https://marvincable.net/api.php?action=feedcontributions&feedformat=atom&user=Marvinmachine net law - User contributions [en]2026-09-29T03:14:54ZUser contributionsMediaWiki 1.45.4https://marvincable.net/index.php?title=Privacy&diff=53Privacy2023-07-05T16:51:40Z<p>Marvin: Created page with "*Katz Test - Justice Harlan established a two-prong test for determining if a particular activity constitutes a Fourth Amendment search: (1) whether the individual demonstrates an actual privacy expectation; and (2) whether society would view that expectation as reasonable **In 2012, in United States v. Jones, the Supreme Court established an additional Fourth Amendment test to run in parallel with Katz. A Fourth Amendment violation occurs when the government intrude..."</p>
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<div>*[[Katz Test]] - Justice Harlan established a two-prong test for determining if a particular activity constitutes a Fourth Amendment search: (1) whether the individual demonstrates an actual privacy expectation; and (2) whether society would view that expectation as reasonable<br />
**In 2012, in United States v. Jones, the Supreme Court established an additional Fourth Amendment test to run in parallel with Katz. A Fourth Amendment violation occurs when the government intrudes physically on an area protected by the Constitution to gather information. Jones did not overrule Katz, but it did reassert the importance of the common law property lens through which the Court interpreted the Fourth Amendment pre-Katz.<br />
*In 2001, in Kyllo v. United States, the Supreme Court considered the boundaries of what law enforcement can reasonably claim an individual has “knowingly expos[ed]” under Katz when that individual is subjected to technological means of information-gathering.<br />
**the Supreme Court held in Kyllo that law enforcement agents engage in a search when they obtain information using technology that enhances the senses, is not commonly used by the general public, and grants explorative access that, in the past, would have required physical entry. When law enforcement agents use such technologies, they conduct a Fourth Amendment search requiring a warrant.<br />
*[[Mosaic Theory]] encapsulates the idea that, although individual pieces of information may be inconsequential in isolation, the information gleaned from the aggregation of such pieces is of greater significance</div>Marvinhttps://marvincable.net/index.php?title=Policy_Issues&diff=52Policy Issues2023-07-05T16:43:03Z<p>Marvin: </p>
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<div>[[Privacy]]<br />
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Freedom of speech <br />
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Open internet / Net neutrality</div>Marvinhttps://marvincable.net/index.php?title=Basics_of_the_Law&diff=51Basics of the Law2023-05-25T00:14:05Z<p>Marvin: </p>
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<div>Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them Issues of local, state, federal, and international laws Jurisdiction related issues<br />
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[[File:Constitution of the United States, page 1.jpg|thumb|[[Constitution of the United States]]]]<br />
[[File:United States Capitol west front edit2.jpg|thumb|Members of the [[United States Congress]] make federal laws in accordance with the nation's Constitution.]]<br />
[[File:Inside the United States Supreme Court.jpg|thumb|The [[Supreme Court of the United States]] is the highest authority in interpreting the nation's laws and regulations whenever there is a dispute.]]<br />
The [[law]] of the [[United States]] comprises many levels<ref>See Stephen Elias and Susan Levinkind, ''Legal Research: How to Find & Understand The Law'', 14th ed. (Berkeley: Nolo, 2005), 22.</ref> of [[Codification (law)|codified]] and uncodified forms of [[law]], of which the most important is the nation's [[Constitution of the United States|Constitution]], which prescribes the foundation of the [[federal government of the United States|federal government]] of the United States, as well as various [[civil liberties]]. The Constitution sets out the boundaries of federal law, which consists of [[Act of Congress|Acts of Congress]],<ref>''Ex parte Virginia,'' {{ussc|100|339|1880}}.</ref> [[treaty|treaties]] ratified by the [[United States Senate|Senate]],<ref>''[[Head Money Cases]]'', {{ussc|112|580|1884}}.</ref> regulations promulgated by the [[executive branch]],<ref>''[[Skidmore v. Swift & Co.]]'', {{ussc|323|134|1944}}.</ref> and [[case law]] originating from the [[United States federal courts|federal judiciary]].<ref>''[[Cooper v. Aaron]],'' {{ussc|358|1|1958}}.</ref> The [[United States Code]] is the official compilation and [[Codification (law)|codification]] of general and permanent federal statutory law.<br />
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Federal law and treaties, so long as they are in accordance with the Constitution, preempt conflicting state and territorial laws in the 50 [[U.S. state]]s and in the territories.<ref>William Burnham, ''Introduction to the Law and Legal System of the United States'', 4th ed. (St. Paul, MN: Thomson West, 2006), 41.</ref> However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual sovereign<ref>''Gregory v. Ashcroft'', {{ussc|501|452|1991}}.</ref> system of [[American federalism]] (actually tripartite<ref>{{cite journal|first=Tonya|last=Kowalski|title=The Forgotten Sovereigns|volume=36|journal=[[Florida State University Law Review|Fla. St. U. L. Rev.]]|pages=765–826|year=2009|issue=4|url=http://ir.law.fsu.edu/lr/vol36/iss4/4}}</ref> because of the presence of [[Indian reservation]]s), states are the [[plenary power|plenary]] [[sovereign]]s, each with their own [[State constitution (United States)|constitution]], while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.<ref>''[[United States v. Lopez]]'', {{ussc|514|549|1995}}.</ref> Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights.<ref>''[[Pruneyard Shopping Center v. Robins]]'', {{ussc|447|74|1980}}.</ref><ref>''California v. Ramos'', {{ussc|463|992|1983}}.</ref> Thus U.S. law (especially the actual "living law" of [[contract]], [[tort]], [[property law|property]], [[criminal law|criminal]], and [[family law]] experienced by the majority of citizens on a day-to-day basis) consists primarily of [[State law (United States)|state law]], which can and does vary greatly from one state to the next.<ref name="Hughes_Page_33">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA33 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref><ref name="Friedman_Page_646">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |page=646 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA646 |access-date=11 August 2020}}</ref><br />
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At both the federal and state levels, with the exception of the [[legal system of Louisiana]], the law of the United States is largely derived from the [[common law]] system of [[English law]], which was in force in [[British America]] at the time of the [[American Revolutionary War]].<ref name="Hughes_Page_12">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA12 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref><ref name="Friedman_Page_3">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |page=3 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA3 |access-date=11 August 2020}} Professor Friedman points out that English law itself was never completely uniform across [[England]] prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.</ref> However, American law has diverged greatly from its English ancestor both in terms of substance and procedure<ref name="White_Page_49">{{cite book |last1=White |first1=G. Edward |title=Law in American History, Volume 1: From the Colonial Years Through the Civil War |date=2012 |publisher=Oxford University Press |location=Oxford |isbn=9780195102475 |pages=49–50 |url=https://books.google.com/books?id=-xNmdt2BNRIC&pg=PA49 |access-date=11 August 2020}}</ref> and has incorporated a number of [[civil law (legal system)|civil law]] innovations.<br />
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{{TOC limit|3}}<br />
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==General overview==<br />
[[File:Parking regulations sign.jpg|thumb|upright|Law affects every aspect of American life, including [[parking lot]]s. Note the citations to statutes on the sign.]]<br />
===Sources of law===<br />
In the United States, the law is derived from five sources: [[United States constitutional law|constitutional law]], [[statutory law]], treaties, [[United States administrative law|administrative regulations]], and the common law (which includes case law).<ref>Paul Bergman and Sara J. Berman-Barrett, ''Represent Yourself in Court: How to Prepare & Try a Winning Case'', 6th ed. (Berkeley: Nolo, 2008), 481.</ref><br />
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===Constitutionality===<br />
Where Congress enacts a statute that conflicts with the Constitution, state or federal courts may rule that law to be [[unconstitutional]] and declare it invalid.<ref>See ''[[Marbury v. Madison]]'', {{Ussc|5|137|1803|1|Cranch}}.</ref><br />
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Notably, a statute does not automatically disappear merely because it has been found unconstitutional; it may, however, be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of ''[[stare decisis]]'', no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court.<ref>''James B. Beam Distilling Co. v. Georgia'', {{ussc|501|529|1991}}</ref> Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.<ref>See ''Casarotto v. Lombardi'', 886 P.2d 931, 940 (Mont. 1994) (Trieweiler, J., specially concurring), vacated and remanded by 515 U.S. 1129 (1995), reaff'd and reinstated by 901 P.2d 596 (Mont. 1995), rev'd sub nom. ''Doctor's Assocs., Inc. v. Casarotto'', {{ussc|517|681|1996}}.</ref><ref>''Cavazos v. Smith'', {{ussc|565|1|2011}} (per curiam).</ref><br />
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===American common law===<br />
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The United States and most [[Commonwealth of Nations|Commonwealth]] countries are heirs to the common law legal tradition of English law.<ref name="Friedman_Page_79">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |pages=79–81 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA79 |access-date=11 August 2020}}</ref> Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as [[bill of attainder|bills of attainder]]<ref>U.S. Const., Art. 1, §§ 9 and 10.</ref> and general search warrants.<ref>[[Fourth Amendment to the United States Constitution|U.S. Const., Amend. IV]].</ref><br />
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As common law courts, U.S. courts have inherited the principle of ''stare decisis''.<ref>John C. Dernbach and Cathleen S. Wharton, ''A Practical Guide to Legal Writing & Legal Method'', 2nd ed. (Buffalo: William S. Hein Publishing, 1994), 34–36.</ref> American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.<ref>{{cite book |last1=Scalia |first1=Antonin |title=A Matter of Interpretation: Federal Courts and the Law |date=2018 |publisher=Princeton University Press |location=Princeton |isbn=9780691174044 |pages=3–48 |edition=New |chapter-url=https://books.google.com/books?id=l3CYDwAAQBAJ&pg=PA6 |chapter=Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws}}</ref><br />
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The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "[[reception statutes]]" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.<ref>Miles O. Price & Harry Bitner, ''Effective Legal Research: A Practical Manual of Law Books and Their Use'', 3rd ed. (Buffalo: William Hein & Co., 1969), 272.</ref> Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.<ref name="Ibid">''Ibid.''</ref> Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,<ref name="Ibid" /> such as the heightened duty of care traditionally imposed upon [[common carrier]]s.<ref>''See, e.g., [https://scholar.google.com/scholar_case?case=4265121664793655548 Gomez v. Superior Court]'', 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41 (2005) (citing ''Lovett v. Hobbs'', 89 Eng. Rep. 836 (1680)). The ''Gomez'' court relied on a line of cases originating with ''Lovett'' in order to hold that [[Disneyland]] was a common carrier.</ref><br />
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Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples are the [[Statute of Frauds]] (still widely known in the U.S. by that name) and the [[Fraudulent Conveyances Act 1571|Statute of 13 Elizabeth]] (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.<ref>See, e.g., ''[https://scholar.google.com/scholar_case?case=16064340394300540634 Phillippe v. Shapell Industries]'', 43 Cal. 3d 1247, 241 Cal. Rptr. 22, 743 P.2d 1279 (1987) (citing original Statute of Frauds from England) and ''[https://scholar.google.com/scholar_case?case=7235426128583899206 Meija v. Reed]'', 31 Cal.4th 657, 3 Cal. Rptr. 3d 390, 74 P.3d 166 (2003) (citing Statute of 13 Elizabeth).</ref><br />
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Despite the presence of reception statutes, much of ''contemporary'' American common law has diverged significantly from English common law.<ref>Burnham, 43–44.</ref> Although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution precedents from England or the British Commonwealth.<br />
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Early on, American courts, even after the Revolution, often did cite contemporary English cases, because appellate decisions from many American courts were not regularly reported until the mid-19th century. Lawyers and judges used English legal materials to fill the gap.<ref name="Friedman_Page_83">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |pages=83 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA83 |access-date=11 August 2020}}</ref> Citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people.<ref>Elizabeth Gaspar Brown, "Frontier Justice: Wayne County 1796–1836," in ''Essays in Nineteenth-Century American Legal History'', ed. Wythe Holt, 676–703 (Westport, CT: [[Greenwood Press]], 1976): 686. Between 1808 and 1828, the briefs filed in court cases in the [[Territory of Michigan]] changed from a complete reliance on English sources of law to an increasing reliance on citations to American sources.</ref> The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.<ref name="Friedman_Page_605">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |page=605 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA605 |access-date=11 August 2020}}</ref> By 1879 one of the delegates to the [[California Constitution|California constitutional convention]] was already complaining: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already."<ref>''[https://scholar.google.com/scholar_case?case=5759475885234465900 People v. Kelly]'', 40 Cal.4th 106, 51 Cal. Rptr. 3d 98, 146 P.3d 547 (2006).</ref><ref name="Willis_Page_1455">{{cite book |last1=Willis |first1=E.B. |last2=Stockton |first2=P.K. |title=Debates and Proceedings of the Constitutional Convention of the State of California, Convened at the City of Sacramento, Saturday, September 28, 1878, Vol. III |date=1881 |publisher=State of California |location=Sacramento |page=1455 |url=https://books.google.com/books?id=y_EJAAAAIAAJ&pg=PA1455}}</ref><br />
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Today, in the words of Stanford law professor [[Lawrence M. Friedman]]: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to [[William Blackstone|Blackstone]]; but current British law almost never gets any mention."<ref name="Friedman_Page_575">{{cite book |last1=Friedman |first1=Lawrence M. |title=American Law in the Twentieth Century |date=2004 |publisher=Yale University Press |location=New Haven |isbn=9780300102994 |page=575 |url=https://books.google.com/books?id=0kZNwJZxRr0C&pg=PA575 |access-date=12 August 2020}}</ref> Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.<ref>See ''[[Lawrence v. Texas]]'', 538 U.S. 558 (2003), in which the majority cited a European court decision, ''[[Dudgeon v. United Kingdom]]'', 45 Eur. Ct. H. R. (1981), as indicative of the shared values of Western civilization.</ref><br />
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==Levels of law==<br />
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===Federal law===<br />
Federal law originates with the Constitution, which gives Congress the power to enact [[statute]]s for certain limited purposes like regulating [[interstate commerce]]. The [[United States Code]] is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create [[regulation]]s, which are published in the [[Federal Register]] and codified into the [[Code of Federal Regulations]]. Regulations generally also carry the force of law under the [[Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.|''Chevron'' doctrine]]. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of ''[[stare decisis]]''.<br />
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During the 18th and 19th centuries, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the [[United States military|military]], [[United States dollar|money]], [[foreign relations]] (especially international treaties), [[tariff]]s, [[intellectual property]] (specifically [[patent]]s and [[copyright]]s), and [[United States Postal Service|mail]]. Since the start of the 20th century, broad interpretations of the [[Commerce Clause|Commerce]] and [[Taxing and Spending Clause|Spending]] Clauses of the Constitution have enabled federal law to expand into areas like [[aviation]], [[telecommunications]], [[railroad]]s, [[pharmaceutical]]s, [[United States antitrust law|antitrust]], and [[trademark]]s. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and [[employment law]], there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like [[insurance]], Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them (see, e.g., the [[McCarran–Ferguson Act]]).<br />
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====Statutes====<br />
{{Main|United States Code}}<br />
{{Further|United States Statutes at Large|List of United States federal legislation}}<br />
[[File:United States Code 2012 Official Edition.jpg|thumb|right|The [[United States Code]], the codification of federal statutory law]]<br />
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After the president signs a bill into law (or Congress enacts it over the president's veto), it is delivered to the [[Office of the Federal Register]] (OFR) of the [[National Archives and Records Administration]] (NARA) where it is assigned a law number, and prepared for publication as a [[slip law]].<ref>{{Cite journal | title= About Public and Private Laws | date= March 9, 2017 | publisher= [[United States Government Printing Office]] | url= https://www.gpo.gov/help/index.html#about_public_and_private_laws.htm}}</ref> Public laws, but not private laws, are also given legal statutory citation by the OFR. At the end of each session of Congress, the slip laws are compiled into bound volumes called the [[United States Statutes at Large]], and they are known as [[session law]]s. The Statutes at Large present a chronological arrangement of the laws in the exact order that they have been enacted.<br />
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Public laws are incorporated into the [[United States Code]], which is a codification of all general and permanent laws of the United States. The main edition is published every six years by the [[Office of the Law Revision Counsel]] of the [[United States House of Representatives|House of Representatives]], and cumulative supplements are published annually.<ref name="USC">{{cite web|url=https://www.gpo.gov/help/index.html#about_united_states_code.htm|title=About the US Code |work=US Government Publishing Office}}</ref> The U.S. Code is arranged by subject matter, and it shows the present status of laws (with amendments already incorporated in the text) that have been amended on one or more occasions.<br />
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====Regulations====<br />
{{Main|Code of Federal Regulations}}<br />
{{Further|Federal Register}}<br />
[[File:Code of Federal Regulations.jpg|thumb|The [[Code of Federal Regulations]], the codification of federal [[administrative law]]]]<br />
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Congress often enacts statutes that grant broad [[rulemaking]] authority to [[List of United States federal agencies|federal agencies]]. Often, Congress is simply too [[Gridlock (politics)|gridlocked]] to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency's technical specialists are best equipped to deal with particular fact situations as they arise. Therefore, federal agencies are authorized to promulgate regulations. Under the principle of ''[[Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.|Chevron]]'' deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.<ref>{{cite book|last1=Duffy|first1=John|last2=Herz|first2=Michael|title=A Guide to Judicial and Political Review of Federal Agencies|date=2005|publisher=American Bar Association|location=Chicago|isbn=9781590314838|page=54|url=https://books.google.com/books?id=pWL3kjFpOAAC&pg=PA54}}</ref><br />
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Regulations are adopted pursuant to the [[Administrative Procedure Act (United States)|Administrative Procedure Act]] (APA). Regulations are first proposed and published in the Federal Register (FR or Fed. Reg.) and subject to a public comment period. Eventually, after a period for public comment and revisions based on comments received, a final version is published in the Federal Register. The regulations are codified and incorporated into the Code of Federal Regulations (CFR) which is published once a year on a rolling schedule.<br />
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Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted (known as ''[[Skidmore v. Swift & Co.|Skidmore]]'' deference), but are not entitled to ''Chevron'' deference.<br />
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====Common law, case law, and precedent====<br />
{{Further|United States Reports|National Reporter System}}<br />
[[File:United_States_Reports.jpg|thumb|The ''[[United States Reports]]'', the official reporter of the [[U.S. Supreme Court]]]]<br />
Unlike the situation with the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate [[legal precedent]] like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts.<ref name="Hughes_Page_13">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA13 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref> However, it is universally accepted that the [[Founding Fathers of the United States]], by vesting "judicial power" into the Supreme Court and the inferior federal courts in [[Article Three of the United States Constitution]], thereby vested in them the implied judicial power of common law courts to formulate [[persuasive precedent]]; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified.<ref name="Hart">''Hart v. Massanari'', 266 F.3d 1155 (9th Cir. 2001), citing ''Anastasoff v. United States'', 223 F.3d 898, ''vacated as moot on [rehearing] en banc'', 235 F.3d 1054 (8th Cir. 2000).</ref> Several legal scholars have argued that the federal judicial power to decide "[[Case or Controversy Clause|cases or controversies]]" necessarily includes the power to decide the precedential effect of those cases and controversies.<ref>[[Michael Gerhardt|Michael J. Gerhardt]], [https://books.google.com/books?id=cYwVDAAAQBAJ&pg=PA59 ''The Power of Precedent''] (New York: [[Oxford University Press]], 2008), 59.</ref><br />
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The difficult question is whether federal judicial power extends to formulating [[binding precedent]] through strict adherence to the rule of ''stare decisis''. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases (and therefore also implicitly binds all persons within the court's jurisdiction). Prior to a major change to federal court rules in 2007, about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case.<ref name="Hart" /><br />
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As federal judge [[Alex Kozinski]] has pointed out, binding precedent as we know it today simply did not exist at the time the Constitution was framed.<ref name="Hart" /> Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 19th century.<ref name="Hart" /> Furthermore, English judges in the eighteenth century subscribed to now-obsolete [[natural law]] theories of law, by which law was believed to have an existence independent of what individual judges said. Judges saw themselves as merely declaring the law which had always theoretically existed, and not as making the law.<ref name="Hart" /> Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, in the way that scientists regularly reject each other's conclusions as incorrect statements of the laws of science.<ref name="Hart" /><br />
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In turn, according to Kozinski's analysis, the contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the [[Judiciary Act (disambiguation)|Judiciary Act]]s), and the beginning of regular ''verbatim'' publication of U.S. appellate decisions by [[Thomson West|West Publishing]].<ref name="Hart" /> The rule gradually developed, case-by-case, as an extension of the judiciary's [[public policy]] of effective judicial administration (that is, in order to efficiently exercise the judicial power).<ref name="Hart" /> The rule of binding precedent is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, because in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the [[rule of law]].<ref>Daniel A. Farber and Suzanna Sherry, [https://books.google.com/books?id=AII8DwAAQBAJ&pg=PA70 ''Judgment Calls: Principle and Politics in Constitutional Law''] (New York: Oxford University Press, 2008), 70–71.</ref><ref>[[Frederick Schauer]], [https://www.jstor.org/stable/1228760?seq=1 ''Precedent''], 39 <span style="font-variant: small-caps">Stan. L. Rev.</span> 571, 595–602 (1987).</ref> The contemporary form of the rule is descended from Justice [[Louis Brandeis]]'s "landmark dissent in 1932’s ''Burnet v. Coronado Oil & Gas Co''.," which "catalogued the Court’s actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority."<ref name="Starger">{{cite book |last1=Starger |first1=Colin |editor1-last=Peters |editor1-first=Christopher J. |title=Precedent in the United States Supreme Court |date=2013 |publisher=Springer Science+Business Media |location=Dordrecht |isbn=978-94-007-7950-1 |pages=19–46 |chapter=The Dialectic of Stare Decisis Doctrine|chapter-url=https://books.google.com/books?id=zAbFBAAAQBAJ&pg=PA21}} Available via SpringerLink.</ref> <br />
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Here is a typical exposition of how public policy supports the rule of binding precedent in a 2008 [[majority opinion]] signed by [[Justice Breyer]]:<br />
<br />
<blockquote>Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." ''Burnet v. Coronado Oil & Gas Co.'' [...] To overturn a decision settling one such matter simply because we might believe that decision is no longer "right" would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.<ref>''John R. Sand Gravel Co. v. United States'', {{ussc|552|130}}, 139 (2008).</ref></blockquote><br />
<br />
It is now sometimes possible, over time, for a line of precedents to drift from the express language of any underlying statutory or constitutional texts until the courts' decisions establish doctrines that were not considered by the texts' drafters. This trend has been strongly evident in federal [[substantive due process]]<ref>Cass R. Sunstein, [https://books.google.com/books?id=Z1yQQvlbgEQC&pg=PA80 ''Designing Democracy: What Constitutions Do''] (Oxford: Oxford University Press, 2001), 80.</ref> and Commerce Clause decisions.<ref>Raoul Berger, [https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr74&div=37&id=&page= "Judicial Manipulation of the Commerce Clause,"] <span style="font-variant: small-caps">74 Tex. L. Rev. 695</span> (Mar. 1996).</ref> [[Originalism|Originalists]] and political conservatives, such as Associate Justice [[Antonin Scalia]] have criticized this trend as anti-democratic.<ref>''[[National Federation of Independent Business v. Sebelius]]'', {{Ussc|567|___|2012|el=no}} (Thomas, J. dissenting)</ref><ref>''[[Dickerson v. United States]]'', {{ussc|530|428|2000}} (Scalia, J., dissenting).</ref><ref>''[[United States v. Virginia]]'', {{ussc|518|515|1996}} (Scalia, J., dissenting)</ref><ref>''[[Planned Parenthood v. Casey]]'', {{ussc|505|833|1992}} (Scalia, J., dissenting)</ref><br />
<br />
Under the doctrine of ''[[Erie Railroad Co. v. Tompkins]]'' (1938), there is ''no general federal common law''. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which was either enacted as part of the Constitution or pursuant to constitutional authority). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law,<ref>''Romero v. International Terminal Operating Co.'', 358 U.S. 354, 360–361 (1959).</ref> has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of ''stare decisis'').<br />
<br />
The other major implication of the ''Erie'' doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case.<ref>''[[Klaxon Co. v. Stentor Electric Manufacturing Co.|Klaxon Co. v. Stentor Elec. Mfg. Co., Inc.]],'' {{ussc|313|487|1941}}.</ref> When hearing claims under state law pursuant to [[diversity jurisdiction]], federal trial courts ''must'' apply the statutory and decisional law of the state in which they sit, as if they were a court of that state,<ref name="Hughes_Page_14">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA14 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref> even if they believe that the relevant state law is irrational or just bad public policy.<ref>''Trident Center v. Connecticut Gen. Life Ins. Co.'', 847 F.2d 564 (9th Cir. 1988). In this opinion, federal judge [[Alex Kozinski]] attacked a 1968 Supreme Court of California opinion at length before conceding that under ''Erie'', he had no choice but to apply the state court's reasoning despite his strong dislike of it.</ref> <br />
