How do common law concepts like torts get named? For example, some torts have names that aren't used in other contexts in English and appear to have come in from French for their legal usage's purpose. But what is the origin of the name of trover for that civil wrong, and what causes a judge in a common law case through the ages to decide that instead of simply ruling on an issue before him at hand, he is going to define and name and in a certain sense completely canonise a more general and fundamental concept?
This is a purely linguistic question, despite the hope to discover a special legal process. Somebody uses a word or phrase in order to communicate an specific idea. Somebody else thinks &quot;That's a good way to put it&quot; and uses the same or very similar expression to convey that idea. Enough people do this and it becomes &quot;conventional&quot;. The word itself is not made up, it already existed, and was simply applied in a specialized way (e.g. &quot;tort&quot; is an ordinary French word meaning &quot;wrong, mistake&quot; taken into English in a more specialized manner). If you want to know the history of a legal term, you have to read relevant historical rulings to see when the word was first used. That is how we know that current technical term &quot;consideration&quot; derives, from around the time of Henry VIII, that it derives from rulings referring to &quot;assumpsits&quot; which were made &quot;in consideration of&quot; an obligation. &quot;Trover&quot; is a sufficiently old term in law that you will have a hard time pinning down first use and the pattern of expansion.
The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to &quot;make a case&quot;. The &quot;court of public opinion&quot; may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form.
Does the legal usage of the word court as in a court of law derive from the idea of a royal court, as an expression of the idea that the original courts of law were ultimately simple vehicles for the exercise or discharge of royal authority on behalf of the royal sovereign? Yes: The meaning of a judicial assembly is first attested in the 12th century, and derives from the earlier usage to designate a sovereign and his entourage, which met to adjudicate disputes....
Is it that in the UK, there could be "pain and suffering" independently of another tort, while in the U.S. it could take place only in connection with some other offense (e.g. the broken vase)? The whole question is too much for me to take on (there are significant differences in the law of non-economic damages between the U.K. and the U.S. beyond those discussed below), but I'll answer this part. The short answer is "yes," there could be "pain and suffering" awards (more often and more accurately called "non-economic damages" awards) in the U.S. that are not in connection with another offense that cause physical harm to the person bringing the claim or their property, even though defamation liability is more narrow in the U.S. than in the U.K. Non-economic damages may include pain, emotional anguish, humiliation, reputational damage, loss of enjoyment of activities, or worsening of prior injuries; in some states, they are referred to as pain and suffering. The U.S. recognizes a common law tort known as "intentional infliction of emotional distress" a.k.a. "outrageous conduct", that can award damages for purely non-economic harm that is independent of any physical harm to anyone. This has to be a course of conduct intentionally calculated to utterly crush someone emotionally without justification, generally through some form of humiliation. The nature of the conduct must far exceed what would ordinarily be considered harassment or taunting. There is also a closely related concept called a prima facie tort which involves intentional and unjustified harm to others not covered by another recognized tort, which is much less widely recognized. The U.S. also recognizes a common law tort known as "negligent infliction of emotional distress" which applies to allow a non-economic damages recovery from someone in the "zone of danger" of an accident that causes physical injury to another person or to property. The classic case would be brought by a parent holding hands with a child whose child is hit by a car and grievously injured or killed right before their eyes. This tort is not very common and not accepted in all jurisdictions. Closely related to negligent infliction of emotional distress damages are awards for loss of consortium, which is a claim for non-economic harm caused to a spouse by tortious conduct that injures the spouse by the non-injured spouse directly against the wrong doer by the non-injured spouse (in some states a parent can also make a loss of consortium claim with regard to a child). Also somewhat related is the concept of a wrongful death lawsuit, which is typically vested by statute in the next of kin of the person wrongfully killed, rather than in the decedent's probate estate, and can include both economic and non-economic damages. Often in a wrongful death case, rather than seeking economic damages, one can seek a flat compensatory amount fixed by statute called a "solatium" that is primarily representative of non-economic harm to the next of kin. There are also other U.S. torts which can give rise to non-economic damages without physical or economic harm to person or physical property. Non-economic damages without physical harm are frequently awarded in civil rights lawsuits brought against someone acting under the color of law pursuant to 42 U.S.C. § 1983 even when the right violated, such as a right to vote, or a right to use public accommodations in a manner not subject to discrimination, does not involve damage to person or property. Similarly, a violation of a discrimination or sexual harassment statutes, such as the federal Civil Rights Act of 1964, by a private individual can give rise to a claim for non-economic damages even without proof of economic damages. The U.S. also recognizes some privacy torts (not all of which are recognized in every state) and claims for breaches of fiduciary duty, for which there may be a cause of action for non-economic damages even in the absence of proven economic damage. For example, if an attorney breaches his duty of confidentiality to publicly reveal highly embarrassing personal facts about you, you could sue the attorney for non-economic damages. Claims for nuisance (e.g. from a neighbor's noisy or smelly conduct on the neighbor's own property) can give rise to claims for non-economic damage, and while they would often include claims for related economic damage (often quantified in the form of lost rental value of property), this isn't always required. Most U.S. states have abolished their heart balm torts such as alienation of affection (i.e. causing someone to divorce their spouse), "criminal conversion" (i.e. adultery), and also torts related to broken engagements to marry, but a few states, most notably, North Carolina, retain them and essentially allow private adultery lawsuits for both economic and non-economic harm (or one without the other). Claims for libel per se, which involve a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business, can give rise to a claim for non-economic damages, in the absence of any proof of specific economic harm arising from the related damage to your reputation. The U.S. does not recognize defamation lawsuits based upon truthful statements, even though, under many historical criminal defamation statutes, statements tending to harm the reputations of the dead, and statements calling attentions to the natural deficiencies of the living (i.e. mocking mentally or physically disabled people) were actionable. Under U.S. law, freedom of speech protects those statements.
