ProbateSharks.com: Federal law vs. State Law, who holds the trump card?

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Thursday, May 8, 2014

Federal law vs. State Law, who holds the trump card?

by jmdenison

For those of you out there who are looking to better understand how state and federal laws interact, here is a good basic article on the pre emption doctrine as applied to federal vs. state law:

http://www.huffingtonpost.com/lesley-daunt/state-vs-federal-law-who-_b_4676579.html

Also, Alyece has us considering a new legal theory of interest (I think this will ring quite a bell for many of you in the probate horror system)--"abuse of rights".

from Wikipedia:

The prohibition of chicane is known as the abuse of rights (German Wikipedia link) in German law (BGB §226).

The Swiss Civil Code states "The manifest abuse of a right is not protected by law."

At least one of four conditions is required to invoke the doctrine:^[1]

the predominant motive for exercising the right is to cause harm
no serious or legitimate motive exists for exercising the right
the exercise of the right is against moral rules, good faith, or elementary fairness
the right is exercised for a purpose other than that for which it was granted.

The principle does not exist in the Anglo-Saxon system.^{[citation needed]}

**********

so let me fast case that in Illinois. And I find nothing. With an "all jurisdiction" search I find 241 cases talking about "abuse of rights", and most are in Lousiana--which is Napoleonic Code!

for those of you with access to Westlaw or Nexus or another legal searching system, you might want to look into the tort of "abuse of rights" if you are embroiled in a typical, malicious probate case.

thanks, Alyece for bringing up this legal theory which I had not heard of before, being from Illinois where there are no cases on this theory.

joanne

jmdenison | May 8, 2014 at 9:39 am | Categories: Uncategorized | URL: http://wp.me/p209wH-1ds

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