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Under ''Erie'', such federal deference to state law applies only in one direction: state courts are not bound by federal interpretations of state law.<ref>''[http://online.ceb.com/CalCases/CA4/165CA4t109.htm#B202411A000011 Stone Street Capital, LLC v. California State Lottery Com.]'', 165 Cal. App. 4th 109, 123 fn. 11 (2008).</ref> Similarly, state courts are also not bound by most federal interpretations of federal law. In the vast majority of state courts, interpretations of federal law from federal [[United States courts of appeals|courts of appeals]] and [[United States district court|district courts]] can be cited as persuasive authority, but state courts are not bound by those interpretations.<ref name="Frost">{{cite journal |last1=Frost |first1=Amanda |title=Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law? |journal=Vanderbilt Law Review |date=2015 |volume=68 |issue=1 |pages=53–103 |url=https://wp0.vanderbilt.edu/lawreview-new/wp-content/uploads/sites/278/2015/01/Inferiority-Complex-Should-State-Courts-Follow-Lower-Federal-Court-Precedent-on-the-Meaning-of-Federal-Law.pdf}}</ref> The U.S. Supreme Court has never squarely addressed the issue, but has signaled in dicta that it sides with this rule.<ref name="Frost" /><ref>''Johnson v. Williams'', {{ussc|568|289|2013}}.</ref> Therefore, in those states, there is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.<ref name="Frost" /><br />
<br />
===State and territory law===<br />
{{Main|State law (United States)}}<br />
[[File:Californiapenalcode.jpg|thumb|Volumes of the [[Thomson West]] annotated version of the [[California Penal Code]], the codification of criminal law in the state of [[California]]]]<br />
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The fifty American states are separate [[sovereignty|sovereigns]],<ref>''[[Heath v. Alabama]]'', {{ussc|474|82|1985}}. In ''Heath'', the U.S. Supreme Court explained that "the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own 'inherent sovereignty,' not from the Federal Government .... The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the [[Tenth Amendment to the United States Constitution|Tenth Amendment]]."</ref> with their own [[State constitution (United States)|state constitutions]], [[state government]]s, and [[State court (United States)|state courts]]. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances. They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, [[state supreme court]]s are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of [[certiorari]].<ref>See {{UnitedStatesCode|28|1257}}.</ref> State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 ''separate'' systems of tort law, family law, property law, contract law, criminal law, and so on.<ref name="Olson 1999 6">{{cite book|last=Olson|first=Kent C.|title=Legal Information: How to Find It, How to Use It|year=1999|publisher=Greenwood Publishing Group|location=Phoenix|isbn=0897749634|page=[https://archive.org/details/legalinformation00kent/page/6 6]|url=https://archive.org/details/legalinformation00kent/page/6}}</ref><br />
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Most cases are litigated in state courts and involve claims and defenses under state laws.<ref>Sean O. Hogan, ''The Judicial Branch of State Government: People, Process, and Politics'', (Santa Barbara: ABC-CLIO, 2006), xiv.</ref><ref>Alan B. Morrison, "Courts," in ''Fundamentals of American Law'', ed. Alan B. Morrison, 57–60 (New York: Oxford University Press, 1996), 60.</ref> In a 2018 report, the [[National Center for State Courts]]' Court Statistics Project found that state trial courts received 83.8&nbsp;million newly filed cases in 2018, which consisted of 44.4&nbsp;million traffic cases, 17.0&nbsp;million criminal cases, 16.4&nbsp;million civil cases, 4.7&nbsp;million domestic relations cases, and 1.2&nbsp;million juvenile cases.<ref name="NCSC_2018_Data">{{cite web |last1=National Center for State Courts |title=State Court Caseload Digest, 2018 Data |url=https://www.courtstatistics.org/__data/assets/pdf_file/0014/40820/2018-Digest.pdf |website=Court Statistics Project |publisher=National Center for State Courts |access-date=March 18, 2023}}</ref> In 2018, state appellate courts received 234,000 new cases.<ref name="NCSC_2018_Data" /> By way of comparison, all federal district courts in 2016 together received only about 274,552 new civil cases, 79,787 new criminal cases, and 833,515 bankruptcy cases, while federal appellate courts received 53,649 new cases.<ref>Office of Judges Programs, Statistics Division, [http://www.uscourts.gov/judicial-caseload-indicators-federal-judicial-caseload-statistics-2016 Judicial Caseload Indicators] (Washington: Administrative Office of the United States Courts, 2016).</ref><br />
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====State legal systems====<br />
{{:State law (United States)}}<!--- transclude list ---><br />
<br />
====Territorial legal systems====<br />
{{div col|colwidth=18em}}<br />
* [[Law of America Samoa]]<br />
* [[Law of Guam]]<br />
* [[Law of the Northern Mariana Islands]]<br />
* [[Law of Puerto Rico]]<br />
* [[United States Virgin Islands#Legal system|Law of the U.S. Virgin Islands]]<br />
{{div col end}}<br />
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===Local law===<br />
States have delegated lawmaking powers to thousands of [[government agency|agencies]], [[township]]s, [[County (United States)|counties]], [[city|cities]], and [[Special-purpose district|special district]]s. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.<ref>See, e.g., ''Burton v. Municipal Court'', [http://online.ceb.com/CalCases/C2/68C2d684.htm 68 Cal. 2d 684] (1968) (invalidating [[Los Angeles]] city ordinance regulating motion picture theatres as an unconstitutional violation of freedom of speech as protected by the [[First Amendment to the United States Constitution]]).</ref><br />
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It is common for residents of major [[United States metropolitan area|U.S. metropolitan areas]] to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments).<ref>Osborne M. Reynolds, Jr., ''Local Government Law'', 3rd ed. (St. Paul: West, 2009), 33.</ref> Thus, at any given time, the average American citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.<br />
<br />
==Legal subjects==<br />
American lawyers draw a fundamental distinction between procedural law (which controls the procedure by which legal duties and rights are vindicated)<ref name="WalstonDunham_Page_102">{{cite book |last1=Walston-Dunham |first1=Beth |title=Introduction to Law |date=2012 |publisher=Delmar |location=Clifton Park |isbn=9781133707981 |page=102 |edition=6th |url=https://books.google.com/books?id=jWoJAAAAQBAJ&pg=PA102 |access-date=26 November 2020}}</ref> and substantive law (the actual substance of law, which is usually expressed in the form of various legal rights and duties).<ref name="WalstonDunham_Page_101">{{cite book |last1=Walston-Dunham |first1=Beth |title=Introduction to Law |date=2012 |publisher=Delmar |location=Clifton Park |isbn=9781133707981 |page=101 |edition=6th |url=https://books.google.com/books?id=jWoJAAAAQBAJ&pg=PA101 |access-date=26 November 2020}}</ref><br />
<br />
===Criminal law and procedure===<br />
{{Main|United States criminal law|United States criminal procedure}}<br />
[[File:Boone County Courthouse courtroom front.jpg|thumb|Inside the [[Boone County Courthouse (Arkansas)|Boone County Courthouse]] in [[Boone County, Arkansas]]]]<br />
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Criminal law involves the [[prosecution]] by the state of wrongful acts which are considered to be so serious that they are a breach of the sovereign's peace (and cannot be deterred or remedied by mere lawsuits between private parties). Generally, [[crime]]s can result in [[incarceration]], but torts (see below) cannot. The majority of the crimes committed in the United States are prosecuted and punished at the state level.<ref name="Manweller_Page57">{{cite book |last1=Manweller |first1=Mathew |editor1-last=Hogan |editor1-first=Sean O. |title=The Judicial Branch of State Government: People, Process, and Politics |date=2006 |publisher=ABC-CLIO |location=Santa Barbara |isbn=9781851097517 |pages=37–96 |chapter-url=https://books.google.com/books?id=ong5k8n97P4C&pg=PA57 |access-date=5 October 2020 |chapter=Chapter 2, The Roles, Functions, and Powers of State Courts}}</ref> Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud.<br />
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All states have somewhat similar laws in regard to "higher crimes" (or [[felonies]]), such as [[murder]] and [[rape]], although penalties for these crimes may vary from state to state. [[Capital punishment in the United States|Capital punishment]] is permitted in some states but not others. [[Three strikes law]]s in certain states impose harsh penalties on repeat offenders.<br />
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Some states distinguish between two levels: felonies and [[misdemeanor]]s (minor crimes).<ref name="Manweller_Page57" /> Generally, most felony convictions result in lengthy [[prison]] sentences as well as subsequent [[probation]], large [[Fine (penalty)|fines]], and orders to pay [[restitution]] directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, [[infraction]]s. These may result in fines and sometimes the loss of one's driver's license, but no jail time.<br />
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On average, only three percent of criminal cases are resolved by jury trial; 97 percent are terminated either by [[Plea bargaining in the United States|plea bargaining]] or dismissal of the charges.<ref name="Manweller_Page58">{{cite book |last1=Manweller |first1=Mathew |editor1-last=Hogan |editor1-first=Sean O. |title=The Judicial Branch of State Government: People, Process, and Politics |date=2006 |publisher=ABC-CLIO |location=Santa Barbara |isbn=9781851097517 |pages=37–96 |chapter-url=https://books.google.com/books?id=ong5k8n97P4C&pg=PA58 |access-date=5 October 2020 |chapter=Chapter 2, The Roles, Functions, and Powers of State Courts}}</ref><br />
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For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for [[drunk driving]] varied greatly prior to 1990. State laws dealing with [[Recreational drug use|drug crimes]] still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious [[felony]].<br />
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The law of [[criminal procedure]] in the United States consists of a massive overlay of federal constitutional case law interwoven with the federal and state statutes that actually provide the foundation for the creation and operation of law enforcement agencies and prison systems as well as the proceedings in criminal trials. Due to the perennial inability of legislatures in the U.S. to enact statutes that would actually force law enforcement officers to respect the constitutional rights of criminal suspects and convicts, the federal judiciary gradually developed the [[exclusionary rule]] as a method to enforce such rights.<ref>{{cite book|author1=Urbonya, Kathryn R.|editor1-last=Ross|editor1-first=Mary Massaron|editor2-last=Voss|editor2-first=Edwin P.|title=Sword and Shield: A Practical Approach to Section 1983 Litigation|date=2006|publisher=American Bar Association|location=Chicago|isbn=9781590317662|pages=249–300|chapter-url=https://books.google.com/books?id=1xzC2zvZNGUC&pg=PA249|access-date=1 July 2015|chapter=Fourth Amendment Federalism?: The Court's Vacillating Mistrust and Trust of State Search and Seizure Laws}}</ref> In turn, the exclusionary rule spawned a family of judge-made remedies for the abuse of law enforcement powers, of which the most famous is the [[Miranda warning]]. The writ of ''[[habeas corpus]]'' is often used by suspects and convicts to challenge their detention, while the [[Third Enforcement Act]] and ''[[Bivens v. Six Unknown Named Agents|Bivens]]'' actions are used by suspects to recover tort damages for police brutality.<br />
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===Civil procedure===<br />
{{Main|United States civil procedure}}<br />
The law of [[civil procedure]] governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law [[pleading]] was replaced by code pleading in 24 states after New York enacted the [[Field Code]] in 1850 and code pleading in turn was subsequently replaced again in most states by modern notice pleading during the 20th century. The old English division between common law and [[Equity (law)|equity]] courts was abolished in the federal courts by the adoption of the [[Federal Rules of Civil Procedure]] in 1938; it has also been independently abolished by legislative acts in nearly all states. The [[Delaware Court of Chancery]] is the most prominent of the small number of remaining equity courts.<br />
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Thirty-five states have adopted rules of civil procedure modeled after the FRCP (including rule numbers). However, in doing so, they had to make some modifications to account for the fact that state courts have broad general jurisdiction while federal courts have relatively limited jurisdiction.<br />
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New York, Illinois, and California are the most significant states that have not adopted the FRCP. Furthermore, all three states continue to maintain most of their civil procedure laws in the form of codified statutes enacted by the state legislature, as opposed to court rules promulgated by the state supreme court, on the ground that the latter are undemocratic. But certain key portions of their civil procedure laws have been modified by their legislatures to bring them closer to federal civil procedure.<ref>For example, Section 437c of the California Code of Civil Procedure was amended by the state legislature several times in the 1990s to bring California's summary judgment standard in line with Rule 56 of the Federal Rules of Civil Procedure. See ''Aguilar v. Atlantic Richfield Co.'', [http://online.ceb.com/calcases/C4/25C4t826.htm 25 Cal. 4th 826], 849 (2001).</ref><br />
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Generally, American civil procedure has several notable features, including extensive pretrial [[Discovery (law)|discovery]], heavy reliance on live testimony obtained at [[Deposition (law)|deposition]] or elicited in front of a [[jury]], and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, [[summary judgment]]) or a settlement. U.S. courts pioneered the concept of the opt-out [[class action]], by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called [[American rule (attorney's fees)|American Rule]] under which parties generally bear their own attorneys' fees (as opposed to the [[English Rule]] of "loser pays"), though American legislators and courts have carved out numerous exceptions.<br />
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===Contract law===<br />
<br />
[[File:Uniform Commercial Code.jpg|upright|thumb|The [[Uniform Commercial Code]]]]<br />
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[[Contract law]] covers obligations established by agreement (express or implied) between private parties.<ref name="Farnsworth_Page_133">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=133 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA133 |access-date=November 17, 2020}}</ref> Generally, contract law in transactions involving the sale of goods has become highly standardized nationwide as a result of the widespread adoption of the Uniform Commercial Code. However, there is still significant diversity in the interpretation of other kinds of contracts, depending upon the extent to which a given state has codified its common law of contracts or adopted portions of the [[Restatement (Second) of Contracts]].<br />
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Parties are permitted to agree to [[arbitration|arbitrate]] disputes arising from their contracts. Under the [[Federal Arbitration Act]] (which has been interpreted to cover ''all'' contracts arising under federal or state law), arbitration clauses are generally enforceable unless the party resisting arbitration can show [[unconscionability]] or [[fraud]] or something else which undermines the entire contract.<br />
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===Tort law===<br />
<br />
[[File:Restatement Second of Torts.jpg|left|thumb|The Restatement (Second) of Torts, a highly influential restatement of [[United States tort law]]]]<br />
Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract. This broad family of civil wrongs involves interference "with person, property, reputation, or commercial or social advantage."<ref name="Farnsworth_Page_138">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=138 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA138 |access-date=November 17, 2020}}</ref><br />
<br />
Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and partially overlaps with wrongs also punishable by criminal law. It is primarily a matter of state law and is usually developed through case law from state appellate courts; it is rarely a matter of federal law, and tort-related statutes are focused on discrete issues like authorizing [[wrongful death claim]]s (which did not exist at common law).<ref name="Farnsworth_Page_139">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=139 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA139 |access-date=November 17, 2020}}</ref> Although the American Law Institute has attempted to standardize tort law through the development of several versions of the Restatement of Torts, many states have chosen to adopt only certain sections of the Restatements and to reject others. Thus, because of its immense size and diversity, American tort law cannot be easily summarized.<br />
<br />
For example, a few jurisdictions allow actions for [[negligent infliction of emotional distress]] even in the absence of physical injury to the plaintiff, but most do not. For any particular tort, states differ on the causes of action, types and scope of remedies, statutes of limitations, and the amount of specificity with which one must plead the cause. With practically any aspect of tort law, there is a "majority rule" adhered to by most states, and one or more "minority rules."<br />
<br />
Notably, the most broadly influential innovation of 20th-century American tort law was the rule of [[strict liability]] for [[product liability|defective products]], which originated with judicial glosses on the law of [[warranty]]. In 1963, [[Roger J. Traynor]] of the [[Supreme Court of California]] threw away [[legal fiction]]s based on warranties and imposed strict liability for defective products as a matter of [[Public policy (law)|public policy]] in the landmark case of ''Greenman v. Yuba Power Products''.<ref>Mark A. Kinzie & Christine F. Hart, ''Product Liability Litigation'' (Clifton Park, NY: Thomson Delmar Learning, 2002), 100–101. See also ''Greenman v. Yuba Power Products, Inc.'', [http://online.ceb.com/CalCases/C2/59C2d57.htm 59 Cal. 2d 57] (1963).</ref> The American Law Institute subsequently adopted a slightly different version of the ''Greenman'' rule in Section 402A of the ''Restatement (Second) of Torts'', which was published in 1964 and was very influential throughout the United States.<ref>Kinzie & Hart, 101.</ref> Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985,<ref>Norbert Reich, ''Understanding EU Law: Objectives, Principles and Methods of Community Law'' (Antwerp: Intersentia, 2005), 337.</ref> by Australia in July 1992,<ref>Ellen E. Beerworth, "Australia," 51–74, in ''International Product Liability'', vol. 1, ed. Christian Campbell (Salzburg: Yorkhill Law Publishing, 2006), 52.</ref> and by Japan in June 1994.<ref>Patricia L. Maclachlan, ''Consumer Politics in Postwar Japan'' (New York: [[Columbia University Press]], 2002), 226.</ref><br />
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By the 1990s, the avalanche of American cases resulting from ''Greenman'' and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the ''Restatement (Third) of Torts: Products Liability''.<ref>{{cite web |url=http://www.ali.org/ali_old/promo6081.htm |title=ALI Restatement of the Law Third, Torts: Products Liability |publisher=Ali.org |url-status=dead |access-date=September 23, 2013 |archive-url=https://web.archive.org/web/20130531032205/http://www.ali.org/ali_old/promo6081.htm |archive-date=May 31, 2013 }}</ref><br />
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===Property law===<br />
<br />
Historically, [[Property law in the United States|American property law]] has been heavily influenced by [[English land law]],<ref name="Farnsworth_Page_142">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=142 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA142 |access-date=November 17, 2020}}</ref> and is therefore concerned with [[real property]] first and [[personal property]] second.<ref name="Farnsworth_Page_143">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=143 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA143 |access-date=November 17, 2020}}</ref> It is also primarily a matter of state law, and the level of interstate diversity in the law of property is much more substantial than in contract and tort.<ref name="Farnsworth_Page_143" /> In the 1970s, the [[Uniform Law Commission]]'s project to standardize state real property law was a spectacular failure.<ref>Marion W. Benfield, Jr., [https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1485&context=nlr ''Wasted Days and Wasted Nights: Why the Land Acts Failed''], 20 Nova L. Rev. 1037, 1037–41 (1996).</ref><ref>Ronald Benton Brown, [https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1482&context=nlr ''Whatever Happened to the Uniform Land Transactions Act?''] 20 Nova L. Rev. 1017 (1996);</ref><ref>Peter B. Maggs, [https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1488&context=nlr ''The Uniform Simplification of Land Transfers Act and the Politics and Economics of Law Reform,''] 20 Nova L. Rev. 1091, 1091–92 (1996).</ref> The majority of states use a [[Recording (real estate)|title recording]] system (coupled with privately provided [[title insurance]]) to manage title to real property, although [[Torrens title|title registration]] (''Torrens'' title) is also allowed in a small minority of states.<ref name="Farnsworth_Page_145">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=145 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA145 |access-date=November 17, 2020}}</ref> Title to personal property is usually not registered, with the notable exceptions of [[motor vehicle]]s (through a state [[department of motor vehicles]] or equivalent), bicycles (in certain cities and counties), and [[Gun laws in the United States by state|some types of firearms (in certain states)]].<ref name="McKinsey_Page_435">{{cite book |last1=McKinsey |first1=John A. |last2=Burke |first2=Debra D. |title=Carper's Understanding the Law |date=2015 |publisher=Cengage Learning |location=Stamford |isbn=9781305177307 |page=435 |url=https://books.google.com/books?id=y4TAAgAAQBAJ&pg=PA435}}</ref><br />
<br />
===Family law===<br />
<br />
In the United States, family law governs relationships between adults, and relationships between parents and their children.<ref name="Katz_Page_1">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=1 |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PA1 |access-date=November 23, 2020}}</ref> As a discrete area of law worthy of its own specialists and law professors, American family law is relatively young in comparison to European family law; it did not take flight until the [[no-fault divorce]] revolution of the 1960s.<ref name="Katz_Page_xxxii">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=xxxii |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PR32 |access-date=November 23, 2020}}</ref> Before the 1950s, widespread religious, legal, and social prohibitions against [[divorce in the United States]] meant that divorces were rare, were often seen as fact-driven matters (meaning that they were perceived as turning on each case's facts and not broadly generalizable legal principles), and rarely went up on appeal.<ref name="Katz_Page_xxxi">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=xxxi |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PR31 |access-date=November 23, 2020}}</ref> The rise of no-fault divorce caused divorce litigation to shift away from the question of who was at fault for the collapse of the marital relationship and to focus instead on issues such as [[division of property]], [[Alimony|spousal support]], and [[child support]].<ref name="Katz_Page_xxxiii">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=xxxiii |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PR33 |access-date=November 23, 2020}}</ref> <br />
<br />
Family cases are traditionally a matter of state law and are virtually always heard only in state courts.<ref name="Oakley_Page_235">{{cite book |last1=Oakley |first1=John B. |last2=Amar |first2=Vikram D. |author2-link=Vikram Amar |title=American Civil Procedure: A Guide to Civil Adjudication in US Courts |date=2009 |publisher=Kluwer Law International |location=Alphen aan den Rijn |isbn=9789041128720 |page=235 |url=https://books.google.com/books?id=ga8WMXi4i4QC&pg=PA235}}</ref><ref name="Statsky_Page_4">{{cite book |last1=Statsky |first1=William P. |title=Family Law |date=2020 |publisher=Cengage Learning |location=Boston |isbn=9781337917537 |page=4 |edition=7th |url=https://books.google.com/books?id=0Gj6DwAAQBAJ&dq=family%20law%20united%20states%20state%20federal&pg=PA4}}</ref> Certain kinds of contract, tort, and property civil actions involving state law issues can be heard in federal courts under diversity jurisdiction, but federal courts decline to hear family cases under the "domestic relations exception" to diversity jurisdiction.<ref name="Oakley_Page_235" /> <br />
<br />
Although family cases are heard in state courts, there has been a trend towards federalization of certain specific issues in family law. State courts and the lawyers who practice before them must be aware of federal income tax and bankruptcy implications of a divorce judgment, federal constitutional rights to abortion and paternity, and federal statutes governing interstate child custody disputes and interstate child support enforcement.<ref name="Statsky_Page_4" /><br />
<br />
==See also==<br />
*[[Admission to the bar in the United States]]<br />
*[[Attorneys in the United States]]<br />
*''[[Black's Law Dictionary]]''<br />
*[[Courts of the United States]]<br />
*[[Legal education in the United States]]<br />
**[[Law school in the United States]]<br />
*[[Legal systems of the world]]<br />
*[[Privacy laws of the United States]]<br />
<br />
===Lists===<br />
*[[Legal research in the United States]]<br />
*[[List of sources of law in the United States]]<br />
*[[List of Uniform Acts (United States)]]—intended for state-level legislation<br />
*[[List of United States federal legislation]]<br />
*[[List of United States Supreme Court cases]]<br />
<br />
== References ==<br />
{{Reflist}}<br />
<br />
==Further reading==<br />
* Friedman, Lawrence M. ''American Law'' (1984)<br />
* Hadden, Sally F. and Brophy, Alfred L. (eds.), ''A Companion to American Legal History.'' Malden, MA: Wiley-Blackwell, 2013.<br />
* Hall, Kermit L. et al. eds. ''The Oxford Companion to American Law'' (2002) [https://www.amazon.com/Oxford-Companion-American-Law-Companions/dp/0195088786/ excerpt and text search]<br />
* {{cite EB1911|wstitle=American Law}}<br />
<br />
===Legal history===<br />
* Edwards, Laura F. ''A Legal History of the Civil War and Reconstruction: A Nation of Rights'' (Cambridge University Press, 2015) 212 pp.<br />
* Friedman, Lawrence M. ''A History of American Law'' (3rd ed. 2005) 640 pp<br />
* Friedman, Lawrence M. ''American Law in the Twentieth Century'' (2002)<br />
* [[Kermit L. Hall|Hall, Kermit L.]] ''The Magic Mirror: Law in American History'' (1989)<br />
* Hall, Kermit L. et al. ''American Legal History: Cases and Materials'' (2010); 752 pages<br />
* Horwitz, Morton J. ''The transformation of American law: 1780–1860'' (1977)<br />
* [[Herbert Hovenkamp|Hovenkamp, Herbert]] ''The Opening of American Law: Neoclassical Legal Thought, 1870–1970'' (2015)<br />
* Horwitz, Morton J. ''The transformation of American law, 1870–1960: the crisis of legal orthodoxy (1994)<br />
* Howe, Mark de Wolfe, ed. ''Readings in American Legal History'' (2001) 540pp<br />
* Johnson, Herbert A. ''American legal and constitutional history: cases and materials'' (2001) 733 pp<br />
*{{cite journal |last=Rabban |first=David M. |year=2003 |title=The Historiography of Late Nineteenth-Century American Legal History |journal=Theoretical Inquiries in Law |volume=4 |issue=2 |pages=Article 5 |doi=10.2202/1565-3404.1075 |s2cid=56143958 }}<br />
*Schwartz, Bernard. ''The Law in America''. (Evolution of American legal institutions since 1790). (1974).<br />
<br />
===Colonial===<br />
*{{cite journal |last=Gerber |first=Scott D. |title=Bringing Ideas Back In—A Brief Historiography of American Colonial Law |journal=American Journal of Legal History |year=2011 |volume=51 |issue=2 |pages=359–374 |doi=10.1093/ajlh/51.2.359 |ssrn=1815230 }}<br />
*{{cite book |last=Hoffer |first=Peter |title=Law and People in Colonial America |edition=Rev. |location=Baltimore |publisher=Johns Hopkins University Press |year=1998 |isbn=0-8018-5822-4 }}<br />
<br />
===Lawyers===<br />
* Abel, Richard L. ''American Lawyers'' (1991)<br />
* [[Anton-Hermann Chroust|Chroust, Anton-Hermann]]. ''The Rise of the legal profession in America'' (2 vol 1965), to 1860<br />
* Drachman, Virginia G. ''Sisters in Law: Women Lawyers in Modern American History'' (2001)<br />
*Nizer, Louis. ''[[My Life in Court]]''. (1978) Popular description of a lawyer's practice<br />
* Vile, John R. ''Great American lawyers: an encyclopedia'' (2001)<br />
* Vile, John R. ''Great American judges: an encyclopedia'' (2003)<br />
* Wortman, Marlene Stein. ''Women in American Law: From colonial times to the New Deal'' (1985)<br />
<br />
===Philosophy of law===<br />
