Law In Most States Research Articles

THE STATE AND FEDERAL HIGH COURTS’ JURISDICTION OVER BANKER-CUSTOMER DISPUTE FROM THE PRISM OF DECIDED CASES: WHITHER THE MAGISTRATE COURT’S JURISDICTION

The Magistrate Court Law of most States in Nigeria, (including Oyo State) gives themjurisdiction over tortious acts of which detinue is one. Thus, where a bank customer, mistakenly makes an intra or interbank transfers to a wrong account whereof the money is withheld by the bank, and the withheld amountis within the monetary jurisdiction of the Magistrate Court, the customer, usually brings an action in detinue for the bank to release the money to him/her. This is usually donenotwithstanding that both the Supreme Court of Nigeria (SCN) and Court of Appeal (CA) have held that the State and Federal High Courts’ have concurrent jurisdiction over banker-customer disputes.This paper, adopts desk-based method in interrogating the jurisdiction of the Magistrate Court of Oyo State under the Oyo State Magistrate Court Law, 2011 vis-à-vis the jurisdiction of the State and Federal High Courts over banker-customer dispute based on decided cases to determine whether there is any conflict. It argues that the cases in which the SCN and CA have held that the State and Federal High Courts have and exercises concurrent jurisdiction over banker-customer disputes, were decided without reference to the jurisdiction of other equally competent courts including the Magistrate Court of Oyo State (and other States as well).It found that there is not jurisdictional conflict between these courts in relation to banker-customer disputes but symbiotic. The paper makes vital recommendations before concluding.

MORAL ASPECTS OF DUTY AS A VALUE

Law and morality are integral and important components of modern society and play an important role in regulating relations within it. Norms of law and morality are closely intertwined in the process of social regulation, which determines the mutual influence on the essential content of each of them. The interaction of the two categories is reflected in the fact that the law contributes to the realization of moral principles in the minds of all members of society, in turn, under the influence of moral requirements, the law is constantly improved and increases its role as a social regulator of social relations. In addition, the interaction of morality and law is manifested in the fact that today both the national law of most states of the world and international law use such well-known principles as humanism, justice, equality, integrity, which are a reflection of the influence of moral principles on the formation of law in general. In other words, legal norms, in order to ensure the effectiveness of their action, respond to the moral requirements of modern society, reflecting them in their content. It is no less important to pay attention to the implementation of moral aspects in the formulation of legal obligations incumbent on citizens, since the level of their implementation and compliance directly depends on the level of implementation of moral principles and values prevailing in society. Regarding the moral aspects of duty as a value, it is worth noting that the process of formation of a legal duty was closely related to the precepts of morality, which was also reflected in the modern interpretation of duties. That is why we consider it expedient to investigate legal duty as a value for the presence of moral aspects in it and the importance of moral aspects in modern legal duty.

Legality of Applying Coercive Medical Measures in Criminal Law

The objective of the study was to determine the legality of the application of coercive medical measures and to develop recommendations to improve the legislative regulation of their use. The study included data on the number of offenders with mental disorders; the empirical background was the decision of the European Court of Human Rights on the application of coercive medical measures; provisions of the legislation of 31 countries. Methods of system approach, comparison, descriptive analysis, pragmatic approach, prognosis were used. The national criminal law of most states regulates the application of coercive medical measures to persons who have committed a crime in a state of limited sanity or insanity or have acquired it before sentencing or during the execution of the sentence, but its practical application causes several complications. It is concluded that the legislative definition of coercive medical measures corresponds to human rights legislation. But there are problems with its practical application. Proposals were made to amend national and international legislation: to broaden the range of grounds for the application of coercive medical measures; regulate the possibility of early termination of a coercive medical measure; oblige the courts to determine the appropriate terms.

