Lopez on the Law: Illegal Immigration: Economic, Social and Ethical ...

Lopez on the Law: Illegal Immigration: Economic, Social and Ethical ...: My article, Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal S...

Lopez on the Law: Leading the World in the Wrong Direction: Is It Ti...

Lopez on the Law: Leading the World in the Wrong Direction: Is It Ti...: In nearly all countries around the world, the loser in a civil law suit has to reimburse either all or at least a significant part of the re...

Leading the World in the Wrong Direction: Is It Time for the United States to Adopt the World Standard "Loser Pays" Rule in Civil Litigation?

In nearly all countries around the world, the loser in a civil law suit has to reimburse either all or at least a significant part of the reasonable legal expenses of the prevailing party. This is commonly referred to as the "loser pays" rule and helps to discourage litigation--especially litigation of questionable merit as plaintiffs are less likely to sue if they know they will have to pay both their own legal fees and that of the winner if they do not prevail. The United states also conformed to this rule which we commonly refer to as the "British Rule" --  which is itself a misnomer since it is not only the rule in Great Britain but also in nearly all world jurisdictions. By contrast, the "American Rule"  requires each party to pay their own legal expenses whether they win or lose in court.

The genesis of the rule can be traced to the American Colonies and was directly related to allowing lawyers to raise their legal fees without fear that higher fees discouraging litigation by individuals who might fear having to pay not only their own (now higher) legal fees, but also those of the other party if they did not prevail in court. Today the debate is largely framed on "access to justice" arguments by scholars and practitioners who support the status quo.  The argument is that if the loser must pay the reasonable legal fees fees of the winner (in whole of in part), then persons of limited means may be discouraged from suing out of fear that they could not afford to lose in court.

Reasonable people may differ on whether the "American Rule" benefits society or merely lawyers who unquestionably are the intended and primary beneficiaries of a rule invented by them and for their benefit in pre-revolutionary colonial days. A good friend and colleague at Hofstra University's Frank G. Zarb School of Business, Eugene T. Maccarrone, and I co-authored a paper on the subject that should be required reading for all informed Americans on an issue that not only helps to maintain our dubious status as the most litigious nation on the face of the earth while inflating the cost of litigation and contributing to the backlog of cased in civil courts that require a delay of up to five years before a civil case ever gets to trial. The article was published in Vol 32 of the North East Journal of Legal Studies (NEJLS) pp. 1-20 (Fall of 2014). This double-blind, peer reviewed journal was previously available by subscription only to law schools and universities but, thanks to the efforts of its Editor in Chief, Dr. Sharlene A. McEvoy of Fairfield University, an electronic copy of the journal  is now also available free of charge in electronic PDF format at this link: http://nealsb.info/j2014.html.

I urge you to read the article in its entirety and to forward it to anyone who may be interested as the issue is unlikely to be aired publicly outside of academic circles--and not even there.

Unauthorized Practice of Law in the U.S.: A Survey and Brief Analysis of the Law

The practice of law in the United States is very different from that in every other country, especially countries that are not former colonies of Great Britain and therefore follow the world-standard civil law system rather than the common law system that has its roots in England. As a result, the U.S. does not have a unified system of law and the law changes from jurisdiction to jurisdiction from state to state and even from federal circuit to federal circuit in significant ways. As a result, the practice of law is much more complicated in the U.S. than in most other countries, including Great Britain and her other former colonies. We have more lawyers and more litigation per capita than just about anywhere else on earth not because of the cultural or psychological reasons sometimes attributed by commentators, but rather because our system is designed on an adversarial model where lawyers (and only lawyers) are allowed to provide legal advice and representation  on both complex and routine matters that are often handled by (much less expensive) non-lawyer paraprofessionals in most other parts of the world. Indeed, representing another person or even giving legal advice is a misdemeanor or felony in most every state that can result in criminal prosecution and jail time. For a full discussion of the issue you can read an article I published in the North East Journal of Legal Studies in Fall 2011 edition (pages 60-84). The journal has recently been digitized and is now available free of charge online as well as in its original bound edition. The automated digitizing process introduced some minor glitches but the article is quite legible and I am grateful that it is now available beyond law libraries to the general public. You can access the volume in question at the following link (click on my name or the article's name from the link that follows and the appropriate volume will be downloaded in PDF format): http://nealsb.info/j2011.html

Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal Studies (Victor D. Lopez, NEJLS Vol 29, 45 (2009)

My article, Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal Studies (NEJLS), can now be accessed in its entirety in digitized form as well as in the original printed journal courtesy of NEJLS. You can click on the link below and then on the article’s title to access the article free of charge.