*Cardozo, Benjamin N., ed. ''An Introduction to Law''. (1957). (Essays by eight distinguished American judges)<br />
*Hart, H.L.A. ''The Concept of Law''. (1961). (Introductory text on the nature of law)<br />
*Llewellyn, Karl N. "The Bramble Bush," in ''Karl N. Llewellyn on Legal Realism''. (1986). (Introductory text on the nature of law)<br />
*Pound, Roscoe. ''Social Control Through Law''. (Nature of law and its role in society). (1942)<br />
<br />
==External links==<br />
*[https://www.usa.gov/laws Official U.S. Government page on Laws and Legal Issues]<br />
*[http://www.uscourts.gov/ Official U.S. Government page for U.S. federal courts]<br />
*[https://caselaw.findlaw.com/ Texts of U.S. federal laws and U.S. state laws]<br />
*[https://www.law.cornell.edu/uscode/ U.S. Code collection] at Cornell University's Legal Information Institute<br />
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{{DEFAULTSORT:Law Of The United States}}<br />
[[Category:Law of the United States| ]]<br />
[[Category:United States federal law| ]]</div>Marvinhttps://marvincable.net/index.php?title=Basics_of_the_Law&diff=50Basics of the Law2023-05-25T00:11:56Z<p>Marvin: </p>
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<div>Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them Issues of local, state, federal, and international laws Jurisdiction related issues<br />
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{{pp-move-indef|small=yes}}{{Short description|US governance system of authority, rules, guidelines, penalties and enforcement procedures}}{{Use American English|date = January 2019}}<br />
{{Use mdy dates|date = January 2019}}<br />
[[File:Constitution of the United States, page 1.jpg|thumb|[[Constitution of the United States]]]]<br />
[[File:United States Capitol west front edit2.jpg|thumb|Members of the [[United States Congress]] make federal laws in accordance with the nation's Constitution.]]<br />
[[File:Inside the United States Supreme Court.jpg|thumb|The [[Supreme Court of the United States]] is the highest authority in interpreting the nation's laws and regulations whenever there is a dispute.]]<br />
The [[law]] of the [[United States]] comprises many levels<ref>See Stephen Elias and Susan Levinkind, ''Legal Research: How to Find & Understand The Law'', 14th ed. (Berkeley: Nolo, 2005), 22.</ref> of [[Codification (law)|codified]] and uncodified forms of [[law]], of which the most important is the nation's [[Constitution of the United States|Constitution]], which prescribes the foundation of the [[federal government of the United States|federal government]] of the United States, as well as various [[civil liberties]]. The Constitution sets out the boundaries of federal law, which consists of [[Act of Congress|Acts of Congress]],<ref>''Ex parte Virginia,'' {{ussc|100|339|1880}}.</ref> [[treaty|treaties]] ratified by the [[United States Senate|Senate]],<ref>''[[Head Money Cases]]'', {{ussc|112|580|1884}}.</ref> regulations promulgated by the [[executive branch]],<ref>''[[Skidmore v. Swift & Co.]]'', {{ussc|323|134|1944}}.</ref> and [[case law]] originating from the [[United States federal courts|federal judiciary]].<ref>''[[Cooper v. Aaron]],'' {{ussc|358|1|1958}}.</ref> The [[United States Code]] is the official compilation and [[Codification (law)|codification]] of general and permanent federal statutory law.<br />
<br />
Federal law and treaties, so long as they are in accordance with the Constitution, preempt conflicting state and territorial laws in the 50 [[U.S. state]]s and in the territories.<ref>William Burnham, ''Introduction to the Law and Legal System of the United States'', 4th ed. (St. Paul, MN: Thomson West, 2006), 41.</ref> However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual sovereign<ref>''Gregory v. Ashcroft'', {{ussc|501|452|1991}}.</ref> system of [[American federalism]] (actually tripartite<ref>{{cite journal|first=Tonya|last=Kowalski|title=The Forgotten Sovereigns|volume=36|journal=[[Florida State University Law Review|Fla. St. U. L. Rev.]]|pages=765–826|year=2009|issue=4|url=http://ir.law.fsu.edu/lr/vol36/iss4/4}}</ref> because of the presence of [[Indian reservation]]s), states are the [[plenary power|plenary]] [[sovereign]]s, each with their own [[State constitution (United States)|constitution]], while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.<ref>''[[United States v. Lopez]]'', {{ussc|514|549|1995}}.</ref> Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights.<ref>''[[Pruneyard Shopping Center v. Robins]]'', {{ussc|447|74|1980}}.</ref><ref>''California v. Ramos'', {{ussc|463|992|1983}}.</ref> Thus U.S. law (especially the actual "living law" of [[contract]], [[tort]], [[property law|property]], [[criminal law|criminal]], and [[family law]] experienced by the majority of citizens on a day-to-day basis) consists primarily of [[State law (United States)|state law]], which can and does vary greatly from one state to the next.<ref name="Hughes_Page_33">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA33 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref><ref name="Friedman_Page_646">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |page=646 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA646 |access-date=11 August 2020}}</ref><br />
<br />
At both the federal and state levels, with the exception of the [[legal system of Louisiana]], the law of the United States is largely derived from the [[common law]] system of [[English law]], which was in force in [[British America]] at the time of the [[American Revolutionary War]].<ref name="Hughes_Page_12">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA12 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref><ref name="Friedman_Page_3">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |page=3 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA3 |access-date=11 August 2020}} Professor Friedman points out that English law itself was never completely uniform across [[England]] prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.</ref> However, American law has diverged greatly from its English ancestor both in terms of substance and procedure<ref name="White_Page_49">{{cite book |last1=White |first1=G. Edward |title=Law in American History, Volume 1: From the Colonial Years Through the Civil War |date=2012 |publisher=Oxford University Press |location=Oxford |isbn=9780195102475 |pages=49–50 |url=https://books.google.com/books?id=-xNmdt2BNRIC&pg=PA49 |access-date=11 August 2020}}</ref> and has incorporated a number of [[civil law (legal system)|civil law]] innovations.<br />
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{{TOC limit|3}}<br />
<br />
==General overview==<br />
[[File:Parking regulations sign.jpg|thumb|upright|Law affects every aspect of American life, including [[parking lot]]s. Note the citations to statutes on the sign.]]<br />
===Sources of law===<br />
In the United States, the law is derived from five sources: [[United States constitutional law|constitutional law]], [[statutory law]], treaties, [[United States administrative law|administrative regulations]], and the common law (which includes case law).<ref>Paul Bergman and Sara J. Berman-Barrett, ''Represent Yourself in Court: How to Prepare & Try a Winning Case'', 6th ed. (Berkeley: Nolo, 2008), 481.</ref><br />
<br />
===Constitutionality===<br />
Where Congress enacts a statute that conflicts with the Constitution, state or federal courts may rule that law to be [[unconstitutional]] and declare it invalid.<ref>See ''[[Marbury v. Madison]]'', {{Ussc|5|137|1803|1|Cranch}}.</ref><br />
<br />
Notably, a statute does not automatically disappear merely because it has been found unconstitutional; it may, however, be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of ''[[stare decisis]]'', no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court.<ref>''James B. Beam Distilling Co. v. Georgia'', {{ussc|501|529|1991}}</ref> Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.<ref>See ''Casarotto v. Lombardi'', 886 P.2d 931, 940 (Mont. 1994) (Trieweiler, J., specially concurring), vacated and remanded by 515 U.S. 1129 (1995), reaff'd and reinstated by 901 P.2d 596 (Mont. 1995), rev'd sub nom. ''Doctor's Assocs., Inc. v. Casarotto'', {{ussc|517|681|1996}}.</ref><ref>''Cavazos v. Smith'', {{ussc|565|1|2011}} (per curiam).</ref><br />
<br />
===American common law===<br />
<br />
The United States and most [[Commonwealth of Nations|Commonwealth]] countries are heirs to the common law legal tradition of English law.<ref name="Friedman_Page_79">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |pages=79–81 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA79 |access-date=11 August 2020}}</ref> Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as [[bill of attainder|bills of attainder]]<ref>U.S. Const., Art. 1, §§ 9 and 10.</ref> and general search warrants.<ref>[[Fourth Amendment to the United States Constitution|U.S. Const., Amend. IV]].</ref><br />
<br />
As common law courts, U.S. courts have inherited the principle of ''stare decisis''.<ref>John C. Dernbach and Cathleen S. Wharton, ''A Practical Guide to Legal Writing & Legal Method'', 2nd ed. (Buffalo: William S. Hein Publishing, 1994), 34–36.</ref> American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.<ref>{{cite book |last1=Scalia |first1=Antonin |title=A Matter of Interpretation: Federal Courts and the Law |date=2018 |publisher=Princeton University Press |location=Princeton |isbn=9780691174044 |pages=3–48 |edition=New |chapter-url=https://books.google.com/books?id=l3CYDwAAQBAJ&pg=PA6 |chapter=Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws}}</ref><br />
<br />
The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "[[reception statutes]]" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.<ref>Miles O. Price & Harry Bitner, ''Effective Legal Research: A Practical Manual of Law Books and Their Use'', 3rd ed. (Buffalo: William Hein & Co., 1969), 272.</ref> Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.<ref name="Ibid">''Ibid.''</ref> Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,<ref name="Ibid" /> such as the heightened duty of care traditionally imposed upon [[common carrier]]s.<ref>''See, e.g., [https://scholar.google.com/scholar_case?case=4265121664793655548 Gomez v. Superior Court]'', 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41 (2005) (citing ''Lovett v. Hobbs'', 89 Eng. Rep. 836 (1680)). The ''Gomez'' court relied on a line of cases originating with ''Lovett'' in order to hold that [[Disneyland]] was a common carrier.</ref><br />
<br />
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples are the [[Statute of Frauds]] (still widely known in the U.S. by that name) and the [[Fraudulent Conveyances Act 1571|Statute of 13 Elizabeth]] (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.<ref>See, e.g., ''[https://scholar.google.com/scholar_case?case=16064340394300540634 Phillippe v. Shapell Industries]'', 43 Cal. 3d 1247, 241 Cal. Rptr. 22, 743 P.2d 1279 (1987) (citing original Statute of Frauds from England) and ''[https://scholar.google.com/scholar_case?case=7235426128583899206 Meija v. Reed]'', 31 Cal.4th 657, 3 Cal. Rptr. 3d 390, 74 P.3d 166 (2003) (citing Statute of 13 Elizabeth).</ref><br />
<br />
Despite the presence of reception statutes, much of ''contemporary'' American common law has diverged significantly from English common law.<ref>Burnham, 43–44.</ref> Although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution precedents from England or the British Commonwealth.<br />
<br />
Early on, American courts, even after the Revolution, often did cite contemporary English cases, because appellate decisions from many American courts were not regularly reported until the mid-19th century. Lawyers and judges used English legal materials to fill the gap.<ref name="Friedman_Page_83">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |pages=83 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA83 |access-date=11 August 2020}}</ref> Citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people.<ref>Elizabeth Gaspar Brown, "Frontier Justice: Wayne County 1796–1836," in ''Essays in Nineteenth-Century American Legal History'', ed. Wythe Holt, 676–703 (Westport, CT: [[Greenwood Press]], 1976): 686. Between 1808 and 1828, the briefs filed in court cases in the [[Territory of Michigan]] changed from a complete reliance on English sources of law to an increasing reliance on citations to American sources.</ref> The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.<ref name="Friedman_Page_605">{{cite book |last1=Friedman |first1=Lawrence M. |title=A History of American Law |date=2019 |publisher=Oxford University Press |location=Oxford |isbn=9780190070915 |page=605 |edition=4th |url=https://books.google.com/books?id=y5KwDwAAQBAJ&pg=PA605 |access-date=11 August 2020}}</ref> By 1879 one of the delegates to the [[California Constitution|California constitutional convention]] was already complaining: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already."<ref>''[https://scholar.google.com/scholar_case?case=5759475885234465900 People v. Kelly]'', 40 Cal.4th 106, 51 Cal. Rptr. 3d 98, 146 P.3d 547 (2006).</ref><ref name="Willis_Page_1455">{{cite book |last1=Willis |first1=E.B. |last2=Stockton |first2=P.K. |title=Debates and Proceedings of the Constitutional Convention of the State of California, Convened at the City of Sacramento, Saturday, September 28, 1878, Vol. III |date=1881 |publisher=State of California |location=Sacramento |page=1455 |url=https://books.google.com/books?id=y_EJAAAAIAAJ&pg=PA1455}}</ref><br />
<br />
Today, in the words of Stanford law professor [[Lawrence M. Friedman]]: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to [[William Blackstone|Blackstone]]; but current British law almost never gets any mention."<ref name="Friedman_Page_575">{{cite book |last1=Friedman |first1=Lawrence M. |title=American Law in the Twentieth Century |date=2004 |publisher=Yale University Press |location=New Haven |isbn=9780300102994 |page=575 |url=https://books.google.com/books?id=0kZNwJZxRr0C&pg=PA575 |access-date=12 August 2020}}</ref> Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.<ref>See ''[[Lawrence v. Texas]]'', 538 U.S. 558 (2003), in which the majority cited a European court decision, ''[[Dudgeon v. United Kingdom]]'', 45 Eur. Ct. H. R. (1981), as indicative of the shared values of Western civilization.</ref><br />
<br />
==Levels of law==<br />
<br />
===Federal law===<br />
Federal law originates with the Constitution, which gives Congress the power to enact [[statute]]s for certain limited purposes like regulating [[interstate commerce]]. The [[United States Code]] is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create [[regulation]]s, which are published in the [[Federal Register]] and codified into the [[Code of Federal Regulations]]. Regulations generally also carry the force of law under the [[Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.|''Chevron'' doctrine]]. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of ''[[stare decisis]]''.<br />
<br />
During the 18th and 19th centuries, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the [[United States military|military]], [[United States dollar|money]], [[foreign relations]] (especially international treaties), [[tariff]]s, [[intellectual property]] (specifically [[patent]]s and [[copyright]]s), and [[United States Postal Service|mail]]. Since the start of the 20th century, broad interpretations of the [[Commerce Clause|Commerce]] and [[Taxing and Spending Clause|Spending]] Clauses of the Constitution have enabled federal law to expand into areas like [[aviation]], [[telecommunications]], [[railroad]]s, [[pharmaceutical]]s, [[United States antitrust law|antitrust]], and [[trademark]]s. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and [[employment law]], there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like [[insurance]], Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them (see, e.g., the [[McCarran–Ferguson Act]]).<br />
<br />
====Statutes====<br />
{{Main|United States Code}}<br />
{{Further|United States Statutes at Large|List of United States federal legislation}}<br />
[[File:United States Code 2012 Official Edition.jpg|thumb|right|The [[United States Code]], the codification of federal statutory law]]<br />
<br />
After the president signs a bill into law (or Congress enacts it over the president's veto), it is delivered to the [[Office of the Federal Register]] (OFR) of the [[National Archives and Records Administration]] (NARA) where it is assigned a law number, and prepared for publication as a [[slip law]].<ref>{{Cite journal | title= About Public and Private Laws | date= March 9, 2017 | publisher= [[United States Government Printing Office]] | url= https://www.gpo.gov/help/index.html#about_public_and_private_laws.htm}}</ref> Public laws, but not private laws, are also given legal statutory citation by the OFR. At the end of each session of Congress, the slip laws are compiled into bound volumes called the [[United States Statutes at Large]], and they are known as [[session law]]s. The Statutes at Large present a chronological arrangement of the laws in the exact order that they have been enacted.<br />
<br />
Public laws are incorporated into the [[United States Code]], which is a codification of all general and permanent laws of the United States. The main edition is published every six years by the [[Office of the Law Revision Counsel]] of the [[United States House of Representatives|House of Representatives]], and cumulative supplements are published annually.<ref name="USC">{{cite web|url=https://www.gpo.gov/help/index.html#about_united_states_code.htm|title=About the US Code |work=US Government Publishing Office}}</ref> The U.S. Code is arranged by subject matter, and it shows the present status of laws (with amendments already incorporated in the text) that have been amended on one or more occasions.<br />
<br />
====Regulations====<br />
{{Main|Code of Federal Regulations}}<br />
{{Further|Federal Register}}<br />
[[File:Code of Federal Regulations.jpg|thumb|The [[Code of Federal Regulations]], the codification of federal [[administrative law]]]]<br />
<br />
Congress often enacts statutes that grant broad [[rulemaking]] authority to [[List of United States federal agencies|federal agencies]]. Often, Congress is simply too [[Gridlock (politics)|gridlocked]] to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency's technical specialists are best equipped to deal with particular fact situations as they arise. Therefore, federal agencies are authorized to promulgate regulations. Under the principle of ''[[Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.|Chevron]]'' deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.<ref>{{cite book|last1=Duffy|first1=John|last2=Herz|first2=Michael|title=A Guide to Judicial and Political Review of Federal Agencies|date=2005|publisher=American Bar Association|location=Chicago|isbn=9781590314838|page=54|url=https://books.google.com/books?id=pWL3kjFpOAAC&pg=PA54}}</ref><br />
<br />
Regulations are adopted pursuant to the [[Administrative Procedure Act (United States)|Administrative Procedure Act]] (APA). Regulations are first proposed and published in the Federal Register (FR or Fed. Reg.) and subject to a public comment period. Eventually, after a period for public comment and revisions based on comments received, a final version is published in the Federal Register. The regulations are codified and incorporated into the Code of Federal Regulations (CFR) which is published once a year on a rolling schedule.<br />
<br />
Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted (known as ''[[Skidmore v. Swift & Co.|Skidmore]]'' deference), but are not entitled to ''Chevron'' deference.<br />
<br />
====Common law, case law, and precedent====<br />
{{Further|United States Reports|National Reporter System}}<br />
[[File:United_States_Reports.jpg|thumb|The ''[[United States Reports]]'', the official reporter of the [[U.S. Supreme Court]]]]<br />
Unlike the situation with the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate [[legal precedent]] like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts.<ref name="Hughes_Page_13">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA13 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref> However, it is universally accepted that the [[Founding Fathers of the United States]], by vesting "judicial power" into the Supreme Court and the inferior federal courts in [[Article Three of the United States Constitution]], thereby vested in them the implied judicial power of common law courts to formulate [[persuasive precedent]]; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified.<ref name="Hart">''Hart v. Massanari'', 266 F.3d 1155 (9th Cir. 2001), citing ''Anastasoff v. United States'', 223 F.3d 898, ''vacated as moot on [rehearing] en banc'', 235 F.3d 1054 (8th Cir. 2000).</ref> Several legal scholars have argued that the federal judicial power to decide "[[Case or Controversy Clause|cases or controversies]]" necessarily includes the power to decide the precedential effect of those cases and controversies.<ref>[[Michael Gerhardt|Michael J. Gerhardt]], [https://books.google.com/books?id=cYwVDAAAQBAJ&pg=PA59 ''The Power of Precedent''] (New York: [[Oxford University Press]], 2008), 59.</ref><br />
<br />
The difficult question is whether federal judicial power extends to formulating [[binding precedent]] through strict adherence to the rule of ''stare decisis''. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases (and therefore also implicitly binds all persons within the court's jurisdiction). Prior to a major change to federal court rules in 2007, about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case.<ref name="Hart" /><br />
<br />
As federal judge [[Alex Kozinski]] has pointed out, binding precedent as we know it today simply did not exist at the time the Constitution was framed.<ref name="Hart" /> Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 19th century.<ref name="Hart" /> Furthermore, English judges in the eighteenth century subscribed to now-obsolete [[natural law]] theories of law, by which law was believed to have an existence independent of what individual judges said. Judges saw themselves as merely declaring the law which had always theoretically existed, and not as making the law.<ref name="Hart" /> Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, in the way that scientists regularly reject each other's conclusions as incorrect statements of the laws of science.<ref name="Hart" /><br />
<br />
In turn, according to Kozinski's analysis, the contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the [[Judiciary Act (disambiguation)|Judiciary Act]]s), and the beginning of regular ''verbatim'' publication of U.S. appellate decisions by [[Thomson West|West Publishing]].<ref name="Hart" /> The rule gradually developed, case-by-case, as an extension of the judiciary's [[public policy]] of effective judicial administration (that is, in order to efficiently exercise the judicial power).<ref name="Hart" /> The rule of binding precedent is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, because in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the [[rule of law]].<ref>Daniel A. Farber and Suzanna Sherry, [https://books.google.com/books?id=AII8DwAAQBAJ&pg=PA70 ''Judgment Calls: Principle and Politics in Constitutional Law''] (New York: Oxford University Press, 2008), 70–71.</ref><ref>[[Frederick Schauer]], [https://www.jstor.org/stable/1228760?seq=1 ''Precedent''], 39 <span style="font-variant: small-caps">Stan. L. Rev.</span> 571, 595–602 (1987).</ref> The contemporary form of the rule is descended from Justice [[Louis Brandeis]]'s "landmark dissent in 1932’s ''Burnet v. Coronado Oil & Gas Co''.," which "catalogued the Court’s actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority."<ref name="Starger">{{cite book |last1=Starger |first1=Colin |editor1-last=Peters |editor1-first=Christopher J. |title=Precedent in the United States Supreme Court |date=2013 |publisher=Springer Science+Business Media |location=Dordrecht |isbn=978-94-007-7950-1 |pages=19–46 |chapter=The Dialectic of Stare Decisis Doctrine|chapter-url=https://books.google.com/books?id=zAbFBAAAQBAJ&pg=PA21}} Available via SpringerLink.</ref> <br />
<br />
Here is a typical exposition of how public policy supports the rule of binding precedent in a 2008 [[majority opinion]] signed by [[Justice Breyer]]:<br />
<br />
<blockquote>Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." ''Burnet v. Coronado Oil & Gas Co.'' [...] To overturn a decision settling one such matter simply because we might believe that decision is no longer "right" would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.<ref>''John R. Sand Gravel Co. v. United States'', {{ussc|552|130}}, 139 (2008).</ref></blockquote><br />
<br />
It is now sometimes possible, over time, for a line of precedents to drift from the express language of any underlying statutory or constitutional texts until the courts' decisions establish doctrines that were not considered by the texts' drafters. This trend has been strongly evident in federal [[substantive due process]]<ref>Cass R. Sunstein, [https://books.google.com/books?id=Z1yQQvlbgEQC&pg=PA80 ''Designing Democracy: What Constitutions Do''] (Oxford: Oxford University Press, 2001), 80.</ref> and Commerce Clause decisions.<ref>Raoul Berger, [https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr74&div=37&id=&page= "Judicial Manipulation of the Commerce Clause,"] <span style="font-variant: small-caps">74 Tex. L. Rev. 695</span> (Mar. 1996).</ref> [[Originalism|Originalists]] and political conservatives, such as Associate Justice [[Antonin Scalia]] have criticized this trend as anti-democratic.<ref>''[[National Federation of Independent Business v. Sebelius]]'', {{Ussc|567|___|2012|el=no}} (Thomas, J. dissenting)</ref><ref>''[[Dickerson v. United States]]'', {{ussc|530|428|2000}} (Scalia, J., dissenting).</ref><ref>''[[United States v. Virginia]]'', {{ussc|518|515|1996}} (Scalia, J., dissenting)</ref><ref>''[[Planned Parenthood v. Casey]]'', {{ussc|505|833|1992}} (Scalia, J., dissenting)</ref><br />
<br />
Under the doctrine of ''[[Erie Railroad Co. v. Tompkins]]'' (1938), there is ''no general federal common law''. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which was either enacted as part of the Constitution or pursuant to constitutional authority). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law,<ref>''Romero v. International Terminal Operating Co.'', 358 U.S. 354, 360–361 (1959).</ref> has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of ''stare decisis'').<br />
<br />
The other major implication of the ''Erie'' doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case.<ref>''[[Klaxon Co. v. Stentor Electric Manufacturing Co.|Klaxon Co. v. Stentor Elec. Mfg. Co., Inc.]],'' {{ussc|313|487|1941}}.</ref> When hearing claims under state law pursuant to [[diversity jurisdiction]], federal trial courts ''must'' apply the statutory and decisional law of the state in which they sit, as if they were a court of that state,<ref name="Hughes_Page_14">{{cite book |last1=Hughes |first1=Graham |editor1-last=Morrison |editor1-first=Alan B. |title=Fundamentals of American Law |date=1996 |publisher=Oxford University Press |location=Oxford |isbn=9780198764052 |pages=9–26 |chapter-url=https://books.google.com/books?id=Si0lupMPrEoC&pg=PA14 |access-date=11 August 2020 |chapter=Common Law Systems}}</ref> even if they believe that the relevant state law is irrational or just bad public policy.<ref>''Trident Center v. Connecticut Gen. Life Ins. Co.'', 847 F.2d 564 (9th Cir. 1988). In this opinion, federal judge [[Alex Kozinski]] attacked a 1968 Supreme Court of California opinion at length before conceding that under ''Erie'', he had no choice but to apply the state court's reasoning despite his strong dislike of it.</ref> <br />
<br />
Under ''Erie'', such federal deference to state law applies only in one direction: state courts are not bound by federal interpretations of state law.<ref>''[http://online.ceb.com/CalCases/CA4/165CA4t109.htm#B202411A000011 Stone Street Capital, LLC v. California State Lottery Com.]'', 165 Cal. App. 4th 109, 123 fn. 11 (2008).</ref> Similarly, state courts are also not bound by most federal interpretations of federal law. In the vast majority of state courts, interpretations of federal law from federal [[United States courts of appeals|courts of appeals]] and [[United States district court|district courts]] can be cited as persuasive authority, but state courts are not bound by those interpretations.<ref name="Frost">{{cite journal |last1=Frost |first1=Amanda |title=Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law? |journal=Vanderbilt Law Review |date=2015 |volume=68 |issue=1 |pages=53–103 |url=https://wp0.vanderbilt.edu/lawreview-new/wp-content/uploads/sites/278/2015/01/Inferiority-Complex-Should-State-Courts-Follow-Lower-Federal-Court-Precedent-on-the-Meaning-of-Federal-Law.pdf}}</ref> The U.S. Supreme Court has never squarely addressed the issue, but has signaled in dicta that it sides with this rule.<ref name="Frost" /><ref>''Johnson v. Williams'', {{ussc|568|289|2013}}.</ref> Therefore, in those states, there is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.<ref name="Frost" /><br />
<br />
===State and territory law===<br />
{{Main|State law (United States)}}<br />
[[File:Californiapenalcode.jpg|thumb|Volumes of the [[Thomson West]] annotated version of the [[California Penal Code]], the codification of criminal law in the state of [[California]]]]<br />
<br />
