Legal conventions

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A legal convention is a practice or procedure widely observed in a group, especially to facilitate social interaction; a custom, or a generally accepted principle, method or behaviour, relating to the law or to lawyers, as in legal profession, has a basis in the law, such as legal precedent, is allowed by law, such as a legal motion, or is prescribed by law.

Notions[edit]

Def. mental "apprehension of whatever may be known, thought, or imagined; idea, concept"[1] or a "sentiment; an opinion"[1] is called a notion.

Conventionals[edit]

Def. pertaining "to a convention, as in following generally accepted principles, methods and behaviour"[2] or "ordinary, commonplace"[3] is called conventional.

Def. pertaining to a mental apprehension of whatever may be known, thought, or imagined; idea, concept, or a sentiment; an opinion, as in following generally accepted principles, methods and behaviour, or ordinary, commonplace, is called a conventional notion.

"As conventional notions of the proper objects of government spending have changed over the years, so has the ability of Congress to "fix the terms on which it shall disburse federal money to the States." Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). Compare, e. g., United States v. Butler, supra, at 72-75 (spending power does not authorize Congress to subsidize farmers), with South Dakota v. Dole, 483 U. S. 203 (1987) (spending power permits Congress to condition highway funds on States' adoption of minimum drinking age). While the spending power is "subject to several general restrictions articulated in our cases," id., at 207, these restrictions have not been so severe as to prevent the regulatory authority of Congress from generally keeping up with the growth of the federal budget." New York v. United States, 505 US 144 - Supreme Court 1992.

Conventions[edit]

Def. a "practice or procedure widely observed in a group, especially to facilitate social interaction; a custom"[4] or a "generally accepted [principle][5] method or behaviour"[6] is called a convention.

Legalness[edit]

Def. "relating to the law or to lawyers, as in legal profession",[7] "has a basis in the law, such as legal precedent",[7] "is allowed [or prescribed by law][8], such as a legal motion"[7] is called legal.

Legal conventions[edit]

"West Publishing Co. and West Publishing Corp. (collectively "West") publish compilations of reports of judicial opinions ("case reports"). Each case report consists of the text of the judicial opinion with enhancements that for the purposes of this case can be put in two categories: (i) independently composed features, such as a syllabus (which digests and heralds the opinion's general holdings), headnotes (which summarize the specific points of law recited in each opinion), and key numbers (which categorize points of law into different legal topics and subtopics), and (ii) additions of certain factual information to the text of the opinions, including parallel or alternative citations to cases, attorney information, and data on subsequent procedural history. HyperLaw, Inc. publishes compact disc-read only memory ("CD-ROM") compilations of Supreme Court and United States Court of Appeals decisions, and intervened as a plaintiff to seek a judgment declaring that the individual West case reports that are left after redaction of the first category of alterations (i.e., the independently composed features), do not contain copyrightable material. West now appeals from a judgment of the United States District Court for the Southern District of New York (Martin, J.), following a bench trial, granting declaratory judgment in favor of HyperLaw. Matthew Bender & Co. v. West Publishing Co., No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997)." Matthew Bender & Co., Inc. v. West Pub. Co., 158 F. 3d 674 - Court of Appeals, 2nd Circuit 1998.

"It is true that neither novelty nor invention is a requisite for copyright protection, but minimal creativity is required. Aside from its syllabi, headnotes and key numbers — none of which HyperLaw proposes to copy — West makes four different types of changes to judicial opinions that it claimed at trial are copyrightable: (i) rearrangement of information specifying the parties, court, and date of decision; (ii) addition of certain information concerning counsel; (iii) annotation to reflect subsequent procedural developments such as amendments and denials of rehearing; and (iv) editing of parallel and alternate citations to cases cited in the opinions in order to redact ephemeral and obscure citations and to add standard permanent citations (including West reporters). All of West's alterations to judicial opinions involve the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and therefore any creativity in these elements of West's case reports lies in West's selection and arrangement of this information. In light of accepted legal conventions and other external constraining factors, West's choices on selection and arrangement can reasonably be viewed as obvious, typical, and lacking even minimal creativity. Therefore, we cannot conclude that the district court clearly erred in finding that those elements that HyperLaw seeks to copy from West's case reports are not copyrightable, and affirm." Matthew Bender & Co., Inc. v. West Pub. Co., 158 F. 3d 674 - Court of Appeals, 2nd Circuit 1998.

