as though he or she were a nonresident who is not a citizen of the United States, so the $5 million exemption does not apply to such a person's estate. For U.S. estate tax purposes, a U.S. resident is someone who had a domicile in the United States at the time of death. A person acquires a domicile by living in a place for even a brief period of time, as long as the person had no intention of moving from that place.


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    • 13 min
    Property law (2022): Acquisition: Adverse possession

    Property law (2022): Acquisition: Adverse possession

    Hostile possession.

    The disseisor must have entered or used the land without permission from the true owner. The disseisor's motivations may be interpreted by the court in several ways, depending upon state law and precedent:

    Objective view – the land was used without the true owner's permission and in a manner inconsistent with the true owner's rights.

    Bad faith or intentional trespass view – the land was used with the adverse possessor's subjective intent to disregard or violate the actual property owner's rights.

    Good faith view – a few states require that the party claiming adverse possession must have mistakenly believed that it is their land.

    Some jurisdictions permit accidental adverse possession, as might occur as the result of a surveying error that places the boundary line between properties in the wrong location.

    Renters, hunters or others who enter the land with permission are not taking possession that is hostile to the title owner's rights. (mistaken possession in some jurisdictions does not constitute hostility)

    Open and notorious use.

    The disseisor must possess the property in a manner that is capable of being seen. That is, the disseisor's use of the property must be sufficiently visible and apparent that it gives notice to the legal owner that someone may assert claim, and must be of such character that would give notice to a reasonable person. If the legal owner has actual knowledge of the use, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

    Continuous.

    The disseisor claiming adverse possession must hold that property continuously for the entire statute of limitations period, and use it as a true owner would for that time.

    Generally, the disseisor's openly hostile possession must be continual (although not necessarily constant) without challenge or permission from the lawful owner, but breaks in use that are consistent with how an owner would use the property will not prevent an adverse possession claim. Occasional activity on the land with long gaps in activity fails the test of continuous possession; courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If at any time during the statute of limitations period, the true owner ejects the disseisor from the land either verbally or through legal action, and the disseisor then returns and dispossesses him again, then the statute of limitations period begins anew.

    The statute of limitations applies only to the disseisor's time on the property, not how long the true owner may have been dispossessed of it (by, say, another disseisor who then left the property). However, if adverse possession is continuous between two or more successive disseisors without interruption, it may be possible for the second disseisor to claim adverse possession for the entire period based upon a legal doctrine known as tacking.


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    • 12 min
    11/24/2021 Criminal law (2022): Elements: Concurrence

    11/24/2021 Criminal law (2022): Elements: Concurrence

    In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both actus reus ("guilty action") and mens rea ("guilty mind"), to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed.

    Discussion.

    Suppose for example that the accused accidentally injures a pedestrian while driving. Aware of the collision, the accused rushes from the car only to find that the victim is a hated enemy. At this point, the accused joyfully proclaims his pleasure at having caused the injury. The conventional rule is that no crime has been committed. The actus reus is complete, and no rule of ratification applies in the criminal law. Whereas in the law of agency, a principal may retrospectively adopt a transaction as if the agent had originally been authorised to conclude an agreement with a third party ("ratification" of the agent's decision), and so acquires liability under that agreement, an alleged criminal cannot retrospectively adopt an actus reus and acquire guilt. To be convicted, the accused must have formed the mens rea either before or during the commission of the actus reus. In the vast majority of cases, this rule works without difficulty.

    Two types of concurrence in criminal law

    1. Temporal concurrence – the actus reus and mens rea occur at the same time.

    2.  Motivational concurrence – the mens rea motivates the actus reus.

    The problem.

