when we assume we are being tried in law,
we are actually being administered in equity
(assumes he’s being tried in law) would be incensed that the judge ignored his “constitutional arguments”.
But if the case were actually being heard in equity,
1) the “defendant” would probably have the legal status of a “beneficiary”; and 2) the only relevant “law” (the “law of the case”) would be the contract or trust indenture under which the defendant/ beneficiary was being “tried”.
Until the defendant/beneficiary identified that underlying contract or trust indenture and rendered it void (perhaps for fraud), the defendant/beneficiary would remain in equity where “constitutional rights” are irrelevant and only government “policy” may (or may not) be honored according to the judge’s conscience and personal discretion.
LAW OF THE CASE
CONTRACT = AGENCY = LAW
INTENT OF CONGRESS
The Supreme Court subsequently made clear, however, that the second factor carries more weight than the others because "[t]he central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action."
Touche, 442 U.S. at 575. See also Thompson v. Thompson, 484 U.S. 174, 189 (1988) (Scalia, J., concurring) ("[W]e effectively overruled the Cort v. Ash analysis in [Touche Ross], . . . converting one of its four factors (congressional intent) into the determinative factor").
To determine whether a private right of action was intended under a given statute, courts employ the analysis set forth by the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001).
In Sandoval, which involved the interpretation of Title VI of the Civil Rights Act of 1964, the Court observed that "[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress." 532 U.S. at 286.
Unless the statute in question evinces an intent to create a private remedy, "a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute." Id. at 287. Thus, statutory intent is determinative. Id. at 286. The Ninth Circuit has held, in fact, that courts need not evaluate the remaining Cort factors if they conclude that Congress did not intend to create a private right of action. Stupy v. United States Postal Service, 951 F.2d 1079, 1081 (9th Cir. 1991).
Lose your form, lose your substance
One reason for the confusion between law and equity goes back to 1982 when the federal courts in their infinite wisdom combined the procedural “forms” of law and equity into a single, uniform procedure.
The usual explanation for unification of legal and eq-uitable procedures was that it “simplified” the practice of law so attorneys and litigants would only have to learn
one complex set of forms and procedures rather than two.
creates at least one adverse consequence.
Once law and equity procedures
appear identical in form, litigants
and lawyers could no longer automatically
tell from the form of a court’s
documents and procedures whether
their case was being tried in law or administered
in equity. Attorneys compensated
for this uncertainty by adding
boilerplate to their pleadings to “pray
the court” for all awards and remedies
that might be due their clients “in both
law and equity”. That way, if the court
was operating in law – fine, the client
could win in law. If equity – the client
could also win.
But once it became difficult to
distinguish between the procedural
forms of law and equity, the need to
distinguish between their substance was
also diminished. Cases were won or
lost, not on law, but on procedure.
Again and again, the courts, law schools
and lawyers chanted their mantra “procedure,
Lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. In developing this argument, three categories within English private law are recognized.
First, where common law and equity co‐exist coherently, and where the historical labels of common law and equity remain useful terminology.
Second, where common law and equity co‐exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke.
And third, where common law and equity do not co‐exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product. As a general illustration of what the third category comprises, and what fusion requires, one wide‐ranging and practically very important area within the third category is focused on, namely monetary remedies for civil wrongs
It appears to me that if your rights
are legal (based on legal, not equitable,
title), you have “legal standing” and access
to courts of law. However, if your
“rights” are only equitable, you have
no legal rights and therefore no standing
in law or access to courts of law.
If you don't understand your rights (legal or equitable) you won’t understand whether you are being tried in courts of law or courts of equity.
The distinction is crucial since courts of equity are not legally bound to recognize legal, constitutionally-protected, God-given rights.
Therefore, if you argue legal rights or law in a court of equity, the judge may lawfully dismiss your arguments as “frivolous” and you will lose your case.
2. Law is generally divided into four principle classes, namely; Natural law, the law of nations, public law, and private or civil law.
When considered in relation to its origin, it is statute law or common law.
When examined as to its different systems it is divided into civil law, common law, canon law.
When applied to objects, it is civil, criminal, or penal.
It is also divided into natural law and positive law4 . . . Into law merchant, martial law, municipal law, and foreign law5. . . .
