Posts categorized as "Video"

Why do US textbooks refer to property rights as a "bundle of rights"?

If you take a class on property law in the US at some point you will probably see a reference to "bundles of rights." The student is meant to imagine someone holding a bundle of sticks and each stick represents a right with respect to a piece of land or personal property.

One way to think about this is ...what exactly do we mean when someone "owns" something?  Let's say you buy a car.  We say you "own the car" but we mean that you have a number of rights with respect to the car.  You can drive the car, sell the car, and tell me to stay out of your car.  

But other people might have rights with respect to property, too.  If a mechanic works on your car and you don't pay him, he might have rights to hold the car.  Let's say you buy a house but allow me to stay in your house as a tenant. I might have the right to exclude you or other people from entering the house.  

Below is a video introducing some of these ideas:





What is a concurring opinion?

A concurring opinion is where a judge agrees with another judge or judges' conclusion, but explains that he arrived at the same conclusion for different or additional reasons.

Remember, in the United States, appellate courts are comprised of a panel of at least three judges.  Let's say a panel of three judges must decide whether to affirm or reverse a trial court's decision.  All three of the judges might agree that the trial court's decision should be reversed.  However, the judges might have different reasons why the trial court should be reversed.  When a judge decides to write why he agrees with the conclusion that another judge reached but for different or additional reasons, he writes a  concurring opinion.

Attorneys in the United States must be careful to distinguish a majority opinion from a concurring opinion.  I'll talk about that more soon but for now, here is a video on concurring opinions.



What if someone refuses to share information during discovery?

You have probably learned that in the United States courts favor broad discovery.  For example, in federal court parties are required to disclose certain information at the beginning of the case without being asked.  Parties then must meet to create a plan and schedule for discovery.   During discovery parties are able to seek a wide range of information from each other.  

Of course there are controversies.  For example, one party might believe that a document is immune from discovery because the document came from the party's lawyer and contains legal advice.  How can this controversy be settled?

Courts usually encourage parties to settle the argument by discussing the problem and coming up with their own solutions.  If that doesn't work, the parties might meet with a judge or a magistrate  - - a special judge dealing with specific matters, such as discovery - - to resolve the issue.  

Sometimes the party seeking the information will have to make a motion to compel.  A motion is where a judge is asked to do something.  A motion to compel is where a judge is asked to order someone to do something.  For example, in a motion to compel production (disclosure) of a document, the party seeking the document will ask the judge to order the party holding the document to disclose it.  If the motion is granted, the party in possession of the document must provide it to the moving party.  

I uploaded a short video on motions to compel during discovery:


Extraterritorial Application of US Law: Liu Meng-Lin v. Siemens AG

As a general rule, US law does not apply outside the territorial jurisdiction of the United States.  A recent decision by the Second Circuit Court of Appeals (Liu Meng-Lin v. Siemens AG) provides a helpful illustration.   As a reminder, the Second Circuit Court of Appeals is a federal appellate court that decides appeals from  Connecticut, New York, and Vermont district courts.   The Second Circuit is particularly influential with respect to securities laws because it hears cases on appeal from New York, including the federal court in Manhattan.

After the 2008 financial crisis Congress passed a law called the Dodd-Frank Act.  Among many other things, the Dodd-Frank Act provides protection for whistleblowers - - persons who report securities law violations by their companies.    The Dodd-Frank Act prohibits companies from retaliating against employees who report certain types of violations of US law.  

The plaintiff in this case sued his former employer, arguing that the company illegally fired him after he internally reported corrupt practices by the company.  He complained that by firing him, the company violated the Dodd-Frank Act's protection for whistleblowers.

But the district court dismissed his case and the Second Circuit affirmed the district court's decision.  Why? The plaintiff was a foreigner (non-US citizen) working for a foreign company and all of the conduct at issue in the case occurred overseas.  Specifically:

  1. The foreign company's allegedly corrupt activity occurred outside the United States (in North Korea and China).
  2. The plaintiff reported the activity overseas.
  3. The allegedly illegal retaliation occurred overseas.

According to the Second Circuit, the only connection to the United States was that the foreign company was listed on the New York Stock Exchange.  The Second Circuit, citing recent Supreme Court decisions, explained that because Congress did not clearly intend whistleblower protection laws to apply extraterritorially, the plaintiff's case must be dismissed.

Here is a video discussing the case:




What is hearsay - - what is the hearsay rule?

 A witness cannot always testify about things he saw, read, heard, or thinks.  Hearsay is a type of testimony that is generally inadmissible in court - - meaning it is a category of testimony that courts generally prohibit.

The standard definition of hearsay is an out of court statement offered for the truth of the matter asserted.  What does that mean?  Whenever a witness at a trial tries to testify about what someone else told him, and a lawyer wants the jury to believe that what the witness heard was true, we might have a hearsay problem.

Let's say Debbie is on trial for robbing a store.  David saw Debbie go to the store at 1:00, ten minutes before the robbery.  David told Wally that he saw Debbie go to the store at 1:00.   Can the prosecutor ask Wally to testify that David told him that he saw Debbie go to the store?  Maybe not - - this looks like hearsay.  Wally is testifying about David's out of court statement.  And the prosecutor wants the jury to believe that what David said was true.  

Please keep in mind that there are a number of important exceptions to the hearsay rule - -  we'll talk about them in other posts.

Also, just because a witness testifies about what another person said does not always make it hearsay.  Let's say a person was carrying an umbrella in New York City on a day that it did not rain.  He carried the umbrella because a weather report incorrectly stated that there was a thunderstorm in New York that day.  If the person explains that he was carrying the umbrella because of the weather report he is not claiming that the weather report was true.  The weather report is not being offered for the truth of the matter asserted.  Everyone knows that the weather report was false.  But we want to know what the weather report said because it explains why the person carried an umbrella on a day with no rain.

