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裁判・仲裁・調停

Defamation

アメリカ 弁護士 法律事務所 法律 名誉棄損

Anyone who has been following the U.S. presidential election (and even many people who haven’t been following), knows that Donald Trump has taken center stage and has received most of the media focus throughout the process. A lot of this has to do with the fact that Mr. Trump seems to say outrageous things on a weekly basis. Many people in Japan are aware that Mr. Trump has recently stated that Japan and South Korea should develop nuclear weapons, though Japanese government officials have publicly reiterated the nation’s policy against nuclear weapons.

Though Mr. Trump’s statements are often outrageous and completely untrue, he is permitted to say them in the U.S. without repercussions from the government because of the freedom of speech guaranteed in the U.S. Constitution. However, somewhat ironically Mr. Trump has often sought to use the U.S. judiciary (a branch of the government) to silence those who say negative things about him. Mr. Trump has often sued or at least threatened to sue individuals for “defamation.” In addition, he has gone so far as to say that when he becomes president, he will change defamation laws, presumably to make it easier to sue people for speaking negatively about you.

Mr. Trump’s statements and actions highlight an interesting and somewhat complicated and confusing legal issue. Because the U.S. was once a British colony, the U.S. adopted many old English common laws, including the law that prohibited defamatory speech. As a result, under U.S. law, a person can sue someone else and collect damages because of injurious false statements made by the offender. However, when the United States was created, the founders of the country drafted and ratified a constitution, which states that “Congress shall make no law…abridging the freedom of speech.” In other words, the government is not supposed to restrict people from speaking freely. These two principles are thus at odds. U.S. courts have been forced to try and address the relationship between defamation laws and the freedom of speech in the U.S. The results of the many court cases over the last two centuries are a bit confusing and complicated. However, one thing that is clear is that, even though the U.S. Constitution guarantees freedom of speech, you can still be sued and ordered to pay monetary damages to someone else if you make false, injurious statements about them. It is important to understand this concept if you travel to or decide to move to the United States. While your speech is generally protected, leaving you free to say whatever you want, there are still potential repercussions that can result from the things you say. If you or someone you know is threatened with a defamation lawsuit in the United States, it is very important to talk to an attorney who understands this complex area of law.

(2016 Spring)

“Supreme Court Update: The Second Amendment”

アメリカ 弁護士 法律事務所 法律  Supreme Court Update: The Second AmendmentIn the much publicized "gun control case," District of Columbia v. Heller, the modern Supreme Court took the first stab at defining the Second Amendment in over 60 years. Heller involved a challenge to gun-control regulations in the District of Columbia that were some of the toughest in the country: essentially banning all private handguns and requiring that firearms be kept locked in an inoperable condition. The question presented to the Supreme Court was whether these regulations violated the Second Amendment.

In its 5-4 decision, the Court held that the D.C. regulations were unconstitutional under an "individual" reading of the Second Amendment. This means that the Second Amendment right to bear arms now protects the right of individuals -"the people"-to keep firearms for their own self-defense or other private use. The Court majority rejected the argument that the Second Amendment was only meant to protect the right of the states to form and arm an official state-run militia.

So what does this mean for the everyday American? Immediately-not a great deal. Because of the way Justice Scalia wrote the decision, the Court left open the possibility that certain gun regulations will still not be barred by the Second Amendment: for example, laws governing the disarming of convicted felons, creating "gun-free zones," and banning short-barreled shotguns. It will take some time for cases about these specifics to make their way through the various court systems before we really understand the impact of Heller.

(Fall 2008)

“Protecting Your Assets From Lawsuits-Be Proactive”

アメリカ 弁護士 法律事務所 法律 <br />
健康保険及び雇用に関する遺伝子情報に基づく差別禁止法Imagine you are driving home from the store when a child darts into the street. You swerve to avoid him, and in the process, run head first into another car. After it's all said and done, you are sued by the other driver for the costs of her extensive medical care and car repairs. Could she end up getting your house? What about your retirement savings?

Across the country, newspaper headlines are packed with news of multimillion dollar court judgments for plaintiffs. These rulings can provide important relief and support for injured parties. However, they can also bankrupt defendants. Protecting yourself from a large legal judgment may be the last thing on your mind; however, if something goes wrong, you will be thankful for any and all prior planning.

State laws offer varying levels of protection against legal judgments. Therefore, it is important to research your state's laws. Nevertheless, a few general principals do apply. In all cases, you must be proactive. You cannot move or otherwise act to protect your assets from a legal judgment after you have been sued or had an accident for which you might be liable. Courts look negatively upon such moves. Consequently, whatever actions you do decide to take to protect yourself must be done ahead of time.

