LAWGICAL: Jurisprudential and Logical Considerations

Such creative statutory construction is familiar to anyone who reads appellate decisions. Whatever one\u27s views on so-called strict construction, one must recognize that in the actual working of law, this type of creative interpretation is prevalent. One who designs a computer system to do some aspects of legal analysis must take into consideration the creative dimension of the judge\u27s role. Otherwise the computer will calculate legal results which are literally correct but faithless to the law as it is actually interpreted. It would be easy to design a system to draw legal inferences if one accepted a mechanical, slot machine jurisprudence. However, whatever view one takes on the subject, slot machine jurisprudence does not capture what the courts actually do. Thus, any computer system based upon mechanistic assumptions would be useless to the practitioner. This analysis applies with equal force to the application of logic to law

Presumptions and Modal Logic: A Hohfeldian Approach

The difficulty of distinguishing between an inference and a presumption, a difficulty that bedevils tort and evidence teachers, (see Appendix I) among others, may be dispelled by a study of the deontic nature of permissible inferences and presumptions. Using scholastic terminology, an inference is a function of the intellect, not the will. Therefore, deontic notions of permission and duty seem foreign to inference. However, deontic notions are legitimate, because the law, in assigning a fact finding function to judge and jury, uses deontic notions in assigning fact finding competence. Thus, the statement that an inference is not permissible means that insufficient evidence has been introduced to permit the jury to find the fact in question. It does not matter whether the jury, by applying its collective intelligence, would draw the inference. Their incompetence to draw the inference is not a function of rationality, but of a rule of law that deprives them of competence

Check Payment: Finality Under the Uniform Commercial Code

May a Bank which pays a check by mistake recover the payment? The answer has traditionally depended upon the law of restitution as modified to fit the peculiar necessities of the law of bills and notes.\u27 Such law determines whether payment may be recovered by balancing the equities between the parties. The leading case in this field is Price v. Neal, which holds that if the payor and the person paid are equally innocent, the law will not shift the loss from one innocent person to another. In Price the signature of the drawer was forged. Unlike the Negotiable Instruments Law which treated the problem of finality of payment or acceptance in a fragmentary manner, the Uniform Commercial Code has provided for the problem rather exhaustively in §§ 3-417 (1), and 3-418.6 Section 3-418 provides that payment or acceptance of any negotiable instrument is final in favor of a holder in due course, or a person who has in good faith changed his position in reliance on the payment. There are two exceptions. Payment is not final if a presentment warranty has been breached or if the payor bank may recover a payment improperly made by returning the item or sending notice of dishonor within the time limits of § 4-301. Sections 3-418 and 3-417 (1)8, taken together, codify prior law in those areas where the question of finality is determined by balancing the equities between the parties.

The Secured Party and His Nemesis, the Trustee in Bankruptcy: After-Acquired Property, Unidentified Proceeds, and Selected Preference Problems

A trustee in bankruptcy, in addition to succeeding to the rights of the bankrupt,\u27 has several avoiding powers. Some of these avoiding powers are based on practices which, like vice, are of so frightful mien that to be hated [need] but to be seen. Preferences may not be included among such practices. Indeed, the English view exhibits ambivalence towards preferences. At one time it regarded preferences [as] the good fortune of the creditor. A later view was that the preferring of one creditor over others within a short time of bankruptcy and in contemplation thereof, was a \u27fraud on the bankruptcy law\u27 which could be required to be righted or undone. In the United States the voidability of preferences has been statutory, and the Statute with which this paper is concerned is the Federal Bankruptcy Act. That Act provides that any preference as defined therei

Section 542(c) of the Bankruptcy Reform Act of 1978 and Section 4-303 of the UCC: A Less Than Perfect Fit?

The Uniform Commercial Code (UCC) 4-303 addresses two areas where the UCC and the Bankruptcy Code intersect. The first relates to the vulnerability of drawee banks that honor checks after their customer has taken bankruptcy (has filed a voluntary petition or is the defendant in an involuntary case); the second relates to the timing of transfers made by check under 547 of the Bankruptcy Code (the preference section). In both areas there is a less than perfect fit between the Bankruptcy Code and UCC 4-303. The first area poses problems for practitioners whose clients have received notice of bankruptcy in situations where UCC 4-303 clearly provides protection but where Bankruptcy Code 542(c), at least arguably, does not. The second area involves the timing of a transfer by check. The majority of courts equate transfer with honor which is generally correct since honor generally is the time after which a creditor of the depositor cannot garnishee funds in the depositor\u27s account. However sometimes, as explained below, priority contests between holders who present checks and garnishing creditors are not determined at the time of honor under UCC 4-303. A minority of courts simply ignore the priority rules of UCC 4-303 and hold that the transfer takes place when the check is honored. (Note: 547(e) of the Bankruptcy Reform Act of 1978 makes the priority rules of applicable non-bankruptcy law determinative of the issue of timing.) A compromise position equates transfer and issue if, but only if, honor is within ten days of issuance

