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Declaration of Unconstitutionality

Declaration of Unconstitutionality Unconstitutional Unconstitutional Acts of Congress Author(s): Joseph R. Long Source: Virginia Law Review, Vol. 1, No. 6 (Mar., 1914), pp. 417-444 THERE has been a great deal written of late on the subject of the power of the courts to declare statutes void because unconstitutional. This power, which has been exercised almost from the beginning of our national history, has gone practically unchallenged until within the last decade, when a new school of publicists have arisen who have discovered, as they claim, that the power was usurped and was never contemplated by the framers of our constitutions. The incorrectness of this view has frequently been demonstrated, but this new school, indifferent alike to the facts of history and the principles of reasoning, continue to rail at the courts for their alleged usurpation and unauthorized interference with the work of the legislature. This disturbance seems now to be somewhat quieting down, and the courts continue as before to pronounce legislation void which conflicts with the constitution. Whether rightfully assumed or not, the existence of the power is unquestionable, and the more important questions is, how has the power been exercised ? Has much valuable legislation been thus nullified, […]

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Codification In the words of Samuel Williston, in his article “The Uniform Partnership Act, with Some Remarks on Other Uniform Commercial Laws”, published by the University of Pennsylvania Law Review and American Law Register (January 1, 1915): “Codification has an ugly sound to most American lawyers. We have been trained to believe that no code can be expressed with sufficient exactness, or can be sufficiently elastic to fulfil adequately the functions of our common law. The -iridescent legal utopia proposed by Bentham and his followers, in which every one should readily know the law, or be able quickly to find it by turning to a code, and in which the professional lawyer would be abolished, has been proved a dream. We know, today, that law must adapt itself to changing conditions; that what is right in one time and place is not necessarily universal truth; that so long as the skein of human affairs is full of difficult tangles the law controlling those affairs cannot be simple, or understood easily by uninstructed persons; that much of our law is in too vague a form to be written down; that new -cases may arise tomorrow for which the common law will find an answerthough neither the question nor the answer could be suggested by […]

Congressional Elections

Congressional Elections From the CQ Encyclopedia of American Government: (1) “Party affiliation is often a crucial factor in whether a candidate wins or loses a political race. A Democrat running in a traditionally Democratic area will more than likely win, just as a Republican has the advantage in a predominantly Republican region. Political parties provide a mechanism for choosing and supporting congressional candidates. Without the parties, a congressional election could be a confusing process in which many individual candidates sought votes with the aid of their friends and personal connections alone. Through primary elections held by the parties, the choice is narrowed to two candidates instead of a multicandidate free-for-all. Primaries were introduced early in the twentieth century to reduce the power of corrupt “party bosses” by giving the choice of the party nominee to party members as a whole. Primaries have had the unintended effect of weakening the parties. Because party leaders no longer control who runs for office on the party ticket, congressional candidates can bypass the established party leadership in their area and appeal directly to voters in primary races. They can generate their own support instead of being recruited and groomed by party leaders. The increasing importance of interest groups and abundance of campaign financing […]

Heirs Property

Heirs Property Heirs Property Definition in the Uniform Partition of Heirs Property Act In “Reforming Property Law to Address Devastating Land Loss”, its author, Prof. Thomas W. Mitchell, made the following analysis: “Even prior to the approval of the (Uniform Partition of Heirs Property Act) project, there was broad consensus that any uniform partition act should exempt certain categories of tenancy-in-common property. After the drafting committee formed, however, agreeing on what subset of tenancy-in-common property the (Uniform Partition of Heirs Property) Act would cover proved to be a substantial challenge, perhaps the biggest challenge the drafting committee faced during the three years it existed. Given the primary goal of stemming involuntary loss of family property, there was broad consensus that the committee should exclude certain types of commercial or investment tenancy-in-common properties from the (Uniform Partition of Heirs Property) Act’s scope, such as those investors utilize in Internal Revenue Commission § 1031 like-kind exchange transactions. The ownership of these types of tenancy-in-common property is almost universally subject to an agreement that governs the partition of the property. The definition of “heirs property” therefore excludes real property held in a tenancy in common in which there is an “agreement in a record binding all the cotenants which governs the partition of the property.” (…) the (Uniform […]

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Uniform Partition of Heirs’ Property Act

Uniform Partition of Heirs’ Property Act The Uniform Partition of Heirs’ Property Act (UPHPA), drafted and approved by the Uniform Law Commission (ULC) in 2010, is a state law which helps to protect the interests and needs of vulnerable landowners. It has been enacted in Alabama, Georgia, Montana and Nevada. “Heirs’ property” generally refers to family-owned land, often passed down without a will and held by descendants as “tenants in common.” Heirs’ property is typically owned by a family for many generations, with multiple owners each having an undivided interest in the land. Anyone who inherits or purchases even a small interest in the land can petition a court to force other owners to sell. These “partition sales” often occur against the wishes of many of the family members that own the property. The end result is often a sale for less than fair market value that dispossesses family members from their inherited land. Property owners with access to trust and estate attorneys, business planners, and other professional assistance, can avoid or mitigate the harsh consequences of a forced partition sale by structuring agreements with their co-tenants to contract around the default rules of the tenancy in common. Low- to […]

Legal Name

Legal Name Name to be Provided on a Financing Statement When the Debtor is an Individual (relating to the Filing Rules) The Uniform Commercial Code establish the name to use when filing a Uniform Commercial Code financing statement against a debtor who is an individual. Still, in some US States there is no law that establishes the “legal name” of an individual. Many official documents issued to the same person – birth certificate, passport, and driver’s license – frequently appear with different names, or variations of names. None of these may correspond with the name actually used by that person for business transactions. Foreign naming conventions further complicate matters, as the person’s family name, rather than the given name, may appear first. Yet it is the responsibility of the secured party making a Uniform Commercial Code financing statement filing to establish the correct legal name of the individual, at the risk of making a filing that is legally ineffective. To provide greater guidance, the following name for an individual debtor would be sufficient as the debtor’s name on the financing statement: the debtor’s name as shown on the debtor’s driver’s license if the debtor holds an unexpired driver’s license (or non-driver photo identification card that has […]

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Uniform State Laws

Uniform State Laws “Uniform State Laws” seeks adoption of identical or similar laws by all the states. It dates back to the late nineteenth century. The first Uniform Act was the Uniform Negotiable Instruments Law, promulgated in 1896, which was adopted in New Hampshire in 1909. Uniform laws are the product of the Uniform Law Commission (ULC).The ULC works as a cooperative venture of all the states. It only functions as well as each state’s commitment to the uniform law movement. The ULC receives the predominant portion of its financial support from state appropriations. In return, the ULC, through its commissioners, provides the states with two important services: drafting uniform laws on subjects where uniformity is desirable and practical, and then supporting efforts by the states to enact completed acts. A non-governmental body, the National Conference of Commissioners on Uniform State Laws (NCUSL) was formed in 1892 upon the recommendation of the American Bar Association for the purpose of promoting “uniformity in state laws on all subjects where uniformity is deemed desirable and practicable.” Made up of lawyers chosen by the states, the Conference oversees the preparation of proposed laws, “Uniform Laws” which the states are encouraged to adopt. For […]