So what exactly could a large legal judgment put at risk? Again, this depends on your specific state laws, but there are some general rules. Any 401(k) plans and company pension benefits are likely protected. IRAs are another matter-their vulnerability will depend on where you live and whether the judgment forces you to declare bankruptcy. Life insurance policies are usually safe, as are any proceeds being paid to you from another person's policy. However, if you take such proceeds in a lump sum, a court judgment may be able reach them.

A major worry for many people facing a large legal judgment is their home. Since your house is often your largest investment, and at the end of the day, it is the place your loved ones call home, it may make sense to start liability planning here. In most states, a primary residence (meaning the place you intend to live most of the time) is protected to some degree from legal judgments. Some states place limits on the amount of value that will be protected, but these caps can vary.

Likely, your best bet to protect your home and other assets is to make sure you have adequate insurance coverage. Liability insurance is the most common insurance used to protect home owners. The liability portion of your homeowners' insurance is designed to cover unintentional injuries on your property and unintentional damage to other people's property-in other words, injuries caused by your negligence are covered, but not injuries inflicted on purpose.

If you have significant assets, you may also want to consider taking out an umbrella policy. For an additional fee, an umbrella policy protects you from a big judgment that might quickly eat up your regular coverage. These policies are relatively inexpensive because the insurers are betting ou'll never need them. The coverage picks up where your home and auto policies leave off, so in order to obtain one, you have to have certain levels of basic home and auto liability insurance. You also have to meet certain eligibility requirements, such as owning no more than a certain number of cars and not having been convicted of driving under the influence in the recent past.

Because no two policies are the same, it is important to carefully study yours and know what will and will not cover. Read the fine print. You may need additional coverage if you have a home-based business or natural or manmade attractions on your property, such as a pond or pool. Regardless of what form of protection you pick, at the bottom line, all that matters is that you and your family are protected!

(Summer 2008)

"Legal Update - Fourth Amendment"

アメリカ 弁護士 法律事務所 法律 最高裁最新判例:修正第4条As a passenger in a car stopped by police, you probably wouldn’t feel free to simply walk away. In June, the United States Supreme Court ruled that you aren’t expected to. Brendlin v. California asked the Court to decide whether a passenger in a car stopped by police should be considered “seized” within the meaning of the Fourth Amendment, which bans “unreasonable searches and seizures.” Under the Court’s prior decisions interpreting the Fourth Amendment, if you are seized illegally by government officials, any resulting evidence cannot be used against you at trial. Courts have long recognized that the driver of a stopped car has been “seized” and therefore can challenge the constitutionality of both the stop and the government’s use of any resulting evidence. Before Brendlin, courts disagreed about whether passengers had this same right.

The Supreme Court held that Brendlin, a passenger, could challenge the constitutionality of a traffic stop. In reaching this result, the Court applied its test for identifying Fourth Amendment seizures − would a reasonable person in the same position feel free to leave? In ruling that passengers in stopped cars are likely going to think that they can’t leave, the Court noted: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver.”

If you think your rights under the Fourth Amendment have been violated, or if you are interested in learning more about your rights as a passenger, talk to your lawyer about your options.

(Fall 2007)

"Neighborly Relations"

Neighborly RelationsWith the warm weather, many Americans enjoy outdoor activities, reacquainting themselves with backyards and patios. These activities sometimes result in disputes with neighbors. Now that you’re sitting on your deck again, you’ve noticed that your neighbor’s tree has a dead branch hanging precariously over your prized petunias. Or maybe the fifteen-year-old kid next door has taken up the drums this summer, and practices in the garage very loudly and very late. What can you do?

It is always best, if at all possible, to resolve disputes with your neighbors informally. Step one should be to discuss the problem with your neighbors. Maybe they don’t know about the dead branch threatening your garden, and perhaps the parents of the aspiring percussionist don’t realize how far the sound of his practicing carries. If things don’t change, you’ll want to know the applicable local ordinances and subdivision and municipal regulations. You can look in the municipal code (found online or at your local library or city hall or by contacting your local council representative).

You may be permitted to trim the tree branch threatening your petunias, with certain restrictions:

  • You may trim up to the boundary line only.
  • Unless the tree poses “imminent and grave harm” to you or your property, you need permission to enter the tree-owner’s property.
  • You may not cut down the whole tree.
  • You may not trim the tree in a way that will destroy it.