As of January 1, 2006, all civil actions governed by the Rules of Court of the Supreme Court of Virginia are pleaded by a single form of action, and the parties can put into one single action all causes of action sounding in common law, equity, and admiralty so far as permitted by the law of joinder of actions. The Rules of Court, however, do not apply to causes of action for which the procedure is provided by statute, such as mandamus, prohibition, quo warranto, eminent domain condemnations, probate, and habeas corpus. Substantive rights, whether sounding in common law, equity, probate, divorce, admiralty, or whatever, remain as before.
The English common law and equity are separate bodies of substantive law, although they are interconnecting. The procedural law by which these different substantive bodies of law are put into effect can be the same or different, and the courts can be the same or different. Over the past five centuries or so, the English legal establishment developed in such a way that some courts had only common-law jurisdiction, such as the Court of King’s Bench and the Court of Common Pleas. Some courts had a fused jurisdiction, such as the Court of Chancery, which was primarily a court of equity, but it had a limited common-law jurisdiction in matters involving litigation against officers of the King. The Court of Exchequer, between the mid-sixteenth century and 1841, heard both common-law and equity cases with the jurisdictions and lawsuits being kept strictly separate. This was the situation of the trial courts in Virginia from their beginning in the early seventeenth century until 2006, except for the period of 1777 to 1831 when there were courts of chancery that had equity jurisdiction only. Another alternative is to have a merged system whereby common-law and equity claims are pleaded the same way in a single method of pleading, whether the plaintiff has a common-law right or an equitable one or both. The merged system of pleading has always been used in Texas. It was adopted in New York by the Field Code of 1848. It has been used in England and Wales since the Judicature Act of 1873, in the federal courts of the United States since the Federal Rules of Civil Procedure of 1938, and now in Virginia as of 2006.
SYSTEMATIC BAR PUBLIC ACCESS
SUBSTANTIVE DUE PROCESS
PROCEDURAL DUE PROCESS
CARRIED OUT BY LAW ENFORCEMENT
GROSS SYSTEMATIC VIOLATIONS OF SCOPE & PURPOSE OF ENABLING STATUTES; FUNDING MANDATES AS A MEANS AND METHOD OF BUSINESS PRACTICE FOR MINNESOTA DEPARTMENT OF ADMINISTRATION
IN MY FULL
STATUS: I AM ACTING (STATUS)
IN THE CAPACITY OF STANDING
EXPRESS v. IMPLIED
LEGAL v. EQUITABLE
RIGHT v. BENEFIT
AT LAW v. EQUITY
Historically, courts of equity have
had four important characteristics that
allow them to operate in ways that
would appear illegal or unconstitutional
in courts of law.
“In Law or Equity”?
by Alfred Adask
First, courts of equity have no obligation to recognize legal rights or legal arguments.
Second, they function almost entirely according to
the alleged “conscience” and personal
discretion (unbridled power) of the
judge on a case-by-case basis.
Third, they are the natural court to hear cases
based on trusts.
Fourth, they are primarily available to hear the pleas of trust beneficiaries who, by definition, have no legal title and therefore no legal rights to property.
EXPRESS v. IMPLIED
From Logan v. U.S. Bank N.A., 2010 U.S. Dist. LEXIS 46314 (C.D. Cal. April 12, 2010):
A statute explicitly creates a private right of action when the statute contains language that defines a cause of action. ***
Statutes that expressly provide for a private right of action identify the person(s) able to bring suit, those that are potentially liable, the forum for suit, and the potential remedy available.
See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 166 (2008) (holding that 15 U.S.C. § 77k provides an express private right of action because it says that "any person acquiring such security . . . may, either at law or in equity, in any court of competent jurisdiction, sue . . . every person who signed the registration statement. . ."); Murphey v. Lanier, 204 F.3d 911, 912 (9th Cir. 2000)
("The statute provides for an explicit private right of action for an injunction or damages:
A person or entity may . . . bring in an appropriate court of that State (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $ 500 in damages for each such violation, whichever is greater, or (C) both such actions").
When a statute "does not mention the availability of any action to enforce its mandates, nor [does it]. . . explicitly describe a forum in which suit may be brought or a plaintiff for whom such a forum is available," the statute does not contain an express private right of action. ***
PRIVATE RIGHT OF ACTION
in any court of
in an action at law, factual findings will not be disturbed unless there is no evidence which reasonably supports the finding. This is true whether the case is tried to a jury or to the trial judge.
Because a tort action for damages is an action at law, the Supreme Court’s review is limited to whether any evidence supports the verdict.
