The Legal Questions of State Secession and Scottish Independence

In the post-election climate of the U.S., several states have met the election outcome with an interesting response – secession from our Union.  They have begun to publicize petitions for secession, which upon reaching a certain number of signatures from the residents of the given state will, they hope, warrant a formal response from the White House.  Likewise, a movement to counter potential secession has gained momentum and appears to be the position largely supported by the governors of the States compiling these petitions.  Whatever your opinion on the matter, the question must be asked: Can a state legally secede from the Union? 

During the negotiations to form what is now the United States in 1787, two of the biggest future states at that time, Virginia and New York, made it a mandatory stipulation that they be allowed to secede from the proposed Union before they would accept the Constitution.  The language of the Constitution mandates that any right granted to one State within the Union must be granted to each and every other State as well.  Thus, although it may not be specifically in the language of each State’s acceptance of the Constitution, each State does indeed have the right to secede from the Union, which is the first legal hurdle to overcome in such a process. 

The issue of secession is not a new one in the U.S., with the largest-scale example occurring in the 1800′s and sitting at the heart of the Civil War, but at the core of each discussion is the issue of fairness; fairness in fiscal matters, fairness in adequate representation within government, and fairness in the amount of decision-making power that lies in the hands of the citizens to govern themselves.  These issues similarly underlie the discussions within the U.K. as to whether Scotland should be an independent country and separate from the governance of the U.K.

A referendum is set for 2014 in which a vote will be taken to make Scotland an independent country.  Scotland currently is independent in an important way – it has its own Parliament which held its first meeting in May 1999.  However, the fiscal and foreign policies for all of the U.K. are still set by the government in Westminster.  If the result of the referendum is an independent Scotland, many legal questions will need to be addressed, not the least of which being how will an independent Scotland be integrated into the framework of the European Union, if at all.

The development of such separation discussions on both sides of the Atlantic will no doubt highlight many of the similarities and differences in the documents within the U.S. and within the U.K. that govern the overall structure, evolution, and devolution of both Unions.

Published in: on November 21, 2012 at 9:00 am  Comments (3)  

Consideration in Contract Formation

Under both U.S. and English/Welsh common law, the concept that not all promises are legally binding is a foundation principle in contract law.  The concept of “consideration” is that in order for a promise to be enforceable in a legal sense, it must be bargained for.  In basic terms, this means that both parties must “give up” something of value.  For example, if B promises to paint A’s home and A promises to pay B, A obviously gives up money in the form of payment to B.  B is likewise giving up time in the form of his services to paint A’s home.  Both parties have bargained for the transaction, and this bargaining is seen as evidence of an intent to be legally bound to the terms of the transaction.  If a promse to do something is not supported by consideration, a legally binding contract will not be deemed to have been formed. 

The requirements for consideration to be valid are generally the same in both U.S. and English/Welsh law.  In order for consideration to be valid and a subsequent legally enforceable contract to be formed, the consideration must have value.  The value does not necessarily need to be economically equivalent between the parties, however it also must not be illusory.  Illusory promises are promises to do or refrain from doing something that the party making the promise has no intention to actually perform.

Furthermore, a promise to fulfill an obligation already in existence (in legal terms, a “pre-existing duty”) will not be found to be valid consideration.  As an example case, sailors on a ship were under an obligation as part of their employ to sail a ship back into port.  When it became apparent that the sailors would be short-staffed, the captain promised to pay them more if they completed the job on time.  The captain did not, in fact, pay the crew anymore than their original promised pay, and the sailors subsequently sued.  The court found that the captain’s promise to pay more was not legally enforceable since the sailors were already under a pre-existing duty to sail the ship back to port.  This pattern of facts (or similar sets of fact thereto) have been found in many English and American cases. (See the English case of Stilk v Myrick (1809); the American case of Alaska Packers’ Association v Domenico (1902)). 

There has been an evolution of the courts’ reliance on the pre-existing duty rule and their willingness to read terms into a contract or modification thereon.   We shall explore this evolution in future posts.

What Constitutes a Trespass to Land?

Trespass in both the United States and in England and Wales can be either a civil matter or a criminal matter, depending on the circumstances. For the purposes of this brief comparison, we will focus on civil trespass offenses stemming from common law.

As we’ve noted before, since U.S. common law is based off English common law, common law torts in both legal systems share the majority of the same elements, although the language can differ slightly. In the U.S., the Restatement (Second) of Torts, Section 329, provides that trespass to land occures when a person “enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Under English and Welsh law, a trespass occurs when there is an “unjustifiable interference with land which is in the immediate and exclusive possession of another.” Both systems of law recognize that the concept of “land” extends to a certain degree below the surface of the land and additionally to a certain degree into the airspace above the land. Generally, accessing mineral rights or other similarly situated material under a person’s land surface constitutes a trespass. Likewise, an airplane or other object flying too low over a property will generally also constitute a trespass.

A further similarity exists in that in both legal systems, it is not necessary that a “harm” be caused to the property in order for a trespass to have been committed, simply that the property has been entered intentionally, or in some instances negligently.

