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Subject: Re: Hypothetical on conflicng laws
From: John Montana <[log in to unmask]>
Reply-To:[log in to unmask]
Date:Wed, 4 Dec 2002 11:03:58 -0500
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If the topic is important enough, there is only one
final solution (assuming the authorities in question
refuse to yield to common sense and change their laws):
  Ya gotta sue 'em and get a judicial resolution of the
issue.

This is a variation of a fairly common legal issue,
laws which require conflicting things from you.  It
happens regularly because, given the volume of law on
the books, its not possible to vet a new one throughly
enough to guarantee that there are absolutely no
conflicts anyplace.

There are actually official rules for resolving the
conflict -- newer takes precedence over older; specific
over general; there is a presumption that neither rule
is illegal; if possible, a construction will be arrived
at that gives effect to both; and so on.  If state
versus federal cases, there is the issue of federal
jurisdiction and intent to pre-empt the state law, and
in the case of agency versus agency, the question of
who has primary subject matter jurisdiction.  Again,
there are lots of rules and prior cases on all of these
issues.

The court considers the rules and the caselaw and then
makes the call and resolves the conflict, and from then
on (after all of the appeals are exhausted, of course),
that's how the laws interact.

This is such an ongoing problem there is a whole, very
large area of legal studies (Conflict of Laws) devoted
to it, and an organization called the American
Conference of Commissioners on Uniform Laws which tries
to avoid this problem by getting states to pass laws
which have the same requirements.  That's why there is
a Uniform Commercial Code and a Uniform Child Custody
Jurisdiction Act.

John Montana
Cunningham & Montana
29 Parsons Road
Landenberg PA 19350
610-255-1588

Peter Kurilecz wrote:

> On Wed, 4 Dec 2002 09:30:44 EST, Gerry Clifford <[log in to unmask]> wrote:
>
>
>
>>It is always prudent to choose the longest retention. Your risk level is
>>minimum, and you eliminate possible litigation by the party with the longer
>>retention.
>>
>
> Lee's problem is one that most of us face on a regular basis. Two
> requirements, two different retention periods, general consensus? go with
> the longer retention period. no problem
>
> BUT lets get back to my original hyphothetical problem. (with refinements)
>
> What if one law/regulation states that you MUST destroy a particular type of
> record after x amount of time, AND another law/regulation clearly states
> that you can NOT destroy that particular type of record? What is the
> solution?
>
> this is a hypothetical situation I know of no such conflict in existence
> today. Could it happen? who knows
>
> both laws/regulations must be from the same jurisdiction ie both are federal
> requirements or are both state requirements (and please don't reply with "my
> state doesn't have any such laws/regulations") and they must apply to the
> same entity, either to a government agency/body or to a non-government
> agency/body.
>
> Think outside the box. What would be your solution?
>
>
> PeterK
> [log in to unmask]
>
> List archives at http://lists.ufl.edu/archives/recmgmt-l.html
> Contact [log in to unmask] for assistance
>
>
>


--
John Montana
Montana & Associates, Inc.
29 Parsons Road
Landenberg Pa 19350
610-255-1588
610-255-1558 fax
[log in to unmask]

visit our website at http://www.montana-associates.com

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance

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