Court

The increasing tendency of local firms to expand their trade boundaries by setting up global centers has drawn people’s attention to the efficacy of International laws. The stand-out features of these International trade laws are “1) there is no single legislative source of international law. All countries of the world and numerous international organizations are responsible for enacting international laws. 2) there is no single world court that is responsible for interpreting international law. There are, however, several courts or tribunals that hear and decide international legal disputes of parties that agree to appear before them.

3) there is no world executive branch that can enforce international laws” (Henry R. Cheeseman, 2004). These constraints have, in recent times, raised serious doubts about the resolution of legal and other issues. “The power of Web enablement is that geographical boundaries disappear for an enterprise. Thus, an E-commerce initiative can easily become a global E-commerce initiative” (Prasad Bingi, Ali Mir & Joseph Khamalah, 2000). Prior to the start of any virtual organization, the proprietors must consider the social and legal issues that may arise at some point in their business.

Riordan Manufacturing is a global plastics manufacturer owned by Riordan Industries, a Fortune 1000 enterprise. According to its fact sheet, it employs 550 people and has revenues in excess of $46 million. Over the years, like any global organization, Riordan Manufacturing has had concerns relating to legal and ethical issues. Global Virtual Organizations 2 Legal Issues in Virtual organizations When a company like Riordan Manufacturing decides to operate through decentralized units in different locations, it has to grapple with issues that might arise due to differences in the laws in countries.

“Companies’ growing reliance on the Internet as an integral tool of commerce may be increasing the likelihood that such entities will find themselves exposed to a foreign jurisdiction as a result of their Internet related activities” (Jacqueline Klosek, 2002). Usage of electronic signatures and electronically formed contracts is a tricky proposition since different jurisdictions have disparate requirements regarding contracts. Though the issue of Web contract enforceability has not been resolved in its entirety, a few e-business enterprises still use web contracts as valid agreements.

The issue of web contract enforceability is compounded by uncertain laws in other countries (Jacqueline Klosek, 2002). Companies need to understand the local laws on contracts and alter their contract system accordingly. Riordan has a decentralized unit in China and in China, business people rely on trust and verbal contracts more than their American counterparts (Kotabe & Helsen 2004). Virtual organizations rely, predominantly, on web based marketing and advertising. Jacqueline Klosek (2002) writes that: There are no federal laws that regulate the distribution of commercial emails.

In fact, certain Jurisdictions like Australia, Canada and the US entail internet operators to formulate their own policies on the distribution of unsolicited Global Virtual Organizations 3 commercial emails. However, the regulation of unsolicited email is governed by statute, to a large extent, in countries like Japan and the EU (p. 4). Hence, companies like Riordan Manufacturing need to be aware of the requirements of the jurisdiction of the country concerned, with regard to their web marketing campaigns. Other Issues in Global E-Business

Resolution of liability issues plays an essential role in the smooth conduct of business. Virtual organizations operate in jurisdictions that have dissimilar laws on liability claims. In many judiciaries, certain mandatory warranties apply on goods regardless of what is stated in the contract (Jacqueline Klosek, 2002). Jurisdictions like Belgium and Netherlands do not recognize “indirect or consequential damages” and hence, are not liable for compensation (Jacqueline Klosek, 2002). Incognizance of the local law could lead to legal entanglements, later.

The company has to frame an agreement that incorporates specific terms on liability claims. Since there are vague laws about the jurisdiction to resolve legal issues, in most cases, companies find themselves subject to the law of the local jurisdiction. “The determination of applicable jurisdiction for internet-based transactions is far from a well-settled area of the law” (Jacqueline Klosek, 2002). One of the key challenges that Riordan Manufacturing faces in its operating unit in China is the issue of ethics and cultural differences.

What is acceptable in the US might not be acceptable in China, where the company would be dealing with a different workforce and different customers. Virtual organizations must modify their business strategies as per the requirements of the local culture. Laws on Bribery are similar in the Global Virtual Organizations 4 US and China. However, in certain sections of the Chinese society, bribe is considered a privilege that can be enjoyed by the upper strata of society (Ke Li, Russell Smyth & Shuntian Yao, 2005). This could mislead a company like Riordan into believing that bribe is not illegal.