The defenses to a cause of action for trespass parallel each other as well. The defenses of license, necessity, justification by law, and jus tertii exist in both legal systems. License generally refers to the permission of the property owner for the person to have entered and remain on the property. Once a license has been revoked (simply meaning the property owner has rescinded permission), the offense of a trespass has been committed. The defense of necessity is self-explanatory, in that it is necessary for the entity that would otherwise have been a trespasser to enter the property in order to avoid harm. Justification by law is also basically self-explanatory, in that there is a statute or other legal justification for an entity to enter on another’s property. A common example used to illustrate this defense is the laws in existence in both jurisdictions that allow for police officers or other persons employed by certain government entities to enter a property. The final defense illustrated here is the Latin phrase jus tertii, which is the argument that legal title in the property does not rest with the party asserting the trespass against another.

So in this example of the common law tort of trespass to land, we can see that due to the similar legal roots for the common law in the U.S. and England and Wales, both the requirements to effectively assert a cause of action for trespass and the defenses available to an alleged trespasser are nearly identical in their legal theories. In future posts, we will examine the similarities and differences that exist based on the courts’ interpretation of the language in the two legal systems in case law.

Published in: on July 17, 2012 at 2:14 am  Leave a Comment  
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Latest Information on the New Qualification Exams

Hello readers – I apologize for the short break in writings.  Over the last couple months, I have been completing papers and exams for my LLM degree in European Union Law, working hard for my clients here in the U.S. and the U.K., and communicating with a reader in a similar predicament regarding this (hopefully) final round of exams to become qualified to practice in England and Wales.  It has been a busy summer so far to say the least!  But on to some useful information:

Through emails I’ve received from QLTT and additional information provided by a reader, there appear to be two verified courses being offered to prepare for the last round of qualification exams scheduled for November 2012.  The first is offered through Kaplan and the second is offered through QLTT.  This is the first time that these exams are being offered to U.S. attorneys in place of the one-year experience requirement, so unfortunately there isn’t information available on what the differences are between the two programs or which may be better for you.

I have contacted both course offerings to gather additional information and will report back when I have more news.

Tentative Schedule for England/Wales Work Experience Equivalent Exams

For attorneys who have already passed the required heads of the QLTT exams, the Solicitors Regulation Authority has tentatively stated that the exams necessary to satisfy the work experience requirement will be provided in September 2012 and April 2013 in the UK.  Kaplan is currently the sole provider for these exams, and further information on applying can be found at Kaplan’s website

Please visit the Solicitors Regulation Authority in order to determine exactly what you will need to sit for any required exams and for further information on law in England and Wales generally.

Official Update from the Solicitors Regulation Authority

A reader of the site has commented to direct me to the official statement from the Solicitors Regulation Authority regarding the addition of the exams as a means of completing qualification for attorneys who have passed the QLTT examinations.  The official word can be found on the SRA Website, but the relevant portion is also copied below for quick viewing:

From the SRA Website:

1. What is the difference between QLTS (Qualified Lawyers Transfer Scheme) and QLTR (Qualified Lawyers Transfer Regulations)?

QLTR pre-dated the Qualified Lawyer Transfer Scheme, which was introduced in 2010. QLTR closed to new applications on 31 August 2010. Those currently enrolled on QLTR have until the expiry of their certificates of eligibility to complete the SRA’s requirements. All certificates will expire by 31 August 2013.

2. Why have you introduced an assessment option for QLTR applicants?

For some applicants, particularly senior lawyers, a work placement which meets the requirements of the QLTR is not a feasible option because it takes them away from their full-time employment. The assessment option provides such candidates with an alternative which can, if the candidate has the requisite knowledge and skills, involve them meeting our requirements in a much shorter time-frame.

3. Can I still fulfil the work experience requirement if I choose to do so?

Yes. But you cannot combine the two options – you must either complete the work experience requirement or the TLST and OSCE.

4. Do I need to tell the SRA if I want to take the assessment option?

No. You just need to contact Kaplan and provide them with your QLTR certificate of eligibility.

5. Who is running the assessments?

Kaplan QLTS. See http://www.kaplanqlts.com

6. What does the assessment comprise?

You will need to pass both the OSCE (Objective Structure Clinical Examination) and TLST (Technical Legal Skills Test). These assessments combine a test of skills and knowledge of property and probate, civil and criminal litigation and business law.

7. Is the assessment option as rigorous as work experience?

Yes, there is little risk to standards and the public interest in making this change as it provides a robust alternative approach to assessing the competence of these applicants.

8. How often will the assessments run?

They currently run every six months. Please see http://www.kaplanqlts.com for specific dates.

9. Where is the assessment centre based?

London.

10. How many days do I have to attend the assessment centre?

Each of the TLST and OSCE run over three morning or afternoon sessions. Please see http://www.kaplanqlts.com for further information.

11. Will I have to pay a fee to carry out the assessment?

Yes, the OSCE costs £2,100 (+VAT) and the TLST costs £825 (+VAT). However, for many candidates it will be a more cost effective and accessible route to admission than undertaking work experience.