The fifty American states are separate [[sovereignty|sovereigns]],<ref>''[[Heath v. Alabama]]'', {{ussc|474|82|1985}}. In ''Heath'', the U.S. Supreme Court explained that "the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own 'inherent sovereignty,' not from the Federal Government .... The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the [[Tenth Amendment to the United States Constitution|Tenth Amendment]]."</ref> with their own [[State constitution (United States)|state constitutions]], [[state government]]s, and [[State court (United States)|state courts]]. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances. They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, [[state supreme court]]s are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of [[certiorari]].<ref>See {{UnitedStatesCode|28|1257}}.</ref> State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 ''separate'' systems of tort law, family law, property law, contract law, criminal law, and so on.<ref name="Olson 1999 6">{{cite book|last=Olson|first=Kent C.|title=Legal Information: How to Find It, How to Use It|year=1999|publisher=Greenwood Publishing Group|location=Phoenix|isbn=0897749634|page=[https://archive.org/details/legalinformation00kent/page/6 6]|url=https://archive.org/details/legalinformation00kent/page/6}}</ref><br />
<br />
Most cases are litigated in state courts and involve claims and defenses under state laws.<ref>Sean O. Hogan, ''The Judicial Branch of State Government: People, Process, and Politics'', (Santa Barbara: ABC-CLIO, 2006), xiv.</ref><ref>Alan B. Morrison, "Courts," in ''Fundamentals of American Law'', ed. Alan B. Morrison, 57–60 (New York: Oxford University Press, 1996), 60.</ref> In a 2018 report, the [[National Center for State Courts]]' Court Statistics Project found that state trial courts received 83.8&nbsp;million newly filed cases in 2018, which consisted of 44.4&nbsp;million traffic cases, 17.0&nbsp;million criminal cases, 16.4&nbsp;million civil cases, 4.7&nbsp;million domestic relations cases, and 1.2&nbsp;million juvenile cases.<ref name="NCSC_2018_Data">{{cite web |last1=National Center for State Courts |title=State Court Caseload Digest, 2018 Data |url=https://www.courtstatistics.org/__data/assets/pdf_file/0014/40820/2018-Digest.pdf |website=Court Statistics Project |publisher=National Center for State Courts |access-date=March 18, 2023}}</ref> In 2018, state appellate courts received 234,000 new cases.<ref name="NCSC_2018_Data" /> By way of comparison, all federal district courts in 2016 together received only about 274,552 new civil cases, 79,787 new criminal cases, and 833,515 bankruptcy cases, while federal appellate courts received 53,649 new cases.<ref>Office of Judges Programs, Statistics Division, [http://www.uscourts.gov/judicial-caseload-indicators-federal-judicial-caseload-statistics-2016 Judicial Caseload Indicators] (Washington: Administrative Office of the United States Courts, 2016).</ref><br />
<br />
====State legal systems====<br />
{{:State law (United States)}}<!--- transclude list ---><br />
<br />
====Territorial legal systems====<br />
{{div col|colwidth=18em}}<br />
* [[Law of America Samoa]]<br />
* [[Law of Guam]]<br />
* [[Law of the Northern Mariana Islands]]<br />
* [[Law of Puerto Rico]]<br />
* [[United States Virgin Islands#Legal system|Law of the U.S. Virgin Islands]]<br />
{{div col end}}<br />
<br />
===Local law===<br />
States have delegated lawmaking powers to thousands of [[government agency|agencies]], [[township]]s, [[County (United States)|counties]], [[city|cities]], and [[Special-purpose district|special district]]s. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.<ref>See, e.g., ''Burton v. Municipal Court'', [http://online.ceb.com/CalCases/C2/68C2d684.htm 68 Cal. 2d 684] (1968) (invalidating [[Los Angeles]] city ordinance regulating motion picture theatres as an unconstitutional violation of freedom of speech as protected by the [[First Amendment to the United States Constitution]]).</ref><br />
<br />
It is common for residents of major [[United States metropolitan area|U.S. metropolitan areas]] to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments).<ref>Osborne M. Reynolds, Jr., ''Local Government Law'', 3rd ed. (St. Paul: West, 2009), 33.</ref> Thus, at any given time, the average American citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.<br />
<br />
==Legal subjects==<br />
American lawyers draw a fundamental distinction between procedural law (which controls the procedure by which legal duties and rights are vindicated)<ref name="WalstonDunham_Page_102">{{cite book |last1=Walston-Dunham |first1=Beth |title=Introduction to Law |date=2012 |publisher=Delmar |location=Clifton Park |isbn=9781133707981 |page=102 |edition=6th |url=https://books.google.com/books?id=jWoJAAAAQBAJ&pg=PA102 |access-date=26 November 2020}}</ref> and substantive law (the actual substance of law, which is usually expressed in the form of various legal rights and duties).<ref name="WalstonDunham_Page_101">{{cite book |last1=Walston-Dunham |first1=Beth |title=Introduction to Law |date=2012 |publisher=Delmar |location=Clifton Park |isbn=9781133707981 |page=101 |edition=6th |url=https://books.google.com/books?id=jWoJAAAAQBAJ&pg=PA101 |access-date=26 November 2020}}</ref><br />
<br />
===Criminal law and procedure===<br />
{{Main|United States criminal law|United States criminal procedure}}<br />
[[File:Boone County Courthouse courtroom front.jpg|thumb|Inside the [[Boone County Courthouse (Arkansas)|Boone County Courthouse]] in [[Boone County, Arkansas]]]]<br />
<br />
Criminal law involves the [[prosecution]] by the state of wrongful acts which are considered to be so serious that they are a breach of the sovereign's peace (and cannot be deterred or remedied by mere lawsuits between private parties). Generally, [[crime]]s can result in [[incarceration]], but torts (see below) cannot. The majority of the crimes committed in the United States are prosecuted and punished at the state level.<ref name="Manweller_Page57">{{cite book |last1=Manweller |first1=Mathew |editor1-last=Hogan |editor1-first=Sean O. |title=The Judicial Branch of State Government: People, Process, and Politics |date=2006 |publisher=ABC-CLIO |location=Santa Barbara |isbn=9781851097517 |pages=37–96 |chapter-url=https://books.google.com/books?id=ong5k8n97P4C&pg=PA57 |access-date=5 October 2020 |chapter=Chapter 2, The Roles, Functions, and Powers of State Courts}}</ref> Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud.<br />
<br />
All states have somewhat similar laws in regard to "higher crimes" (or [[felonies]]), such as [[murder]] and [[rape]], although penalties for these crimes may vary from state to state. [[Capital punishment in the United States|Capital punishment]] is permitted in some states but not others. [[Three strikes law]]s in certain states impose harsh penalties on repeat offenders.<br />
<br />
Some states distinguish between two levels: felonies and [[misdemeanor]]s (minor crimes).<ref name="Manweller_Page57" /> Generally, most felony convictions result in lengthy [[prison]] sentences as well as subsequent [[probation]], large [[Fine (penalty)|fines]], and orders to pay [[restitution]] directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, [[infraction]]s. These may result in fines and sometimes the loss of one's driver's license, but no jail time.<br />
<br />
On average, only three percent of criminal cases are resolved by jury trial; 97 percent are terminated either by [[Plea bargaining in the United States|plea bargaining]] or dismissal of the charges.<ref name="Manweller_Page58">{{cite book |last1=Manweller |first1=Mathew |editor1-last=Hogan |editor1-first=Sean O. |title=The Judicial Branch of State Government: People, Process, and Politics |date=2006 |publisher=ABC-CLIO |location=Santa Barbara |isbn=9781851097517 |pages=37–96 |chapter-url=https://books.google.com/books?id=ong5k8n97P4C&pg=PA58 |access-date=5 October 2020 |chapter=Chapter 2, The Roles, Functions, and Powers of State Courts}}</ref><br />
<br />
For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for [[drunk driving]] varied greatly prior to 1990. State laws dealing with [[Recreational drug use|drug crimes]] still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious [[felony]].<br />
<br />
The law of [[criminal procedure]] in the United States consists of a massive overlay of federal constitutional case law interwoven with the federal and state statutes that actually provide the foundation for the creation and operation of law enforcement agencies and prison systems as well as the proceedings in criminal trials. Due to the perennial inability of legislatures in the U.S. to enact statutes that would actually force law enforcement officers to respect the constitutional rights of criminal suspects and convicts, the federal judiciary gradually developed the [[exclusionary rule]] as a method to enforce such rights.<ref>{{cite book|author1=Urbonya, Kathryn R.|editor1-last=Ross|editor1-first=Mary Massaron|editor2-last=Voss|editor2-first=Edwin P.|title=Sword and Shield: A Practical Approach to Section 1983 Litigation|date=2006|publisher=American Bar Association|location=Chicago|isbn=9781590317662|pages=249–300|chapter-url=https://books.google.com/books?id=1xzC2zvZNGUC&pg=PA249|access-date=1 July 2015|chapter=Fourth Amendment Federalism?: The Court's Vacillating Mistrust and Trust of State Search and Seizure Laws}}</ref> In turn, the exclusionary rule spawned a family of judge-made remedies for the abuse of law enforcement powers, of which the most famous is the [[Miranda warning]]. The writ of ''[[habeas corpus]]'' is often used by suspects and convicts to challenge their detention, while the [[Third Enforcement Act]] and ''[[Bivens v. Six Unknown Named Agents|Bivens]]'' actions are used by suspects to recover tort damages for police brutality.<br />
<br />
===Civil procedure===<br />
{{Main|United States civil procedure}}<br />
The law of [[civil procedure]] governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law [[pleading]] was replaced by code pleading in 24 states after New York enacted the [[Field Code]] in 1850 and code pleading in turn was subsequently replaced again in most states by modern notice pleading during the 20th century. The old English division between common law and [[Equity (law)|equity]] courts was abolished in the federal courts by the adoption of the [[Federal Rules of Civil Procedure]] in 1938; it has also been independently abolished by legislative acts in nearly all states. The [[Delaware Court of Chancery]] is the most prominent of the small number of remaining equity courts.<br />
<br />
Thirty-five states have adopted rules of civil procedure modeled after the FRCP (including rule numbers). However, in doing so, they had to make some modifications to account for the fact that state courts have broad general jurisdiction while federal courts have relatively limited jurisdiction.<br />
<br />
New York, Illinois, and California are the most significant states that have not adopted the FRCP. Furthermore, all three states continue to maintain most of their civil procedure laws in the form of codified statutes enacted by the state legislature, as opposed to court rules promulgated by the state supreme court, on the ground that the latter are undemocratic. But certain key portions of their civil procedure laws have been modified by their legislatures to bring them closer to federal civil procedure.<ref>For example, Section 437c of the California Code of Civil Procedure was amended by the state legislature several times in the 1990s to bring California's summary judgment standard in line with Rule 56 of the Federal Rules of Civil Procedure. See ''Aguilar v. Atlantic Richfield Co.'', [http://online.ceb.com/calcases/C4/25C4t826.htm 25 Cal. 4th 826], 849 (2001).</ref><br />
<br />
Generally, American civil procedure has several notable features, including extensive pretrial [[Discovery (law)|discovery]], heavy reliance on live testimony obtained at [[Deposition (law)|deposition]] or elicited in front of a [[jury]], and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, [[summary judgment]]) or a settlement. U.S. courts pioneered the concept of the opt-out [[class action]], by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called [[American rule (attorney's fees)|American Rule]] under which parties generally bear their own attorneys' fees (as opposed to the [[English Rule]] of "loser pays"), though American legislators and courts have carved out numerous exceptions.<br />
<br />
===Contract law===<br />
{{Main|United States contract law}}<br />
[[File:Uniform Commercial Code.jpg|upright|thumb|The [[Uniform Commercial Code]]]]<br />
<br />
[[Contract law]] covers obligations established by agreement (express or implied) between private parties.<ref name="Farnsworth_Page_133">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=133 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA133 |access-date=November 17, 2020}}</ref> Generally, contract law in transactions involving the sale of goods has become highly standardized nationwide as a result of the widespread adoption of the Uniform Commercial Code. However, there is still significant diversity in the interpretation of other kinds of contracts, depending upon the extent to which a given state has codified its common law of contracts or adopted portions of the [[Restatement (Second) of Contracts]].<br />
<br />
Parties are permitted to agree to [[arbitration|arbitrate]] disputes arising from their contracts. Under the [[Federal Arbitration Act]] (which has been interpreted to cover ''all'' contracts arising under federal or state law), arbitration clauses are generally enforceable unless the party resisting arbitration can show [[unconscionability]] or [[fraud]] or something else which undermines the entire contract.<br />
<br />
===Tort law===<br />
{{Main|United States tort law}}<br />
[[File:Restatement Second of Torts.jpg|left|thumb|The Restatement (Second) of Torts, a highly influential restatement of [[United States tort law]]]]<br />
Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract. This broad family of civil wrongs involves interference "with person, property, reputation, or commercial or social advantage."<ref name="Farnsworth_Page_138">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=138 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA138 |access-date=November 17, 2020}}</ref><br />
<br />
Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and partially overlaps with wrongs also punishable by criminal law. It is primarily a matter of state law and is usually developed through case law from state appellate courts; it is rarely a matter of federal law, and tort-related statutes are focused on discrete issues like authorizing [[wrongful death claim]]s (which did not exist at common law).<ref name="Farnsworth_Page_139">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=139 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA139 |access-date=November 17, 2020}}</ref> Although the American Law Institute has attempted to standardize tort law through the development of several versions of the Restatement of Torts, many states have chosen to adopt only certain sections of the Restatements and to reject others. Thus, because of its immense size and diversity, American tort law cannot be easily summarized.<br />
<br />
For example, a few jurisdictions allow actions for [[negligent infliction of emotional distress]] even in the absence of physical injury to the plaintiff, but most do not. For any particular tort, states differ on the causes of action, types and scope of remedies, statutes of limitations, and the amount of specificity with which one must plead the cause. With practically any aspect of tort law, there is a "majority rule" adhered to by most states, and one or more "minority rules."<br />
<br />
Notably, the most broadly influential innovation of 20th-century American tort law was the rule of [[strict liability]] for [[product liability|defective products]], which originated with judicial glosses on the law of [[warranty]]. In 1963, [[Roger J. Traynor]] of the [[Supreme Court of California]] threw away [[legal fiction]]s based on warranties and imposed strict liability for defective products as a matter of [[Public policy (law)|public policy]] in the landmark case of ''Greenman v. Yuba Power Products''.<ref>Mark A. Kinzie & Christine F. Hart, ''Product Liability Litigation'' (Clifton Park, NY: Thomson Delmar Learning, 2002), 100–101. See also ''Greenman v. Yuba Power Products, Inc.'', [http://online.ceb.com/CalCases/C2/59C2d57.htm 59 Cal. 2d 57] (1963).</ref> The American Law Institute subsequently adopted a slightly different version of the ''Greenman'' rule in Section 402A of the ''Restatement (Second) of Torts'', which was published in 1964 and was very influential throughout the United States.<ref>Kinzie & Hart, 101.</ref> Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985,<ref>Norbert Reich, ''Understanding EU Law: Objectives, Principles and Methods of Community Law'' (Antwerp: Intersentia, 2005), 337.</ref> by Australia in July 1992,<ref>Ellen E. Beerworth, "Australia," 51–74, in ''International Product Liability'', vol. 1, ed. Christian Campbell (Salzburg: Yorkhill Law Publishing, 2006), 52.</ref> and by Japan in June 1994.<ref>Patricia L. Maclachlan, ''Consumer Politics in Postwar Japan'' (New York: [[Columbia University Press]], 2002), 226.</ref><br />
<br />
By the 1990s, the avalanche of American cases resulting from ''Greenman'' and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the ''Restatement (Third) of Torts: Products Liability''.<ref>{{cite web |url=http://www.ali.org/ali_old/promo6081.htm |title=ALI Restatement of the Law Third, Torts: Products Liability |publisher=Ali.org |url-status=dead |access-date=September 23, 2013 |archive-url=https://web.archive.org/web/20130531032205/http://www.ali.org/ali_old/promo6081.htm |archive-date=May 31, 2013 }}</ref><br />
<br />
===Property law===<br />
<br />
Historically, [[Property law in the United States|American property law]] has been heavily influenced by [[English land law]],<ref name="Farnsworth_Page_142">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=142 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA142 |access-date=November 17, 2020}}</ref> and is therefore concerned with [[real property]] first and [[personal property]] second.<ref name="Farnsworth_Page_143">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=143 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA143 |access-date=November 17, 2020}}</ref> It is also primarily a matter of state law, and the level of interstate diversity in the law of property is much more substantial than in contract and tort.<ref name="Farnsworth_Page_143" /> In the 1970s, the [[Uniform Law Commission]]'s project to standardize state real property law was a spectacular failure.<ref>Marion W. Benfield, Jr., [https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1485&context=nlr ''Wasted Days and Wasted Nights: Why the Land Acts Failed''], 20 Nova L. Rev. 1037, 1037–41 (1996).</ref><ref>Ronald Benton Brown, [https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1482&context=nlr ''Whatever Happened to the Uniform Land Transactions Act?''] 20 Nova L. Rev. 1017 (1996);</ref><ref>Peter B. Maggs, [https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1488&context=nlr ''The Uniform Simplification of Land Transfers Act and the Politics and Economics of Law Reform,''] 20 Nova L. Rev. 1091, 1091–92 (1996).</ref> The majority of states use a [[Recording (real estate)|title recording]] system (coupled with privately provided [[title insurance]]) to manage title to real property, although [[Torrens title|title registration]] (''Torrens'' title) is also allowed in a small minority of states.<ref name="Farnsworth_Page_145">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=145 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA145 |access-date=November 17, 2020}}</ref> Title to personal property is usually not registered, with the notable exceptions of [[motor vehicle]]s (through a state [[department of motor vehicles]] or equivalent), bicycles (in certain cities and counties), and [[Gun laws in the United States by state|some types of firearms (in certain states)]].<ref name="McKinsey_Page_435">{{cite book |last1=McKinsey |first1=John A. |last2=Burke |first2=Debra D. |title=Carper's Understanding the Law |date=2015 |publisher=Cengage Learning |location=Stamford |isbn=9781305177307 |page=435 |url=https://books.google.com/books?id=y4TAAgAAQBAJ&pg=PA435}}</ref><br />
<br />
===Family law===<br />
<br />
In the United States, family law governs relationships between adults, and relationships between parents and their children.<ref name="Katz_Page_1">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=1 |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PA1 |access-date=November 23, 2020}}</ref> As a discrete area of law worthy of its own specialists and law professors, American family law is relatively young in comparison to European family law; it did not take flight until the [[no-fault divorce]] revolution of the 1960s.<ref name="Katz_Page_xxxii">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=xxxii |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PR32 |access-date=November 23, 2020}}</ref> Before the 1950s, widespread religious, legal, and social prohibitions against [[divorce in the United States]] meant that divorces were rare, were often seen as fact-driven matters (meaning that they were perceived as turning on each case's facts and not broadly generalizable legal principles), and rarely went up on appeal.<ref name="Katz_Page_xxxi">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=xxxi |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PR31 |access-date=November 23, 2020}}</ref> The rise of no-fault divorce caused divorce litigation to shift away from the question of who was at fault for the collapse of the marital relationship and to focus instead on issues such as [[division of property]], [[Alimony|spousal support]], and [[child support]].<ref name="Katz_Page_xxxiii">{{cite book |last1=Katz |first1=Sanford N. |title=Family Law in America |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780199759224 |page=xxxiii |edition=2nd |url=https://books.google.com/books?id=pxRCBAAAQBAJ&pg=PR33 |access-date=November 23, 2020}}</ref> <br />
<br />
Family cases are traditionally a matter of state law and are virtually always heard only in state courts.<ref name="Oakley_Page_235">{{cite book |last1=Oakley |first1=John B. |last2=Amar |first2=Vikram D. |author2-link=Vikram Amar |title=American Civil Procedure: A Guide to Civil Adjudication in US Courts |date=2009 |publisher=Kluwer Law International |location=Alphen aan den Rijn |isbn=9789041128720 |page=235 |url=https://books.google.com/books?id=ga8WMXi4i4QC&pg=PA235}}</ref><ref name="Statsky_Page_4">{{cite book |last1=Statsky |first1=William P. |title=Family Law |date=2020 |publisher=Cengage Learning |location=Boston |isbn=9781337917537 |page=4 |edition=7th |url=https://books.google.com/books?id=0Gj6DwAAQBAJ&dq=family%20law%20united%20states%20state%20federal&pg=PA4}}</ref> Certain kinds of contract, tort, and property civil actions involving state law issues can be heard in federal courts under diversity jurisdiction, but federal courts decline to hear family cases under the "domestic relations exception" to diversity jurisdiction.<ref name="Oakley_Page_235" /> <br />
<br />
Although family cases are heard in state courts, there has been a trend towards federalization of certain specific issues in family law. State courts and the lawyers who practice before them must be aware of federal income tax and bankruptcy implications of a divorce judgment, federal constitutional rights to abortion and paternity, and federal statutes governing interstate child custody disputes and interstate child support enforcement.<ref name="Statsky_Page_4" /><br />
<br />
==See also==<br />
*[[Admission to the bar in the United States]]<br />
*[[Attorneys in the United States]]<br />
*''[[Black's Law Dictionary]]''<br />
*[[Courts of the United States]]<br />
*[[Legal education in the United States]]<br />
**[[Law school in the United States]]<br />
*[[Legal systems of the world]]<br />
*[[Privacy laws of the United States]]<br />
<br />
===Lists===<br />
*[[Legal research in the United States]]<br />
*[[List of sources of law in the United States]]<br />
*[[List of Uniform Acts (United States)]]—intended for state-level legislation<br />
*[[List of United States federal legislation]]<br />
*[[List of United States Supreme Court cases]]<br />
<br />
== References ==<br />
{{Reflist}}<br />
<br />
==Further reading==<br />
* Friedman, Lawrence M. ''American Law'' (1984)<br />
* Hadden, Sally F. and Brophy, Alfred L. (eds.), ''A Companion to American Legal History.'' Malden, MA: Wiley-Blackwell, 2013.<br />
* Hall, Kermit L. et al. eds. ''The Oxford Companion to American Law'' (2002) [https://www.amazon.com/Oxford-Companion-American-Law-Companions/dp/0195088786/ excerpt and text search]<br />
* {{cite EB1911|wstitle=American Law}}<br />
<br />
===Legal history===<br />
* Edwards, Laura F. ''A Legal History of the Civil War and Reconstruction: A Nation of Rights'' (Cambridge University Press, 2015) 212 pp.<br />
* Friedman, Lawrence M. ''A History of American Law'' (3rd ed. 2005) 640 pp<br />
* Friedman, Lawrence M. ''American Law in the Twentieth Century'' (2002)<br />
* [[Kermit L. Hall|Hall, Kermit L.]] ''The Magic Mirror: Law in American History'' (1989)<br />
* Hall, Kermit L. et al. ''American Legal History: Cases and Materials'' (2010); 752 pages<br />
* Horwitz, Morton J. ''The transformation of American law: 1780–1860'' (1977)<br />
* [[Herbert Hovenkamp|Hovenkamp, Herbert]] ''The Opening of American Law: Neoclassical Legal Thought, 1870–1970'' (2015)<br />
* Horwitz, Morton J. ''The transformation of American law, 1870–1960: the crisis of legal orthodoxy (1994)<br />
* Howe, Mark de Wolfe, ed. ''Readings in American Legal History'' (2001) 540pp<br />
* Johnson, Herbert A. ''American legal and constitutional history: cases and materials'' (2001) 733 pp<br />
*{{cite journal |last=Rabban |first=David M. |year=2003 |title=The Historiography of Late Nineteenth-Century American Legal History |journal=Theoretical Inquiries in Law |volume=4 |issue=2 |pages=Article 5 |doi=10.2202/1565-3404.1075 |s2cid=56143958 }}<br />
*Schwartz, Bernard. ''The Law in America''. (Evolution of American legal institutions since 1790). (1974).<br />
<br />
===Colonial===<br />
*{{cite journal |last=Gerber |first=Scott D. |title=Bringing Ideas Back In—A Brief Historiography of American Colonial Law |journal=American Journal of Legal History |year=2011 |volume=51 |issue=2 |pages=359–374 |doi=10.1093/ajlh/51.2.359 |ssrn=1815230 }}<br />
*{{cite book |last=Hoffer |first=Peter |title=Law and People in Colonial America |edition=Rev. |location=Baltimore |publisher=Johns Hopkins University Press |year=1998 |isbn=0-8018-5822-4 }}<br />
<br />
===Lawyers===<br />
* Abel, Richard L. ''American Lawyers'' (1991)<br />
* [[Anton-Hermann Chroust|Chroust, Anton-Hermann]]. ''The Rise of the legal profession in America'' (2 vol 1965), to 1860<br />
* Drachman, Virginia G. ''Sisters in Law: Women Lawyers in Modern American History'' (2001)<br />
*Nizer, Louis. ''[[My Life in Court]]''. (1978) Popular description of a lawyer's practice<br />
* Vile, John R. ''Great American lawyers: an encyclopedia'' (2001)<br />
* Vile, John R. ''Great American judges: an encyclopedia'' (2003)<br />
* Wortman, Marlene Stein. ''Women in American Law: From colonial times to the New Deal'' (1985)<br />
<br />
===Philosophy of law===<br />
*Cardozo, Benjamin N., ed. ''An Introduction to Law''. (1957). (Essays by eight distinguished American judges)<br />
*Hart, H.L.A. ''The Concept of Law''. (1961). (Introductory text on the nature of law)<br />
*Llewellyn, Karl N. "The Bramble Bush," in ''Karl N. Llewellyn on Legal Realism''. (1986). (Introductory text on the nature of law)<br />
*Pound, Roscoe. ''Social Control Through Law''. (Nature of law and its role in society). (1942)<br />
<br />
==External links==<br />
*[https://www.usa.gov/laws Official U.S. Government page on Laws and Legal Issues]<br />
*[http://www.uscourts.gov/ Official U.S. Government page for U.S. federal courts]<br />
*[https://caselaw.findlaw.com/ Texts of U.S. federal laws and U.S. state laws]<br />
*[https://www.law.cornell.edu/uscode/ U.S. Code collection] at Cornell University's Legal Information Institute<br />
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{{DEFAULTSORT:Law Of The United States}}<br />
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[[Category:United States federal law| ]]</div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=49Group and Team Based Learning2021-08-24T19:53:00Z<p>Marvin: </p>
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https://www.mediawiki.org/wiki/Extension:PDFEmbed</div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=43Group and Team Based Learning2021-08-24T19:19:08Z<p>Marvin: </p>
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https://www.mediawiki.org/wiki/Extension:PDFEmbed</div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=42Group and Team Based Learning2021-08-24T19:18:56Z<p>Marvin: </p>
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<pdf>File:TEAM_BASED_LEARNING_IN_LAW.pdf</pdf><br />
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https://www.mediawiki.org/wiki/Extension:PDFEmbed</div>Marvinhttps://marvincable.net/index.php?title=File:TEAM_BASED_LEARNING_IN_LAW.pdf&diff=41File:TEAM BASED LEARNING IN LAW.pdf2021-08-24T19:17:55Z<p>Marvin: </p>
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<div></div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=40Group and Team Based Learning2021-08-21T18:02:32Z<p>Marvin: </p>
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<youtube>XSpyLRX9meY</youtube></div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=39Group and Team Based Learning2021-08-21T17:54:28Z<p>Marvin: </p>
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<div><youtube>57rpN4sYnZU</youtube><br />
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<youtube>XSpyLRX9meY</youtube></div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=38Group and Team Based Learning2021-08-21T17:53:55Z<p>Marvin: </p>
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<div><youtube>57rpN4sYnZU</youtube><br />
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<youbtube>XSpyLRX9meY</youtube></div>Marvinhttps://marvincable.net/index.php?title=Group_and_Team_Based_Learning&diff=37Group and Team Based Learning2021-08-21T17:52:25Z<p>Marvin: Created page with "<youtube>57rpN4sYnZU</youtube>"</p>
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<div><youtube>57rpN4sYnZU</youtube></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=36Main Page2021-08-21T17:52:00Z<p>Marvin: </p>