Consequently, they find themselves tried by the Chinese Jurisdiction that treats bribery as illegal. Conflict of laws Laws that bind E-Commerce vary from one country to another. Most of the cases involving international law disputes are heard by national courts of individual nations. This is primarily with regard to commercial disputes between private litigants that do not qualify to be heard by an international court. Some countries do have specialized courts that hear international commercial disputes. A few other countries permit such disputes to proceed through their regular court system.

In the United States, commercial disputes between U. S. companies and foreign governments or parties may be brought in to a federal district court (Henry R. Cheeseman, 2004). However, deciding which jurisdiction is applicable cannot be generally answered and it depends on International Private Law, International terms of collision and the consent of the parties to such jurisdiction (Thomas Wallentin, Katharina Regner, Marco Conte & Heloise Deliquiet, n. d) Conclusion Business through the net involves increased convenience and lower costs for e-manufacturers like Riordan Manufacturing.

However, they have to deal with the reality of getting affected by the laws of a foreign state. Companies need to be aware of the jurisdictive limitations of their business in a foreign state and consistently review their Global Virtual Organizations 5 business strategies and the way they conduct their business. This could save them from a lot of embarrassment through legal hassles later on. Global Virtual Organizations

References

1. Shim, Jae. k , The International Handbook of Electronic Commerce, 2000
2. Prasad Bingi, Ali Mir, and Joseph Khamalah, The Challenges Facing Global E-Commerce: A Multi-Dimensional Perspective, 2000
3. Henry R. Cheeseman, Business Law: Legal, E-Commerce, Ethical and International Environments, Fifth Edition (2004), Ch. 8
4. Kotabe, M. , & Helsen, K. ,Global Marketing Management (3rd ed. ) (2004)
5. Ke Li, Russell Smyth, Shuntian Yao, Institutionalized Corruption and Privilege in China’s Socialist Market Economy:A General Equilibrium Analysis, 2005
6. Jacqueline Klosek, Key Pitfalls in Conducting International Trade via the Internet, 2005
7. Thomas Wallentin, Katharina Regner, Marco Conte & Heloise Deliquiet, Legal Issues in Virtual Professional Communities, n. d.

The drug court is a unique effort that uses the occasion of a drug offence arrest as an intervention opportunity for drug offenders even though historical problems in criminal justice diversion and referral programs the Dade County success rates have shown that these problems can be overcome through unique collaborative relationships, innovative treatment design, and the elimination of conventional gaps in the referral- treatment-monitoring process.

It is the purpose of this paper to explore the concept that drug courts are a far more effective method of punishment for drug offenders than the traditional route of incarceration. The Violent Crime Control and Law Enforcement Act of 1994 provided a potential one billions dollars for the subsequent five years to set up drug courts.

As jurisdictions move forward in the establishment of such courts, it is essential to consider the conceptual and clinical elements that have made drug courts successful in drug rehabilitation and crime prevention far more than incarcerations. The first drug court in Dade County, Florida, created in 1989, was the prototype. The three-phase Miami program for first and second cocaine offenders begins with arrest and overnight incarceration in the Dade County Stockade, and appearance the following morning before the drug court judge.

The program was developed under the direction of Dade County Superior Court Judge Herbert Klein, with the assistance of Michael Smith, MD, and Director of Substance Abuse. After two years of the drug court’s operation, 4296 felony drug possession arrestees had been diverted to the program. Of these, 1600 had graduated the three-phase program with a 3% re-arrest rate 1153 were still in the program with a 7% re-arrest rate; 500 had their charges dismissed after program entry; and 1043 failed to comply with the program.