Below is a video on hearsay, more to come.



What is claim preclusion?

You will often see claim preclusion referred to as Res Judicata.

Claim preclusion is what keeps parties from suing each other again after a final judgment on the merits is reached in a civil litigation.   For example, if a plaintiff prevails in a lawsuit against a defendant or loses a case against a defendant in Case A, the plaintiff probably cannot sue the defendant again based on the same events in Case B. Even if the plaintiff sues in a different court or alleges new causes of action, Case B is probably barred by claim preclusion.

 For example, let's say after a car accident Patty sues David for negligence in Case A.   The jury in Case A rules against Patty.  Patty probably can't sue David again based on the car accident.  Even if she sues in a different court or alleges battery instead of negligence, the case is probably barred.

Three things to look for in a case where claim preclusion might apply:

1. Were the same parties involved in a prior litigation?

2. Is the second lawsuit based on the same events as the first lawsuit?

3. Were the causes of action (e.g., negligence) in the second case already litigated in the first case?  Could the causes of action in the second case have been raised in the first case?

If the answers to these questions are "Yes" then claim preclusion probably applies.  

Below is a video on claim preclusion.


Video on Res Ipsa Loquitor

I have a new video on Res Ipsa Loquitor...enjoy your weekend!


What is an intended third-party beneficiary?

To understand this question, imagine that Perry & Debby sign a contract.  Debby promises to paint Perry's fence. Debby breaches the contract by failing to paint the fence.  We know that Perry can sue Debby.  But what about Tina, Perry's neighbor, who was not a party to the contract?   Obviously the answer is probably "No."  We would call Tina a "third-party" because she was not one of the parties to the contract.  Generally speaking, third-parties, or non-parties to a contract, cannot sue.  That makes sense.   Perry was injured, not Tina, so why should Tina ever be allowed to sue Debby?

One circumstance where Tina could sue Debby is if she were an "intended third-party beneficiary"  of the contract.  For example, let's say Perry owes Tina money.  He's short on cash but is able to make a deal with Debby that Debby will paint Tina's fence. Tina likes this idea and will forgive the debt.  Here, Debby's performance is intended to benefit Tina -- she's painting Tina's fence.  If Debby doesn't paint Tina's fence, Tina will probably be allowed to sue Debby for breaching the contract, even though Tina was not a party to the contract.

You will want to look at the Restatement (Second) of Contracts and to read cases of course, but usually on a law school examination where there is an intended beneficiary one party owes money to the third-party or the party has a reason to want to donate the benefit of the performance to the third-party.  For example, when a husband names his wife as the beneficiary of a life insurance policy, the wife is the intended third-party beneficiary of the contract between the husband and the insurance company.

On a law school examination you should also be prepared to distinguish incidental beneficiaries of a contract from intended beneficiaries.  Sometimes a third-party will benefit from parties performing according to a contract but that benefit is merely incidental - - it is not the intention of the contracting parties.  For example, let's say Tina hires Perry to fix her car.  She needs a new brake.  Debby, an auto-parts supplier, is late delivering her weekly shipment of parts to Perry and this slows down the repair job.    Under these circumstances, sure, Tina would like Debby to deliver parts on time, but Tina is probably just an incidental beneficiary of the agreement between Perry and Debby.  

Below is a short video discussing intended third-party beneficiaries.

Riley v. California: Why the police need a warrant to search the cellular phone of a person under arrest

Last month, in Riley v. California, the Supreme Court decided that the police, absent exceptional circumstances, cannot constitutionally search an arrested person's cellular phone.  If you are studying US law this is a very useful decision to see how courts split on tricky issues.   The case is also helpful to understanding how courts apply precedent and create new precedent.  

The background to the case is that the police are generally allowed to conduct a warrantless search of a person who is arrested.  This is often called a "search incident to an arrest."  That is, the police can search the arrested person's pockets, things the arrested person is carrying, and immediate surroundings.  Courts agree that the police need to conduct these types of  searches to ensure their safety (an arrested person might have a concealed weapon) and to keep arrested persons from destroying evidence.  For example, in one important case, a police search of an arrested person's cigarette pack was held constitutional.

The Supreme Court explained that a warrantless search of a cellular phone is different.  First, cellular phones usually are not dangerous (unless perhaps the arrested person used the phone to contact accomplices who might want to attack the police). Second, although data on a cellular phone can be remotely destroyed, the Supreme Court believed that measures could be taken to secure the data without searching the phone.  Finally, the Supreme Court explained that cellular phones often contain large amounts of personal data, some of it dating years back.  Searching a cellular phones pictures, emails, etc. is too far reaching.  

 Below is a short video discussing the case:


What does it mean if a plaintiff has "standing" or "lacks standing" to challenge a law's Constitutionality?

Standing means that a person has a legal capacity to sue.  

Before a person can sue to challenge a law as unconstitutional that person must meet certain requirements.  He must have suffered an injury, or be in danger of suffering an injury as a result of the law.  Also, the Court must be able to provide some sort of remedy or help for the plaintiff if the Court finds in favor of the plaintiff.

As a practical matter this generally means that a person cannot claim that a law is unconstitutional on behalf of another person.  Only a person who has actually been injured as a result of the allegedly unconstitutional law or government action has the right to sue.  There are some exceptions to this rule which I'll discuss in a future post.  If you take a US bar examination you might find that at least one of the questions on Constitutional law will focus on standing.  

For now, here is a short video: