DOCTRINES IN LAW, OF LAW, AT LAW

Law Class March 14, 2016

Judge Navin-Chandra Naidu

DEFINITION: Alegal doctrineis a framework, set of rules, procedural steps, or test, often established throughprecedentin thecommon law, through which judgments can be determined in a given legal case.

A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases(b.e. NO two cases can ever be the same. The facts may be identical, but the parties are NOT). When enough judges make use of the process soon enough it becomes established as thede facto(definition: whether by right or not) method of deciding like situations.

Judges all over the world make up their own sense of the law when their job is strictly, solely and merely to interpret the law, declare its meaning, intent, content, extent, scope, scale, effect and impact. These doctrines seem to lend support to the fact that judges can make laws like the legislature or parliament. This is an example of the utter failure of government (with its major organs like the legislature, executive, judiciary).

1. TheCarolinetestis a 19th-centuryformulationof customaryinternational law, reaffirmed by theNuremberg TribunalafterWorld War II, which said that the necessity forpreemptive self-defensemust be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The test takes its name from theCarolineaffair. (1837 - American sympathizers of Canadians against the British who burned the ship Caroline and pushed it over the Niagara Falls).

2. Associated Provincial Picture Houses Ltd. v Wednesbury Corporation[1948] 1 KB 223is anEnglish lawcase that sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed onjudicial review, known asWednesburyunreasonableness.

The court gave three conditions on which it would intervene to correct a bad administrative decision, including on grounds of its unreasonableness in the special sense later articulated inCouncil of Civil Service Unions v Minister for the Civil ServicebyLord Diplock:

So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

3.TheEqual footing doctrine, also knownequality of the states, is the principle inUnited Statesconstitutional lawthat allstatesadmittedto the Union under theConstitutionsince 1789 enter on equal footing with the 13 states already in the Union at that time. The Constitution grants toCongressthe power to establish new states inArticle IV, Section 3, Clause 1, which states:

New States may be admitted by the Congress into this Union; (Native American Tribes perhaps) but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

4. Thecapacityofnaturalandjuridicalpersons, andlegal personsin general, determines whether they may make binding amendments to theirrights,dutiesandobligations, such as gettingmarriedormerging, entering intocontracts, makinggifts, or writing a validwill. Capacity is an aspect ofstatusand both are defined by a person'spersonal law:

  • for natural persons, the law ofdomicileorlex domiciliiincommon lawjurisdictions, and either the law ofnationalityorlex patriae, or ofhabitual residenceincivil lawstates;
  • for juridical persons, the law of the place ofincorporation, thelex incorporationisforcompanieswhile other forms of business entity derive their capacity either from the law of the place in which they were formed or the laws of the states in which they establish a presence for trading purposes depending on the nature of the entity and the transactions entered into.

5. Ademption by satisfaction, also known assatisfaction of legacies, is acommon lawdoctrine that determines the disposition of property under awillwhen thetestatorhas made lifetime gifts to beneficiaries named in the will. Under the doctrine, a gift that the maker of the will (thetestator) gives during his lifetime to a named beneficiary of the will is treated as an advance payment of that beneficiary's inheritance.

If theprobatecourt determines that the testator intended the lifetime gift to satisfy a bequest under the will, the amount of the lifetime gift is deducted from the amount that the beneficiary would have received under the will.

Make a trust, why bother with probate court terrorism?

6. The English law of unjust enrichmentis part of theEnglish lawof obligations, along with the law ofcontract,tort, andtrusts.

The law of unjust enrichment deals with circumstances in which a person is required to return (give 'restitution' of) a benefit acquired at the expense of another in circumstances which are unjust.[securitization of a mortgage note without disclosure of any kind to the homebuyer is a perfect example of UE in the USA]

English courts have recognised that there are four steps required to establish a claim. If the following elements are satisfied, a claimant has aprima facieright torestitution:

  • (1) the defendant has beenenriched;
  • (2) this enrichment isat the claimant's expense;
  • (3) this enrichment at the claimant's expense isunjust; and
  • (4) there is no applicable bar or defence;

7. Ex turpi causa non oritur actio(Latinfor "from a dishonorable cause an action does not arise") is alegal doctrinewhich states that aplaintiffwill be unable to pursuelegal remedyif it arises in connection with his own illegal act. Particularly relevant in the law ofcontract,tortandtrusts, ex turpi causais also known as the "illegality defence", since a defendant may plead that even though, for instance, he broke a contract, conducted himself negligently or broke an equitable duty, nevertheless a claimant by reason of his own illegality cannot sue.

Can be used for UE as above especially when the bank sues the homebuyer for a day late in receiving the mortgage payments.

8. Massiah v. United States,377 U.S. 201(1964), was a case in which theSupreme Court of the United Statesheld that theSixth Amendment to the United States Constitutionprohibits the government from eliciting statements from thedefendantabout themselves after the point that the Sixth Amendment right to counsel attaches. Upheld and affirmed in Fellers v. United States, 540 U.S. 519 (2004) (SCOTUS); Michigan v. Jackson, 475U.S.625(1986), was a case decided by theUnited States Supreme Courtregarding theSixth Amendment'sright to counselin apoliceinterrogation. In a decision written byJustice Stevens, the Court held that once an accused individual has claimed a right to counsel at a plea hearing or other court proceeding, a waiver of that right during later police questioning would be invalid unless the accused individual initiated the communication.

This decision was overruled by the Supreme Court inMontejo v. Louisiana, 556 U.S. 778 (2009), by a 5–4 decision.

9. Texas v. Cobb,532 U.S. 162(2001), was aUnited States Supreme Courtcase in which the Court held that theSixth Amendmentright to counsel is offense-specific and does not always extend to offenses that are closely related to those where the right has been attached.

This decision reaffirmed the Court's holding inMcNeil v. Wisconsin(1991) by concluding that the Sixth Amendment right to counsel attaches at the onset of adversarial proceedings. (when a cop stops you in the freeway or some way, adversarial proceedings already start ticking)

10. InAmericanConstitutional law, thepolitical questiondoctrine is closely linked to the concept ofjusticiability, as it comes down to a question of whether or not thecourt systemis an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are nonjusticiable.

Often used to circumvent treaty law involving Native Americans.

One scholar explained:

The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.

— John E. Finn, professor of government, 2006[

1