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<div><br />
*[[Group and Team Based Learning]]<br />
<br />
<br />
*[[Basics of the Law]]<br />
*[[Basic Legal Skills]]<br />
*[[Basics of the Internet Infrastructure]]<br />
<br />
*[[Contracts]]<br />
*[[Policy Issues]]<br />
*[[Intellectual Property Law]]<br />
*[[Substantive Internet, Machine, Computer, and Privacy Laws]]<br />
*[[Ethics of Internet and Machines|Ethics]]<br />
*[[Dealing with Employees and Internal Business Relations - Internet and Computers|Dealing with Employees and Internal Business Relations]]<br />
<br />
*[[Dealing with third parties]]<br />
*[[Resources for Law Students]]<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=%E2%80%9CContemplative_Exercises,%E2%80%9D_by_Hal_Roth_and_Tori_Smith,_Brown_University&diff=35“Contemplative Exercises,” by Hal Roth and Tori Smith, Brown University2021-07-31T03:53:27Z<p>Marvin: Created page with " == Contemplative Exercises == Hal Roth (Religious Studies) and Tori Smith (Hispanic Studies) ==== Whole Body Breathing (Classical Buddhism in South Asia) ==== # Begin by si..."</p>
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<div><br />
== Contemplative Exercises ==<br />
Hal Roth (Religious Studies) and Tori Smith (Hispanic Studies)<br />
<br />
==== Whole Body Breathing (Classical Buddhism in South Asia) ====<br />
<br />
# Begin by sitting upright in your chair; eyes closed; hands on your knees or in the “hand circle” position; head upright; breathing through your nose if possible.<br />
# Take 3 deed and relaxing breaths. Gradually settle into your breathing.<br />
# Bring your attention to your breathing.<br />
# Note the feeling as it comes into your nostrils and goes into your abdomen; then comes back up from your abdomen and out through your nostrils.<br />
# Keep following this cycle of breathing but gradually shift your attention to your whole body.<br />
# Note if you are taking a long breath or a short breath.<br />
# Breathe in with your whole body; breathe out with your whole body.<br />
# Repeat until the bell rings.<br />
<br />
==== Coiling and Uncoiling (Ancient Chinese Daoism) ====<br />
<br />
# Begin by sitting upright in your chair; eyes closed; hands on your knees or in the hand circle position; head upright; breathing through your nose if possible.<br />
# Take 3 deep and relaxing breaths. Gradually settle into your breathing.<br />
# Bring your attention to your abdomen. Note the Upper Abdominal Breathing Muscles in the Diaphragm area<br />
# Note the lower abdominal muscles in the area 3 finger widths below your navel.<br />
# Imagine…not just as an idea, but as a real bodily feeling….that connecting these two areas is a coiled spring.<br />
# As the spring expands, you inhale; as the spring contracts, you exhale.<br />
# Repeat this focusing on the expansion and contraction of your upper and lower abdominals until the bell rings.<br />
<br />
==== Bamboo Breathing (Modern Japanese Zen) ====<br />
<br />
# Begin by sitting upright in your chair; eyes closed; hands resting in your lap in the hand circle position; head upright; breathing through your nose if possible.<br />
# Take 3 deep and relaxing breaths. Gradually settle into your breathing.<br />
# Bring your attention to your abdomen. Note the lower abdominal muscles in the area 3 finger widths below your navel.<br />
# Paying careful attention to these muscles, take three normal breaths.<br />
# On the fourth breath exhale in stages, like the nodes of a bamboo tree. Your breath will be controlled and released in these stages. You can 3 or 4 of 5 stages, the exact number is not important.<br />
# On the last of these stages, breathe out completely and quickly relax and let your lungs fill up again with air.<br />
# Repeat this controlled breathing practice until the bell rings.<br />
<br />
==== Attending to the Breath in the Nostrils (Modern Southeast Asian Buddhism) ====<br />
<br />
# Begin by sitting upright in your chair; eyes closed; hands on your knees; head upright; breathing through your nose if possible.<br />
# Take 3 deep and relaxing breaths. Gradually settle into your breathing.<br />
# Bring your attention to your breathing; do not attempt to control it.<br />
# Note the feeling as it comes into your nostrils and goes out through your nostrils;<br />
# Keep following this cycle of breathing focusing exclusively on the nostrils.<br />
# Repeat until the bell rings.<br />
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==== Focusing on One Word (Mantra: Buddhism, Daoism, Hinduism; Centering Prayer) ====<br />
<br />
# Begin by sitting upright in your chair; eyes closed; hands on your knees; head upright; breathing through your nose if possible.<br />
# Take 3 deep and relaxing breaths. Gradually settle into your breathing.<br />
# After setting into your breathing, bring your attention to focus on a single word: In Hinduism, the word chose is often OM; in Daoism it is the word “Dao”; In Centering Prayer, it is the word God; Dao means Way; you may choose one of these words or a one syllable word of your own choosing.<br />
# As you breathe in slowly say that word silently as if it were a kind of internal chant.<br />
<br />
a. As you breathe out, slowly say that word silently.<br />
<br />
b. Repeat until the bell rings.<br />
<br />
==== Breath Counting - Upper Abdominal Focus (All Buddhisms, Ancient and Modern, Asian and Western) ====<br />
<br />
# Begin by sitting upright in your chair; eyes closed; hands on your knees or in the “hand circle” position; head upright; breathing through your nose if possible.<br />
# Take 3 deep and relaxing breaths. Gradually settle into your breathing.<br />
# Bring your attention to your breathing and focus on the upper abdominal breathing muscles in the diaphragm.<br />
# As you breathe in, say to yourself the number 1; breathe out.<br />
# As you breathe in, say to yourself the number 2; breathe out.<br />
# As you breathe in, say to yourself the number 3; breathe out.</div>Marvinhttps://marvincable.net/index.php?title=Resources_for_Law_Students&diff=34Resources for Law Students2021-07-31T03:52:50Z<p>Marvin: </p>
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<div>Here’s a list of resources that are helpful for learning law of computers, technology and internet.<br />
== Law and Technology News ==<br />
Media outlets with good and dedicated coverage of technology law include:<br />
* [https://arstechnica.com/tech-policy/ Ars Technica]<br />
* [https://techcrunch.com/ TechCrunch]<br />
* Techdirt<br />
* The Verge<br />
* Wired<br />
* Slashdot<br />
* BuzzFeed – Tech<br />
* CyberScoop<br />
* Engadget<br />
* Slate- Technology<br />
* Slate – Future Tense<br />
== Productivity Software. ==<br />
* Word Processing: You have to use Microsoft Word, even if you are a Mac person (like me). Word has all the features, and most people use it.<br />
* Mindmapping/Outlining: I use XMind Zen.<br />
* Dictation software: Dragon dictate is the best dictation software (at the moment), but only runs on Windows. If you are a Mac-person (like me), you have to run a virtual machine, Windows operating system. I use Parallels and run Windows. Many times, I run Word, XMind, and Dragon using Parallels.<br />
* Design: Adobe’s products are amazing. There many be better alternatives out there, but as a whole you can not beat Adobe’s products. I use Adobe’s Premier, Elements, inDesign, Photoshop, Captivate, Acrobat, Sign, amongst others.<br />
== Podcasts ==<br />
* Good Code is a podcast that constantly covers relevant topics..<br />
<br />
== Contemplative Pedagogy ==<br />
[[“Contemplative Exercises,” by Hal Roth and Tori Smith, Brown University]]</div>Marvinhttps://marvincable.net/index.php?title=Intellectual_Property_Law&diff=33Intellectual Property Law2021-07-03T15:57:11Z<p>Marvin: </p>
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<div>Copyright<br />
<br />
Trademark and unfair business<br />
<br />
Patent<br />
<br />
Trademarks<br />
<br />
<br />
<br />
TM = SM<br />
<br />
When we talk about trademarks, many times we also mean servicemarks.<br />
<br />
Unless identified otherwise when using the term trademarks, we also mean service marks.<br />
<br />
Trademarks identify source of goods.<br />
<br />
Servicemarks identify source of services.<br />
<br />
Fx of TM/SM<br />
<br />
Essential function of a trademark is to exclusively identify the commercial source or origin of products or services, so a trademark, properly called, indicates source or serves as a badge of origin.<br />
<br />
To qualify as a TM/SM.<br />
<br />
To serve trademark a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good.<br />
<br />
In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product:<br />
<br />
(1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic.<br />
<br />
Legal protection afforded a particular trademark will depend upon which category it falls within<br />
<br />
An arbitrary or fanciful mark<br />
<br />
is a mark that bears no logical relationship to the underlying product.<br />
<br />
Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection.<br />
<br />
A suggestive mark<br />
<br />
is a mark that evokes or suggests a characteristic of the underlying good.<br />
<br />
Some exercise of imagination is needed to associate the word with the underlying product. At the same time, however, the word is not totally unrelated to the underlying product. Like arbitrary or fanciful marks, suggestive marks are inherently distinctive and are given a high degree of protection.<br />
<br />
A descriptive mark<br />
<br />
is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients).<br />
<br />
They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning." Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.<br />
<br />
A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product. Thus, for example, the term "Holiday Inn" has acquired secondary meaning because the consuming public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys. Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).<br />
<br />
A generic mark<br />
<br />
is a mark that describes the general category to which the underlying product belongs.<br />
<br />
Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product.<br />
<br />
Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product. Giving a single manufacturer control over use of the term would give that manufacturer too great a competitive advantage. Under some circumstances, terms that are not originally generic can become generic over time (a process called "genericity"), and thus become unprotected.<br />
<br />
®<br />
<br />
the letter "R" surrounded by a circle, for a registered trademark with the USPTO<br />
<br />
if used trademark owner need not prove defendant had actual notice of registration recover damages profits, registration serves as constructive notice<br />
<br />
™<br />
<br />
the "trademark symbol", which is the letters "TM" in superscript, for an unregistered trademark, a mark used to promote or brand goods<br />
<br />
℠<br />
<br />
which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote or brand services<br />
<br />
trademark infringement<br />
<br />
whether the similarity between trademarks is likely to cause confusion in the minds of consumers.<br />
<br />
IOW, the elements are:<br />
<br />
if there has been a “use” of the plaintiff’s trademark<br />
<br />
if the use creates a likelihood of confusion<br />
<br />
if use does NOTE qualify as a normative fair-use<br />
<br />
Note that the law stated objective of trademark law is consumer protection<br />
<br />
trademark infringement<br />
<br />
Case-by-case basis<br />
<br />
Court weighs several factors in determining if mark has been infringed including<br />
<br />
strength,<br />
<br />
the similarity of parties’ service,<br />
<br />
geographical proximity,<br />
<br />
evidence of actual confusion,<br />
<br />
degree of care likely to be exercised by consumer<br />
<br />
intent of defendant<br />
<br />
similarity of marketing channels used;<br />
<br />
and, in domain name disputes, the similarity of trademark to the domain name in the domain name registrant’s intent in choosing the name<br />
<br />
normative fair use (defense)<br />
<br />
three factors<br />
<br />
the product or service cannot be readily identified without using the trademark<br />
<br />
the user only uses so much of the mark as is reasonably necessary to identify the product or service<br />
<br />
the user does nothing to suggest sponsorship or endorsement by the trademark owner<br />
<br />
Parody (defense)<br />
<br />
literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule<br />
<br />
a legal parity involves a conveyance of two simultaneous but contradictory messages<br />
<br />
must be apparent that it is not the original<br />
<br />
trademark dilution<br />
<br />
occurs either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it."<br />
<br />
Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).<br />
<br />
the Act only applies to famous trademarks<br />
<br />
test for dilution is: will the strong association the public has between the famous trademark and the plaintiff be diluted?<br />
<br />
Under the Lanham Act, to prove trademark dilution, the plaintiff must show:<br />
<br />
ownership of the trademark qualifying as a “distinctive and famous” trademark as measured by the totality of the eight factors listed in the Lanham Act section 43(c)(1), and<br />
<br />
defendant is making commercial use,<br />
<br />
in interstate commerce,<br />
<br />
of a trademark or trade name, and<br />
<br />
the defendant's use began after the plaintiff's trademark became famous, and<br />
<br />
the defendant's use causes dilution by lessening the capacity of the plaintiff's trademark to identify and distinguish goods or services.<br />
<br />
“distinctive and famous” under the Lanham Act provides the following factors may be weighed<br />
<br />
the degree of inherent or acquired distinctiveness of the mark<br />
<br />
the duration and extent of use of the trademark in connection with the goods or services with which the trademark is used<br />
<br />
the duration and extent of advertising and publicity of the trademark<br />
<br />
the geographical extent of the trading area in which the trademark is used<br />
<br />
the channels of trade for the goods or services with which the trademark is used<br />
<br />
the degree of recognition of the mark in the trading areas and channels of trade used by the marks owners and the person against whom the injunction is sought<br />
<br />
the nature and extent of use of the same or similar trademarks by third parties, and<br />
<br />
whether the trademark was registered under the act of March 3, 1881 or the Act of February 20, 1905, or on the principal register.<br />
<br />
Amendment to the Antidilution Act of 2006 -<br />
<br />
eliminates the requirement of the showing of actual economic harm to the famous remarks economic value<br />
<br />
under new standard a party is entitled to an injunction against the user of a trademark "likely to cause dilution”<br />
<br />
the act has been used to force cyber squatters to relinquish domain names to trademark owners<br />
<br />
theory is dilution occurs when web visitors give up searching for trademark holders goods in frustration after countless encounters with cyber squatters site instead of true mark holder site<br />
<br />
however the act is only applicable when a famous trademark is at issue<br />
<br />
holders of non-famous trademarks must seek recourse through the anti-cybersquatting consumer protection act (ACPA)<br />
<br />
secondary infringement<br />
<br />
the concept of contributory and vicarious infringement, as similarly applied to copyright infringements, also may apply to trademark<br />
<br />
normative fair use -<br />
<br />
wherein no infringement liability merely for using a trademark phrase to describe the actual trademark product one is speaking of or about.<br />
<br />
Common Trademark Issues on the Internet<br />
<br />
There are an array of trademark issues on the internet, and new ones will keep arising.<br />
<br />
Common ones include<br />
<br />
counterfeit products<br />
<br />
meta tags<br />
<br />
linking and hyperlinking<br />
<br />
cybersquatting<br />
<br />
cybergriping<br />
<br />
keyword advertising and search engine results<br />
<br />
cyberpoaching<br />
<br />
Personal names as domain names<br />
<br />
Is a domain name a property right or contractual right?<br />
<br />
If property right, state law controls.<br />
<br />
which varies by jurisdiction<br />
<br />
If contractual right, contractual obligations and remedies controls<br />
<br />
most jurisdictions view domain names as contractual rights, outside the US.<br />
<br />
Truth in Domain Names Act<br />
<br />
criminalizes use of “misleading domain name” with the intent to deceive a person into viewing obscenity or deceives a minor into viewing “material that is harmful to minors”<br />
<br />
Fraudulent Online Identities Act<br />
<br />
trademark infringement will be considered willful if person knowingly provided misleading or false contact information in making, maintaining or renewing a domain name’s registration.<br />
<br />
Anticybersquatting Consumer Protection Act (ACPA)<br />
<br />
Established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.<br />
<br />
Closes loophole to the trademark law requiring “use in commerce” and the loophole where people didn’t create a webpage for the domain name in order to skirt claim of “consumer confusion”<br />
<br />
Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who<br />
<br />
Has a bad faith intent to profit from the mark<br />
<br />
Registers, traffics in, or uses a domain name that is<br />
<br />
Identical or confusingly similar to a distinctive mark<br />
<br />
Identical or confusingly similar to or dilutive of a famous mark<br />
<br />
Is a trademark protected by 18 U.S.C. § 706 (marks involving the Red Cross) or 36 U.S.C. § 220506 (marks related to the “Olympics”)<br />
<br />
In determining whether the domain name registrant has a bad faith intent to profit, a court may consider many factors, including nine that are outlined in the statute:<br />
<br />
Registrant’s trademark or other intellectual property rights in the domain name;<br />
<br />
Whether the domain name contains the registrant’s legal or common name;<br />
<br />
Registrant’s prior use of the domain name in connection with the bona fide offering of goods or services;<br />
<br />
Registrant’s bona fide noncommercial or fair use of the mark in a site accessible by the domain name;<br />
<br />
Registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;<br />
<br />
Registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;<br />
<br />
Registrant’s providing misleading false contact information when applying for registration of the domain name;<br />
<br />
Registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; and<br />
<br />
Extent to which the mark in the domain is distinctive or famous<br />
<br />
Patents<br />
<br />
Generally:<br />
<br />
In US, patents are covered by the Patent Act<br />
<br />
a patent is a government issued grant conferring on inventor the right to exclude others from making, using, offering for sale, or selling the invention for a period of 20 years, measured from the filing date of the patent application.<br />
<br />
What is a patent?<br />
<br />
“any new and useful process, machine, manufacture, or composition of matter, or any new useful improvement thereof" may be patented.<br />
<br />
"process" is defined as "process, art, or method" and includes a new use of a known process, machine, manufacture, composition of matter, or material. Abstract ideas, laws of nature, and physical phenomena are not patentable<br />
<br />
patents protect inventions, not ideas<br />
<br />
there must be some embodiment of the idea before there can be identifiable intellectual property protection<br />
<br />
Patents v Trade Secrets<br />
<br />
patents are, in one respect, the opposite of trade secrets, another form of intellectual property<br />
<br />
the inventor must make a full disclosure of invention to obtain a patent, i.e. not secret like trade secrets<br />
<br />
in exchange for patent rights the patent becomes public information<br />
<br />
the formula for Coca-Cola is a trade secret but may be patentable if chosen to be open and public<br />
<br />
patent rights are exclusionary<br />
<br />
holder does not necessarily have the right to use the invention, but has right to exclude others from making, using, selling, or offering for sale the invention.<br />
<br />
owner of patent can stop owners from using it, or license his patent in exchange for royalties.<br />
<br />
Economics of a patent<br />
<br />
a patent’s true value comes from licensing revenue or preventing a competitor’s use<br />
<br />
a license can be one of three types<br />
<br />
exclusive license to a single licensee<br />
<br />
nonexclusive license to multiple licensees, or<br />
<br />
license within a limited field of use<br />
<br />
There are three types of patents<br />
<br />
utility patent (most common)<br />
<br />
applies to inventions that have use and protects functionality<br />
<br />
design patent<br />
<br />
protects an object’s appearance<br />
<br />
plant patents<br />
<br />
protects the appearance and color of plants<br />
<br />
Length of protection<br />
<br />
most patents expire after 20 years<br />
<br />
except for design patents which expire after 14 years<br />
<br />
different for patent registrations from other countries<br />
<br />
to obtain a patent, invention must be:<br />
<br />
novel (1/3)<br />
<br />
not known or used by others,<br />
<br />
or patented, or<br />
<br />
described in a printed publication, or<br />
<br />
in public use, or<br />
<br />
on sale more than a year prior to the patent application. NB - telling friends and family about the invention may toll the one-year grace period<br />
<br />
inventor must file for patent protection within that one year grace period or lose all rights to patent protection.<br />
<br />
Non-obvious (2/3)<br />
<br />
not obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made<br />
<br />
patent examiner will compare the invention with prior art (everything publicly known before the invention as shown in earlier patents and other published material) and judge whether differences between the prior art and the invention would have been "obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made”<br />
<br />
useful (3/3)<br />
<br />
it must have current, significant, and beneficial use as a process, machine, manufacture, composition of matter, or improvements to one of these<br />
<br />
compositions of matter - relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds<br />
<br />
also note if the machine, it must also perform its intended purpose to be patentable, otherwise it is not considered useful<br />
<br />
also note; unlike copyrights and trademarks patents do not arise from use<br />
<br />
filing the patent application<br />
<br />
before filing<br />
<br />
a search for prior art must be made<br />
<br />
always use a patent attorney with knowledge and experience in patent law who has passed a special exam and is registered to practice before the USPTO<br />
<br />
nonlawyers who act as patent agents and can prepare patent applications but not practice law are also registered with the USPTO.<br />
<br />
Once application is filed<br />
<br />
reviewed by patent examiner which might take 9 to 18 months - similar to trademark process<br />
<br />
obtaining a patent can be expensive and time-consuming<br />
<br />
beyond that there are both filing fees and issue fees and in some cases periodic maintenance fees<br />
<br />
the patent application itself<br />
<br />
the petition - formal request for a patent<br />
<br />
the abstract - a short technical summary of the invention with a statement of its use<br />
<br />
specification - a detailed description of the inventions features<br />
<br />
claims section - a brief statement in precisely the language of what is being patented, written primarily to show the examiner how the invention differs from prior art<br />
<br />
drawings section - graphical representation of the invention<br />
<br />
who is a patent holder?<br />
<br />
In US, prior to 2011 United States have the “first to patent” system as opposed to most other countries which had the “first file system”<br />
<br />
this changed in 2011 with the America Invents Act<br />
<br />
which established a “first to file” standard for patent approval and created a post-grant review system to weed out bad patents.<br />
<br />
This law affects applications filed on or after March 16, 2013<br />
<br />
Joint inventors<br />
<br />
if two inventors worked jointly on invention they should file as joint inventors<br />
<br />
one who is a financial backer may not file as a joint inventor<br />
<br />
In US, patents are filed in the inventors name unlike the rest the world which allows for companies to file for patent ownership.<br />
<br />
many times companies require a written contract obligating the employee or independent contractor to transfer patent ownership to the company.<br />
<br />
Most firms routinely include a patent rights assignments clause in the employment contracts.<br />
<br />
Under the new act (America Invents Act), assignees may apply for the patent<br />
<br />
Three scenarios where an employer might have patent rights:<br />
<br />
employment agreement<br />
<br />
hired to invent<br />
<br />
Shop right - a common-law right granting a nonexclusive and nontransferable license to the employer allowing use of an invention created during the course of employment by its employee. The nonexclusive nature of this right means the employee could simultaneously license the invention to his employers competitor.<br />
<br />
Normally arises only where the employee has used the employer's resources to create invention<br />
<br />
On the Internet<br />
<br />
Generally speaking we see two categories of patents<br />
<br />
Business methodologies<br />
<br />
Software<br />
<br />
Business method patent<br />
<br />
discloses and claims new methods of doing business<br />
<br />
an example of business method patent granted to Internet firms are Priceline.com “reverse auction” and amazon.com “one-click”<br />
<br />
Software patents<br />
<br />
An evolving field of law<br />
<br />
there is a recent trend by courts disavowing software as patent-eligible.<br />
<br />
The Alice/Mayo framework is the decisional approach adopted by the United States Supreme Court for determining whether a patent claim exhibits, such as software patent claims, embody patent eligible subject matter.<br />
<br />
The Alice/Mayo framework requires the decision maker, whether a patent examiner, administrative tribunal or reviewing court to ask and answer a series of questions before determining whether the patent claim in question constitutes patent eligible subject matter.<br />
<br />
For more info: <nowiki>http://www.ipwatchdog.com/software-patents/</nowiki><br />
<br />
Patent infringement<br />
<br />
infringement is determined by comparing the claims language with the actual product<br />
<br />
the patent application "claims" section contains a set of claims defining what inventor seeks to patent with his patent<br />
<br />
for patent to be infringed upon the product must match the definition given in at least one claim<br />
<br />
to infringe, each and every element of that claim must be present in the infringing product.<br />
<br />
If an element is missing, then the product does not infringe<br />
<br />
patents are presumed valid and burden of proof is on accused infringer to prove that it is invalid and should not have been granted, and may use the following:<br />
<br />
prior art not previously considered<br />
<br />
insufficient disclosure of the invention<br />
<br />
fraud<br />
<br />
Enforceability in various jurisdictions<br />
<br />
US patents are only enforceable in the United States and its territories - separate patent systems exist in most countries<br />
<br />
patent protection usually must be sought in each individual country in which it is desired<br />
<br />
Many countries require that the patented product be manufactured in that country within a specified timeframe (often three years)<br />
<br />
failure to meet this working requirement will void the patent in some countries, but others grant compulsory licenses to any applicant<br />
<br />
International patents protection:<br />
<br />
Paris Convention for the Protection of Industrial Property of 1883 protects industrial property (patents, utility models, industrial designs, trademarks, service marks, and trade names<br />
<br />
assures signatory nations will grant the same patent and trademark rights to citizens of other signatories as they have their own citizens<br />
<br />
if an inventor subsequently filed patent applications for the same invention in other member countries within a year after filing the first one, later applications receive a fictional filing date equal to the first one’s filing date aka convention priority<br />
<br />
supervised by the world intellectual property organization (WIPO)<br />
<br />
International patents protection:<br />
<br />
Patent Cooperation Treaty Of 1970<br />
<br />
lets an inventor seek patent protection simultaneously in many countries throughout a single application.<br />
<br />
There are 137 signatories to this treaty including the US, most of the European Community, and Japan<br />
<br />
process begins with filing in international patent application in one of the country’s “receiving office”<br />
<br />
an international patent search is conducted for prior art, and an opinion regarding patentability is issued along with an international search report. Eventually both the report and the application are published.<br />
<br />
International patents protection:<br />
<br />
Convention On The Grant Of European Patents Of 1973 (European Patent Convention or EPC)<br />
<br />
set up the European Patent organization and legal framework for granting European patents.<br />
<br />
Trade Secrets<br />
<br />
Overall, in re trade secrets:<br />
<br />
confidential practices, methods, processes, designs, or other information used by company to compete with other businesses<br />
<br />
Restatement of Torts (2nd.) § 757 comment b “consist[ing] of any formula, pattern, device, or, compilation of information which is used in business and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it.<br />
<br />
Elements:<br />
<br />
information not generally publicly known<br />
<br />
information conferring on its holder an economic benefit derived from its secrecy<br />
<br />
information that is the subject of reasonable efforts to maintain that secrecy<br />
<br />
examples of trade secrets<br />
<br />
inventions, formulas, recipes, designs, software designs, manufacturing processes, instructional methods, document tracking processes, and customer or supplier lists.<br />
<br />
subject to state law, not federal law<br />
<br />
46 states have adopted a model statute known as the Uniform Trade Secrets Act (UTSA)<br />
<br />
prior to UTSA – common law or other state law.<br />
<br />
internationally,<br />
<br />
must apply local national law<br />
<br />
Trade secret protection may be lost if owner fails to take reasonable measures to protect it<br />
<br />
reasonable efforts include requiring employees to sign nondisclosure agreements and restricting access to need to know basis<br />
<br />
they even lose protection if disclosed accidentally or inadvertently<br />
<br />
limited disclosure may not destroy trade secrets depending on circumstances -- e.g if owner disclose information to its licensees, vendors, or third parties for limited purposes.<br />
<br />
Misappropriation of trade secrets<br />
<br />
In most states a claim for misappropriation must show:<br />
<br />
information incorporates a trade secret<br />
<br />
plaintiff took reasonable steps to preserve the secrecy of the trade secret, and;<br />
<br />
defendant misappropriated the trade secret or used improper means, in breach of confidential relationship, to acquire<br />
<br />
Economic Espionage Act of 1996<br />
<br />
makes misappropriation or theft of trade secrets a federal offense<br />
<br />
the act defines a trade secret in § 1839(3)<br />
<br />
the first part of the act deals with theft of trade secrets to benefit foreign governments but the second part focuses on theft or misappropriation in the corporate environment<br />
<br />
the act also punishes whomever receives buys or possesses trade secrets knowing to have been stolen or misappropriated, obtained, or converted without authorization<br />
<br />
ng public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys. Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).<br />
A generic mark <br />
is a mark that describes the general category to which the underlying product belongs. <br />
Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product. <br />
Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product. Giving a single manufacturer control over use of the term would give that manufacturer too great a competitive advantage. Under some circumstances, terms that are not originally generic can become generic over time (a process called "genericity"), and thus become unprotected.<br />
® <br />
the letter "R" surrounded by a circle, for a registered trademark with the USPTO<br />
if used trademark owner need not prove defendant had actual notice of registration recover damages profits, registration serves as constructive notice<br />
™ <br />
the "trademark symbol", which is the letters "TM" in superscript, for an unregistered trademark, a mark used to promote or brand goods<br />
℠ <br />
which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote or brand services<br />
trademark infringement <br />
whether the similarity between trademarks is likely to cause confusion in the minds of consumers. <br />
IOW, the elements are:<br />
if there has been a “use” of the plaintiff’s trademark<br />
if the use creates a likelihood of confusion<br />
if use does NOTE qualify as a normative fair-use <br />
Note that the law stated objective of trademark law is consumer protection<br />
trademark infringement<br />
Case-by-case basis<br />
Court weighs several factors in determining if mark has been infringed including<br />
strength,<br />
the similarity of parties’ service,<br />
geographical proximity,<br />
evidence of actual confusion, <br />
degree of care likely to be exercised by consumer<br />
intent of defendant<br />
similarity of marketing channels used;<br />
and, in domain name disputes, the similarity of trademark to the domain name in the domain name registrant’s intent in choosing the name<br />
normative fair use (defense)<br />
three factors<br />
the product or service cannot be readily identified without using the trademark<br />
the user only uses so much of the mark as is reasonably necessary to identify the product or service<br />
the user does nothing to suggest sponsorship or endorsement by the trademark owner<br />
Parody (defense) <br />
literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule<br />
a legal parity involves a conveyance of two simultaneous but contradictory messages <br />
must be apparent that it is not the original<br />
trademark dilution<br />
occurs either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it." <br />
Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).<br />
the Act only applies to famous trademarks<br />
test for dilution is: will the strong association the public has between the famous trademark and the plaintiff be diluted?<br />
Under the Lanham Act, to prove trademark dilution, the plaintiff must show:<br />
ownership of the trademark qualifying as a “distinctive and famous” trademark as measured by the totality of the eight factors listed in the Lanham Act section 43(c)(1), and<br />
defendant is making commercial use,<br />
in interstate commerce,<br />
of a trademark or trade name, and<br />
the defendant's use began after the plaintiff's trademark became famous, and<br />
the defendant's use causes dilution by lessening the capacity of the plaintiff's trademark to identify and distinguish goods or services.<br />
“distinctive and famous” under the Lanham Act provides the following factors may be weighed<br />
the degree of inherent or acquired distinctiveness of the mark<br />
the duration and extent of use of the trademark in connection with the goods or services with which the trademark is used<br />
the duration and extent of advertising and publicity of the trademark<br />
the geographical extent of the trading area in which the trademark is used<br />
the channels of trade for the goods or services with which the trademark is used<br />
the degree of recognition of the mark in the trading areas and channels of trade used by the marks owners and the person against whom the injunction is sought<br />
the nature and extent of use of the same or similar trademarks by third parties, and<br />
whether the trademark was registered under the act of March 3, 1881 or the Act of February 20, 1905, or on the principal register.<br />
Amendment to the Antidilution Act of 2006 - <br />
eliminates the requirement of the showing of actual economic harm to the famous remarks economic value<br />
under new standard a party is entitled to an injunction against the user of a trademark "likely to cause dilution”<br />
the act has been used to force cyber squatters to relinquish domain names to trademark owners<br />
theory is dilution occurs when web visitors give up searching for trademark holders goods in frustration after countless encounters with cyber squatters site instead of true mark holder site<br />
however the act is only applicable when a famous trademark is at issue<br />
holders of non-famous trademarks must seek recourse through the anti-cybersquatting consumer protection act (ACPA)<br />
secondary infringement<br />
the concept of contributory and vicarious infringement, as similarly applied to copyright infringements, also may apply to trademark<br />
normative fair use - <br />
wherein no infringement liability merely for using a trademark phrase to describe the actual trademark product one is speaking of or about.<br />
Common Trademark Issues on the Internet<br />
There are an array of trademark issues on the internet, and new ones will keep arising.<br />
Common ones include<br />
counterfeit products<br />
meta tags<br />
linking and hyperlinking<br />
cybersquatting<br />
cybergriping<br />
keyword advertising and search engine results<br />
cyberpoaching<br />
Personal names as domain names<br />
Is a domain name a property right or contractual right?<br />
If property right, state law controls.<br />
which varies by jurisdiction<br />
If contractual right, contractual obligations and remedies controls<br />
most jurisdictions view domain names as contractual rights, outside the US.<br />
Truth in Domain Names Act <br />
criminalizes use of “misleading domain name” with the intent to deceive a person into viewing obscenity or deceives a minor into viewing “material that is harmful to minors”<br />
Fraudulent Online Identities Act <br />
trademark infringement will be considered willful if person knowingly provided misleading or false contact information in making, maintaining or renewing a domain name’s registration.<br />
Anticybersquatting Consumer Protection Act (ACPA)<br />
Established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.<br />
Closes loophole to the trademark law requiring “use in commerce” and the loophole where people didn’t create a webpage for the domain name in order to skirt claim of “consumer confusion”<br />
Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who<br />
Has a bad faith intent to profit from the mark<br />
Registers, traffics in, or uses a domain name that is<br />
Identical or confusingly similar to a distinctive mark<br />
Identical or confusingly similar to or dilutive of a famous mark<br />
Is a trademark protected by 18 U.S.C. § 706 (marks involving the Red Cross) or 36 U.S.C. § 220506 (marks related to the “Olympics”)<br />
In determining whether the domain name registrant has a bad faith intent to profit, a court may consider many factors, including nine that are outlined in the statute:<br />
Registrant’s trademark or other intellectual property rights in the domain name;<br />
Whether the domain name contains the registrant’s legal or common name;<br />
Registrant’s prior use of the domain name in connection with the bona fide offering of goods or services;<br />
Registrant’s bona fide noncommercial or fair use of the mark in a site accessible by the domain name;<br />
Registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;<br />
Registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;<br />
Registrant’s providing misleading false contact information when applying for registration of the domain name;<br />
Registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; and<br />
Extent to which the mark in the domain is distinctive or famous<br />
Patents<br />
Generally:<br />
In US, patents are covered by the Patent Act<br />
a patent is a government issued grant conferring on inventor the right to exclude others from making, using, offering for sale, or selling the invention for a period of 20 years, measured from the filing date of the patent application.<br />
What is a patent?<br />
“any new and useful process, machine, manufacture, or composition of matter, or any new useful improvement thereof" may be patented.<br />
"process" is defined as "process, art, or method" and includes a new use of a known process, machine, manufacture, composition of matter, or material. Abstract ideas, laws of nature, and physical phenomena are not patentable<br />
patents protect inventions, not ideas<br />
there must be some embodiment of the idea before there can be identifiable intellectual property protection<br />
Patents v Trade Secrets<br />
patents are, in one respect, the opposite of trade secrets, another form of intellectual property <br />
the inventor must make a full disclosure of invention to obtain a patent, i.e. not secret like trade secrets<br />
in exchange for patent rights the patent becomes public information<br />
the formula for Coca-Cola is a trade secret but may be patentable if chosen to be open and public<br />
patent rights are exclusionary<br />
holder does not necessarily have the right to use the invention, but has right to exclude others from making, using, selling, or offering for sale the invention.<br />
owner of patent can stop owners from using it, or license his patent in exchange for royalties.<br />
Economics of a patent <br />
a patent’s true value comes from licensing revenue or preventing a competitor’s use<br />
a license can be one of three types<br />
exclusive license to a single licensee<br />
nonexclusive license to multiple licensees, or <br />
license within a limited field of use<br />
There are three types of patents<br />
utility patent (most common)<br />
applies to inventions that have use and protects functionality<br />
design patent<br />
protects an object’s appearance<br />
plant patents<br />
protects the appearance and color of plants<br />
Length of protection<br />
most patents expire after 20 years <br />
except for design patents which expire after 14 years<br />
different for patent registrations from other countries<br />
to obtain a patent, invention must be:<br />
novel (1/3)<br />
not known or used by others, <br />
or patented, or <br />
described in a printed publication, or <br />
in public use, or <br />
on sale more than a year prior to the patent application. NB - telling friends and family about the invention may toll the one-year grace period<br />
inventor must file for patent protection within that one year grace period or lose all rights to patent protection.<br />
Non-obvious (2/3)<br />
not obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made<br />
patent examiner will compare the invention with prior art (everything publicly known before the invention as shown in earlier patents and other published material) and judge whether differences between the prior art and the invention would have been "obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made”<br />
useful (3/3)<br />
it must have current, significant, and beneficial use as a process, machine, manufacture, composition of matter, or improvements to one of these<br />
compositions of matter - relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds<br />
also note if the machine, it must also perform its intended purpose to be patentable, otherwise it is not considered useful<br />
also note; unlike copyrights and trademarks patents do not arise from use<br />
filing the patent application<br />
before filing<br />
a search for prior art must be made<br />
always use a patent attorney with knowledge and experience in patent law who has passed a special exam and is registered to practice before the USPTO<br />
nonlawyers who act as patent agents and can prepare patent applications but not practice law are also registered with the USPTO.<br />
Once application is filed <br />
reviewed by patent examiner which might take 9 to 18 months - similar to trademark process<br />
obtaining a patent can be expensive and time-consuming<br />
beyond that there are both filing fees and issue fees and in some cases periodic maintenance fees<br />
the patent application itself<br />
the petition - formal request for a patent<br />
the abstract - a short technical summary of the invention with a statement of its use<br />
specification - a detailed description of the inventions features<br />
claims section - a brief statement in precisely the language of what is being patented, written primarily to show the examiner how the invention differs from prior art<br />
drawings section - graphical representation of the invention<br />
who is a patent holder?<br />
In US, prior to 2011 United States have the “first to patent” system as opposed to most other countries which had the “first file system”<br />
this changed in 2011 with the America Invents Act<br />
which established a “first to file” standard for patent approval and created a post-grant review system to weed out bad patents.<br />
This law affects applications filed on or after March 16, 2013<br />
Joint inventors<br />
if two inventors worked jointly on invention they should file as joint inventors<br />
one who is a financial backer may not file as a joint inventor<br />
In US, patents are filed in the inventors name unlike the rest the world which allows for companies to file for patent ownership.<br />
many times companies require a written contract obligating the employee or independent contractor to transfer patent ownership to the company.<br />
Most firms routinely include a patent rights assignments clause in the employment contracts.<br />
Under the new act (America Invents Act), assignees may apply for the patent<br />
Three scenarios where an employer might have patent rights:<br />
employment agreement<br />
hired to invent<br />
Shop right - a common-law right granting a nonexclusive and nontransferable license to the employer allowing use of an invention created during the course of employment by its employee. The nonexclusive nature of this right means the employee could simultaneously license the invention to his employers competitor. <br />
Normally arises only where the employee has used the employer's resources to create invention<br />
On the Internet<br />
Generally speaking we see two categories of patents<br />
Business methodologies <br />
Software<br />
Business method patent <br />
discloses and claims new methods of doing business<br />
an example of business method patent granted to Internet firms are Priceline.com “reverse auction” and amazon.com “one-click”<br />
Software patents<br />
An evolving field of law<br />
there is a recent trend by courts disavowing software as patent-eligible.<br />
The Alice/Mayo framework is the decisional approach adopted by the United States Supreme Court for determining whether a patent claim exhibits, such as software patent claims, embody patent eligible subject matter. <br />
The Alice/Mayo framework requires the decision maker, whether a patent examiner, administrative tribunal or reviewing court to ask and answer a series of questions before determining whether the patent claim in question constitutes patent eligible subject matter.<br />
For more info: http://www.ipwatchdog.com/software-patents/<br />
Patent infringement<br />
infringement is determined by comparing the claims language with the actual product<br />
the patent application "claims" section contains a set of claims defining what inventor seeks to patent with his patent<br />
for patent to be infringed upon the product must match the definition given in at least one claim<br />
to infringe, each and every element of that claim must be present in the infringing product.<br />
If an element is missing, then the product does not infringe<br />
patents are presumed valid and burden of proof is on accused infringer to prove that it is invalid and should not have been granted, and may use the following:<br />
prior art not previously considered<br />
insufficient disclosure of the invention<br />
fraud<br />
Enforceability in various jurisdictions <br />
US patents are only enforceable in the United States and its territories - separate patent systems exist in most countries<br />
patent protection usually must be sought in each individual country in which it is desired<br />
Many countries require that the patented product be manufactured in that country within a specified timeframe (often three years)<br />
failure to meet this working requirement will void the patent in some countries, but others grant compulsory licenses to any applicant<br />
International patents protection:<br />
Paris Convention for the Protection of Industrial Property of 1883 protects industrial property (patents, utility models, industrial designs, trademarks, service marks, and trade names<br />
assures signatory nations will grant the same patent and trademark rights to citizens of other signatories as they have their own citizens<br />
if an inventor subsequently filed patent applications for the same invention in other member countries within a year after filing the first one, later applications receive a fictional filing date equal to the first one’s filing date aka convention priority <br />
supervised by the world intellectual property organization (WIPO)<br />
International patents protection:<br />
Patent Cooperation Treaty Of 1970 <br />
lets an inventor seek patent protection simultaneously in many countries throughout a single application. <br />
There are 137 signatories to this treaty including the US, most of the European Community, and Japan<br />
process begins with filing in international patent application in one of the country’s “receiving office” <br />
an international patent search is conducted for prior art, and an opinion regarding patentability is issued along with an international search report. Eventually both the report and the application are published.<br />
International patents protection:<br />
Convention On The Grant Of European Patents Of 1973 (European Patent Convention or EPC)<br />
set up the European Patent organization and legal framework for granting European patents.<br />
Trade Secrets<br />
Overall, in re trade secrets:<br />
confidential practices, methods, processes, designs, or other information used by company to compete with other businesses<br />
Restatement of Torts (2nd.) § 757 comment b “consist[ing] of any formula, pattern, device, or, compilation of information which is used in business and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it.<br />
Elements:<br />
information not generally publicly known<br />
information conferring on its holder an economic benefit derived from its secrecy<br />
information that is the subject of reasonable efforts to maintain that secrecy<br />
examples of trade secrets<br />
inventions, formulas, recipes, designs, software designs, manufacturing processes, instructional methods, document tracking processes, and customer or supplier lists.<br />
subject to state law, not federal law<br />
46 states have adopted a model statute known as the Uniform Trade Secrets Act (UTSA)<br />
prior to UTSA – common law or other state law.<br />
internationally,<br />
must apply local national law<br />
Trade secret protection may be lost if owner fails to take reasonable measures to protect it<br />
reasonable efforts include requiring employees to sign nondisclosure agreements and restricting access to need to know basis<br />
they even lose protection if disclosed accidentally or inadvertently<br />
limited disclosure may not destroy trade secrets depending on circumstances -- e.g if owner disclose information to its licensees, vendors, or third parties for limited purposes.<br />
Misappropriation of trade secrets<br />
In most states a claim for misappropriation must show:<br />
information incorporates a trade secret<br />
plaintiff took reasonable steps to preserve the secrecy of the trade secret, and;<br />
defendant misappropriated the trade secret or used improper means, in breach of confidential relationship, to acquire<br />
Economic Espionage Act of 1996<br />
makes misappropriation or theft of trade secrets a federal offense<br />
the act defines a trade secret in § 1839(3)<br />
the first part of the act deals with theft of trade secrets to benefit foreign governments but the second part focuses on theft or misappropriation in the corporate environment<br />
the act also punishes whomever receives buys or possesses trade secrets knowing to have been stolen or misappropriated, obtained, or converted without authorization</div>Marvinhttps://marvincable.net/index.php?title=Intellectual_Property_Law&diff=32Intellectual Property Law2021-07-03T15:56:37Z<p>Marvin: </p>
<hr />
<div>Copyright<br />
<br />
Trademark and unfair business<br />
<br />
Patent<br />
<br />
Trademarks<br />
TM = SM<br />
When we talk about trademarks, many times we also mean servicemarks. <br />
Unless identified otherwise when using the term trademarks, we also mean service marks.<br />
Trademarks identify source of goods.<br />
Servicemarks identify source of services.<br />
Fx of TM/SM<br />
Essential function of a trademark is to exclusively identify the commercial source or origin of products or services, so a trademark, properly called, indicates source or serves as a badge of origin.<br />
To qualify as a TM/SM.<br />
To serve trademark a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good. <br />
In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product: <br />
(1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. <br />
Legal protection afforded a particular trademark will depend upon which category it falls within<br />
An arbitrary or fanciful mark <br />
is a mark that bears no logical relationship to the underlying product. <br />
Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection.<br />
A suggestive mark <br />
is a mark that evokes or suggests a characteristic of the underlying good. <br />
Some exercise of imagination is needed to associate the word with the underlying product. At the same time, however, the word is not totally unrelated to the underlying product. Like arbitrary or fanciful marks, suggestive marks are inherently distinctive and are given a high degree of protection.<br />
A descriptive mark <br />
is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). <br />
They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning." Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.<br />
A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product. Thus, for example, the term "Holiday Inn" has acquired secondary meaning because the consuming public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys. Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).<br />
A generic mark <br />
is a mark that describes the general category to which the underlying product belongs. <br />
Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product. <br />
Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product. Giving a single manufacturer control over use of the term would give that manufacturer too great a competitive advantage. Under some circumstances, terms that are not originally generic can become generic over time (a process called "genericity"), and thus become unprotected.<br />
® <br />
the letter "R" surrounded by a circle, for a registered trademark with the USPTO<br />
if used trademark owner need not prove defendant had actual notice of registration recover damages profits, registration serves as constructive notice<br />
™ <br />
the "trademark symbol", which is the letters "TM" in superscript, for an unregistered trademark, a mark used to promote or brand goods<br />
℠ <br />
which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote or brand services<br />
trademark infringement <br />
whether the similarity between trademarks is likely to cause confusion in the minds of consumers. <br />
IOW, the elements are:<br />
if there has been a “use” of the plaintiff’s trademark<br />
if the use creates a likelihood of confusion<br />
if use does NOTE qualify as a normative fair-use <br />
Note that the law stated objective of trademark law is consumer protection<br />
trademark infringement<br />
Case-by-case basis<br />
Court weighs several factors in determining if mark has been infringed including<br />
strength,<br />
the similarity of parties’ service,<br />
geographical proximity,<br />
evidence of actual confusion, <br />
degree of care likely to be exercised by consumer<br />
intent of defendant<br />
similarity of marketing channels used;<br />
and, in domain name disputes, the similarity of trademark to the domain name in the domain name registrant’s intent in choosing the name<br />
normative fair use (defense)<br />
three factors<br />
the product or service cannot be readily identified without using the trademark<br />
the user only uses so much of the mark as is reasonably necessary to identify the product or service<br />
the user does nothing to suggest sponsorship or endorsement by the trademark owner<br />
Parody (defense) <br />
literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule<br />
a legal parity involves a conveyance of two simultaneous but contradictory messages <br />
must be apparent that it is not the original<br />
trademark dilution<br />
occurs either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it." <br />
Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).<br />
the Act only applies to famous trademarks<br />
test for dilution is: will the strong association the public has between the famous trademark and the plaintiff be diluted?<br />
Under the Lanham Act, to prove trademark dilution, the plaintiff must show:<br />
ownership of the trademark qualifying as a “distinctive and famous” trademark as measured by the totality of the eight factors listed in the Lanham Act section 43(c)(1), and<br />
defendant is making commercial use,<br />
in interstate commerce,<br />
of a trademark or trade name, and<br />
the defendant's use began after the plaintiff's trademark became famous, and<br />
the defendant's use causes dilution by lessening the capacity of the plaintiff's trademark to identify and distinguish goods or services.<br />
“distinctive and famous” under the Lanham Act provides the following factors may be weighed<br />
the degree of inherent or acquired distinctiveness of the mark<br />
the duration and extent of use of the trademark in connection with the goods or services with which the trademark is used<br />
the duration and extent of advertising and publicity of the trademark<br />
the geographical extent of the trading area in which the trademark is used<br />
the channels of trade for the goods or services with which the trademark is used<br />
the degree of recognition of the mark in the trading areas and channels of trade used by the marks owners and the person against whom the injunction is sought<br />
the nature and extent of use of the same or similar trademarks by third parties, and<br />
whether the trademark was registered under the act of March 3, 1881 or the Act of February 20, 1905, or on the principal register.<br />
