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Archive for the ‘Conflict of Laws’ Category

About Identity Theft

Wednesday, October 8th, 2008

Every year, thousands of people discover out of the blue that they have been the victims of identity theft. With everything being computerized and information much more obtainable than ever before, it’s no wonder more and more people are having problems and having to fight against identity theft. What, however, is identity theft, how do you keep yourself safe from it, and what do you do if you have been involved in it?

What Is Identity Theft

Identity theft is the term used to describe a type of fraud. It occurs when someone gets your private information and, in essence, pretends to be you. They may not dress up and look like you, but they may use the information that they have on you in order to do something illegal. Financial identity theft is when the criminal takes over your identification in order to take money out of your bank accounts or to open up new credit accounts, making the bills due to you. You may also be a victim of criminal identity theft, where your identification becomes a new identification for a criminal who uses it to commit a crime so that they can stay hidden and beneath the radar of the police. This can cause a huge problem if you have a background check run on you and the person running it believes you are responsible for crimes that you know nothing about.

If You Are a Victim

If you are a victim of identity theft, the first thing you need to know is that you are not alone. There are thousands of people who fall pretty to identity thieves all the time. Once you have begun to breathe again, act fast. The faster you act, the less of a chance the thief will have to make more use of your identity. The first thing to do is to contact the credit agency where you first noticed the discrepancy. Most of these lending agencies have steps in place that they can take for someone who has had their identity stolen, preventing the thief from using a credit card in your name again and making sure that you are not responsible for paying the amounts already due on the card. Even banks have procedures set in place to limit the amount of damage. You will then want to speak with the authorities and to open a case so that the police and discover who stole your identity.

If you want to keep your identity safe, make sure you safeguard your social security number and keep track of your credit report, as it is there you will be able to find any discrepancies quickly. Also, shred everything that comes in the mail for you that could be used against you, such as any credit card offers and credit statements. Also, make sure you never give your credit card number of any personal information over the phone or online unless you are sure that it is a secure company you are dealing with.


Murphy’s Law

Sunday, September 21st, 2008

• If anything can go wrong, it will.
• If there is a possibility of several things going wrong, the one that will cause the most damage will be the one to go wrong.
• If anything just cannot go wrong, it will anyway.
• If you perceive that there are four possible ways in which something can go wrong, and circumvent these, then a fifth way, unprepared for, will promptly develop.
• Left to themselves, things tend to go from bad to worse.
• If everything seems to be going well, you have obviously overlooked something.
• Nature always sides with the hidden flaw.

Murphy’s law, sometimes referred to as Sod’s law, is a popular cultural adage. The exact history of the saying may never be known, as there are several different stories explaining how it came about.

The most popular theory is that the saying was coined in 1949 at Edwards Air Force Base, by Capt. Edward A. Murphy. Capt. Murphy was an engineer at the base working on a project to determine how much sudden deceleration can be withstood by an individual during a crash. Apparently, after seeing an incorrectly wired transducer, he said of the responsible technician, “If there is any way to do it wrong, he’ll find it.” The project manager added that adage, as Murphy’s Law, to a list of other adages that he was in the habit of keeping.

In 1952, Yale Book of Quotations, first listed the adage as “Murphy’s Law,” in a quote by an unnamed physicist, from a book by Anne Roe:

“There were a number of particularly delightful incidents. There is, for example, the physicist who introduced me to one of my favorite “laws”, which he described as “Murphy’s law or the fourth law of thermodynamics” (actually there were only three last I heard) which states: “If anything can go wrong, it will”.

Prior to that time, however, there is evidence of several uses of the phrase in the common language. For instance, a verse printed in an 1841 Norwalk, Ohio paper stated:

“I never had a slice of bread,
Particularly large and wide,
That did not fall upon the floor,
And always on the buttered side.”

In 1877, Alfred Holt, in a report during a meeting of an engineering society said the following:

“It is found that anything that can go wrong at sea generally does go wrong sooner or later, so it is not to be wondered that owners prefer the safe to the scientific…. Sufficient stress can hardly be laid on the advantages of simplicity. The human factor cannot be safely neglected in planning machinery. If attention is to be obtained, the engine must be such that the engineer will be disposed to attend to it.”

Then, in 1908, British stage magician, Nevil Maskelyne, wrote:

“It is an experience common to all men to find that, on any special occasion, such as the production of a magical effect for the first time in public, everything that can go wrong will go wrong. Whether we must attribute this to the malignity of matter or to the total depravity of inanimate things, whether the exciting cause is hurry, worry, or what not, the fact remains.”

An overview of conflicts of laws

Saturday, June 14th, 2008

When you live in a country that has both state laws and federal laws, you can sometimes run into a conflict of laws situation where a court has to decide which state laws govern a case in a particular situation, or the occasional battle between state and federal laws. Ever since the founding of the country, courts have battled, argued and formed precedence on these matters and even though we are only at one spot on the never ending continuum of defining conflicts of laws, we will try to take a look at how the process has worked up to this point.

In essence, there are three different ways that the conflict of law can be examined. State courts have two different procedures, one called lex fori and one known as lex loci, while the federal court system uses the Constitution of the United States to interpret how different state laws can trump each other in certain qualifications.

In the case of lex fori, a court will decide on a law conflict if the conflict has to do with procedural law. This is known as the law of the forum state and is often interpreted as following the law in which the court resides in. A simple example would be if a court case is brought up where two people from two different states are fighting over a piece of land located in the state where the court case is being heard. The state laws in both states say that the other state has jurisdiction, so the court would rule that the state in which the court case is being heard trumps the state in which either the plaintiff or the defendant is from.

In a case of lex loci, the court will apply the rules and laws of that state in which the violation of law actually happened in. This is the most obvious choice for the overwhelming majority of cases in which a conflict of law happens in.

There have been several tests to the conflict of law argument over the last 200-plus years since the founding of the United States and the inevitable conflict between states rights began. Let’s look at how some of these precedents have been set.

A significant contracts test is sometimes used to help resolve a conflicts of law scenario. With this test, the judge must decide which state is most closely involved in the case. Since this is subjective, it is highly criticized by observers who want a more objective way of resolving the conflict.

With the Seat of Relationship test, the judge will examine in which state the majority of the interaction and business between the two took place. If one state appears to have a clear majority, then that state’s laws will be used.

Other such tests as the Better Rule test, the comparative impairment test and the Balance of Interests tests also influence conflict of laws resolutions. The Supreme Court has even ruled on several occasions on how conflicts of laws resolutions are to be resolved. The defining of these laws is, as always, a work in progress.

Choosing a conflict of laws attorney

Saturday, June 14th, 2008

Of all of the different types of law available, choosing a lawyer to represent your conflict of laws case can be extremely difficult. There are many difficult aspects to conflict of laws cases and you will likely need a specialist that works for a major law firm. Finding a small town lawyer with experience in this field is unlikely so don’t be surprised if you have to search a bit harder than you would for a personal injury lawyer. Let’s take a look at a few things you should keep in mind if you need a conflict of laws attorney.

First off, this is one field of law that you don’t want to settle on. Conflict of law cases are some of the most difficult to understand and to muddle through, so you don’t want to use a family attorney or an attorney that you are personal friends with who has no real knowledge of this type of law. You may have to contact a lawyer that is quite a ways away from you, but paying the travel expenses in this case is more than worth it.

Second, make sure you choose a lawyer who communicates with you clearly and easily. As a litigant in a conflict of laws case, you have the right to understand each and every aspect of your case and since this type of law is quite dense, you are going to need a lawyer who is especially good at breaking things down into simpler parts so that you can understand where you stand and what your rights are at all times. If you don’t have a good working relationship with your attorney, you will likely have serious problems with your conflict of laws case.

A majority of conflict of laws cases have to do with business dealings that more than one state claims to have jurisdiction over, so there is a good chance that any conflict of laws attorney that you hire will have a major background in business. If they don’t, you might want to keep looking for the perfect lawyer for you if your conflict of laws case has to do with a business deal gone sour. There are, of course, other situations where you might need a conflict of laws attorney, and it is important that you pick the right one that most closely understands and relates to your individual case.

Finally, it may be a no-brainer to some, but when many people get involved in this type of lawsuit, the verbiage and the jargon becomes so overwhelming that many people stop asking questions about the proceedings. This is a huge mistake. Your lawyer is there to act as an interpreter during your journey through the court system and even though he or she may be interpreting case law as they go, you still have a right and a duty to ask questions and have them answered in a polite, professional way. If you aren’t getting that, search for a new lawyer.

Famous cases in conflict law

Saturday, June 14th, 2008

Over the years, some of the most controversial and most influential cases in American court history have been conflict law cases. While some of the best known cases have been disputes between state laws that conflicted, the Supreme Court of the United States has made several rulings that have impacted how conflict law cases could be interpreted and used. Let’s take a look at these historical ruling and the lasting impact they have made in the field of conflict law.

In the five main case rulings by the Supreme Court, the justices cited the Constitution as creating a limitation in the way that a state can apply their law to a different state. In all five rulings, the justices found in favor of state’s rights in the sense that one state can remain sovereign over other states that have stricter laws.

In a case from 1930, the Supreme Court ruled that a law passed in Texas that stated that any contract made in the state of Texas had to have a two year statue of limitations. The case saw a circumstance where a Texas resident signed a contract with a firm from New York State. The Texas resident felt that the contract was broken and sought legal remedy, but the Supreme Court ruled with the New York firm who felt it couldn’t be held responsible for a rule in Texas.

In 1939, a conflict case highlighted workers rights when a worker in California tried to sue for an injury received on the job, even though the company was based in Massachusetts and the worker lived in Massachusetts. The court decided that, in this case, California law did not apply in this situation and they sided with the company who they felt did not need to abide by the Full Faith and Credit Clause on the California law books.

The rights of companies were further strengthened in 1954 when a couple purchased an insurance policy in the state of Illinois where they once lived and then moved to Louisiana, where they proceeded to sue their Illinois insurance company under a law on the books in Louisiana, but not in Illinois.

There were no more major conflict of law cases until the 1980’s, which saw individual rights trump those of a corporation. In this landmark case, a man, who was employed by a Minnesota based company but actually lived just over the border in Wisconsin, was killed in a traffic accident in Wisconsin. Once the accident occurred, the wife moved a short distance away over the state line into Minnesota to administer his estate and she sued the insurance company for a higher award that would have been due under Minnesota law but not under Wisconsin law and she won. This reversed a long standing trend of companies and corporations winning conflict of law cases over individuals.

The most recent major conflict of law ruling took place in 1985 and saw the Supreme Court rule that when class action suits are brought by people from multiple states, the court hearing the question must consider the laws of each state for each plaintiff.

As you can see conflict of law cases are constantly shaping and changing the way we interpret the status quo, and you can bet that it will continue to change as time goes on.

How does conflict of law cases apply to your every day life?

Saturday, June 14th, 2008

Most people have never heard of conflict of law cases. They sound rather dry and when you try to explain them to someone who doesn’t have a law degree, they can come across sounding extremely complicated, but even though this branch of law is far from flashy, there have been several rulings over the years that have impacted how laws are interpreted to this day. Let’s take look at conflict of law cases throughout time and see if we can spotlight how they influence today’s modern society.

One of the most applicable pats of conflict law comes from divorce resolutions. If both parties in a divorce are from the same area and there is no property or belongings that overlap state or federal lines, then resolving the divorce is fairly straightforward, but if one or both of the parties are from a foreign country, the legal proceedings can become very time consuming to say the least. There are a series of rules and applications that divorce courts in the United States will use to attempt to distribute the property and belongings fairly, but in some cases, other countries have to agree with the rulings made in US court. If they don’t, an agreed upon solution may take decades.

Conflict law has also gone a long way in helping to determine the rights of the individual versus the rights of a company or corporation. In Watson v. Employers Liability Assurance Corp (1954), the Supreme Court of the United States decided that one law on the books in one state can not tie a corporation to rules that aren’t present in their own state. Fifty years before this when automobiles were still a figment of the imagination, it would have been impossible for an insurance company to imagine getting a policy in one state and then being sued by a law in a state 2000 miles away, but that’s exactly what happened in this case. The Supreme Court ruled on behalf of the insurance company and today, insurance companies simply sell different policies in every state they are allowed to do business in and many policies strictly state that if you leave state A, you must get a new policy.

Conflict of law rulings have also completely revolutionized the way class action lawsuits are heard by courts. In the landmark Phillips Petroleum Co. v. Shutts case from 1985, the Supreme Court ruled that a class action lawsuit must be considered under each individual law from each individual state in which each plaintiff is from. This is very significant when you consider the size and complexity of some class action lawsuits which can involve people from all 50 states. While this ruling may have done quite a bit to slow down the legal process, it does ensure that everyone gets a fair hearing under the laws that govern that particular state.