There isn't a difference. The terminology in England and Wales that means the same thing is "litigant in person", with the source of these Latin phrases have abandoned them in favor of plain English terminology. The variation of usage, however, does not necessarily break down on a federal v. state court basis. Pro se is the majority usage, but the variation is more regional, within state courts, than it is a federal v. state divide. California and Michigan, for example, use both terms and use them interchangeably. If there is a historical reason for the variation in terminology, I haven't groked it. Incidentally, there was historically a subtle distinction between the two concepts related to consent to the personal jurisdiction of the court that has long since become obsolete (more than a century ago), but which movements such as the "sovereign person" movement errantly believe has great legal importance to the power of a court over them.
It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action.
I don't know of a specific legal term but such clauses are quite common in contracts which consist of more than one document. The English words "priority", "prevail" and "precedence" have the meaning you want, however, "precedence" runs the risk of being confused with "precedent" which does have a very specific legal meaning. A clause similar to: If there is any inconsistency or ambiguity between the English and Japanese language versions of the contract, the English version shall prevail. You need to make very sure that this clause can be translated unambiguously into Japanese!
The Main Question when a court case is decided in Louisiana, can it establish precedent in other states that follow common law? Yes. The court decisions of a sister state are always persuasive authority. This applies even to trial court rulings and rulings from other countries that are not precedents in any U.S. state. Similarly, courts can look to legal treatises and sources like the Restatements of Law that have not been adopted or approved by any public official as persuasive authority. In theory, it would not even be improper for a state court judge in say, Texas, to quote from a Mock Court Brief of a high school student as persuasive authority. This is because the value of a persuasive authority (as opposed to in state binding authority of an appellate court) in states that follow common law, is that the reasoning of the ruling is intrinsically informative and is reliable because it comes from someone learned in the relevant law and familiar with the legal issues in question. Someone could reasonable dispute persuasive authority from Louisiana on the ground that the substantive law rule in Louisiana expressed in its statutes and prior case law, which a Louisiana court is interpreting, is different from the law in the state where the Louisiana court decision is utilized. For example, suppose that Louisiana has not statutorily adopted the equitable doctrine of laches which is a case law doctrine derived from English courts of equity which denies relief to people who make claims who have slept on their rights without taking legal action in a manner prejudicial to the defendant, even if no statutory statute of limitations applies. If a case allowing relief within the statute of limitations in Louisiana where facts justifying the application of the doctrine of laches were present in an Ohio case, it would be fair to argue that the Louisiana precedent should not be followed as persuasive authority, because Louisiana is a state that has not adopted the doctrine of laches, while Ohio is a state that has adopted the doctrine of laches. But really, this means of distinguishing a Louisiana precedent is no different from the way that a precedent from any other state would be distinguished. Louisiana court precedents are not less persuasive on the theory that a court precedent in Louisiana's court system doesn't have the same effect as a court precedent in states with purely common law legal systems. Furthermore, as explained below, while civil law systems in other countries do not afford the same status to appellate court decisions that common law jurisdictions do, Louisiana, in this regard, is closer to the common law system than it is to the civil law system, in any case. Louisiana Law Is A Complex Civil Law And Common Law Hybrid In practice, Louisiana law is more of a hybrid system, than it is a true civil law state (as it is often described as being). The Louisiana Purchase of 1803 actually preceded the adoption of the French Civil Code in 1804, although the French Civil Code had profound influence on Louisiana law prior to it becoming a U.S. state in 1812, and its early years of U.S. statehood when the federal governments role in law making and providing government services was much narrower. I. Sources Of Law Consistent with its civil law heritage, all law in Louisiana must be rooted in statute and can't be purely dependent upon common law case law. But, Its courts, unlike true civil law states, issue appellate decisions that are binding precedents in common law fashion. Unlike true civil law systems, precedent making case law from appellate courts regarding statutory interpretation is essentially the same in Louisiana as in other U.S. states with a common law heritage. Where the statutes of Louisiana provide a hook for legal rights that aren't fully explained, for example, in tort law, Louisiana courts even sometimes look to the Restatements of the Law which purport to set forth in code-like fashion the common law applicable in other states, to guide the gap filling roles of courts in applying its private law statutes. II. Civil Procedure Civil procedure in Louisiana is a mix of the civil legal process and the common law legal process. In civil procedure, Louisiana has some civil law influences, but is a common law civil procedure