Amendment to the Antidilution Act of 2006 - <br />
eliminates the requirement of the showing of actual economic harm to the famous remarks economic value<br />
under new standard a party is entitled to an injunction against the user of a trademark "likely to cause dilution”<br />
the act has been used to force cyber squatters to relinquish domain names to trademark owners<br />
theory is dilution occurs when web visitors give up searching for trademark holders goods in frustration after countless encounters with cyber squatters site instead of true mark holder site<br />
however the act is only applicable when a famous trademark is at issue<br />
holders of non-famous trademarks must seek recourse through the anti-cybersquatting consumer protection act (ACPA)<br />
secondary infringement<br />
the concept of contributory and vicarious infringement, as similarly applied to copyright infringements, also may apply to trademark<br />
normative fair use - <br />
wherein no infringement liability merely for using a trademark phrase to describe the actual trademark product one is speaking of or about.<br />
Common Trademark Issues on the Internet<br />
There are an array of trademark issues on the internet, and new ones will keep arising.<br />
Common ones include<br />
counterfeit products<br />
meta tags<br />
linking and hyperlinking<br />
cybersquatting<br />
cybergriping<br />
keyword advertising and search engine results<br />
cyberpoaching<br />
Personal names as domain names<br />
Is a domain name a property right or contractual right?<br />
If property right, state law controls.<br />
which varies by jurisdiction<br />
If contractual right, contractual obligations and remedies controls<br />
most jurisdictions view domain names as contractual rights, outside the US.<br />
Truth in Domain Names Act <br />
criminalizes use of “misleading domain name” with the intent to deceive a person into viewing obscenity or deceives a minor into viewing “material that is harmful to minors”<br />
Fraudulent Online Identities Act <br />
trademark infringement will be considered willful if person knowingly provided misleading or false contact information in making, maintaining or renewing a domain name’s registration.<br />
Anticybersquatting Consumer Protection Act (ACPA)<br />
Established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.<br />
Closes loophole to the trademark law requiring “use in commerce” and the loophole where people didn’t create a webpage for the domain name in order to skirt claim of “consumer confusion”<br />
Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who<br />
Has a bad faith intent to profit from the mark<br />
Registers, traffics in, or uses a domain name that is<br />
Identical or confusingly similar to a distinctive mark<br />
Identical or confusingly similar to or dilutive of a famous mark<br />
Is a trademark protected by 18 U.S.C. § 706 (marks involving the Red Cross) or 36 U.S.C. § 220506 (marks related to the “Olympics”)<br />
In determining whether the domain name registrant has a bad faith intent to profit, a court may consider many factors, including nine that are outlined in the statute:<br />
Registrant’s trademark or other intellectual property rights in the domain name;<br />
Whether the domain name contains the registrant’s legal or common name;<br />
Registrant’s prior use of the domain name in connection with the bona fide offering of goods or services;<br />
Registrant’s bona fide noncommercial or fair use of the mark in a site accessible by the domain name;<br />
Registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;<br />
Registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;<br />
Registrant’s providing misleading false contact information when applying for registration of the domain name;<br />
Registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; and<br />
Extent to which the mark in the domain is distinctive or famous<br />
Patents<br />
Generally:<br />
In US, patents are covered by the Patent Act<br />
a patent is a government issued grant conferring on inventor the right to exclude others from making, using, offering for sale, or selling the invention for a period of 20 years, measured from the filing date of the patent application.<br />
What is a patent?<br />
“any new and useful process, machine, manufacture, or composition of matter, or any new useful improvement thereof" may be patented.<br />
"process" is defined as "process, art, or method" and includes a new use of a known process, machine, manufacture, composition of matter, or material. Abstract ideas, laws of nature, and physical phenomena are not patentable<br />
patents protect inventions, not ideas<br />
there must be some embodiment of the idea before there can be identifiable intellectual property protection<br />
Patents v Trade Secrets<br />
patents are, in one respect, the opposite of trade secrets, another form of intellectual property <br />
the inventor must make a full disclosure of invention to obtain a patent, i.e. not secret like trade secrets<br />
in exchange for patent rights the patent becomes public information<br />
the formula for Coca-Cola is a trade secret but may be patentable if chosen to be open and public<br />
patent rights are exclusionary<br />
holder does not necessarily have the right to use the invention, but has right to exclude others from making, using, selling, or offering for sale the invention.<br />
owner of patent can stop owners from using it, or license his patent in exchange for royalties.<br />
Economics of a patent <br />
a patent’s true value comes from licensing revenue or preventing a competitor’s use<br />
a license can be one of three types<br />
exclusive license to a single licensee<br />
nonexclusive license to multiple licensees, or <br />
license within a limited field of use<br />
There are three types of patents<br />
utility patent (most common)<br />
applies to inventions that have use and protects functionality<br />
design patent<br />
protects an object’s appearance<br />
plant patents<br />
protects the appearance and color of plants<br />
Length of protection<br />
most patents expire after 20 years <br />
except for design patents which expire after 14 years<br />
different for patent registrations from other countries<br />
to obtain a patent, invention must be:<br />
novel (1/3)<br />
not known or used by others, <br />
or patented, or <br />
described in a printed publication, or <br />
in public use, or <br />
on sale more than a year prior to the patent application. NB - telling friends and family about the invention may toll the one-year grace period<br />
inventor must file for patent protection within that one year grace period or lose all rights to patent protection.<br />
Non-obvious (2/3)<br />
not obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made<br />
patent examiner will compare the invention with prior art (everything publicly known before the invention as shown in earlier patents and other published material) and judge whether differences between the prior art and the invention would have been "obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made”<br />
useful (3/3)<br />
it must have current, significant, and beneficial use as a process, machine, manufacture, composition of matter, or improvements to one of these<br />
compositions of matter - relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds<br />
also note if the machine, it must also perform its intended purpose to be patentable, otherwise it is not considered useful<br />
also note; unlike copyrights and trademarks patents do not arise from use<br />
filing the patent application<br />
before filing<br />
a search for prior art must be made<br />
always use a patent attorney with knowledge and experience in patent law who has passed a special exam and is registered to practice before the USPTO<br />
nonlawyers who act as patent agents and can prepare patent applications but not practice law are also registered with the USPTO.<br />
Once application is filed <br />
reviewed by patent examiner which might take 9 to 18 months - similar to trademark process<br />
obtaining a patent can be expensive and time-consuming<br />
beyond that there are both filing fees and issue fees and in some cases periodic maintenance fees<br />
the patent application itself<br />
the petition - formal request for a patent<br />
the abstract - a short technical summary of the invention with a statement of its use<br />
specification - a detailed description of the inventions features<br />
claims section - a brief statement in precisely the language of what is being patented, written primarily to show the examiner how the invention differs from prior art<br />
drawings section - graphical representation of the invention<br />
who is a patent holder?<br />
In US, prior to 2011 United States have the “first to patent” system as opposed to most other countries which had the “first file system”<br />
this changed in 2011 with the America Invents Act<br />
which established a “first to file” standard for patent approval and created a post-grant review system to weed out bad patents.<br />
This law affects applications filed on or after March 16, 2013<br />
Joint inventors<br />
if two inventors worked jointly on invention they should file as joint inventors<br />
one who is a financial backer may not file as a joint inventor<br />
In US, patents are filed in the inventors name unlike the rest the world which allows for companies to file for patent ownership.<br />
many times companies require a written contract obligating the employee or independent contractor to transfer patent ownership to the company.<br />
Most firms routinely include a patent rights assignments clause in the employment contracts.<br />
Under the new act (America Invents Act), assignees may apply for the patent<br />
Three scenarios where an employer might have patent rights:<br />
employment agreement<br />
hired to invent<br />
Shop right - a common-law right granting a nonexclusive and nontransferable license to the employer allowing use of an invention created during the course of employment by its employee. The nonexclusive nature of this right means the employee could simultaneously license the invention to his employers competitor. <br />
Normally arises only where the employee has used the employer's resources to create invention<br />
On the Internet<br />
Generally speaking we see two categories of patents<br />
Business methodologies <br />
Software<br />
Business method patent <br />
discloses and claims new methods of doing business<br />
an example of business method patent granted to Internet firms are Priceline.com “reverse auction” and amazon.com “one-click”<br />
Software patents<br />
An evolving field of law<br />
there is a recent trend by courts disavowing software as patent-eligible.<br />
The Alice/Mayo framework is the decisional approach adopted by the United States Supreme Court for determining whether a patent claim exhibits, such as software patent claims, embody patent eligible subject matter. <br />
The Alice/Mayo framework requires the decision maker, whether a patent examiner, administrative tribunal or reviewing court to ask and answer a series of questions before determining whether the patent claim in question constitutes patent eligible subject matter.<br />
For more info: http://www.ipwatchdog.com/software-patents/<br />
Patent infringement<br />
infringement is determined by comparing the claims language with the actual product<br />
the patent application "claims" section contains a set of claims defining what inventor seeks to patent with his patent<br />
for patent to be infringed upon the product must match the definition given in at least one claim<br />
to infringe, each and every element of that claim must be present in the infringing product.<br />
If an element is missing, then the product does not infringe<br />
patents are presumed valid and burden of proof is on accused infringer to prove that it is invalid and should not have been granted, and may use the following:<br />
prior art not previously considered<br />
insufficient disclosure of the invention<br />
fraud<br />
Enforceability in various jurisdictions <br />
US patents are only enforceable in the United States and its territories - separate patent systems exist in most countries<br />
patent protection usually must be sought in each individual country in which it is desired<br />
Many countries require that the patented product be manufactured in that country within a specified timeframe (often three years)<br />
failure to meet this working requirement will void the patent in some countries, but others grant compulsory licenses to any applicant<br />
International patents protection:<br />
Paris Convention for the Protection of Industrial Property of 1883 protects industrial property (patents, utility models, industrial designs, trademarks, service marks, and trade names<br />
assures signatory nations will grant the same patent and trademark rights to citizens of other signatories as they have their own citizens<br />
if an inventor subsequently filed patent applications for the same invention in other member countries within a year after filing the first one, later applications receive a fictional filing date equal to the first one’s filing date aka convention priority <br />
supervised by the world intellectual property organization (WIPO)<br />
International patents protection:<br />
Patent Cooperation Treaty Of 1970 <br />
lets an inventor seek patent protection simultaneously in many countries throughout a single application. <br />
There are 137 signatories to this treaty including the US, most of the European Community, and Japan<br />
process begins with filing in international patent application in one of the country’s “receiving office” <br />
an international patent search is conducted for prior art, and an opinion regarding patentability is issued along with an international search report. Eventually both the report and the application are published.<br />
International patents protection:<br />
Convention On The Grant Of European Patents Of 1973 (European Patent Convention or EPC)<br />
set up the European Patent organization and legal framework for granting European patents.<br />
Trade Secrets<br />
Overall, in re trade secrets:<br />
confidential practices, methods, processes, designs, or other information used by company to compete with other businesses<br />
Restatement of Torts (2nd.) § 757 comment b “consist[ing] of any formula, pattern, device, or, compilation of information which is used in business and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it.<br />
Elements:<br />
information not generally publicly known<br />
information conferring on its holder an economic benefit derived from its secrecy<br />
information that is the subject of reasonable efforts to maintain that secrecy<br />
examples of trade secrets<br />
inventions, formulas, recipes, designs, software designs, manufacturing processes, instructional methods, document tracking processes, and customer or supplier lists.<br />
subject to state law, not federal law<br />
46 states have adopted a model statute known as the Uniform Trade Secrets Act (UTSA)<br />
prior to UTSA – common law or other state law.<br />
internationally,<br />
must apply local national law<br />
Trade secret protection may be lost if owner fails to take reasonable measures to protect it<br />
reasonable efforts include requiring employees to sign nondisclosure agreements and restricting access to need to know basis<br />
they even lose protection if disclosed accidentally or inadvertently<br />
limited disclosure may not destroy trade secrets depending on circumstances -- e.g if owner disclose information to its licensees, vendors, or third parties for limited purposes.<br />
Misappropriation of trade secrets<br />
In most states a claim for misappropriation must show:<br />
information incorporates a trade secret<br />
plaintiff took reasonable steps to preserve the secrecy of the trade secret, and;<br />
defendant misappropriated the trade secret or used improper means, in breach of confidential relationship, to acquire<br />
Economic Espionage Act of 1996<br />
makes misappropriation or theft of trade secrets a federal offense<br />
the act defines a trade secret in § 1839(3)<br />
the first part of the act deals with theft of trade secrets to benefit foreign governments but the second part focuses on theft or misappropriation in the corporate environment<br />
the act also punishes whomever receives buys or possesses trade secrets knowing to have been stolen or misappropriated, obtained, or converted without authorization</div>Marvinhttps://marvincable.net/index.php?title=Intellectual_Property_Law&diff=31Intellectual Property Law2021-07-03T15:55:48Z<p>Marvin: </p>
<hr />
<div>Copyright<br />
<br />
Trademark and unfair business<br />
<br />
Patent<br />
<br />
<br />
rademarks<br />
TM = SM<br />
When we talk about trademarks, many times we also mean servicemarks.<br />
Unless identified otherwise when using the term trademarks, we also mean service marks.<br />
Trademarks identify source of goods.<br />
Servicemarks identify source of services.<br />
Fx of TM/SM<br />
Essential function of a trademark is to exclusively identify the commercial source or origin of products or services, so a trademark, properly called, indicates source or serves as a badge of origin.<br />
To qualify as a TM/SM.<br />
To serve trademark a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good.<br />
In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product:<br />
(1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic.<br />
Legal protection afforded a particular trademark will depend upon which category it falls within<br />
An arbitrary or fanciful mark<br />
is a mark that bears no logical relationship to the underlying product.<br />
Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection.<br />
A suggestive mark<br />
is a mark that evokes or suggests a characteristic of the underlying good.<br />
Some exercise of imagination is needed to associate the word with the underlying product. At the same time, however, the word is not totally unrelated to the underlying product. Like arbitrary or fanciful marks, suggestive marks are inherently distinctive and are given a high degree of protection.<br />
A descriptive mark<br />
is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients).<br />
They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning." Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.<br />
A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product. Thus, for example, the term "Holiday Inn" has acquired secondary meaning because the consuming public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys. Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).<br />
A generic mark<br />
is a mark that describes the general category to which the underlying product belongs.<br />
Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product.<br />
Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product. Giving a single manufacturer control over use of the term would give that manufacturer too great a competitive advantage. Under some circumstances, terms that are not originally generic can become generic over time (a process called "genericity"), and thus become unprotected.<br />
®<br />
the letter "R" surrounded by a circle, for a registered trademark with the USPTO<br />
if used trademark owner need not prove defendant had actual notice of registration recover damages profits, registration serves as constructive notice<br />
™<br />
the "trademark symbol", which is the letters "TM" in superscript, for an unregistered trademark, a mark used to promote or brand goods<br />
℠<br />
which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote or brand services<br />
trademark infringement<br />
whether the similarity between trademarks is likely to cause confusion in the minds of consumers.<br />
IOW, the elements are:<br />
if there has been a “use” of the plaintiff’s trademark<br />
if the use creates a likelihood of confusion<br />
if use does NOTE qualify as a normative fair-use<br />
Note that the law stated objective of trademark law is consumer protection<br />
trademark infringement<br />
Case-by-case basis<br />
Court weighs several factors in determining if mark has been infringed including<br />
strength,<br />
the similarity of parties’ service,<br />
geographical proximity,<br />
evidence of actual confusion,<br />
degree of care likely to be exercised by consumer<br />
intent of defendant<br />
similarity of marketing channels used;<br />
and, in domain name disputes, the similarity of trademark to the domain name in the domain name registrant’s intent in choosing the name<br />
normative fair use (defense)<br />
three factors<br />
the product or service cannot be readily identified without using the trademark<br />
the user only uses so much of the mark as is reasonably necessary to identify the product or service<br />
the user does nothing to suggest sponsorship or endorsement by the trademark owner<br />
Parody (defense)<br />
literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule<br />
a legal parity involves a conveyance of two simultaneous but contradictory messages<br />
must be apparent that it is not the original<br />
trademark dilution<br />
occurs either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it."<br />
Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).<br />
the Act only applies to famous trademarks<br />
test for dilution is: will the strong association the public has between the famous trademark and the plaintiff be diluted?<br />
Under the Lanham Act, to prove trademark dilution, the plaintiff must show:<br />
ownership of the trademark qualifying as a “distinctive and famous” trademark as measured by the totality of the eight factors listed in the Lanham Act section 43(c)(1), and<br />
defendant is making commercial use,<br />
in interstate commerce,<br />
of a trademark or trade name, and<br />
the defendant's use began after the plaintiff's trademark became famous, and<br />
the defendant's use causes dilution by lessening the capacity of the plaintiff's trademark to identify and distinguish goods or services.<br />
“distinctive and famous” under the Lanham Act provides the following factors may be weighed<br />
the degree of inherent or acquired distinctiveness of the mark<br />
the duration and extent of use of the trademark in connection with the goods or services with which the trademark is used<br />
the duration and extent of advertising and publicity of the trademark<br />
the geographical extent of the trading area in which the trademark is used<br />
the channels of trade for the goods or services with which the trademark is used<br />
the degree of recognition of the mark in the trading areas and channels of trade used by the marks owners and the person against whom the injunction is sought<br />
the nature and extent of use of the same or similar trademarks by third parties, and<br />
whether the trademark was registered under the act of March 3, 1881 or the Act of February 20, 1905, or on the principal register.<br />
Amendment to the Antidilution Act of 2006 -<br />
eliminates the requirement of the showing of actual economic harm to the famous remarks economic value<br />
under new standard a party is entitled to an injunction against the user of a trademark "likely to cause dilution”<br />
the act has been used to force cyber squatters to relinquish domain names to trademark owners<br />
theory is dilution occurs when web visitors give up searching for trademark holders goods in frustration after countless encounters with cyber squatters site instead of true mark holder site<br />
however the act is only applicable when a famous trademark is at issue<br />
holders of non-famous trademarks must seek recourse through the anti-cybersquatting consumer protection act (ACPA)<br />
secondary infringement<br />
the concept of contributory and vicarious infringement, as similarly applied to copyright infringements, also may apply to trademark<br />
normative fair use -<br />
wherein no infringement liability merely for using a trademark phrase to describe the actual trademark product one is speaking of or about.<br />
Common Trademark Issues on the Internet<br />
There are an array of trademark issues on the internet, and new ones will keep arising.<br />
Common ones include<br />
counterfeit products<br />
meta tags<br />
linking and hyperlinking<br />
cybersquatting<br />
cybergriping<br />
keyword advertising and search engine results<br />
cyberpoaching<br />
Personal names as domain names<br />
Is a domain name a property right or contractual right?<br />
If property right, state law controls.<br />
which varies by jurisdiction<br />
If contractual right, contractual obligations and remedies controls<br />
most jurisdictions view domain names as contractual rights, outside the US.<br />
Truth in Domain Names Act<br />
criminalizes use of “misleading domain name” with the intent to deceive a person into viewing obscenity or deceives a minor into viewing “material that is harmful to minors”<br />
Fraudulent Online Identities Act<br />
trademark infringement will be considered willful if person knowingly provided misleading or false contact information in making, maintaining or renewing a domain name’s registration.<br />
Anticybersquatting Consumer Protection Act (ACPA)<br />
Established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.<br />
Closes loophole to the trademark law requiring “use in commerce” and the loophole where people didn’t create a webpage for the domain name in order to skirt claim of “consumer confusion”<br />
Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who<br />
Has a bad faith intent to profit from the mark<br />
Registers, traffics in, or uses a domain name that is<br />
Identical or confusingly similar to a distinctive mark<br />
Identical or confusingly similar to or dilutive of a famous mark<br />
Is a trademark protected by 18 U.S.C. § 706 (marks involving the Red Cross) or 36 U.S.C. § 220506 (marks related to the “Olympics”)<br />
In determining whether the domain name registrant has a bad faith intent to profit, a court may consider many factors, including nine that are outlined in the statute:<br />
Registrant’s trademark or other intellectual property rights in the domain name;<br />
Whether the domain name contains the registrant’s legal or common name;<br />
Registrant’s prior use of the domain name in connection with the bona fide offering of goods or services;<br />
Registrant’s bona fide noncommercial or fair use of the mark in a site accessible by the domain name;<br />
Registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;<br />
Registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;<br />
Registrant’s providing misleading false contact information when applying for registration of the domain name;<br />
Registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; and<br />
Extent to which the mark in the domain is distinctive or famous<br />
<br />
Patents<br />
Generally:<br />
In US, patents are covered by the Patent Act<br />
a patent is a government issued grant conferring on inventor the right to exclude others from making, using, offering for sale, or selling the invention for a period of 20 years, measured from the filing date of the patent application.<br />
What is a patent?<br />
“any new and useful process, machine, manufacture, or composition of matter, or any new useful improvement thereof" may be patented.<br />
"process" is defined as "process, art, or method" and includes a new use of a known process, machine, manufacture, composition of matter, or material. Abstract ideas, laws of nature, and physical phenomena are not patentable<br />
patents protect inventions, not ideas<br />
there must be some embodiment of the idea before there can be identifiable intellectual property protection<br />
Patents v Trade Secrets<br />
patents are, in one respect, the opposite of trade secrets, another form of intellectual property<br />
the inventor must make a full disclosure of invention to obtain a patent, i.e. not secret like trade secrets<br />
in exchange for patent rights the patent becomes public information<br />
the formula for Coca-Cola is a trade secret but may be patentable if chosen to be open and public<br />
patent rights are exclusionary<br />
holder does not necessarily have the right to use the invention, but has right to exclude others from making, using, selling, or offering for sale the invention.<br />
owner of patent can stop owners from using it, or license his patent in exchange for royalties.<br />
Economics of a patent<br />
a patent’s true value comes from licensing revenue or preventing a competitor’s use<br />
a license can be one of three types<br />
exclusive license to a single licensee<br />
nonexclusive license to multiple licensees, or<br />
license within a limited field of use<br />
There are three types of patents<br />
utility patent (most common)<br />
applies to inventions that have use and protects functionality<br />
design patent<br />
protects an object’s appearance<br />
plant patents<br />
protects the appearance and color of plants<br />
Length of protection<br />
most patents expire after 20 years<br />
except for design patents which expire after 14 years<br />
different for patent registrations from other countries<br />
to obtain a patent, invention must be:<br />
novel (1/3)<br />
not known or used by others,<br />
or patented, or<br />
described in a printed publication, or<br />
in public use, or<br />
on sale more than a year prior to the patent application. NB - telling friends and family about the invention may toll the one-year grace period<br />
inventor must file for patent protection within that one year grace period or lose all rights to patent protection.<br />
Non-obvious (2/3)<br />
not obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made<br />
patent examiner will compare the invention with prior art (everything publicly known before the invention as shown in earlier patents and other published material) and judge whether differences between the prior art and the invention would have been "obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made”<br />
