Author: Daniel Edelson

What is agency by estoppel?

In an agency by estoppel a defendant will be liable to a plaintiff because the defendant’s negligence or intentional acts caused the plaintiff to reasonably rely on there being an agency relationship between the defendant and someone who purported to act on behalf of the defendant. As a general rule,  a person can bind someone else to a contract if he has authority as an agent to act on that person’s behalf.  The person on whose behalf the agent is acting is called the principal.   For example, a salesperson (agent) can bind his company (principal) to a sales contract because he has authority as an agent to represent the company.   If an agent sells a house on the owner’s (principal) behalf the  owner can’t suddenly refuse to sell the house. Naturally, the result is different if a person is not really an agent.  If a person pretends to be a salesperson for a company he can’t force the company to honor a contract – – the “salesperson”  is an imposter and no agency relationship exists with the company. Courts will apply an exception where a person or company is careless and as a result a third party reasonably relies on the existence of an agency relationship.   For example, let’s say an imposter goes around purporting to act as a salesperson for an electronics store that sells television sets.  The...

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What is the felony murder rule?

Just to cover some definitions: a felony is a serious crime usually punishable by more than one year in prison.  Murder is the intentional killing of another human being without justification. The felony murder rule provides that someone may be guilty of murder under two circumstances where he would otherwise not be guilty of murder: 1. If a person kills someone while committing a violent felony. 2. If a person participates with someone else to commit a violent felony and someone is killed as a result of the crime. For example, let’s say David commits the serious and violent crime of armed robbery.  He accidentally shoots the victim and kills him.  Normally, killing someone by accident is not murder.  However, the felony murder rule would provide that David is guilty of murder because he killed the victim while committing  the violent felony. Now let’s say Davida is assisting David with the armed robbery by acting as a lookout.  She didn’t pull the trigger to kill the victim but may also be guilty of murder because she was a participant in the crime. Keep in mind that different states have different versions of the felony murder rule and federal law has its own definition.  A few states do not have the felony murder...

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Why do some people say the judicial branch is the “least democratic” branch of the federal government?

Probably because (i) federal judges are appointed by the President, not elected by the people and because (ii) federal judges can serve for life. There are three branches of the federal government: executive, legislative, and judicial.  People vote for the President and members of Congress.  After a certain number of years, the President and members of Congress must run for re-election.  If they do not win re-election, they lose their positions.  The President is also subject to a term limit:  he or she cannot serve more than two terms in office. The process to select and remove federal judges is different.   The Constitution of the United States provides the President with the power to appoint federal judges, including Supreme Court judges, subject to approval from the Senate.  Once appointed, federal judges generally cannot be removed from office until they retire or die.  Because people do not vote for federal judges and there are generally no limits on how long they serve, we can argue that the judicial branch is the “least democratic” of the three branches of government.   Of course, because people elect the President and their Senators, voters can at least indirectly affect who is appointed to the Supreme Court and to the lower federal courts....

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What is Federal Rule of Civil Procedure 62.1?

Rule 62.1 allows a District Court (a trial level federal court) to indicate to a Circuit Court (an appellate level federal court) that it would  reconsider its previous ruling if the Circuit Court would return the case back to the District Court. Consider the following situation: A party receives an unfavorable ruling in a District Court.  While an appeal is pending before the Circuit Court, the party realizes that it did not provide the District Court with an important piece of evidence.  Unfortunately,  it is too late for the District Court to grant a motion for reconsideration.   Rule 62.1 enables that party to ask the District Court to indicate that it believes a motion for reconsideration has merit.    If the District Court agrees and states that the motion has merit, then the party may ask the Circuit Court to remand (return) the case back to the District Court.   Once the District Court has the case back from the Circuit Court, it may grant the motion for reconsideration.  ...

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