It is always best to notify the neighbor before pruning his or her tree. If the owner objects, offer reassurance that the job will be done professionally and responsibly. If the tree has already caused damage to your property, state law determines the scope of the owner’s liability. Liability generally depends on the extent of the damage.

The would-be drummer is likely addressed in your municipal code through limits to allowable decibel levels. Your local police may have a decibel machine that can measure the noise of the unnerving drum solos. Such measurement will be crucial should you need to proceed against your neighbor in court.

Be sure to check the details of any municipal noise ordinance. Many noise regulations are limited to certain “quiet times” when most people are asleep.
These quiet times generally start between 10:00 p.m. and midnight and last until 7:00 a.m. or 8:00 a.m. on weekdays, and sometimes later on weekends. Though the rules of politeness require the next-door musician to keep it down when asked, the laws may only require it between certain hours. If talking to your neighbor doesn’t resolve the problem, obtain a copy of the applicable ordinance and mail it, along with a letter of warning, alerting your neighbor that his or her actions are breaking the law. Be sure to keep a copy for yourself.

Wait a reasonable amount of time for your neighbor to comply with your request before advancing the dispute to the next level. If it is clear that the letter has not resolved the dispute, suggest mediation.

Mediators are trained to listen to both sides in a dispute, identify problems, and suggest compromises and equitable solutions. A mediator is an impartial third party who, unlike a judge in a courtroom setting, does not decide a winner and a loser, but rather strives to make both parties win. With a mediator, there can be no resolution until both parties agree, and the two sides are more likely to comply with the resolution, since both agree to it.

In the case of the would-be percussionist, your neighbor might be subject to prosecution as a nuisance. Nuisance is a legal term for a person’s unreasonable action that interferes with your enjoyment of your property. Your local ordinance may make nuisance a crime (usually a misdemeanor) or a civil violation. Whether criminal or civil, the city carries the burden of prosecuting a nuisance case.
Your role as the complaining neighbor is limited to testifying if the case goes to trial. Any money collected from the neighbor will be in the form of fines paid to the city, not damages to you.

Your lawyer can help you determine the best course of action in an extended dispute with your neighbor. If your lawyer is not a trained mediator, he or she will be able to help you find one. If mediation fails, or if your neighbor refuses to attend mediation with you, your lawyer can advise you on pursuing a civil lawsuit or filing a nuisance complaint with the city.

(Summer 2007)

"Resolving Disputes―Without Going to Court"

「交渉・調停・仲裁」Disputes arise every day―at work, at home, and in the marketplace. In a single day you might have a dispute with your boss about a promised promotion; a dispute with your ex-spouse about child support; a dispute with your phone company about being overcharged; and a dispute with a neighbor about who should fix the wall dividing your properties. Depending on the circumstances, each of these disputes could potentially end up in court.

Litigation, however, is both time-consuming and expensive. The process can also place pressure on relationships, which can be problematic for divorced parents who need to continue raising their kids together, neighbors who need to continue living next to each other, and business partners who have an interest in continuing to work together. Many disputes, large and small, can be resolved quickly, cheaply, and amicably without going to court―through negotiation, mediation, or arbitration. These processes for resolving disputes are discussed in more detail below; your lawyer can give you information about the best strategy for resolving your dispute.

Negotiation

Negotiation takes place every time two or more people bargain for what they want. Most adults negotiate every day. Negotiations offer great flexibility. Parties are free to negotiate an issue as far as they wish, and can walk away without investing a great deal of time or money if they cannot reach agreement.

If two people successfully negotiate, they may wish to formalize their agreement in a contract. For example, in an employment negotiation in which a salary is negotiated, the parties often put the agreement in writing. Such a written agreement is usually legally enforceable. This means that, if one party does not comply with the terms of the contract, the other party can sue him or her either to enforce the agreement or to collect money damages. Your lawyer may be able to help you formalize an agreement after a successful negotiation.

Not all successful negotiations end in a contract. For instance, if you are purchasing a bicycle from a store or a yard sale, you might bargain over the price, money may change hands, and you might ride the bike away without ever signing a contract. Similarly, if the tenants in an office building negotiate a 10 percent discount with a local coffee shop, a contract is probably unnecessary.

Negotiations are a natural first step in resolving a dispute. Because the parties are in control of the negotiation, there are many potential outcomes. When you negotiate, you can focus on your own interests while also accommodating the interests of others. Negotiating a dispute can also preserve the relationships between the parties involved in a dispute.