useful (3/3)<br />
it must have current, significant, and beneficial use as a process, machine, manufacture, composition of matter, or improvements to one of these<br />
compositions of matter - relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds<br />
also note if the machine, it must also perform its intended purpose to be patentable, otherwise it is not considered useful<br />
also note; unlike copyrights and trademarks patents do not arise from use<br />
filing the patent application<br />
before filing<br />
a search for prior art must be made<br />
always use a patent attorney with knowledge and experience in patent law who has passed a special exam and is registered to practice before the USPTO<br />
nonlawyers who act as patent agents and can prepare patent applications but not practice law are also registered with the USPTO.<br />
Once application is filed<br />
reviewed by patent examiner which might take 9 to 18 months - similar to trademark process<br />
obtaining a patent can be expensive and time-consuming<br />
beyond that there are both filing fees and issue fees and in some cases periodic maintenance fees<br />
the patent application itself<br />
the petition - formal request for a patent<br />
the abstract - a short technical summary of the invention with a statement of its use<br />
specification - a detailed description of the inventions features<br />
claims section - a brief statement in precisely the language of what is being patented, written primarily to show the examiner how the invention differs from prior art<br />
drawings section - graphical representation of the invention<br />
who is a patent holder?<br />
In US, prior to 2011 United States have the “first to patent” system as opposed to most other countries which had the “first file system”<br />
this changed in 2011 with the America Invents Act<br />
which established a “first to file” standard for patent approval and created a post-grant review system to weed out bad patents.<br />
This law affects applications filed on or after March 16, 2013<br />
Joint inventors<br />
if two inventors worked jointly on invention they should file as joint inventors<br />
one who is a financial backer may not file as a joint inventor<br />
In US, patents are filed in the inventors name unlike the rest the world which allows for companies to file for patent ownership.<br />
many times companies require a written contract obligating the employee or independent contractor to transfer patent ownership to the company.<br />
Most firms routinely include a patent rights assignments clause in the employment contracts.<br />
Under the new act (America Invents Act), assignees may apply for the patent<br />
Three scenarios where an employer might have patent rights:<br />
employment agreement<br />
hired to invent<br />
Shop right - a common-law right granting a nonexclusive and nontransferable license to the employer allowing use of an invention created during the course of employment by its employee. The nonexclusive nature of this right means the employee could simultaneously license the invention to his employers competitor.<br />
Normally arises only where the employee has used the employer's resources to create invention<br />
On the Internet<br />
Generally speaking we see two categories of patents<br />
Business methodologies<br />
Software<br />
Business method patent<br />
discloses and claims new methods of doing business<br />
an example of business method patent granted to Internet firms are Priceline.com “reverse auction” and amazon.com “one-click”<br />
Software patents<br />
An evolving field of law<br />
there is a recent trend by courts disavowing software as patent-eligible.<br />
The Alice/Mayo framework is the decisional approach adopted by the United States Supreme Court for determining whether a patent claim exhibits, such as software patent claims, embody patent eligible subject matter.<br />
The Alice/Mayo framework requires the decision maker, whether a patent examiner, administrative tribunal or reviewing court to ask and answer a series of questions before determining whether the patent claim in question constitutes patent eligible subject matter.<br />
For more info: http://www.ipwatchdog.com/software-patents/<br />
Patent infringement<br />
infringement is determined by comparing the claims language with the actual product<br />
the patent application "claims" section contains a set of claims defining what inventor seeks to patent with his patent<br />
for patent to be infringed upon the product must match the definition given in at least one claim<br />
to infringe, each and every element of that claim must be present in the infringing product.<br />
If an element is missing, then the product does not infringe<br />
patents are presumed valid and burden of proof is on accused infringer to prove that it is invalid and should not have been granted, and may use the following:<br />
prior art not previously considered<br />
insufficient disclosure of the invention<br />
fraud<br />
Enforceability in various jurisdictions<br />
US patents are only enforceable in the United States and its territories - separate patent systems exist in most countries<br />
patent protection usually must be sought in each individual country in which it is desired<br />
Many countries require that the patented product be manufactured in that country within a specified timeframe (often three years)<br />
failure to meet this working requirement will void the patent in some countries, but others grant compulsory licenses to any applicant<br />
International patents protection:<br />
Paris Convention for the Protection of Industrial Property of 1883 protects industrial property (patents, utility models, industrial designs, trademarks, service marks, and trade names<br />
assures signatory nations will grant the same patent and trademark rights to citizens of other signatories as they have their own citizens<br />
if an inventor subsequently filed patent applications for the same invention in other member countries within a year after filing the first one, later applications receive a fictional filing date equal to the first one’s filing date aka convention priority<br />
supervised by the world intellectual property organization (WIPO)<br />
International patents protection:<br />
Patent Cooperation Treaty Of 1970<br />
lets an inventor seek patent protection simultaneously in many countries throughout a single application.<br />
There are 137 signatories to this treaty including the US, most of the European Community, and Japan<br />
process begins with filing in international patent application in one of the country’s “receiving office”<br />
an international patent search is conducted for prior art, and an opinion regarding patentability is issued along with an international search report. Eventually both the report and the application are published.<br />
International patents protection:<br />
Convention On The Grant Of European Patents Of 1973 (European Patent Convention or EPC)<br />
set up the European Patent organization and legal framework for granting European patents.<br />
Trade Secrets<br />
Overall, in re trade secrets:<br />
confidential practices, methods, processes, designs, or other information used by company to compete with other businesses<br />
Restatement of Torts (2nd.) § 757 comment b “consist[ing] of any formula, pattern, device, or, compilation of information which is used in business and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it.<br />
Elements:<br />
information not generally publicly known<br />
information conferring on its holder an economic benefit derived from its secrecy<br />
information that is the subject of reasonable efforts to maintain that secrecy<br />
examples of trade secrets<br />
inventions, formulas, recipes, designs, software designs, manufacturing processes, instructional methods, document tracking processes, and customer or supplier lists.<br />
subject to state law, not federal law<br />
46 states have adopted a model statute known as the Uniform Trade Secrets Act (UTSA)<br />
prior to UTSA – common law or other state law.<br />
internationally,<br />
must apply local national law<br />
Trade secret protection may be lost if owner fails to take reasonable measures to protect it<br />
reasonable efforts include requiring employees to sign nondisclosure agreements and restricting access to need to know basis<br />
they even lose protection if disclosed accidentally or inadvertently<br />
limited disclosure may not destroy trade secrets depending on circumstances -- e.g if owner disclose information to its licensees, vendors, or third parties for limited purposes.<br />
Misappropriation of trade secrets<br />
In most states a claim for misappropriation must show:<br />
information incorporates a trade secret<br />
plaintiff took reasonable steps to preserve the secrecy of the trade secret, and;<br />
defendant misappropriated the trade secret or used improper means, in breach of confidential relationship, to acquire<br />
Economic Espionage Act of 1996<br />
makes misappropriation or theft of trade secrets a federal offense<br />
the act defines a trade secret in § 1839(3)<br />
the first part of the act deals with theft of trade secrets to benefit foreign governments but the second part focuses on theft or misappropriation in the corporate environment<br />
the act also punishes whomever receives buys or possesses trade secrets knowing to have been stolen or misappropriated, obtained, or converted without authorization</div>Marvinhttps://marvincable.net/index.php?title=Resources_for_Law_Students&diff=30Resources for Law Students2021-07-03T15:30:32Z<p>Marvin: </p>
<hr />
<div>Here’s a list of resources that are helpful for learning law of computers, technology and internet.<br />
== Law and Technology News ==<br />
Media outlets with good and dedicated coverage of technology law include:<br />
* [https://arstechnica.com/tech-policy/ Ars Technica]<br />
* [https://techcrunch.com/ TechCrunch]<br />
* Techdirt<br />
* The Verge<br />
* Wired<br />
* Slashdot<br />
* BuzzFeed – Tech<br />
* CyberScoop<br />
* Engadget<br />
* Slate- Technology<br />
* Slate – Future Tense<br />
== Productivity Software. ==<br />
* Word Processing: You have to use Microsoft Word, even if you are a Mac person (like me). Word has all the features, and most people use it.<br />
* Mindmapping/Outlining: I use XMind Zen.<br />
* Dictation software: Dragon dictate is the best dictation software (at the moment), but only runs on Windows. If you are a Mac-person (like me), you have to run a virtual machine, Windows operating system. I use Parallels and run Windows. Many times, I run Word, XMind, and Dragon using Parallels.<br />
* Design: Adobe’s products are amazing. There many be better alternatives out there, but as a whole you can not beat Adobe’s products. I use Adobe’s Premier, Elements, inDesign, Photoshop, Captivate, Acrobat, Sign, amongst others.<br />
== Podcasts ==<br />
* Good Code is a podcast that constantly covers relevant topics..</div>Marvinhttps://marvincable.net/index.php?title=Resources_for_Law_Students&diff=29Resources for Law Students2021-07-03T15:29:37Z<p>Marvin: Created page with " Maintained by Marvin Cable, Current through June 2020. For my students, for myself, here’s a list of resources that are helpful for learning law of computers, technology..."</p>
<hr />
<div><br />
<br />
Maintained by Marvin Cable, Current through June 2020.<br />
<br />
For my students, for myself, here’s a list of resources that are helpful for learning law of computers, technology and internet.<br />
<br />
== Law and Technology News ==<br />
Media outlets with good and dedicated coverage of technology law include:<br />
<br />
* [https://arstechnica.com/tech-policy/ Ars Technica]<br />
* [https://techcrunch.com/ TechCrunch]<br />
* Techdirt<br />
* The Verge<br />
* Wired<br />
* Slashdot<br />
* BuzzFeed – Tech<br />
* CyberScoop<br />
* Engadget<br />
* Slate- Technology<br />
* Slate – Future Tense<br />
<br />
== Productivity Software. ==<br />
<br />
* Word Processing: You have to use Microsoft Word, even if you are a Mac person (like me). Word has all the features, and most people use it.<br />
* Mindmapping/Outlining: I use XMind Zen.<br />
* Dictation software: Dragon dictate is the best dictation software (at the moment), but only runs on Windows. If you are a Mac-person (like me), you have to run a virtual machine, Windows operating system. I use Parallels and run Windows. Many times, I run Word, XMind, and Dragon using Parallels.<br />
* Design: Adobe’s products are amazing. There many be better alternatives out there, but as a whole you can not beat Adobe’s products. I use Adobe’s Premier, Elements, inDesign, Photoshop, Captivate, Acrobat, Sign, amongst others.<br />
<br />
== Podcasts ==<br />
A podcasts that I enjoy:<br />
<br />
* Good Code is a podcast that constantly covers relevant topics..</div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=28Main Page2021-07-03T15:28:10Z<p>Marvin: </p>
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<div>*[[Basics of the Law]]<br />
*[[Basic Legal Skills]]<br />
*[[Basics of the Internet Infrastructure]]<br />
<br />
*[[Contracts]]<br />
*[[Policy Issues]]<br />
*[[Intellectual Property Law]]<br />
*[[Substantive Internet, Machine, Computer, and Privacy Laws]]<br />
*[[Ethics of Internet and Machines|Ethics]]<br />
*[[Dealing with Employees and Internal Business Relations - Internet and Computers|Dealing with Employees and Internal Business Relations]]<br />
<br />
*[[Dealing with third parties]]<br />
*[[Resources for Law Students]]<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=27Main Page2021-07-03T15:28:01Z<p>Marvin: </p>
<hr />
<div>*[[Basics of the Law]]<br />
*[[Basic Legal Skills]]<br />
*[[Basics of the Internet Infrastructure]]<br />
<br />
*[[Contracts]]<br />
*[[Policy Issues]]<br />
*[[Intellectual Property Law]]<br />
*[[Substantive Internet, Machine, Computer, and Privacy Laws]]<br />
*[[Ethics of Internet and Machines|Ethics]]<br />
*[[Dealing with Employees and Internal Business Relations - Internet and Computers|Dealing with Employees and Internal Business Relations]]<br />
<br />
*[[Dealing with third parties]]<br />
*[[Resources of Law Students]]<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Dealing_with_Employees_and_Internal_Business_Relations_-_Internet_and_Computers&diff=26Dealing with Employees and Internal Business Relations - Internet and Computers2021-07-03T15:26:49Z<p>Marvin: Created page with "Employee privacy Intellectual property issues with employees and organizations"</p>
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<div>Employee privacy <br />
<br />
Intellectual property issues with employees and organizations</div>Marvinhttps://marvincable.net/index.php?title=Ethics_of_Internet_and_Machines&diff=25Ethics of Internet and Machines2021-07-03T15:25:56Z<p>Marvin: Created page with "Basic ethical dilemmas Whitehat versus blackhat Whistle blowing"</p>
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<div>Basic ethical dilemmas<br />
<br />
Whitehat versus blackhat<br />
<br />
Whistle blowing</div>Marvinhttps://marvincable.net/index.php?title=Substantive_Internet,_Machine,_Computer,_and_Privacy_Laws&diff=24Substantive Internet, Machine, Computer, and Privacy Laws2021-07-03T15:24:56Z<p>Marvin: Created page with "The Computer Fraud and Abuse Act (CFAA) Health Insurance Portability and Accountability Act (HIPPA) Americans with Disabilities Act (ADA) Digital Millennium Copyright Act (..."</p>
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<div>The Computer Fraud and Abuse Act (CFAA)<br />
<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
<br />
Americans with Disabilities Act (ADA)<br />
<br />
Digital Millennium Copyright Act (DMCA)<br />
<br />
Criminal laws<br />
<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards</div>Marvinhttps://marvincable.net/index.php?title=Intellectual_Property_Law&diff=23Intellectual Property Law2021-07-03T15:23:00Z<p>Marvin: Created page with "Copyright Trademark and unfair business Patent"</p>
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<div>Copyright<br />
<br />
Trademark and unfair business<br />
<br />
Patent</div>Marvinhttps://marvincable.net/index.php?title=Basics_of_the_Internet_Infrastructure&diff=22Basics of the Internet Infrastructure2021-07-03T15:21:56Z<p>Marvin: Created page with "History of the Internet Physical structure of the Internet Governance of the Internet"</p>
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<div>History of the Internet<br />
<br />
Physical structure of the Internet<br />
<br />
Governance of the Internet</div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=21Main Page2021-07-03T15:20:31Z<p>Marvin: </p>
<hr />
<div>*[[Basics of the Law]]<br />
*[[Basic Legal Skills]]<br />
*[[Basics of the Internet Infrastructure]]<br />
<br />
*[[Contracts]]<br />
*[[Policy Issues]]<br />
*[[Intellectual Property Law]]<br />
*[[Substantive Internet, Machine, Computer, and Privacy Laws]]<br />
*[[Ethics of Internet and Machines|Ethics]]<br />
*[[Dealing with Employees and Internal Business Relations - Internet and Computers|Dealing with Employees and Internal Business Relations]]<br />
<br />
*[[Dealing with third parties]]<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=20Main Page2021-07-03T03:42:33Z<p>Marvin: </p>
<hr />
<div>*[[Basics of the Law]]<br />
<br />
*[[Basic Legal Skills]]<br />
<br />
*[[Basics of the Internet infrastructure]]<br />
<br />
*[[Contracts]]<br />
<br />
*[[Policy Issues]]<br />
<br />
*[[Intellectual property law]]<br />
<br />
*[[Substantive Internet, Machine, Privacy, and Computer Laws]]<br />
<br />
*[[Ethics of Internet and Machine|Ethics]]<br />
<br />
*[[Dealing with employees and internal business relations]]<br />
<br />
*[[Dealing with third parties]]<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Dealing_with_third_parties&diff=19Dealing with third parties2021-07-03T03:42:10Z<p>Marvin: Created page with "Subpoenas National Security Letters Requirements for safeguarding data for, and from, third parties Litigation basics"</p>
<hr />
<div>Subpoenas <br />
<br />
National Security Letters <br />
<br />
Requirements for safeguarding data for, and from, third parties Litigation basics</div>Marvinhttps://marvincable.net/index.php?title=Policy_Issues&diff=12Policy Issues2021-07-03T03:39:56Z<p>Marvin: Created page with "Privacy Freedom of speech Open internet / Net neutrality"</p>
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<div>Privacy <br />
<br />
Freedom of speech <br />
<br />
Open internet / Net neutrality</div>Marvinhttps://marvincable.net/index.php?title=Contracts&diff=11Contracts2021-07-03T03:39:24Z<p>Marvin: Created page with "Basics of contract law Common examples of contracts, e.g., employment agreements, work for hire."</p>
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<div>Basics of contract law Common examples of contracts, e.g., employment agreements, work for hire.</div>Marvinhttps://marvincable.net/index.php?title=Basic_Legal_Skills&diff=10Basic Legal Skills2021-07-03T03:38:40Z<p>Marvin: Created page with " IRAC Case Briefing Critical Thinking Critical Reading Citation"</p>
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<div> IRAC<br />
<br />
Case Briefing<br />
<br />
Critical Thinking<br />
<br />
Critical Reading<br />
<br />
Citation</div>Marvinhttps://marvincable.net/index.php?title=Basics_of_the_Law&diff=9Basics of the Law2021-07-03T03:38:16Z<p>Marvin: Created page with "Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them Issues of local, state, federal, and international laws Jurisdiction relate..."</p>
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<div>Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them Issues of local, state, federal, and international laws Jurisdiction related issues</div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=8Main Page2021-07-03T03:37:47Z<p>Marvin: </p>
<hr />
<div>*[[Basics of the Law]]<br />
<br />
*[[Basic Legal Skills]]<br />
IRAC<br />
Case Briefing<br />
Critical Thinking<br />
Critical Reading<br />
Citation <br />
*[[Basics of the Internet infrastructure]]<br />
History of the Internet<br />
Physical structure of the Internet<br />
Governance of the Internet<br />
*[[Contracts]]<br />
Basics of contract law<br />
Common examples of contracts, e.g., employment agreements, work for hire.<br />
*[[Policy Issues]]<br />
Privacy<br />
Freedom of speech<br />
Open internet / Net neutrality<br />
*[[Intellectual property law]]<br />
Copyright<br />
Trademark and unfair business<br />
Patent<br />
*[[Substantive Internet, Machine, Privacy, and Computer Laws]]<br />
The Computer Fraud and Abuse Act (CFAA)<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
Americans with Disabilities Act (ADA<br />
Digital Millennium Copyright Act (DMCA)<br />
Criminal laws<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards<br />
We will study other sets of laws, too, depending on class interest<br />
*[[Ethics of Internet and Machine|Ethics]]<br />
Basic ethical dilemmas<br />
Whitehat versus blackhat<br />
Whistle blowing<br />
*[[Dealing with employees and internal business relations]]<br />
Employee privacy<br />
Intellectual property issues with employees and organizations<br />
*[[Dealing with third parties]]<br />
Subpoenas<br />
National Security Letters<br />
Requirements for safeguarding data for, and from, third parties<br />
Litigation basics<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=7Main Page2021-07-03T03:37:17Z<p>Marvin: </p>
<hr />
<div>*[[Basics of the Law]]<br />
Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them<br />
Issues of local, state, federal, and international laws<br />
Jurisdiction related issues<br />
*[[Basic Legal Skills]]<br />
IRAC<br />
Case Briefing<br />
Critical Thinking<br />
Critical Reading<br />
Citation <br />
*[[Basics of the Internet infrastructure]]<br />
History of the Internet<br />
Physical structure of the Internet<br />
Governance of the Internet<br />
*[[Contracts]]<br />
Basics of contract law<br />
Common examples of contracts, e.g., employment agreements, work for hire.<br />
*[[Policy Issues]]<br />
Privacy<br />
Freedom of speech<br />
Open internet / Net neutrality<br />
*[[Intellectual property law]]<br />
Copyright<br />
Trademark and unfair business<br />
Patent<br />
*[[Substantive Internet, Machine, Privacy, and Computer Laws]]<br />
The Computer Fraud and Abuse Act (CFAA)<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
Americans with Disabilities Act (ADA<br />
Digital Millennium Copyright Act (DMCA)<br />
Criminal laws<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards<br />
We will study other sets of laws, too, depending on class interest<br />
*[[Ethics of Internet and Machine|Ethics]]<br />
Basic ethical dilemmas<br />
Whitehat versus blackhat<br />
Whistle blowing<br />
*[[Dealing with employees and internal business relations]]<br />
Employee privacy<br />
Intellectual property issues with employees and organizations<br />
*[[Dealing with third parties]]<br />
Subpoenas<br />
National Security Letters<br />
Requirements for safeguarding data for, and from, third parties<br />
Litigation basics<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=6Main Page2021-07-03T03:23:59Z<p>Marvin: </p>
<hr />
<div>==Basics of the law==<br />
Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them<br />
Issues of local, state, federal, and international laws<br />
Jurisdiction related issues<br />
==Basic Legal Skills==<br />
IRAC<br />
Case Briefing<br />
Critical Thinking<br />
Critical Reading<br />
Citation <br />
==Basics of the Internet==<br />
History of the Internet<br />
Physical structure of the Internet<br />
Governance of the Internet<br />
==Contracts==<br />
Basics of contract law<br />
Common examples of contracts, e.g., employment agreements, work for hire.<br />
==Policy Issues==<br />
Privacy<br />
Freedom of speech<br />
Open internet / Net neutrality<br />
<br />
== Intellectual property law ==<br />
Copyright<br />
Trademark and unfair business<br />
Patent<br />
<br />
== Substantive Laws ==<br />
The Computer Fraud and Abuse Act (CFAA)<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
Americans with Disabilities Act (ADA<br />
Digital Millennium Copyright Act (DMCA)<br />
Criminal laws<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards<br />
We will study other sets of laws, too, depending on class interest<br />
==Ethics==<br />
Basic ethical dilemmas<br />
Whitehat versus blackhat<br />
Whistle blowing<br />
==Dealing with employees and internal business relations==<br />
Employee privacy<br />
Intellectual property issues with employees and organizations<br />
==Dealing with third parties==<br />
Subpoenas<br />
National Security Letters<br />
Requirements for safeguarding data for, and from, third parties<br />
Litigation basics<br />
<youtube>gpvcc9C8SbM</youtube></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=5Main Page2021-07-03T03:16:09Z<p>Marvin: </p>
<hr />
<div>==Basics of the law==<br />
Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them<br />
Issues of local, state, federal, and international laws<br />
Jurisdiction related issues<br />
==Basic Legal Skills==<br />
IRAC<br />
Case Briefing<br />
Critical Thinking<br />
Critical Reading<br />
Citation <br />
==Basics of the Internet==<br />
History of the Internet<br />
Physical structure of the Internet<br />
Governance of the Internet<br />
==Contracts==<br />
Basics of contract law<br />
Common examples of contracts, e.g., employment agreements, work for hire.<br />
==Policy Issues==<br />
Privacy<br />
Freedom of speech<br />
Open internet / Net neutrality<br />
<br />
== Intellectual property law ==<br />
Copyright<br />
Trademark and unfair business<br />
Patent<br />
<br />
== Substantive Laws ==<br />
The Computer Fraud and Abuse Act (CFAA)<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
Americans with Disabilities Act (ADA<br />
Digital Millennium Copyright Act (DMCA)<br />
Criminal laws<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards<br />
We will study other sets of laws, too, depending on class interest<br />
==Ethics==<br />
Basic ethical dilemmas<br />
Whitehat versus blackhat<br />
Whistle blowing<br />
==Dealing with employees and internal business relations==<br />
Employee privacy<br />
Intellectual property issues with employees and organizations<br />
==Dealing with third parties==<br />
Subpoenas<br />
National Security Letters<br />
Requirements for safeguarding data for, and from, third parties<br />
Litigation basics<br />
<iframe width="560" height="315" src="https://www.youtube.com/embed/gpvcc9C8SbM" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe></div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=4Main Page2021-07-03T02:59:04Z<p>Marvin: </p>
<hr />
<div>==Basics of the law==<br />
Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them<br />
Issues of local, state, federal, and international laws<br />
Jurisdiction related issues<br />
==Basic Legal Skills==<br />
IRAC<br />
Case Briefing<br />
Critical Thinking<br />
Critical Reading<br />
Citation <br />
==Basics of the Internet==<br />
History of the Internet<br />
Physical structure of the Internet<br />
Governance of the Internet<br />
==Contracts==<br />
Basics of contract law<br />
Common examples of contracts, e.g., employment agreements, work for hire.<br />
==Policy Issues==<br />
Privacy<br />
Freedom of speech<br />
Open internet / Net neutrality<br />
<br />
== Intellectual property law ==<br />
Copyright<br />
Trademark and unfair business<br />
Patent<br />
<br />
== Substantive Laws ==<br />
The Computer Fraud and Abuse Act (CFAA)<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
Americans with Disabilities Act (ADA<br />
Digital Millennium Copyright Act (DMCA)<br />
Criminal laws<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards<br />
We will study other sets of laws, too, depending on class interest<br />
==Ethics==<br />
Basic ethical dilemmas<br />
Whitehat versus blackhat<br />
Whistle blowing<br />
==Dealing with employees and internal business relations==<br />
Employee privacy<br />
Intellectual property issues with employees and organizations<br />
==Dealing with third parties==<br />
Subpoenas<br />
National Security Letters<br />
Requirements for safeguarding data for, and from, third parties<br />
Litigation basics</div>Marvinhttps://marvincable.net/index.php?title=Main_Page&diff=3Main Page2021-07-03T02:57:55Z<p>Marvin: </p>
<hr />
<div>==Basics of the law==<br />
Laws, statutes, regulations, common law, stare decisis, treaties, and the interactions between them<br />
Issues of local, state, federal, and international laws<br />
Jurisdiction related issues<br />
==Basic Legal Skills==<br />
IRAC<br />
Case Briefing<br />
Critical Thinking<br />
Critical Reading<br />
Citation <br />
==Basics of the Internet==<br />
History of the Internet<br />
Physical structure of the Internet<br />
Governance of the Internet<br />
==Contracts==<br />
Basics of contract law<br />
Common examples of contracts, e.g., employment agreements, work for hire.<br />
==Policy Issues==<br />
Privacy<br />
Freedom of speech<br />
Open internet / Net neutrality<br />
==Intellectual property law<br />
<br />
Copyright<br />
Trademark and unfair business<br />
Patent<br />
Substantive Laws==<br />
The Computer Fraud and Abuse Act (CFAA)<br />
Health Insurance Portability and Accountability Act (HIPPA)<br />
Americans with Disabilities Act (ADA<br />
Digital Millennium Copyright Act (DMCA)<br />
Criminal laws<br />
Laws dealing with protection of private information, e.g., social security numbers, credit cards<br />
We will study other sets of laws, too, depending on class interest<br />
==Ethics==<br />
Basic ethical dilemmas<br />
Whitehat versus blackhat<br />
Whistle blowing<br />
==Dealing with employees and internal business relations==<br />
Employee privacy<br />
Intellectual property issues with employees and organizations<br />
==Dealing with third parties==<br />
Subpoenas<br />
National Security Letters<br />
Requirements for safeguarding data for, and from, third parties<br />
Litigation basics</div>Marvin