Arguments over the evidence’s weight or credibility are misplaced.
in an action in equity, the Supreme Court may find facts in accordance with its views of the preponderance of the evidence.
This is true if the case is tried to a judge alone or if the case is tried to a master and the master and trial judge later disagree.
in action in equity, tried first by a master and concurred in by the judge, the factual findings will not be disturbed unless the finding lacks any evidentiary support or is against the clear preponderance of the evidence.
In equity cases, the Court’s ability to find facts does not mean that disregards the trial judge’s findings, particularly his or her credibility findings.
Factual findings will still be affirmed unless the appellant satisfies the Court that the preponderance of the evidence is against the finding of the court. Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011).
TYPES OF FACTS
WRITING THE STATEMENT OF FACTS
FACT v. LAW
EQUITY. In the early history of the law, the sense affixed to this word was exceedingly vague and uncertain.
. . It was then asserted that equity was bounded by no certain limits or rules, and that it was alone controlled by conscience
and natural justice. . . .
If a statute does not create an express private right of action, a court will examine whether the statute implies such a right. See Cort v. Ash, 422 U.S. 66, 78 (1975), overruled in part by Touche Ross & Co. v. Redington, 442 U.S. 560 (1979).
IMPLIED RIGHT OF ACTION
In Cort,the Supreme Court set forth four factors that are relevant when determining whether a statute provides an implied right of action: 422 U.S. at 78.
(1) whether the plaintiff is a member of a class for whose benefit that statute was enacted;
(2) whether there is an indication of Congress's intent to create or deny a private remedy;
(3) whether a private remedy would be consistent with the statute's underlying purposes; and
(4) whether the cause of action traditionally is relegated to state law.
it appears that since a modern “arraignment” does not follow the 1856 procedure for creating an “issue” in law, the modern arraignment does not, in fact, take place in law, but rather in equity.
If so, anyone who argues law in an equitable, administrative hearing is as foolish as a man arguing football rules at a baseball game, and therefore bound to lose.
ISSUE IN LAW
3. . . The remedies for the redress of wrongs, and for the enforcement of rights, are distinguished into two classes, first, those which are administered in courts of common law; and, wrongs in equity, and the remedies, therefore, are remedies in equity.
Equity jurisprudence may, therefore, properly be said to be that portion of remedial justice which is exclusively administered by a court of equity, as contradistinguished from that remedial justice, which is exclusively administered by a court of law.7
SEE: ONE; TWENTY-ONE STILLS
SEE: RULES OF CIVIL PROCEDURE RULE ONE
SEE: RULE 81
RIGHTS v. PRIVELEGES
RIGHT. . . that quality in a person by which he can do certain actions, or possess certain things which belong to him by virtue of some title. . . .
[Crucial point: Apparently, rights flow from – and depend on – title.
Without title, you have no rights.
With title, your rights will depend on the “quality” of that title: I.e., lessor title generates lessor rights; superior title generates superior rights.
Equitable title generates equitable rights, but only legal title generates legal rights.]
RIGHTS FLOW FROM & DEPEND ON TITLE
11. Rights are also divided into legal and equitable. The former are those where the party has the legal title to a thing, and in that case, his remedy for an infringement of it, is by an action in a court of law. Although the person holding the legal title may have no actual interest, but hold only as trustee, the suit must be in his name, and not in general, in that of the cestui que trust [a trust’s beneficiary] . . . . Equitable rights are those which may be enforced in a court of equity by the cestui que trust.2
LAW. . . law denotes the rule . . . of human action or conduct. In the civil code of Louisiana . . . it is defined to be a solemn expression of the legislative will.”3 . . .
Equitable rights are those which may be enforced in a court of equity by the cestui que trust.
EQUITABLE v. LEGAL TITLE
WITHOUT TITLE; YOU HAVE NO RIGHTS
RIGHT; TITLE; INTEREST
SUPERIOR v. LESSOR
EQUITABLE v. LEGAL RIGHTS
2. . . Right is the correlative of duty, for, wherever one has a right due to him, some other must owe him a duty.
[I.e, if I have a right, someone else has a duty.
But if I have no rights, no one else (not even government) has any correlative duties.
This concept is vital to understanding Law.] . . .
9. These latter rights are divided into absolute and relative.
IF I HAVE A RIGHT
YOU HAVE A DUTY; OBLIGATION
PROPERTY; EXCLUSIVE RIGHT OF USE WITHOUT CONDITION
The absolute rights of mankind may be reduced to three principal . . . articles: the right of personal security, which consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation; the right of personal liberty, which consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s inclination may direct, without any restraint, unless by due course of law; the right of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, [“acquire” means to secure legal title to property; “purchase” means to secure equitable title.] without any control or diminution, save only by the laws of the land. . . .