12. My certificate of eligibility has expired, can I still take the assessments?

If your certificate has expired since November 2011 (which was when this proposal was first made public) you can apply to us for an extension and we will consider your application on a case by case basis.

13. My certificate of eligibility is due to expire in August 2012 and the next OSCE/TLST round is after this date, what shall I do?

If you want to take the assessment option, please apply to us for an extension and we will consider your application on a case by case basis.

The maximum extension will be until 31 August 2013.

14. I still need to pass some of the Qualified Lawyers Transfer Tests (QLTT) can I still apply for an extension so that I can take the OSCE and TLST?

You will need to apply for an extension in the usual way. Your application for an extension will not be turned down simply because you have QLTT outstanding but you will still need to take the QLTT if that is a requirement of your certificate of eligibility.

Update on England and Wales Qualifications

I have received some good news via the grapevine. The Solicitors Regulation Authority has confirmed that the work experience requirement for U.S. attorneys to become qualified to practice in England and Wales has been supplemented by what will likely be two experience-related exams. They have not released any preliminary dates or materials related to these exams yet, but I will be sure to post an update with the relevant links once that happens.

Also, if you are currently pursuing the work experience requirement by acquiring practical experience in the laws of England and Wales, these new exams will not invalidate the previous requirement. Rather, after passing the required exams, you may accomplish the final steps of qualification through either work experience or the upcoming exams.

Great news for U.S. attorneys like myself who have passed the exams but are struggling to find the requisite work experience. I will update when I have more information.

Effect of Settlement Negotiations and Offers in Litigation

Under the U.S. Federal Rules of Evidence (Rule 408), “compromise offers and negotiations” are not admissible as evidence to prove or disprove the validity or amount of a disputed claim, among other things.  In plain English, this means that offers to settle disputes rather than proceed with litigation (or at any point throughout) are not allowed to be brought in during a trial or other adversarial proceeding to show that someone’s claim is worth more, less, or equal to what they’re asking for, or whether the claim is “legitimate” or not.  Generally the ultimate outcome of the trial and awards stemming therefrom are not affected by settlement offers.

In England and Wales, on the other hand, a Part 36 offer to settle and the resulting conduct can have a substantial bearing on the amounts rewarded.  Although the contents of a Part 36 offer are withheld from the judge during the course of a trial, during the final assessment of costs, the judge will compare the terms of the settlement offer with the final damages award.  The judge then, in his or her discretion, may make adjustments based on: whether the settlement offer was rejected and the claimant recovered equal or better than the amount offered; whether the settlement offer was rejected and the claimant recovered less than the amount offered; and the conduct of the parties throughout.  The judge is allowed considerable discretion in awarding or denying additional damages based on the above.

Creation of a Will – The Basics

A will is a document that is created to allow property that you possess at the time of your death to be disbursed to the people or organizations of your choosing. The formation of a will is relatively simple but there are some subtle differences between the process in the United States versus that in England and Wales. We will delve a bit deeper into the specifics of language and its effects on portions of a will in a future post, but for now we will cover the very basics.

In the U.S., a will can be drafted using simple or complex language, depending on the nature of the testator’s estate and how he or she wants the estate to be distributed, but in order for it to be a legally enforceable will, several requirements must be met. First, the testator (person owning the estate to be distributed) must be over the age of eighteen and must be of sound mind and must not be creating the will under any form of duress. Then comes the language of the will and bequests contained therein, which we will explore further in the future. Finally, an important procedural step must be taken in order for a will to be legal and enforceable. The will must be signed by the testator in the presence of at least two (Illinois law) uninterested witnesses who must also affix their signatures to the document. An uninterested witness is a person who is not an heir or beneficiary of the testator’s will.

In England and Wales, the language of the will can similarly be simple or complex based on the testator’s estate and intents. The testator must know and approve of the contents of a will, and have testamentary capacity when making and signing the will. Under the law of England and Wales, the aforementioned aspects are presumed except where: (1) the testator was blind, visually impaired, illiterate, or where someone else signed on the testator’s behalf; or (2) where there are “suspicious circumstances” such as the will having been drafted by a beneficiary of said will. In order to be valid, a will in England and Wales must be signed by the testator, it must appear that the testator intended to give effect to the will by his or her signature, the signature must also be made in the presence of two witnesses and those witnesses must also sign.

These are the very basic requirements for a will to be presumed valid and enforceable both in the U.S. (Illinois) and England and Wales. In future posts, we will explore the similarities and differences between the various aspects of will creation, including the definition of testamentary capacity, what happens if an interested party signs as a witness, revocation of a will and other points.

Quick Update

It appears that the road to official UK qualification may be shortening in the next few weeks with the Solicitors Regulation Authority releasing information about the elimination of the one year work experience requirement for U.S. qualified attorneys, and its replacement with one or two additional exams. I will update as soon as I have further information, but it is expected within the first couple weeks of April. Stay tuned…

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