Tortious Necessity; The Privileged Defense

The similarities between the laws of torts in the United States of America and England enable one to make an interesting comparison between the two sets of rules applicable to the general defense of necessity. Although both tort systems are derivatives to a greater or lesser extent of the English common law, they have inevitably developed their own individual jurisprudence over the years. Concepts have been refined and extended to produce significant and curious differences which provide an interesting exercise in legal forensic. The similarities of the two tort systems make a comparative study possible, and the differences provide the justification for the analysis

Association between family history and mismatch repair in colorectal cancer

BACKGROUND AND AIMS: Germline mutations in mismatch repair (MMR) genes cause a greatly increased risk of cancer of the gastrointestinal and female reproductive tracts (hereditary non-polyposis colorectal cancer (HNPCC)). Loss of MMR expression is common in colorectal cancer (CRC) overall. Such loss is assumed to be acquired predominantly, although a population of CRC cases will include individuals with unrecognised MMR mutations. This study examines the association between MMR gene expression and family history of cancer among the CRC population. METHODS: Individuals with CRC were identified from two well characterised populations: (1) consecutive hospital patients (n = 644) and (2) a population based cases series (n = 249). CRC was examined for expression of hMLH1 and hMSH2 using immunohistochemistry, and expression was related to family history using logistic regression. RESULTS: hMLH1 and hMSH2 expression was assessed in 732 CRCs with 8% showing loss of expression. No association was seen overall for hMLH1 or hMSH2 expression and family history of CRC. Loss of hMSH2 was predicted by family history of extracolonic cancer (odds ratio (OR) 5.78 (95% confidence interval (CI) 0.95–35.18)) and family history suggestive of HNPCC (OR 27.84 (95% CI 4.37–177.56)). Loss of hMLH1 was not predicted by family history of extracolonic cancer or a family history suggestive of HNPCC but was for a family history of at least two affected relatives (OR 4.88 (95% CI 1.25–19.03)). CONCLUSIONS: Individuals with hMSH2 deficient CRC in the general population exhibit a family history and other characteristics suggestive of HNPCC, and may carry germline MMR mutations. Loss of hMLH1 is only associated with a strong family history of extracolonic cancer at older ages, suggesting a novel mechanism of susceptibility

Creditor\u27s Rights in Ohio: An Extensive Revision

House Bill No. 254, effective August 26, 1982, involves a balancing of competing interests as well as an attempt to bring Ohio law into compliance with the procedural requirements mandated, on Constitutional grounds, by various U.S. Supreme Court cases. It involves a cost-benefit analysis because, in making decisions in this area, one must balance the costs associated with procedural requirements against the benefits afforded to consumers. The costs involved are costs to consumers, as there is little doubt that any costs associated with the procedural requirements in effect since August 26, 1982, will be borne by consumers. To be sure, financial institutions are subject to financial and regulatory constraints. However, given any reasonable assumptions about elasticity of demand, the financial institutions have the economic power to pass increased costs on. Of course, we are talking about primary demand, not selective demand; selective demand is not an issue since all financial institutions will be subject to procedural requirement of H.B. 254. As for regulation, this author is not aware of any regulations that would prevent financial institutions from passing the procedural cost on to consumers

The series Bi2Sr2Ca(n-1) Cu(n)O(2n+4) (1 less than or equal to n less than or equal to 5): Phase stability and superconducting properties

Phase relations at 850 and 870 C, melting transitions in air, oxygen, and helium were studied for Bi(2.1)Sr(1.9) CuO6 and for the Bi2Sr2Ca(n-1) Cu(n)O(2n+4) for n = 1, 2, 3, 4, 5, and infinity (CaCuO2). Up to 870 C, the n = 2 composition resides in the compatibility tetrahedron bounded by Bi(2+x)(Sr,Ca)(3-y) Cu2O8, (Sr,Ca)14 Cu24O41, Ca2CuO3, and a Bi-Sr-Ca-O phase. The n is greater than or equal to 3 compositions reside in the compatibility tetrahedron Bi(2+x)(Sr,Ca)(3-y) Cu2O8 - (Sr,Ca)14 Cu24O41 - Ca2CuO3 - CuO up to 850 C. However, Bi(2+x)Sr(4-y) Cu3O10 forms for n is greater than or equal to 3 after extended heating at 870 C. Bi(2+x)Sr(2-y) CuO6 and Bi(2+x)(Sr,Ca)(3-y) Cu2O8 melt in air at 914 C and 895 C respectively. During melting, all of the compositions studied lose 1 to 2 percent by weight of oxygen from the reduction of copper. Bi(2+x)Sr(2-y) CuO6, Bi(2+n)(Sr,Ca)(3-y) Cu2O8, and Bi(2+x)(Sr,Ca)(4-y) Cu3O10 exhibit crystallographic alignment in a magnetic field, with the c-axes orienting parallel to the field