http://nealsb.info/j2009.html

Illegal Immigration: The Ongoing Debate

In 2013 I published a paper in an international peer-reviewed journal, “Dealing with Uninvited and Unwelcomed Guests: a Survey of Current State Legislative Efforts to Control Illegal Immigration Within Their Borders” (Int. J. Public Law and Policy, Vol. 3, No. 1, 2013). At the time, the U.S. Supreme Court had not yet weighed in on the Constitutionality of state efforts to enforce federal immigration law in answer to the Obama Administration’s refusal to enforce the law. (No president from Reagan through Obama has made any significant effort to enforce the law, which explains why after President Reagan provided a general amnesty to most illegal aliens, effectively reducing the number of illegal immigrants to near zero during his time in office, we find ourselves with more than 12 million illegal aliens today.)

When the Obama administration challenged the Constitutionality of Arizona’s efforts to enforce federal immigration law within its borders, the U.S. Supreme Court ruled most (but not all) such efforts to be Unconstitutional, holding that only the federal government (read: Congress, the legislative branch) can set immigration law and only the federal government (read: the President, the executive branch) can enforce federal law.

Leaving aside for the moment the  legality of an executive order that prevents enforcement of current immigration law for 5 million illegal immigrants, permitting them to stay and work in the U.S.  in direct violation of current immigration law, it is a good idea for the general public to have access to accurate information as to the legal issues involved so that they may make make an informed decision on both the legal and social issues involved for themselves rather than formulating an opinion based on the conflicting views expressed by legal experts in two-minute segments on the evening news or cable news channels. 

The issue is far from settled, but one thing is clear: if we do not learn the lessons taught by the unintended consequences of failed previous attempts at immigration reform, we are doomed to repeat them. If we have learned nothing from Reagan’s blanket amnesty which at least had the benefit of having been achieved through legal, Constitutional channels (e.g., an act of Congress signed by the President (rather than by an executive order or questionable validity issued by a petulant President upset at having his ideology soundly rejected in the 2014 midterm elections) in the 1980′s we will once again most likely triple the current numbers of illegal aliens in the next 30 years if another blanket amnesty is given (and amnesty is what is at issue here, by whatever name and means it is effectuated).

Reasonable people may differ on this as in most any controversial social or political issue.  I welcome a reasonable debate based on the facts and an ensuing immigration reform that is implemented in adherence to the required Constitutional process. Whatever else may be open to rational debate, the Constitutional process for passing laws at the federal level is well settled and beyond dispute: a bill is approved by both the House of Representatives and the Senate and is then signed into law (or vetoed) by the President. There is also no dispute as to whosae prerogative it is to set immigration and naturalization law in the U.S. as that power is exclusively given to Congress in Article I Section 8 of the U.S. Constitution.

For my part, I’ve published two scholarly articles on the issue of illegal immigration in peer-reviewed law journals the past five years that are relevant to the current debate. In the future, when my research agenda permits it, I intend to write a general reference guide to immigration law. For now, you can find the text of the entire article referenced above at the publisher’s site by clicking on this link and then on the PDF or HTML versions of the article from the Journal's main page. (You may also cut and paste the following URL to your browser: http://inderscience.metapress.com/content/35147130346915u6/

A second earlier article on the subject,  “Illegal Immigration: Economic, Social and Ethical Implications” Victor D. Lopez, North East Journal of Legal Studies, 22 (Fall 2009), 45-65 (2009), is only available in print and not online at this time. I will obtain permission from the NEJLS to reprint it here and/or on my primary blog at victordlopez.com in the near future. [UPDATE:: The article has been digitized by NEJLS and is now also available for free download at http://nealsb.info/j2009.html]

Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets [Brief excerpt from Chapter 1: A Brief Introduction to American Law]

Chapter 1: A Brief Introduction to U.S. Law [Excerpt]

            Before delving into the various aspects of intellectual property law that are the focus of this book, it would be useful to briefly explore some general background information about the unique nature of law in the United States that must be kept in mind by any lay person trying to obtain information about any substantive or procedural area of law.

                                  The Common Law and Civil Law Traditions

            In order to understand our system of law and some of the unique challenges it presents for anyone seeking to acquire functional legal literacy, we should begin by understanding what makes our legal system different and more complex than that of most other nations.  A good place to begin is with a brief introduction into the two major competing systems of law around the world, the civil law and common law systems.

