What is the purpose of this &quot;Rule of construction&quot; in a bill (H.R. 720)? I'm reading the text of bill &quot;H.R. 720: Lawsuit Abuse Reduction Act of 2017&quot; as it was introduced on Jan 30, 2017 at govtrack.us. Sec. 2. (b) reads Rule of construction.-- Nothing in this Act or an amendment made by this Act shall be construed to bar or impede the assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States. My questions are What's the intention of this part of the bill? Without this text, how might someone construe the Act to bar or impede the assertion or development of new claims, defenses, or remedies?
The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary.
The Wikipedia article Rule of law favorably quotes the Encyclopedia Britannica defining the rule as: the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power. In general the rule of law requires that written laws, as interpreted by the courts, be applied to all, and there there be no special exemptions that apply only to particular persons, nor special laws that only affect some people or groups. The rule is a statement of an ideal which is not always achieved. &quot;when people say that judges uphold the rule of law&quot; that means that the judge applies the appropriate previously enacted law, and does not make a decision based on the judge's own personal view of what the law ought to be. This includes the rule of Stare decesis that things once decided shall normally remain decided, that existing rules are not arbitrarily reversed or altered by a court. This would include the judge not deciding a case or issue on the basis of personal bias or prejudice, but it means more than that. It means that the law should not,change depend on what judge presides over a case. Again, this is an ideal not always achieved.
None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields.
The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court.
Actions in common law tort exist for both scenarios. Potential torts are negligence, trespass to chattel, and/or conversion. Putting the largely apparent tort of negligence aside, since that is nearly always available when something and/or someone is damaged by another (requiring only the [negligent] act, causation and damages) I'll focus on the other tort potentially applicable to scenario 1. The minority rule concerning trespass to chattel can be established even when the interference is negligent, whereas the majority rule requires intent to deprive. Interestingly, when the Restatement 2d of Torts talks about minority rule vs. majority rule, it really means "least often applied" vs. "most often applied", rather than merely "in some (fewer or greater) defined jurisdiction(s)". With these type of uncommonly pled torts, you could find a huge jurisdiction like California having lower courts (especially small claims or district courts) applying both the minority rule in some courts and the majority rule in others. This, all within one judicial jurisdiction if that state's law court has not weighed in on their interpretation of preference. The Restatement 2d (Second) of Torts § 217 and §218 define liability in trespass to chattel as "intentionally (negligently - minority rule ): (a) dispossess(ing) the other of the chattel, or; (b) the chattel is impaired as to its condition, quality, or value, or; (c) the possessor is deprived of the use of the chattel for a substantial time, or; (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Trespass to chattel can consist of mere "intermeddling with or the limited use of the possession" and no damage need occur to the property, as damage is per se; however in your scenario, actual liability would occur in the destruction of the possession. The 2nd scenario would lie in the more serious tort of conversion. The tort of conversion will always requires intent to deprive the owner of his property, and the majority view is that the deprivation is intended to be total or forever (whether by continued deprivation or by destruction). There are 3 elements required to establish conversion: plaintiff's ownership or right to possession of the property at the time of the alleged conversion; defendant's conversion by a wrongful act or disposition of plaintiff's property rights; damage(s). While anticipating the follow-up question to either scenario, being "what about the fact that you didn't take the ball, but rather it ended up on your land, and shouldn't that count for something"...the answer (to the unasked question :~) is no. The act of taking possession over property to satisfy the necessary prong in both torts may take any number of forms, but need not be wrongful to begin with. All that is required to establish possessory control over the chattel in a tortious manner is merely interfering with the plaintiff's right of possession, which is a wrongful deprivation of something the owner was entitled to possess (so in other words, even if you didn't go and take it, once you know it's there, it's not yours, and you seek to keep it, either temporarily, permanently &ndash; the act of wrongful possession has occurred. The way the property was acquired is not at issue. Conversion and Trespass in Chattel are often spoken of interchangeably despite the fact that they are different. The difference between a cause of action for conversion and one for trespass against chattel is measured only by the degree of interference with the plaintiff's rights in their chattel. While the distinction seems subtle in a vacuum, in the old English cases where these torts were typically decided, conversion was one small step from criminal activity, whereas today conversion may be the civil adjunct to a criminal suit. *for those not familiar: chattel is any possession that is not real estate.