Mediation

Mediation is a form of negotiation that is facilitated―but not decided―by a neutral third party. In the mediation process, parties meet jointly with a neutral mediator, and each party presents his or her side of the dispute. The mediator then meets with each party separately and facilitates discussion to encourage them to reach an agreement. The mediator can help focus the discussion on each party’s needs and interests. However, the parties are ultimately in control of the agreement reached, if an agreement is reached at all.

Mediation is both cheaper and faster than litigation and also offers a broader range of settlement opportunities than a traditional trial. Mediation offers parties the chance to create a mutually beneficial outcome. For example, suppose that neighbors Luis and Steve have a dispute about a fallen tree. The tree originally stood on the dividing line between their properties and, when it fell, it damaged Steve’s house. Steve sues Luis for $5,000, which is half the amount that it will cost to fix Steve’s house. If Steve and Luis end up in court, a judge will issue a decision. Depending on the judge’s decision, Steve will either get $5,000, a smaller amount, or nothing. Mediation, on the other hand, would give Steve and Luis the opportunity to try to come up with a mutually agreeable solution that both can live with. They could agree to work on the house together or decide to split some costs. If they are able to reach a solution that both can agree on, their relationship at the end of the dispute will be a lot better than if one wins and the other loses in a court.

Many common disputes can be mediated, including workplace disputes, neighbor disagreements, family custody issues, and business disputes. Sometimes mediation is appropriate if parties have been negotiating and reach an impasse. Your lawyer may suggest that you try mediating a dispute before progressing with a law suit. Sometimes contracts specify that any disputes under the contract must be taken to a mediator. Sometimes judges will order mediation before a case goes to trial, in the hope that the parties will be able to reach agreement. Mediation is generally a voluntary process: you choose whether to come to an agreement through mediation, and the mediator cannot force you to reach an agreement.

Any agreement reached in mediation may be submitted to the court, or it may be kept private between the parties. Most mediation agreements are as enforceable as any other contract, meaning a party can ask a court to enforce the agreement if one of the parties does not comply.

The parties normally share the cost of the mediator, and in many regions you can obtain free or sliding-scale mediation at a community center. The costs of mediation are higher than the costs of negotiation, because mediation involves a third person, but they are still considerably less than either arbitration or litigation.

Arbitration

In arbitration, the parties to a dispute agree to participate in a private hearing with a neutral third person, the arbitrator. The parties may agree in advance on the rules that will apply during the arbitration hearing and the selection of the arbitrator.

In an arbitration hearing, the arbitrator listens to the details of a dispute between the parties, considers all evidence presented, and issues a ruling. In binding arbitration the arbitrator’s decision is filed with a court within twelve months. The court then confirms it, and the decision becomes an order of the court. This means that, if a person refuses to follow the decision, he or she can be found in contempt of court and fined or imprisoned. Appeal from a binding decision is only allowed in very limited circumstances, for example, if the arbitrator was obviously biased. In non-binding arbitration, the arbitrator’s opinion is only advisory, and parties may adhere to the opinion, continue to litigate the dispute, or settle under different terms.

Usually both parties to arbitration have lawyers to represent them. The arbitrator controls the process, which is very similar to a trial, and decides the outcome in a role very similar to that of a judge. The arbitrator’s final decision is based on the evidence and testimony of all parties at the hearing. Unlike mediation, in which the parties are not obliged to reach an agreement, the arbitrator will come to a decision. Unlike court proceedings, arbitration is held in a closed and private court, and the parties can keep the outcome confidential. This confidentiality necessarily means that the decision only binds the parties in that particular case―the decision has no value as a precedent in subsequent cases, even in cases with identical facts. These characteristics of arbitration make it an attractive dispute-resolution process for many commercial parties.

Your lawyer can give you more information about arbitration and whether it might be an appropriate means of resolving your dispute.

(Summer 2006)

"Arbitration Clauses in Contracts"

Arbitration Clauses in ContractsAn arbitration clause is a section of a contract requiring disputes to be resolved through arbitration. If you have agreed to the terms of a credit card, insurance policy, or bank loan, you have probably agreed to an arbitration clause. Often the arbitration clause is included in the fine print of an agreement.

Unfortunately, arbitration is not always in the interests of consumers. Consumer rights groups claim that mandatory arbitration circumvents the protections of the legal system, such as the ability to file class-action lawsuits. Moreover, consumers rarely voluntarily agree to arbitration, but do so in ignorance, when they sign lengthy contracts with mandatory arbitration clauses buried in legalese.

If you are involved in a dispute and are facing mandatory arbitration, talk to your lawyer about how best to proceed.

(Summer 2006)

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