Vikas Kedia

Lawyer Skills
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The ratio of working words to glue words should be as high as possible.

Property
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Books:
1. Understanding property law by John G Sprankling 2nd edition

Legal positivism – The view that rights arise only through government.
Natural law theory – The view that rights arise in nature as a matter of fundamental justice independent of government.

What is property ? Something isnt property just because it has value. Property is a creation of law.

Property rights are not absolute. They are a bundle with the main sticks being:
1. The right to exclude from interference.
2. The right to transfer
3. The right to possess and use – Subject to statues ordinances and other laws that substantially restrict its use.

Property owners have rights and duties.

Market inalienable – Property that can not be sold in the market like human organs.

Property is a cluster of legally enforceable rights among people concerning things.

Chattels – Tangible visible personal property.

A way to divide different types of properties:
1. Real
2. chattels
3. Intangibe personal e.g contract rights.

Different models of ownership:
1. no property
2. common property
3. state property
4. private property.

What is the justification for private property ?
There are different theories for it:
1. Traditional Utilitarianism – Views property rights as a means to increase the society utility.
2. first occupancy – View that first person to take occupancy or possession of something owns it.
3. labor desert – View that people are entitled to the property that is a result of their efforts.
4.
Utilitarianism – law and economics approach – View that private
property exists to maximize the overall wealth of society. Three
central components a. Universality b. exclusivity c. Transferability
5. liberty or civic republican theory
6. Person hood theory

Two theories of jurisprudence:
1. Formalism
2. Instrumentalism.

Is there any property in news? If there is property in news does it survive the first publication ?
What is quasi property ?
There
is no property rights in news for one company when compared to the
public. But in some context like competitors publishing news, news has
value of a quasi property. Since it has exchange value.

Test the right of the complainant against the public but we have to test the right of the complainant vs that of the defendant.

The reasoning was given by:
Justice Pitney
Justice Holmes

Contracts
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A contract is a promise or a set of
promises for the breach of which the law gives a remedy, or the
performance of which the law in some way recognizes as a duty.

A promise consists of offer and acceptance.

The intent has to be present and not future.

Ads
for rewards absent other circumstances are more likely to be offers.
While ads for commercial transactions are more likely to be preliminary
negotiations or invitations for offers.

In case of auctions the bidder is the offeror.

It is essential to the existence of a contract that there
should be:

  1. Parties capable of
contracting;

  2. Their voluntary consent;

  3. A lawful object;
and,

  4. A sufficient cause
or consideration.

In order for an acceptance to constitute a manifestation of assent, three criteria generally must be met:
  1. There must be commitment which is:
        a. not conditional.
        b. On the terms proposed without variation.

Common law vs Statutory law
Common law – based on previous judicial decisions. These have the customs, community expectation of what is just.
Statutory law – decided by the legislature and codified.

UCC -> Uniform commercial code.
In this course we deal with article 2 deals with sales does not apply to services.

For goods UCC should apply for services judicial common law will apply.

Restatements -> Collection of common laws.

Codifying the rules vs leaving them to the common law.

Choice of courts and law

(1) A court, subject to
constitutional restrictions, will follow a statutory directive of its own state
on choice of law.

 

(2) When there is no such
directive, the factors relevant to the choice of the applicable rule of law
include

 

(a) the
needs of the interstate and international systems,

 

(b) the
relevant policies of the forum,

 

(c) the
relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue,

 

(d) the
protection of justified expectations,

 

(e) the
basic policies underlying the particular field of law,

 

(f)
certainty, predictability and uniformity of result, and

 

(g)
ease in the determination and application of the law to be applied.

 

If we have diverse citizenship then the case goes to federal court. In
the Palmer vs Beverly enterprises we have Illinois citizen and
California citizen hence it goes to the federal courts.

Federal court of Illinois use the rules that prevail in Illinois state courts.
 
what are choice of law rules?
They tell us what law should apply.

Restatement says lets find the state which has the most significant relationship.

In Nortek v. Molnar
the case was filled in state court and then moved to the federal court
since a federal court will have diversity jurisdiction over the suite.
Nortek has suit going on in Rhode island
Molnar has suit going on in New York

Declarative judgement remedy – If person A is going to sue person B. Then Person A can go to the court and get it resolved.
Nortek filled for declarative judgement.

If we put in the contract what states law will apply then we can avoid the problem of choice of jurisdiction and law analysis.

Torts
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Tort law provides remedies for, civil wrongs not arising out of contractual obligations.^[1]

A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible,
or liable, for those injuries.

Tort law defines:
1. What constitutes a legal injury and
2. Establishes the circumstances under
which one person may be held liable for another’s injury.

Tort law encourages broad distribution of losses.

Under the writ of tresspass the court did not care if the defendant was under fault.
The following cases show how the “under fault” doctrine has progressed:
1. Anonymous – Here the court says that fault does not matter. This is very harsh.
2. Weaver vs ward
3. Brown Vs Kendall
4. Cohen Vs Petty – Here the court says that fault matters. Since the driver is not at fault and hence not liable.

Strict liability – Liability without fault.

Two categories of Torts:
1. Un-Intentional Torts,
    If a man does a thing he is bound to do it in such a way that by his deed no injury or damage is inflicted upon others.
    If a soldier is shooting and some one runs infront of the bullet then it is not negligence.
    Negligence requires duty of care required to be owed to the plaintiff.
    Ordinary care vs Extra Ordinary care.
2. Intentional Torts.
    2a. Against the person
  
     2ai. Assault: Intentionally and voluntarily causing the reasonable
apprehension of an immediate harmful or offensive contact. Assault
protects against mental disturbances. It does not require fear of
contact.
            The courts have been reluctant to protect extremely timid individuals from exaggerated fears of contact.
        2aii. Battery: Intentionally and voluntarily bringing about an unconsented harmful or offensive
contact with a person or to something closely associated with them
        2aiii. False imprisionment
        2aiv. Interntional infliction of emotional distress
        2av. Fraud
        2avi. Slander and libel.
    2b. Against the property
        2bi. Tresspass to land: Entering someone’s land without permission.
        2bii. Tresspass to chattels: Handling items owned by another without permission.
        2biii. Conversion: Taking possession of someone else’s property with the intent not to return it.

It is important to identify the standard of care which a reasonable person would render.

In contrast to
criminal law (in which the offense is against the State and the State
is the plaintiff), in tort law, the offense is against a person and
that person is the plaintiff.

General
——–
Two kinds of courts:
1. Trial court
2. Appellate court.

Courts decide question of law. Juries decide question of facts.

I was recently interviewed by Kamanashish Roy from OddSEO. Check out the video

You can also read the transcript of this interview at http://www.oddseo.com/2009/07/interview-of-vikas-kedia-dreamer-and.html

Since I am born and bought up in Kolkata, I have always had a soft corner for it. And 8th August Kolkata created some kind of history by hosting one of the biggest Bloggers Meet in India organized by WebReps with participation of more than 150 bloggers. And I also had a chance to present my idea there through a teleconference (this was a dream).

Here are the videos

Hi Freinds, I have shifted my blog from

http://www.oucommunitypower.com/vikas

to

http://www.vikaskedia.com

I think that makes it little more personalized.

Will be updating it with lot of posts soon so keep checking