CUSTOMS LOGISTICS: CONCEPTS, FUNCTIONS, FEATURES

The article investigates the approaches to the definition of the term customs logistics. It is established that there is no generally accepted point of view on the content of the concept, its subject field among scientists and practitioners. Customs logistics is considered as a scientific direction, and as a practical activity, and as a functional area of logistics, and as part of the logistics chain, and as a set of logistics processes of participants in foreign economic activity. Given the complex structure and multiplicity of approaches to the interpretation of the term, and applying a systematic approach to disclose the content of customs logistics, it is proposed to understand customs logistics as a scientific and practical activity aimed at regulating customs goods and information and financial flows and protecting national interests, finding a balance of interests and ensuring the security and development of entities. The object-subject field of customs logistics is primarily export-import trade flows. They are accompanied by information flows: outgoing (from customs to the central authority), incoming (on the contrary), accompanying (documents for the goods). In this case, the implementation of foreign trade operations implies that the financial flow is divided into two parts: the first includes payments paid to the supplier for the goods (its feature is that it is governed by the laws of most states and international agreements); the second part includes customs duties, through which the state regulates the volume, range and direction of movement of export-import trade flows. Customs logistics integrates such important functions of customs activity, tariff-regulating, information-analytical, control-passing and financial-economic. The purpose of logistics of customs activity is first of all in the effective logistical organization of all types of the flows observed in customs business and their acceleration. This refers to commodity, information and financial flows, which together form an integrated commodity-information-financial flow, which has the duty to control such structures of the customs service as customs posts and customs, in particular when crossing this integrated flow of the customs border . The integrated nature of customs and logistics flows corresponds to the complex structure of customs logistics, which includes component, regional and functional structure.

Should teens be allowed to consent for vaccines?

Teens and children will need to be vaccinated in order to achieve herd immunity against COVID-19. Most parents are eager to have their teens immunized, whereas some are hesitant. Should teens be allowed to consent to immunization even if their parents’ objects? Vaccines are safe and effective, medically recommended, and good for both the individual and the community. Inspite of these powerful arguments, the law lags behind. Most parents want their teens to be immunized. Most vaccine-hesitant parents ultimately agree to vaccination. Furthermore, teens who get COVID generally have mild cases. For now, the law in most states does not permit teens to consent to the COVID-19 vaccine without parental permission.

Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European Court of Human Rights

The objective of the research is to analyze the main violations of children's rights within the European Convention on Human Rights to highlight the basic positions of the European Court of Human Rights ECHR on their protection, as well as to determine the advisability of applying the practice of this court by the European states. The methodological basis of the work consists of different methods, such as analysis and synthesis, dialectical, logical-legal and formal-legal. The result of this work allowed identifying the role of the decisions of the European Court of Human Rights as a source of European law and its importance for the protection of the rights of the child, interpreting the legal positions established in the pertinent decisions of the said court and comparing them, to justify the need for your careful observation of the practice of the ECHR in the application of the law. It is concluded that the practice of the ECHR is recognized as a source of law in most states. And although the Ukrainian legal tradition does not recognize the status of judicial precedent as a source of law, such precedents are actively used in everyday legal activity.

Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life

The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first task. Next, the Article focuses on the imprecision that the law must grapple with whose implications are most salient: how to aggregate happiness across years of a life. This imprecision becomes significant in the context of torts that shorten a person’s life. The Article explores the appropriate measure of damages (under a corrective-justice theory) in cases in which a victim has her expected future shortened by a tort (e.g., medical malpractice or exposure to carcinogens), but in which she has not yet died. The fact that the victim is still alive makes it possible to compensate the victim herself directly for the value of life-years. Should she be compensated? The question, already critical in a number of cases, will substantially increase in prevalence with developments in science and technology in the coming years. This Article argues, contra current law in most states, that the law should take these types of cases seriously and that victims should be compensated if their loss of life-years constitutes a loss of happiness. The contrary position is in great tension with the commonsense intuition that losing life-years is one of the most (if not the most) serious harms that one can incur. But is our commonsense intuition correct? The Article proposes a three-step framework that can be used for addressing these questions of loss and getting to the appropriate measure of monetary compensation: (1) Determine which “happiness aggregation function” to espouse, (2) determine how much happiness (if any), according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determine how much monetary compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that she lost (according to one’s happiness aggregation function of choice).

The Single-Subject Rule: A State Constitutional Dilemma

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers. Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, persistent themes in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and disagreement over how deferential courts should be to legislatures. Due to the slipperiness of “subject,” many analyses have focused on what are regularly said to be the primary purposes of the rule—the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process—and have called for reframing the enforcement of the rule around the advancement of these goals. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting “legislative chicanery” and “backroom politics” could also undo the cooperation and compromise necessary to get difficult but important legislation enacted. This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.