    Not all events are limited to a particular moment in time. The normal physical rules of cause and effect may see a series of interlocking circumstances conspire to cause a particular injury. If the facts of the example above are slightly changed so that the accident occurs at night at a sharp bend on a very quiet country road. When the driver sees the victim lying in the road, he simply leaves the unconscious person where he fell. Some hours later, when a second car innocently comes around the corner and kills the victim, the first driver is happily asleep in his bed. Thus, he argues that, at the time of the death, he had no mens rea and so cannot be guilty of homicide. This argument fails because of the so-called Single Transaction Principle.


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    • 9 min
    Contract law (2022): Defenses against formation: Duress

    Contract law (2022): Defenses against formation: Duress

    In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against the person. Black's Law Dictionary (6th edition) defines duress as "any unlawful threat or coercion used... to induce another to act  in a manner  otherwise would not ". Duress is pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law. In criminal law, duress and necessity are different defenses.

    Duress has two aspects. One is that it negates the person's consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act. Defendants utilizing the duress defense admit to breaking the law but claim that they are not liable because, even though the act broke the law, it was only performed because of extreme, unlawful pressure. In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so that if the defense is not accepted then the criminal act is admitted.

    Duress or coercion can also be raised in an allegation of rape or other sexual assault to negate a defense of consent on the part of the person making the allegation.

    Discussion.

    A defendant who raises a defense of duress has actually done everything to constitute the actus reus of the crime, and has the mens rea because they intended to do it to avoid some threatened or actual harm. Thus, some degree of culpability already attaches to the defendant for what was done.

    In criminal law, the defendant's motive for breaking the law is generally irrelevant unless a defendant is raising an affirmative defense allowed for by law. (Duress may or may not be allowed as an affirmative defense for some particular charge -- in particular, it is generally forbidden for murder, and many jurisdictions also forbid it for sexual assault. Malum in se offences, generally, are less likely to recognize duress as a defense than malum prohibitum offences.)

    A successful affirmative defense means not that a criminal act was justified, but that the act was not criminal at all. But if no affirmative defense of duress is available, then the duress may be considered as justifying a lighter sentence, typically in proportion to the degree of duress. If the duress is extreme enough, for example, the defendant might be found guilty of murder but given a minimal, or even trivial, sentence.

    In some rare cases, a successful argument of duress -- even when not an affirmative defense -- might result in the jury nullifying the charge by refusing to convict.

    The basis of the defense is that the duress actually overwhelmed the defendant's will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused's state of mind, and an objective confirmation that the failure to resist the threats was reasonable), thus rendering the entire behavior involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation.


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    • 9 min
    Tort law (2022): Property torts: Trespass to land

    Tort law (2022): Property torts: Trespass to land

    Trespass to land is a common law tort or crime that is committed when an individual or the object of an individual intentionally (or, in Australia, negligently) enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.

    By law, trespass for mesne profits is a suit against someone who has been ejected from property that did not belong to them. The suit is for recovery of damages the trespasser caused to the property and for any profits he or she may have made while in possession of that property.

    For a trespass to be actionable, the tortfeasor must voluntarily go to a specific location but need not be aware that he entered the property of a particular person. If A forces B unwillingly onto C's land, C will not have action in trespass against B, because B's actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be jointly liable with B for B's trespass.

    In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia, negligence may substitute the requirement for intent.

    If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the landowner may forever lose the right to seek a remedy, and may even forfeit certain property rights. Refer also to Adverse possession and Easement by prescription.

    Trespass may also arise upon the easement of one person upon the land of another. For example, if A grants B a right to pass freely across A's land, then A would trespass upon B's easement by erecting a locked gate or otherwise blocking B's rightful access.

    In some jurisdictions trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass.

    The maxim "cuius est solum, eius est usque ad coelum et ad infernos" (whoever owns the land owns it all the way to heaven and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). Landowners may not put-up structures to prevent this. The courts have been more lenient with putting up structures to prevent underground trespass. The Kentucky Court of Appeal in Edwards v Sims (1929) seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reluctant to do so in Di Napoli v New Beach Apartments (2004). There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.


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    • 6 min

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