biased hybrid system. While it is not compelled by the U.S. Constitution, Louisiana has a right to jury trials in many civil law case. Louisiana's overall civil law system is better characterized as a whole as adversarial than inquisitorial, despite residual civil law influences. III. The Legal Profession The ethical duties of lawyers in Louisiana, likewise, now fully track those of lawyers in other U.S. states. Louisiana has almost completely abandoned any trace of the occupational framework for lawyers and the ethical standards for lawyers found in civil law countries that differ from those of U.S. common law jurisdictions. For example, Louisiana does not have the ethical rule for lawyers found in most civil law jurisdictions forbidding lawyers from representing someone in a matter in which a previous law has done work for which the previous lawyer has not be paid. Likewise, Louisiana does not have the strict regulation of lawyer contact with witnesses prior to their presentation of testimony to a court that is found in most civil law jurisdictions but is absent in U.S. common law jurisdictions. Similarly, notaries in Louisiana were originally closer to the civil law model but the role of notaries has eroded in the common law notary direction over time (not necessarily completely however). IV. Private Law The substantive private civil law in Louisiana (i.e. the non-criminal law that can be raised in lawsuits between non-governmental parties such as contract law, tort law, property law, inheritance rights, marital property, guardianship, customary units for real property boundaries, etc.) tends to track the French Civil Code adopted a year after the Louisiana purchase (and the pre-French Civil Code law that applied during French rule), rather than English common law. For example, usufructs exist in Louisiana law but are unknown in common law jurisdictions. Bit by bit, distinctive Louisiana legal concepts such as the &quot;mystic will&quot; have been repealed or fallen into desuetude, however. Until about the 1840s, Louisiana's laws governing slavery and interracial relationships followed the customs and practices established under French rule which were quite different from the practices of the English adopted in the colonial period in the United States. But in the decade or two before slavery was abolished in Louisiana this began to shift markedly in the direction of other southern and for a while Confederate, states in the United States and away from the French model, curtailing greatly, for example, the rights of &quot;free people of color&quot; in the state. This said, however, many provisions of private law that are present in other U.S. states have been adopted wholesale in Louisiana. For example, Louisiana has adopted the Uniform Commercial Code, the Uniform Fraudulent Transfers Act, the Uniform Child Custody Jurisdiction Act, and &quot;no fault&quot; divorce. Many parts of private law, such as the law of union-management relationships and arbitration are governed by federal law in a common law mold. Louisiana has also, in civil law fashion, statutorily codified legal concepts not present in civil law countries like trust law in order to coordinate functionally with trust law in other U.S. states. Likewise, there are many major modern legislative developments in civil law countries generally, and French law, in particular, were not imitated by Louisiana. For example, France has adopted innovated ways to recognize relationships short of marriage that Louisiana has not copied, such as civil solidarity pacts (PACS) and some minimal legal rights associated with cohabitation known in French as a concubine relationship status. V. Criminal Law Criminal law in Louisiana is much closer to the common law adversarial system than the civil law inquisitorial system, for example, in part as a consequence of U.S. Constitutional limitations on state criminal procedure. VI. Public Law Public law in Louisiana (i.e. the law governing the relationship of individuals with the government) almost entirely tracks the common law pattern and not the civil law pattern, in part, due to the influence of U.S. Constitutional law and federal statutes (e.g. 42 U.S.C. § 1983). Footnote On Puerto Rico A Hybrid That Is Primarily A Civil Law System Puerto Rico became in U.S. territory in 1898 in connection with the Spanish-American War, at a time when its civil law institutions were much more developed than those of Louisiana in 1803, has remained Spanish speaking while still subject to U.S. federal law, and is not as integrated into the U.S. legal system as Louisiana and other U.S. states in its current Commonwealth status (which may face another referendum on its status soon under a bipartisan bill passed by the U.S. House on December 15, 2022). As a result, while Puerto Rico must make some concessions to the U.S. Constitution which incorporates common law legal institutions like the right to a jury trial in criminal cases, it is much closer to the European (and in particular, the Spanish) civil law legal system than Louisiana. However, importantly, federal courts in Louisiana operate using the common law based federal rules of procedure, criminal and civil, and apply common law based substantive federal law. Note On Sources This answer is based predominantly on snippets here and there of encounters with Louisiana law, reviews of surveys of state laws in various areas, history books, historical fiction that is well researched with respect to law, new accounts, and other similar sources gathered piecemeal from memory. I'm not an expert in this area and there may be minor inaccuracies that I will correct if I learn of them, but in the land of the blind, the one eye'd man is king, so I'm offering insight into the subject greater than the vast majority of educated lay people and even the vast majority of U.S. lawyers outside Louisiana.