The Recognition of Animal Sentience by the Law

Abstract In order to protect nonhuman animals effectively, animal law must overcome many hurdles, be it the balance of human and nonhuman interests, the use paradigm, or narrow definitions of legal personhood or basic rights. A fact often overlooked in this uphill struggle is that the laws of most states recognize that animals must be protected because and to the extent that they are sentient. The legal recognition of animal sentience seems to nullify all and any attempts to deny them legal protection simply because they are not sufficiently appealing, emotionally close, or economically useful to us. However, the legal recognition of animal sentience does not overcome all our cognitive prejudices about animals. Using a comparative law method and insights from moral philosophy, this article analyzes the nature and scope of the legal recognition of animal sentience. It identifies its advantages in challenging arbitrariness and inconsistency and championing intrinsic animal protection and points to the most pressing shortcomings, including some states’ refusal to commit themselves to animal sentience and remaining prejudices in society and science. In concluding, the article offers ways to address and remedy these shortcomings and points to ways in which the concept can be used more effectively by academics and practitioners.

CONTEXT MATTERS: LUCK AND THE PARADOX OF SKILL

CONTEXT MATTERS: LUCK AND THE PARADOX OF SKILL

Surgeon General Urges More Americans to Carry Naloxone

Surgeon General Urges More Americans to Carry Naloxone

The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons

In contemporary debates about legal responsibility for sexual misconduct, the status of “affirmative consent” is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond “no means no,” affirmative consent is best captured by the slogan “only yes means yes” and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of “force” on the part of the defendant or proof of a verbal objection on the part of the victim. Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent. Instead, affirmative consent makes an appearance only briefly in the Restatement's commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement's definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant. Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules.

The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons

AbstractIn contemporary debates about legal responsibility for sexual misconduct, the status of “affomative consent” is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond “no means no,” affirmative consent is best captured by the slogan “only yes means yes” and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of “force” on the part of the defendant or proof of a verbal objection on the part of the victim.Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent. Instead, affirmative consent makes an appearance only briefly in the Restatement's commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement's definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant. Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules.

Labels, Lawyers, & Logic

America deserves access to high-quality health care without avoidable medical errors and complications. This achievable goal begins with harnessing and using the power of information. And that begins with clear, accurate, and usable labeling.The American health care system is undermined, underserved, and undervalued when labeling is written more for corporate liability protection than as a valuable tool for health care providers.Today, labeling includes excessive risk information and exaggerated warnings. And this has set into motion a dangerous dynamic: labeling that does not accurately communicate to either the health care professional or the patient the conditions in which any given product can be used safely and effectively. This is nothing less than a grave menace to the public health. America is suffering from a legal system that is dangerous to its health. Why has this happened? There is, unfortunately, a simple answer - fear of liability. Manufacturers have significant monetary incentives to add dense and confusing legalese because, under current law in most states, they can be found liable for failing to provide "adequate" warnings about therapeutic products. Money, not medicine, is driving this dangerous practice. When it comes to labeling written for lawyers rather than doctors, more is less.

John Buchanan's Philadelphia Diploma Mill and the Rise of State Medical Boards.

The absence of medical licensing laws in most states during the years following the American Civil War made it possible for unscrupulous individuals to capitalize upon the weak governmental role in medical practice and educational charters. The practices of John Buchanan during much of his tenure at the Eclectic Medical College of Pennsylvania, in issuing thousands of dubiously earned diplomas, caused a national and international scandal. The traffic in diplomas became so flagrant that regulatory oversight of physicians and their practice, such as that conducted by the Illinois Board of Health led by Dr. John Rauch, developed rapidly across the United States. Though multiple factors prompted the rebirth of medical licensing laws, professional, educational, journalistic, and public concerns for bogus diplomas played an important role.