The Civil Law Tradition

            The oldest and overwhelmingly prevalent system of law is the civil law system that dates back more than four thousand years. Under the civil law system, law is passed down from the lawgiver (the king, or a legislative body) to the people and is strictly enforced by judges whose job it is to enforce the law. Traditionally under civil law systems, judges act as finders of fact and apply the law as written in deciding cases before them. They have little power to question, reverse, expand or define the law as they decide cases as that function is reserved to the lawgiver (e.g., the ruler or a legislative body appointed by the ruler to oversee that function).

            Traditionally, the civil law system required laws to be written down in a public place in clear language so that they could be understood by the common citizenry. The most famous comprehensive codification of law under this legal tradition dates back to the Code of Hammurabi, an ancient Babylonian king who ruled from approximately 1792 B.C. to 1750 B.C. in ancient Babylonia (modern day Iran). The Code of Hammurabi was chiseled on a massive cylindrical stone more than seven feet in height and contained 282 laws covering a variety of subjects.[1] The Code was also available on clay tablets, some fragments of which also survived to this day. The stele containing the Code of Hammurabi or clay tablets containing the Code would have been available in strategic locations for public viewing so that Hammurabi’s subjects could know the law and be held accountable for its breach. The concept of chiseling the law onto stone is also a good metaphor for the permanence and immutable nature of law, which for Hammurabi was divinely inspired and intended to reflect universal, permanent ideals of justice.

            The same tradition of writing down the law and making it accessible to the people who were expected to abide by it continued under the Twelve Tables of Roman law where, in 450 B.C., twelve bronze tablets specifying a code of law applicable in the Roman Empire were attached to the orator's platform on the Roman Forum in an attempt to make the law accessible to all Roman citizens. These bronze tablets would have been found around the orator’s platforms in any Roman city where the citizens of Rome could presumably consult the law throughout the empire. And the tradition was continued  by the Byzantine Emperor Justinian I who in 533 A.D. integrated 1000 years of Roman law into a single code that he called Corpus Juris Civilis--the body of civil law—and is now commonly referred to as the Justinian Code. The most notable attempt in modern times to codify the law into a comprehensive civil code was carried out by a commission appointed by Napoleon Bonaparte in 1800 that resulted in the 1804 Code Civil, more commonly referred to as the Napoleonic Code.

            The common thread that binds the civil law tradition from its earliest roots through the modern day is the idea that the law must be written down and made available to the people in language that they can understand. Although much has changed since Hammurabi’s time, and the law has grown increasingly complex in civil law jurisdictions as well as common law jurisdictions, as a general rule, law still changes slowly over time in civil law jurisdictions, is more accessible, predictable and easier to understand in civil law jurisdictions than in common law jurisdictions. And as a rule, making law is still in the hands of legislators, not judges.

The Common Law Tradition

            The civil law tradition never took hold in England. Whether because of its status as an island nation or lack of strong unifying kings before being incorporated into the Roman Empire, law in England was regional in nature, changing from location to location in keeping with the local customs, traditions and wisher of the local rulers. After the fall of the Roman Empire, England returned to its common law roots. When William I (William the Conqueror) completed the Norman conquest of England in 1066, he found a country without a centralized system of law and set about to consolidate English law into a unified body of law that could be applied throughout the realm. He established the King's Court (Curia Regis) as an advisory body to the barons. The court had both legislative and judicial powers that eventually led to the development of Parliament and the English court system. He also created the first circuit judge system, where royal judges traveled from district to district on a set route to hear cases in local courts. These circuit judges first began writing down their decisions to serve as guidelines for local magistrates and themselves in future cases. This tradition of writing down decisions to serve as guidelines, or precedent, for deciding future cases formed the basis for our modern common law system. Unlike civil law systems in which judges apply the law to cases before them, judges in common law systems make law as they decide cases, defining, creating and changing the common law in the course of handing down decisions that become precedent for other future cases.

            The English common law system was exported to the former British colonies, including The United States. While the rest of the world largely follows the civil law system, The United States and the former colonies of Great Britain generally follow the common law system. Also unlike judges in most civil law jurisdictions who generally have little power or discretion to interpret or nullify laws passed by legislative bodies, judges in the United States have a great deal of power to reinterpret or nullify the laws passed by federal and state legislative bodies based on their interpretation of the U.S. Constitution and the state constitutions.

---

[1] An English translation of the Code of Hammurabi by L.W. King is available at http://avalon.law.yale.edu/ancient/hamframe.asp

[ ***** End of preview ***** ]

The above is a brief excerpt from Chapter 1 of Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets  (C) 2011 Victor D. Lopez. All rights reserved.