36
votes
Accepted
Can I trick an innocent third party into doing something that would be illegal if the third party had mens rea without either of us being guilty?
It depends on the jurisdiction, but generally speaking, this will not permit you to evade criminal responsibility.
In Ohio, for instance, the complicity statute treats the conduct you're describing as ...
- 57.2k
24
votes
What is the origin and basis of stare decisis?
I assume you are asking about horizontal stare decisis: a court following its own previous holdings or those of courts of coordinate jurisdiction (e.g. courts at the same "level" in the ...
- 43.2k
20
votes
Can a previously binding precedent be overturned based on its rationale being outdated?
An "outdated rationale" is one factor to be considered when overruling precedent.
Yes. Precedent relies on respect for the principle of stare decisis, the idea that courts should stand by ...
- 57.2k
18
votes
What is the origin and basis of stare decisis?
The underlying idea has been implicit in law for over a millenium in England. The term dates back at least to Sir Matthew Hale who cites his doctrine of stare decisis in Hanslap v. Cater (1673). ...
- 210k
17
votes
Accepted
Why are jurors still asked to apply the law if their primary role is to find facts?
Sometimes, juries are asked to make pure findings of fact. These are called special verdicts, and they used to be more common, especially when juries decided civil cases.
For example, Trustees of ...
- 8,632
17
votes
Accepted
What is the principle of “finders keepers until the owner claims” called?
This common law property concept is sometimes called the "finders principle" or even sometimes simply "finders keepers." See e.g. Skrypnyk (Liddiard) c. R., 2014 QCCQ 21445, at ...
- 43.2k
15
votes
Minimum penalty for extradition makes no sense?
You might be misreading the extradition criterion
The UK–USA extradition treaty has an example of the clause you're asking about:
An offense shall be an extraditable offense if the conduct on which ...
- 43.2k
13
votes
Accepted
How was the court in Abingdon RDC v O'Gorman (1968 EWCA Civ) aware of Thornton v Cruther & ors (1769)?
The Law Reports at Abingdon Rural District Council v. O'Gorman [1968] 2 QB 811, 820 read as follows:
[T]he judges held that in order to "impound or otherwise secure" the distress on the ...
- 8,632
13
votes
Why are jurors still asked to apply the law if their primary role is to find facts?
It's impossible to fully separate deciding the law from deciding the fact.
Without deciding what the law is, it is impossible to say what question of fact is relevant. No one can decide all possible ...
- 852
12
votes
Can I trick an innocent third party into doing something that would be illegal if the third party had mens rea without either of us being guilty?
canada
General intent is usually enough
I believe you are largely conflating motive and intent (see generally R. v. Hibbert, [1995] 2 S.C.R. 973, para. 24; The Queen v. George, [1960] S.C.R. 871, p. ...
- 43.2k
11
votes
Is common law required in the federal system in the US?
Since common law is subordinate to statutory law, any common-law jurisdiction can eliminate any part of common law by enacting a statute. Many US states have done this with criminal law, for example, ...
- 35.2k
10
votes
Date on Legal letter
Depends on the context
Statutory timeframes
Certain documents, like a Statement of Claim or an Adjudication Application, set very strict timeframes in motion by their receipt and there are real legal ...
- 198k
10
votes
Appealing a verdict due to the lawyers being incompetent and or failing to follow instructions?
Here's a 2002 law review article by MP Henderson that does a rundown of ineffective assistance of counsel standards and precedents in both the UK and US (and also details shortcomings and ...
- 2,913
9
votes
Does any state force recognition of common law marriage on couples if they do not want it?
would the state have any interest or legal right to assert that having
once met conditions that would allow them to be considered married,
that they are in fact still married despite their objections ...
- 195k
9
votes
Why are jurors still asked to apply the law if their primary role is to find facts?
The broader answer to the "why don't you just..." question in the US is that it would require an amendment to the constitution, because jury trials are a protected right in criminal cases, ...
- 210k
9
votes
How is “R v. Smith” pronounced?
It varies. See Wikipedia: Case citation - Pronunciation of case titles: "When case titles are read out loud, the v can be pronounced, depending on the context, as and, against, versus, or vee.&...
- 43.2k
8
votes
Defendant not present for sentencing
The defense isn’t prevented from presenting any arguments, but some arguments might be less convincing.
“My client is really sorry and will do everything he can to fix the damage and he has learnt his ...
- 32.9k
8
votes
Is it true that common law courts will not resolve a question without a controversy?
Yes … unless Parliament has given this power
At common law, the courts can only intervene in matters of actual controversy. This goes as far as discontinuing a case if it becomes moot.
However, ...
- 198k
8
votes
Is it true that common law courts will not resolve a question without a controversy?
united-states
In U.S. law, federal courts may not consider matters that do not involve an actual "case or controversy" based upon the way that this language granting the federal courts ...
- 195k
8
votes
Does the English or the American rule prevail in Canada?
canada
The general rule is that the substantially successful party is entitled to "costs" on a prescribed scale (e.g. British Columbia; Manitoba) not full indemnity costs.
- 43.2k
7
votes
Date on Legal letter
if the letter dated 28 Feb(Fri) and requires the recipient to respond within 3 days from the date of letter, is this considered valid?
Depends on what the letter is about.
Generally, the recipient ...
- 25.6k
7
votes
Accepted
What is denoted by “operation of law”?
"by operation of law" means that something happens automatically even if nobody does something about it.
For example, if property is owned in joint tenancy with right of survivorship, it ...
- 195k
7
votes
Why are jurors still asked to apply the law if their primary role is to find facts?
Guilty or Not Guilty is a fact
This is obvious because the law can be stated independent of the circumstances of a particular case. Whether a particular individual’s acts or omissions amount to a ...
- 198k
7
votes
Why are contracts void at common law if they are “contrary to public policy”?
It would be a fundamental contradiction for the courts to force a party to violate the law. Theft is against the law, and a contract that requires a person to engage in theft will not be enforced. ...
- 210k
7
votes
How is “R v. Smith” pronounced?
australia
The Crown against Smith
v is “and” in civil trials and “against” in criminal ones
However, language changes and “v”, “versus”, and “against” are all variously acceptable depending on the age ...
- 198k
6
votes
What are the regulatory equivalents of "prosecute" and "convict"?
For a civil infraction, the typical term is found responsible/not responsible.
For example, Michigan MCL 600.113(1)(b)
(b) "Civil infraction action" means a civil action in which the ...
- 2,673
6
votes
How would an extradition work when only one of two actions was criminal?
Extradition is done for specific charges. A principle found in virtually all extradition treaties called the "rule of specialty" says that the country requesting extradition may not ...
- 23.6k
6
votes
Is "not committing a crime" sufficient consideration?
Forbearance from action can be consideration, but it must be forbearance from something that is one's legal right. It is sufficient that a person has restricted their lawful freedom of action. See ...
- 43.2k
6
votes
Does contract formation require subjective "meeting of the minds"?
No: "meeting of the minds" (also known as consensus ad idem) is not about what the parties actually subjectively understood or wanted.
For contract formation, consensus ad idem only requires ...
- 43.2k
6
votes
common law vs civil law differences
if necessary it is possible to simplify it to USA vs EU
The European Union is by no means a homogeneous area of law. I will assume france because it is the one I am most familiar with, but bear in ...
- 1,449
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