An Experiment in Law Reform: Amchem Products v. Windsor

The Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary's efforts in the early 1990s to resolve a "disaster" of "critical proportions." Many factors, not least the Supreme Court's decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement's central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into the law of most states with heavy asbestos caseloads. Similarly, the bankruptcy of nearly all of the defendants whose cases would have been settled created a series of administrative claims-processing regimes similar to the Amchem settlement. This Article suggests that the Amchem settlement should be understood as a triumph of judicial statesmanship, and the reaction that took place in the late 1990s had tragic consequences. It also surveys what lessons we might learn from the Amchem experiment as we think about facilitating resolution of other mass torts in the future.

The right to use one’s own language and the matter of simplicity

The paper advances the thesis that at present both international language law and national language law of most states in relation to the right to use one’s own language are confusing, incoherent and more complicated than ought to be. First the author points out that international language law, which is embedded into international human rights law, recognises the right to use one’s own language not as a universal right, a right for all but as a minority right, a right for some and that this way of recognition of this right is in sharp contradiction with underlying principles of human rights law such as the universal nature of human rights, the principle of equal rights and the principle of non-discrimination. Then the author analyses national language law and concludes that almost all states recognise the right to use one’s own language as a minority right and recognise it, though in most cases only implicitly, as a majority right, too. In other words, under national law practically all human beings do enjoy this right in one way or another. After all, international legislators also ought to recognise this right not only as the right of persons belonging to linguistic minorities, but as a simple universal human right, as everyone’s right to use his own language.

Count on the Dietician, and Common Sense

Count on the Dietician, and Common Sense

Terminating artificial nutrition and hydration in persistent vegetative state patients: Current and proposed state laws

This article presents an overview of current state law governing the right to terminate life-sustaining treatment in the United States as it relates to refusal of artificial nutrition and hydration (ANH) for patients who have been diagnosed as being in a persistent vegetative state (PVS). The article was stimulated by the efforts of Michael Schiavo, Terri Schiavo’s husband and legal guardian, to discontinue ANH for her, and the ensuing controversy. Like many other neurologists, lawyers, and ethicists, we assumed that the law governing withdrawal of ANH in patients diagnosed as being in a PVS had become relatively settled and that the prolonged litigation occurring in Florida was the exception rather than the rule.1,2 We reviewed state laws to ascertain whether this assumption was indeed accurate. End-of-life decision making is largely governed by state law, although the states’ prerogatives are subject to federal constitutional constraints ultimately enunciated by the US Supreme Court. Our analysis focuses mainly on patterns and variations in state statutes and does not encompass a comprehensive review of case law. Fortunately, in the present context, the statutes in most states provide fairly clear guidance to physicians and hospitals about whether ANH may be withdrawn from a patient in a PVS, and there is little need for resort to case law in most states to clarify their meaning. We used Lexis-Nexis and Westlaw legal databases to conduct a search of all state laws governing end-of-life decision making. We used the following search terms: permanent vegetative state , persistent vegetative state , artificial nutrition and hydration , advance directive , living will , health care power of attorney , coma , unconscious , terminally ill , terminal condition , surrogate , and proxy . We reviewed all statutes that contained any of the search terms and saved for analysis …

From Right to Wrong: A Critique of the 2000 Uniform Parentage Act

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that radically changed how parentage was determined in the United States. Prior to 1973, the parentage laws of most states failed to identify two legal parents for thousands of children merely because their parents were not married. These illegitimate children were considered a child of no under the law and were denied the significant emotional, financial, and legal benefits of having two legal parents. By the early 1970s, however, the conference recognized that such treatment of children was becoming scientifically, socially and legally untenable and took the revolutionary step of promulgating an act that identified two legal parents for both marital and nonmarital children. This choice, though radical at the time, demonstrated the progressive thinking of the Conference and led to similar changes in the parentage laws of every state in the country. In 2000, the Conference promulgated a new Uniform Parentage Act that includes broad provisions for determining parentage of children conceived through assisted reproductive technologies (ART). Unlike the 1973 UPA, which identified two legal parents for all children conceived through sexual intercourse, the 2000 UPA does not identify two legal parents for all children conceived via ART. Instead, the 2000 UPA leaves the thousands of children conceived via ART and born to same-sex couples in the emotionally, financially, and legally vulnerable position of having only one legal parent. This article examines the arguments that shaped the 1973 UPA and concludes the same arguments should have resulted in a more progressive UPA in 2000 that identified two legal parents for the thousands of children conceived through ART and born to same sex couples.