All articles — page 11

The full archive in alphabetical order, across every field.

Transferring or Renewing a Franchise

Transfer of a franchise requires the franchisor's consent, conditioned on cure of defaults, a transfer fee, qualification and training of the buyer, an upgrade of the premises, execution of the current form of agreement, and a general release. Renewal is a right to a successor agreement rather than an extension, exercisable within a notice window and subject to a similar condition list. Several states restrict releases and require notice before nonrenewal.

7 min readState law

Tribal & Indian Law

Tribal Sovereign Immunity and How It Is Waived

Tribal sovereign immunity is a matter of federal common law. It bars suit against a tribe absent unequivocally expressed consent by the tribe or unequivocal abrogation by Congress, and it applies to commercial activity conducted off the reservation. Entities that function as arms of the tribe share it. Individual officers do not carry it into suits brought against them personally, and a properly drafted arbitration clause can operate as a waiver.

5 min readFederal law

Legal Ethics & Responsibility

Unauthorized Practice and Supervising Non-Lawyers

A lawyer may not practice in a jurisdiction in violation of its regulation of the profession, nor assist another in doing so. The model rule permits temporary practice elsewhere on four bases: association with active local counsel, work related to a proceeding where admission is expected, work related to an alternative dispute resolution proceeding, and work related to the lawyer's home-state practice. A lawyer is separately answerable for non-lawyers whose work they direct.

6 min readState law

Immigration & Naturalization

Visa Sanctions Against Countries That Will Not Take Nationals Back

The immigration statute directs the Secretary of State to order consular officers in a country to discontinue granting visas to its nationals once the immigration authorities certify that the country denies or unreasonably delays accepting a national ordered removed. The discontinuation may reach immigrant visas, nonimmigrant visas, or both, and may be narrowed to categories of applicants. It runs until the country accepts the person, and it falls on applicants with no connection to the dispute.

6 min readFederal law

Mining & Mineral Rights

Water Rights for a Mine and the Problem of Dewatering

In the western states a mine holds water under an appropriative right defined by priority, quantity and beneficial use, obtained by permit from the state water agency. Removing groundwater to keep workings dry is itself a use of water in most of those states and requires its own authorization. Drawdown that reaches senior wells, springs and streams creates liability under state law, and the water removed cannot be discharged or reinjected without federal and state permits.

6 min readState law

Franchise & Distribution

What Makes an Arrangement a Franchise

Under the federal trade regulation rule, an arrangement is a franchise where the operator receives the right to sell under the grantor's trademark, the grantor exerts or promises significant control over or assistance to the operator's method of operation, and the operator must pay the grantor or an affiliate a required sum before or within six months of opening. All three elements must be present, and the label the parties used is irrelevant.

7 min readFederal law

Immigration & Naturalization

When Unlawful Presence Stops Accruing

Unlawful presence does not accrue while a person is under eighteen, while a bona fide asylum application is pending absent unauthorized employment, or while a person falls within the family unity, battered spouse and trafficking victim exceptions. The statute separately tolls accrual for a limited period where a timely nonfrivolous request to extend or change status is pending, and that tolling reaches only the shorter of the two bars. Agency practice extends the same treatment more broadly.

6 min readFederal law

Tribal & Indian Law

Who Prosecutes a Crime in Indian Country

Criminal authority in Indian country is divided by statute rather than by geography. The General Crimes Act extends federal enclave law there but excludes offenses by one Indian against another. The Major Crimes Act gives federal courts jurisdiction over enumerated felonies by Indian defendants. Tribes retain inherent jurisdiction over Indians and, by congressional restoration, over some non-Indians. States hold authority under Public Law 280 and, over non-Indian offenders, concurrently.

6 min readFederal and state

Immigration & Naturalization

Withdrawing a Petition and What It Does to the Beneficiary

A petitioner may withdraw a petition at any time before a decision is issued, and the withdrawal cannot be revoked. After approval, a written withdrawal is a listed ground for automatic revocation, subject to a carve-out for employment-based petitions that have been approved for a sufficient period or whose associated adjustment applications have been pending long enough. The beneficiary has no standing to withdraw, to object, or to appeal, but may retain a priority date.

6 min readFederal law

Legal Ethics & Responsibility

Withdrawing From a Representation, By Choice or By Duty

A lawyer must withdraw where continuing would violate the rules or other law, where the lawyer's condition materially impairs the representation, or where the lawyer is discharged. A lawyer may withdraw where it causes no material adverse effect on the client, or on one of several enumerated grounds including repugnant client conduct and non-payment after warning. Where a tribunal is involved its permission controls, and protective steps are owed in every case.

6 min readState law

Fields of law

This journal

All articles — page 11

Transferring or Renewing a Franchise

Tribal Sovereign Immunity and How It Is Waived

Unauthorized Practice and Supervising Non-Lawyers

Visa Sanctions Against Countries That Will Not Take Nationals Back

Water Rights for a Mine and the Problem of Dewatering

What Makes an Arrangement a Franchise

When Unlawful Presence Stops Accruing

Who Prosecutes a Crime in Indian Country

Withdrawing a Petition and What It Does to the Beneficiary

Withdrawing From a Representation, By Choice or By Duty