"West claims that it exercises careful judgment as to which sources are most useful to legal practitioners. However, almost every one of West's decisions relating to citation alterations is inevitable, typical, dictated by legal convention, or at best binary. See 1 Patry, supra, at 196-97 ("Even where theoretically there is a large number of items to choose from, functional, commercial, or legal constraints may limit, or even bar, protectibility."). And each case report exhibits only one or two decisions on how to alter citations." Matthew Bender & Co., Inc. v. West Pub. Co., 158 F. 3d 674 - Court of Appeals, 2nd Circuit 1998.

"For example, materials from a legal convention, while noting that "nationality" is less important than "once was thought," and emphasizing that "the answers a prospective juror gives to questions are much more valuable," still point out that "[s]tereotypically" those of "Italian, French, and Spanish" origin "are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense"; African-Americans "have always been considered good for the plaintiff," and "[m]ore politically conservative minorities will be more likely to lean toward defendants." Blue, Mirroring, Proxemics, Nonverbal Communication, and Other Psychological Tools, Advocacy Track—Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA-CLE 153, available at WESTLAW, ATLA-CLE database (June 8, 2005)." Miller-El v. Dretke, 545 US 231 - Supreme Court 2005.

"The more recent trend has been to abandon the fiction of implied malice [intent to kill]. Generally, modern law no longer resorts to the convention of finding that the perpetrator implicitly intended to harm the victim in all cases of murder. Most statutes and courts now frankly characterize a homicide as murder if the killer acted with reckless and wanton disregard of an obvious risk to human life. Eugene R. Milhizer, Murder Without Intent: Depraved-Heart Murder Under Military Law, 133 Military L.Rev. 205, 209 (1991)." Rodriguez v. State, 953 SW 2d 342 - Tex: Court of Appeals, 3rd Dist. 1997.

Industry conventions[edit]

"In each of these cases, the compiler selected from among numerous choices, exercising subjective judgments relating to taste and value that were not obvious and that were not dictated by industry convention. See Mid America Title Co. v. Kirk, 59 F.3d 719, 723 (7th Cir.1995) (distinguishing cases involving exercise of subjective judgment).[14]" Matthew Bender & Co., Inc. v. West Pub. Co., 158 F. 3d 674 - Court of Appeals, 2nd Circuit 1998.

"The creative spark is missing where: (i) industry conventions or other external factors so dictate selection that any person composing a compilation of the type at issue would necessarily select the same categories of information, see, e.g., Victor Lalli Enters., 936 F.2d at 672 (charts of winning numbers in illegal gambling operations); see also Mid America Title Co., 59 F.3d at 722 (title examiner's report; "[s]electing which facts to include in this compilation of data was not a matter of discretion based on Mid America's personal judgment or taste, but instead it was a matter of convention and strict industry standards"), or (ii) the author made obvious, garden-variety, or routine selections, see Feist, 499 U.S. at 362, 111 S.Ct. at 1296 (concluding that the selection and arrangement of a white pages in which the publisher had chosen to include name, town and telephone number, and to arrange these listings in alphabetical order were entirely "typical" and "garden-variety"); BellSouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 999 F.2d 1436, 1444 (11th Cir.1993) (in banc) (holding that the categories for the organization of material in a yellow pages directory lacked creativity where many of the selected headings, such as "Attorneys" or "Banks" are so obvious and many others "result from certain standard industry practices")." Matthew Bender & Co., Inc. v. West Pub. Co., 158 F. 3d 674 - Court of Appeals, 2nd Circuit 1998.

"In sum, creativity in selection and arrangement therefore is a function of (i) the total number of options available, (ii) external factors that limit the viability of certain options and render others non-creative, and (iii) prior uses that render certain selections "garden variety." See, e.g., 1 Patry, supra, at 196 ("As a general principle, the greater the amount of material from which to select, coordinate, or arrange, the more likely it is that a compilation will be protectible. On the other hand, where less material is available, it is less likely that a compilation, even if original, will be protectible, since de minimis efforts, including selections, are not subject to copyright.")." Matthew Bender & Co., Inc. v. West Pub. Co., 158 F. 3d 674 - Court of Appeals, 2nd Circuit 1998.

See also[edit]

References[edit]

  1. 1.0 1.1 Curtisweyant (10 November 2004). "notion". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  2. Goldenrowley (24 September 2009). "conventional". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  3. Emperorbma (29 December 2004). "conventional". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  4. 32.213.246.79 (3 April 2016). "convention". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  5. Verbo (10 March 2009). "convention". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  6. Mr gronk (3 March 2008). "convention". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  7. 7.0 7.1 7.2 ILVI (18 June 2003). "legal". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.
  8. Mahagaja (25 August 2007). "legal". San Francisco, California: Wikimedia Foundation, Inc. Retrieved 26 May 2019.

External links[edit]