The remedy [in equity] is often more complete and effectual than it can be at law. . . . [E]specially in some cases of fraud, mistake and accident,13 courts of law cannot and do not afford any redress; in others they do, but not always in so perfect a manner.
A court of equity . . . . will remove legal impediments to the fair decision of a question depending at law.14
It will prevent a party from improperly setting up, at a trial, some title or claim, which [might be legal, but] would be inequitable. It will compel [the party] to discover, on his own oath, facts which he knows are material to the rights of the other party, but which a court of law cannot compel the party to discover.15
It will perpetuate [record] the testimony of witnesses to rights and titles, which are in danger of being lost, before the matter can be tried [at law].16
10. The relative rights are public or private: the first are those which subsist between the people and the government, as the right of protection on the part of the people, and the right of allegiance which is due by the people to the government; the second are the reciprocal rights of husband and wife, parent and child, guardian and ward, and master and servant.1
PUBLIC v. PRIVATE
Privately-held companies are - no surprise here - privately held. This means that, in most cases, the company is owned by the company's founders, management or a group of private investors. A public company, on the other hand, is a company that has sold a portion of itself to the public via an initial public offering of some of its stock, meaning shareholders have claim to part of the company's assets and profits.
One of the biggest differences between the two types of companies deals with public disclosure. If it's a public U.S. company, which means it is trading on a U.S. stock exchange, it is typically required to file quarterly earnings reports (among other things) with the Securities and Exchange Commission(SEC). This information is also made available to shareholders and the public. Private companies, however, are not required to disclose their financial information to anyone since they do not trade stock on a stock exchange.
The main advantage public companies have is their ability to tap the financial markets by selling stock (equity) or bonds (debt) to raise capital (i.e. cash) for expansion and projects. The main advantage to private companies is that management doesn't have to answer to stockholders and isn't required to file disclosure statements with the SEC. However, a private company can't dip into the public capital markets and must therefore turn to private funding, which can boost the cost of capital and may limit expansion. It has been said often that private companies seek to minimize the tax bite, while public companies seek to increase profits for shareholders.
The popular misconception is that privately-held companies are small and of little interest. In fact, there are many big-name companies that are also privately held - check out the Forbes.com list of the largest private companies in 2006.
(For further reading on this subject, check out Policing The Securities Market: An Overview Of The SEC.)
How do I tell if my company is public or private?
There are a number of sources that will let you know if your company is public or private. Try these:
Million Dollar Directory (Bus HC 102 .D8)
A triangle symbol next to the company name indicates whether the company is public.
Directory of Corporate Affiliations (Bus HG 4057 .A217)
Check the master index to this multi-volume set. The index listing will tell you whether your company is a public company, private company or an international company.
Business & Company Resource Center and General BusinessFile ASAP
These databases provide company profiles and many full-text articles on public and private companies. The profile will indicate the status of the company.
LIABILITY OF PRINCIPAL FOR AGENT'S CONTRACTS
THIS XMind map was authorized by
EXECUTIVE VICE PRESIDENT OF
Lisa Stinocher O'Hanlon
Head over to XMind.net.
Download and install the FREE software.
Now you can download any XMind map you like from my XMind
account to your own computer and use it to work your own case.
Save the originals in a special folder so that you can start over if
you mess up, or share them with a friend or loved one.
Please share my maps as much as possible.
You can find them here:
For more AUTHORIZED mind maps visit:
Please take them to your local copy center and have large versions printed.
Now you can deliver them to your local child support agency, or to
low income neighborhoods, pin them to your local pub bulletin board; bus stops,
the break room at work, AA clubs, your local workhouse, --> wherever!
Distribution copy. This document is copyright free; and is NOT FOR SALE at any cost; VOID WHERE PROHIBITED.
I wanted to tell you -->
that if you download this map and then highlight the title (by clicking on it once)
and then hit control + C and then
go to a word processor document like Google docs or OpenOffice and
put down your curser and then hit control + V;
All of this work will drop into your document like magic
and then you can pick up and start where I left off today after fifteen years of research...
and, you can use MY NOTES
More Maps From User
Copy the code to embed this map into your article. The embeded map can even be zoomed in / out