For example, if an amendment is adopted that requires all citizens to hop on one foot for 1 hour on every second Friday, would it be upheld by the courts? Even if it is nonsensical or unenforceable? The claim "it is unconstitutional" wouldn't ho...
In a republic, absolute power is unconstitutional.
First, the constitution provides inherent checks and balances upon the authority of government, and it has been well settled since Marbury v. Madison (1803) that courts may interpret the scope of the constitution and scrutinize any statement or action claimed to be law (including a statement within the constitution). See e.g., Jacobson v. Massachusetts, "There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will." 197 U.S. 11, 29 (1905).
Second, every law must at least meet what is called the "rational basis" test. This means that if a written law is grossly illogical and has no rational basis for meeting a governmental interest, then it is void on its face. This rule applies to constitutions as well as statutes (remember that the US constitution does not exist in a vacuum but rather in a republican government it must be interpreted in light of State constitutions (powers of the States) and the rights of people). Moreover, any rule that infringes fundamental rights/liberties is subjected to more than just the rational basis test (so, a law requiring mandatory hopping exercises and otherwise infringing fundamental liberty is unconstitutional because it is not narrowly written to accomplish a compelling government purpose ). The concurring opinion of Stevens in New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) quoted comically the low bar of most laws ("The Constitution does not prohibit legislatures from enacting stupid laws."), but Stevens is not empowered to claim a grossly illogical/unjust law is unassailable. See the legal citations in this post for confirmation.
Third, under national and international law, courts and officers are not authorized to work an inequity. Equity is another word for 'fairness', but it also invokes the common law principle of traditional justice and common sense. So the answer here is that the ridiculous and oppressive law would be unenforceable. See, Discretion to Disobey, A Study of Lawful Departures from Legal Rules (1973); see also, Uniform Code of Military Justice (UCMJ) 809 Art. 90, specifying that military personnel are only asked to obey a "lawful" command or order of a superior officer. International Human Rights Standards for Law Enforcement, A Pocket Book on Human Rights for the Police ("Officials who refuse unlawful superior orders shall be given immunity.") The ancient principle comes from "lex injusta non est lex,” meaning an unjust law is not a law. See also, Norton v. Shelby County, 118 US 425 (1885), "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Learn from the Nuremberg trials too - a law derives its authority from its virtue, not its mere issuance. Another example - the law of equity allows courts to strike (or narrowly interpret) a provision from any document or law when it is in conflict with another provision of the same document. In order to decide which provision to strike, the court must first determine how to reach a fair and equitable outcome. I have never found any statement in any court case where the judge even attempted to say that the constitution trumps the law of equity or permits injustice.
Third, under the due process clause, a law can be invalidated if men of ordinary intelligence are not able to discern its meaning and application. See e.g., Winters v. New York, 333 U.S. 507. While this standard of intelligence has traditionally been applied to laws that are overly vague or enforced inequitably, it finds application here by virtue of the related rules of judicial scrutiny discussed above.See question
Congress passed a law entitled "just stay in school" prohibiting the non-mainstream religious organizations from distributing church propaganda withing 500 feet of any public school. congress justified the regulation based on th commerse clause of...
For a somewhat similar case challenging commerce clause authority over a constitutionally protected activity near a public school, you can look to the Supreme Court's decision in United States v. Lopez - 514 U.S. 549 (1995). In that case, the Court examined possession of a firearm within a certain number of feet of a school zone.
Even in the Lopez case, the commerce clause was interpreted very expansively (albeit in the process of providing a nominal-type of test/limit upon the clause). You can trace the modern history of the commerce clause back to the 'New Deal' presented by FDR.See question
Is the 'severability clause' which states that 'if any provision is rendered illegal or invalid or unenforceable, all other parts shall remain in full force and effect" helpful to ensure enforceability of such other provisions?
Christine is correct. And indeed, these clauses have become so common that some courts have applied the 'severability clause' principle as a matter of contract law even when the clause is not actually present in the contract. Sometimes it is referred to as an 'equitable doctrine' because it has created a contract law principle that has such a strong cross-over with the law of equity (applied to damages and enforcement).