Conflict of law cases might lack glamour, but they are hugely influential in the day to day life of American citizens.

Stages of a conflict of laws case

Saturday, June 14th, 2008

To the outside observer, a conflict of law case can come across as quite boring. There is a lot of procedural talk and enough jargon to put anyone other than a law fanatic to sleep faster than even the best sleeping pills, but a good conflict of law case can often create a delicate ballet where a court must decide on which states’ laws take prescience in a certain case. Without even knowing it, a court can be creating their own precedents that will be used to determine similar cases for years or even decades to come. Let’s take a look at the general format used by most conflict of laws cases in the United States.

First, the court of law in question must decide if they are even entitled to hear the case that has been presented in front of them. The big question that most courts have to decide is if they are more likely or less likely to give a favorable ruling to one party or another. The common practice of forum shopping has created a court system where cases are often moved from one area to another for no other reason than either the prosecution or the defense believes that they are more likely to get a ruling in their favor in that courtroom. If the court finds that no legitimate forum shopping or at least no forum shopping of any consequence has happened, than the case can proceed to the next step.

Next, the court is going to have to break down the key components of the case and decide which legal categories they belong to. This is known as characterization, and it can be quite the lengthy process. Since the jurisdiction that the case is being heard in might not have a particular law that was violated, the court then has to interpret and decide how this case broke a law in another jurisdiction that is claiming some sort of right in the case.

Once the case has been broken down into pieces that are more easily handled by the court, the court must then apply the various choice of law rules to each section so that the court can then try the case. There are a half dozen or so different ways in which a court can decide which states’ laws apply for each category. This part of the case can also take a significant amount of time as both lawyers will argue passionately that each individual section of the case should be interpreted in favor of their client and not the other side. It can be a bit ironic to watch a lawyer argue for a law to be interpreted one way on a Monday and then have it interpreted in exactly the opposite way later in the week when a second client would benefit from a different ruling, but that’s the American court system.

Once the ground rules have been laid down, the case proceeds as normal, and it is tried. The final part of the system includes getting recognition from courts in other jurisdictions to honor the ruling.

Understanding the jurisdiction question

Saturday, June 14th, 2008

In the exciting and unpredictable world of conflict of law cases, the biggest question to be answered is who has the jurisdiction in various situations. Unfortunately, understanding who has jurisdiction is an ever evolving process that is constantly be updated, refined and finessed by various Supreme Court rulings and rulings by lower courts. Let’s take a look at a few of the conventional arguments that you are likely to see in a conflict of law case to help decide whose set of laws reign supreme.

The arguments used in a conflict of laws case will depend directly on what sort of case it is being heard. The overwhelming majority of conflict of laws cases have to do with business dealings that often contain a contract that was signed in one state by residents of different states and there is a question as to which state laws or a federal law actually governs the outcome of that contract. One of the common arguments used to decide jurisdiction is known as The Better Rule Test. In recent years, the Better Rule test has been used less and less because it is often believed that this particular rule is simply an easy way for a court to apply its own jurisdiction over the rules of one or more other states. The rule states that when you lay out the rules of the conflicting states, that one set of laws or rules are simply better than the other. The obvious conflict happens when the judge feels that the laws on the state the court is located in are always automatically better, which is the usual outcome. This rule is not used nearly as often as it use to be.

A second test that some courts use to figure out the proper jurisdiction is known as the comparative impairment test. This test asks the court to look at which state stands to suffer the most if their law is not implemented. This is a more popular test than the subjective Better Law test, but it is also routinely criticized since it doesn’t take in to account which state might benefit more from having their law enforced. It is up to the court and the lawyers to decide on an argument, and for obvious reasons, the lawyers are going to argue for the choice that benefits their client over any other choice.

Finally, the Balance of Interest test was born in the 1950’s and 1960’s and simply takes a objective look at why the various states in question have the laws they do and how those laws came to be. The court will try to analyze which state took more care in crafting their laws, what the main, driving force was behind those laws being created and enforced and the court will try to find a logical pattern or reason behind the two conflicting laws. In essence, it is a logic test to decide who gets jurisdiction. This is the most widely acceptable way to determine which law has jurisdiction in today’s court system.