Yes The case you want to know about is Cohen v. California: A young man was arrested for wearing a jacket with the words &quot;Fuck the Draft&quot; and SCOTUS decided, that that was First Amendment-protected speech and the arrest illegal. The phrase מנא מנא תקל ופרסין is in Akkadian or Aramaic language but Hebrew script (as opposed to the Akkadian Cuneiform) and can be transcribed as Mene Mene Tekel Upharsin. It is also known in German as &quot;Menetekel&quot; or in English as the &quot;Writing on the wall&quot;. It stems from the biblical episode of Belshazzar's feast. Literally, the text would be read as &quot;counted, counted, weighed, distributed&quot;. Its meaning elaborated in Daniel 5 is generally understood as &quot;Your days are numbered; Your days are numbered; You have been measured and found wanting; Your kingdom will fall and be divided&quot;. While stemming from religious texts, in the depicted situation it is more likely meant as political speech, and in that fashion indistinguishable from a flag. It also does not call for imminent lawless action - the so-called Brandenburg Test after Brandenburg v Ohio - and thus remains in the protected speech area. Remember, that even preaching genocide can be First amendment protected, as long as that line of imminent lawless action is not overstepped. As this phrase does neither, it is protected speech.
If a law is struck-down as unconstitutional, but all the precedent used to find it unconstitutional gets reversed; what becomes of the law? In U.S. law, the law has effect again, unless it has been amended or repealed in the meantime. Is it totally dead, needing be passed anew? In the U.S., no. It is not totally dead. It is merely dormant. It stays on the books and legislators may decide not to repeal it as a political statement. It also might be considered for interpretive purposes when construing another part of the same law. For example, the meaning given to a phrase in an unconstitutional part of the law might be applied to a different part of the law that is constitutional. Can the judiciary be asked to reinstated, after which point it can be used again? In the U.S., any court can determine that a law is unconstitutional, but the extent to which that ruling is binding precedent on other courts or other parties than those to the case before it depends upon the court in question and upon the doctrine of collateral estoppel (a.k.a. issue preclusion). For example, the legal fight in the U.S. to hold bans on same sex marriage to be unconstitutional was fought in and resulted in ruling in dozens of courts at the trial court and state appellate court, and federal intermediate appellate court level before a uniform ruling was established by the U.S. Supreme Court. Further, even if the issue arises in another case where there is a controlling precedent, attorney ethics permit an attorney to make a good faith argument for a change in the law to any court, so if there is some good faith argument for doing so, the attorney can push that the issue be reconsidered. Of course, usually the answer from the court will be "no." Or can it just be enforced again without any formal process; so long as nobody sues and gets it killed again by a lower court? Sometimes government officials enforce laws that have been held unconstitutional, either because they aren't aware of the relevant court decisions, or because they think that their facts are distinguishable from those under which the law was held unconstitutional (which sometimes happens on an "as applied" basis rather than on a "facial" basis that applies to all cases), or because they think the judge before them might rule differently despite the precedent. Also, would the answer differ according to country? If so, could you please give me some examples of countries handling this differently. Yes. Many countries with legal systems based upon the legal system of countries of continental Europe like France and Germany and Spain, which are called "civil law" countries have a very different process of handling unconstitutional laws, as does the European Court of Human Rights and the highest court of the European Union. In Germany, for example, questions of the constitutionality of a law may be raised only in the Constitutional Court and not in other courts. This ruling is usually final. And, unlike U.S. courts, the Constitutional Court can rule a law unconstitutional during the legislative process, rather than in connection with an actual case or controversy relating to the law taking effect (in which case the law never gets on the books in the first place). I don't know what happens when the Constitutional Court declares a law unconstitutional. I do know, however, that in the case of the European Court of Human Rights and the highest courts of the E.U. that one of the usual remedies will be an order directed at a member state to amend its statutes to remove the offending law, with sanctions imposed if the member state fails to do so. Obviously, once such a law is repealed in this fashion, it would have to be re-enacted to take effect even if the precedent holding that the law was unconstitutional was undermined.
To pick up on your comment 'Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs?': Yes. For example, the US Congress can legislate to prohibit a farmer from growing wheat for use on his own farm, on the basis that there is interstate trade in wheat and therefore the Commerce Clause permits Congress to regulate the growing of wheat: Wickard v Filburn (1942) 317 US 111. If you grow marijuana, or build a chair, or whatever, you conceivably affect the number of marijuanas, chairs, etc that are traded between states. Therefore you affect interstate commerce. Therefore the US Congress can regulate you. The fact that your marijuana or your chair or your what is trivial in the scheme of the national economy is irrelevant if the aggregation of all regulated marijuana, chairs or wheat is significant: 317 US 111, 127-128. If the law didn't prohibit possession of marijuana absolutely but instead prohibited, say, the carrying of marijuana in schools, then the US Congress might have trouble relying on the Commerce Clause: see United States v Lopez (1995) 514 US 549 and replace 'marijuana' with 'handguns' (OK the marijuana/handgun analogy is bad but hopefully this illustrates that there are at least some limits on Congress' power -- it's not just 'any physical object that relates whatsoever to interstate trade therefore unfettered federal legislative power').