In a nutshell, if a court is going to enforce a contract it will not strike or add provisions that materially rewrite the terms of the deal. By contrast, in assessing damages (or otherwise enforcing the contract) a court may add or delete a provision to contractually or equitably achieve the 'benefit of the bargain.' So at the performance/enforcement stage, we ask 'what is the illegal/invalid' provision that must be severed? Does it materially affect the deal? Can the court narrowly write an order striking or adding provisions here without creating an injustice? You see, if changing the contract would work an 'inequity' then even the 'severability clause' is of questionable enforcement.
The law of equity is very interesting. You might even say 'equity' is among the supreme laws of the land, at least on the matter of contract enforcement.See question
Like how they overmedicate children or how they take children when there is no abuse or neglect. Can a gag order be placed against me if I write the truth about CPS on my website?
1st Amendment freedom of speech ensures that it is very difficult for courts to issue gag orders on speech. This area of law is called "prior restraint", and gag orders are only 'authorized' for clear and present danger of a very serious nature, such as 'national security', to ensure 'fair trials', and apparently some 'copyright violations'. Here is a useful initial resource: http://www.rcfp.org/handbook/?pg=5-1
This legal area of 'prior restraint' has developed over the years as zealous courts have issued many gag orders by extending/testing the exceptions to prohibitions on prior restraint, including the 'fair trial' exception.
Indeed, this area of law involves a struggle between freedom of the press (including citizen journalism) and the power of the judiciary. It probably feels ironic that you need the courts to protect you from the courts, but I'm not sure there is any better method. The bright light of the media and public discourse is embraced by constitutional checks and balances. If your website is presenting factual evidence in a credible manner, it should attract attention in time.
And on that note, be careful with your "truth". Legal conclusions are often just extensions of a rant. Focus on hard evidence instead. It is far more defensible for a court to place a gag order on this statement, "Judge Evil is a lying, kidnapping, murderer" as compared to this statement "In the case of John M. v. State, the judge excluded the following key testimony by the victim ..."See question
Dear Sir/Madam, Now that I have graduated from medical school, I wish to start a website to help the uninsured, economically challenged, or people who simply want a second opinion have an avenue to ask their health related questions. This webs...
With full disclosure of your credentials, self-control in your statements, and consistent disclaimers, you should be fine.
You can learn from the disclaimer provided by NaturalNews.com, "NaturalNews cannot offer medical advice of any kind. If you have a personal health question, please consult a qualified naturopathic health practitioner in your area."
The medical establishment has placed a monopoly on the phrase "medical advice", but its doppelganger "medical information" is generally okay (the constitutional republic apparently hasn't been completely discarded in this country).
Each State will have its own Medical Board that may interpret these terms (advice and information) differently. See for example, California B&P Code sections 2052 and 2400. So there is a quantum of risk to navigate here that simply comes with the territory (of every State in which you transmit your website information).
Here are three main criteria that courts in America generally use to distinguish between 'clinical advice' and 'medical information': (1) direct or personal communication between patient and provider; (2) provision of professional judgment tailored to the patient’s particular medical circumstances and information provided by the patient; and (3) closure to the encounter or sufficient information for the patient to act without seeking further medical advice.
If it existed 2,000 years ago, would the medical board of California have imprisoned the biblical messiah for being unlicensed: http://www.mbc.ca.gov/licensee/corporate_practice.htmlSee question
My lease states my security deposit is held by the Owner, but I don't have any information on the Owner. I deal with a Property Manager (PM). The PM informs me the Owner is responsible for the return of my deposit as stated in my lease. This is...
No, the property manager is not obligated to provide you that information. The PM is the owner's designated agent, and so the Owner's effective contact information is the PM. Moreover, the PM probably has a special duty to the owner (given the terms of the agency) to respect his/her privacy. Accordingly, unless your lease specifies that you have a right to the owner's personal contact information, you have assumed the risk of your present situation.
There are several references to contact information in California Civil Code section 1950.5 (security deposits), but there is no requirement that the tenant receive the owner's personal contact information. Compare the State of Washington, which does require information about the location of the security deposit by regulation: RCW 59.18.270 (and 2011 amendments).
Indeed, recently the California Legislature was considering provisions of a proposed bill that would have required that tenants receive a copy of a Notice of Default (prior to foreclosure). Certain members of the legislature were concerned that sending a copy of the Notice of Default would violate the landlord's privacy.
Self help: the Deed and Notice of Default on your property are public records. They might have the Owner's contact information. Or they may just list the property manager's information.
Self help: deal politely and respectfully with the property manager. Give them the opportunity to comply with the Civil Code, and your expectations may be promptly fulfilled.See question
I went to take care of my dad when he was sick. He asked me to run errands for him. I paid his real estate taxes and noticed only his name was on the deed, when I asked why, dad said he didn't trust her. It's been a week since he died and her firs...
When you reference the 'address line', please confirm whether that is the address line in the very top left corner of the first page of the deed? If so, that spot is generally reserved just for identifying the party who receives tax statements or who prepared the deed. Usually it will say, "Prepared by" or "Mail Tax Statements to". That corner is not the place to identify the legal owner of the property.See question
I heard people says quitclaim deed is no good because it doesn't proof you own the property. Is this true? But if I use grant deed, how does it affect my lender?
When transferring real property into a revocable living trust, the best practice is to use a template with this title, "grant deed (trust transfer)". If you are unfamiliar with how to complete this deed (and the PCOR you'll use when recording it with your local county), I suggest hiring a local attorney to assist you.
Note: quitclaim deeds are fine proof that a person owns property. The general reason quitclaim deeds are not used more frequently in real property transfers is due to the difficulty (or increased expense) in obtaining title insurance when closing escrow on certain properties.See question
I'm starting a similar site (non-competitive) and I'd like to make sure that the participating experts will not be liable for answers. All of the questions will be submitted as <140 character question and the answer will always be given on the ph...
Follow-up questions: Does the asker pay for the service? Do the parties both know the other's identity? Is there a time-limit to the calls?
For starters, you will need to identify each set of ethical rules and professional standards of conduct (i.e., for attorneys see B&P Code section 6000 et seq.) governing your experts. Then you analyze the individual types of liability at issue: referral, tort, contract.
Depending on the nature of your website/service, a useful disclaimer might be "Your telephone consultation is not equivalent to contractual engagement or representation. All participating parties agree that contractual engagement or representation may not be established by anything less than a formal, written and individualized agreement. Indeed, unless you receive an individualized written agreement from another party, you are specifically advised that no contractual engagement or representation has been created with that party. Moreover, receipt of information through this website and service is not equivalent to contractual engagement or representation by any party. All content and information provided through this website and service is provided for general informational purposes only."
Note however that the ethical rules and statutes (and any court cases interpreting those rules) can trump even a well written disclaimer. And given the way you described your service (with phone call answers), it is difficult to imagine proceeding without risk of liability. It's just about managed risk...
To show that you have a complex question, let's just consider the example of attorneys. In order for a person to establish liability, there must be 'duty' (between the parties) and sufficiently direct 'causation' (of harm).
Regarding 'duty' for lawyers:
It can come by contract or law. For contract, you can analyze express contracts (oral and written) and implied contracts (by conduct, promissory estoppel). And for law, you analyze the ethical rules set by the Bar and the B&P rules set by the State legislature...
According to California Ethics rules, and court cases (see e.g., Responsible Citizens v. Superior Court (5th Dist. 1993) 16 Cal.App.4th 1717), the existence and nature of an implied contract for an attorney-client relationship is determined by the totality of the circumstances, including the parties conduct. Moreover, a lawyer owes certain duties (i.e., confidentiality) to a person who consult with the lawyer concerning legal representation, even though no actual retention of the lawyer is made or payment of legal fees is paid. See e.g., Beery v. State Bar (1987) 43 Cal.3d 802.
Advice generally needs to be very specific and direct, and come with some form of personal promise of a professional relationship, in order to begin to establish the element of causation. Indeed, most individuals would not presume that online advice meets the test of Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, that the general requirement for an implied attorney-client relationship is that the attorney's conduct must create a reasonable belief that the attorney has accepted representation. Additional resources: http://www.law.cornell.edu/ethics/ca/narr/CA_NARR_1_02.HTM
Note: in regards to the recording of phone calls, there are several other legal topics and issues to consider (i.e., confidentiality, privacy, notice, record-keeping).
I expect you'll need an attorney on this project to assist with legal compliance. Please note that this response does not equate with legal yada yada yada.See question
I don't think that there was a written will. He does have a bacnk account and 2 life insurance policies. Also, a house that is paid for which we are renting out. I don't even know where to start and I"ve heard that an attorney will end up costi...
Basic living trusts are routinely handled without the assistance of an attorney. This guide from Nolo can provide a helpful place to start: http://www.nolo.com/products/the-trustees-legal-companion-TRUG.htmlSee question