Also, 90% of the arrestees who were offered the program accepted the program the other 10% were arraigned in regular Supreme Court no screening for “treatment-readiness” was conducted, meaning that this was a non-selected, typical group of cocaine addicted offenders; 60% of the program graduates required at least a brief in-patient stay during their treatment most of the “failure to comply” drop-out group left the program in the first three weeks of participation 30% of the dropout sgroup later returned to the program either voluntarily, by summons, or by repeat minor arrest.

The cost was given at $750 per client, per year. Clients pay mandated fees for the program, and the program is partially funded by a special fine levied on a certain class of traffic offense. When the program began, seized assets were used for part of the program startup costs. References WWW. DDRS. COM Promptly at 8 o’clock on Tuesday night at the community church in my home town largo, Maryland, there are life changing effort from alcoholics in the community, I have had the pleasure of witnessing these efforts with my own eyes and I must say it is truly eye opening.

The reason for these meetings is for alcoholics to have time to relate to others and share their feelings and concern with their peers. At the start of the meeting the group leader leads the group with a prayer and words of wisdom, shortly after they allow the person in a attends to help themselves to snack and drinks alcohol free, normally the administer name tags but on the particular day on my attendant they were out. The group leader made it clear that if you were not in the mode to speak all you have to do was say pass in order for me to not insult the others in attended at the meeting I sat in the circle with the group.

The group leader asked each individual person to introduce there selves being that the name tags where not at the groups disposal, after being ask for their names they were given an opportunity individual to share what was on their mind most of everyone spoke, A guy named Louis who shared said he is ready for the rain to end and broke down in tears. Right then and there I realize that being a alcoholic was not a life chose but more so a sickness. The group leader would often lecture as well as ask others very specific questions to different individual.

At the end of the meeting the group leader close with more words of wisdom as well as a prayer. The A. A meeting was a great experience as well life changing I was very proud to see others with courage talk about their biggest life problems. I would defiantly recommend these meetings to anyone with addiction, on the simple fact of other and peers being able to relate to the same problem that you have make you feel like you’re getting thru it together. {copied directly from the notepad I brought to the meeting wanted to keep it authentic sorry for all the eras}

In a country with a population in excess of a billion, and plagued by an underfunded court structure full of corrupt and ineffecient officers, we are looking at decades of stagnation, a backlog of cases in excess of 29 million, across the state-level courts, the twenty-one high courts and the supreme court. According to Global Corruption Report 2007: Corruption in Judicial Systems, Indians shelled out an estimated $600 billion as bribes to the judiciary, which is higher than the bribes paid out in any other sector in the court.

This long gestation period of litigation has resulted in a large scale loss of confidence in the judiciary, with a growing number of people opting to stay away from court. Enter alternate dispute resolution. It is this plethora of people who are prime targets of an alternate dispute mechanism. The prime time solution to the snail’s pace discharge of cases. The main selling point of arbitration is the speedy and cheap resolution of disputes outside of a courtroom.

While arbitration is a product of a private agreement, once an arbitration award is rendered, the prevailing party can seek to have that award confirmed by the courts, and, having done so, can invoke the coercive power of the state to enforce it in the same manner as it could a court judgment. Initially received with skepticism by the courts in various countries, arbitration is now being embraced as an effective form of alternate dispute resolution.

As a result of the burgeoning international trade and an explosion in the foreign direct investment numbers in the country, arbitration and other forms of alternate dispute resolution are becoming more and more indispensable. One of the major problems with foreign litigation is that foreign judgments are subject to several layers of appellate review, whereas, foreign awards are much easier to enforce in different sovereign states. Arbitration is particularly successful in fields like construction, where a certain amount of expertise is required while resolving disputes, of which there is paucity in the courts.

Arbitrators are chosen from the same industry, and are generally required to resolve disputes based on fact rather than legal issues. Most companies prefer such a business approach to resolution of disputes, rather than a legal approach. Arbitration in India was first governed by the Arbitration and Conciliation Act, 1940, which was later replace by the 1996 Act. The 1996 Act was designed primarily to implement the UNCITRAL Model Law on International Commercial Arbitration and create a pro-arbitration legal regime in India.

This Act was largely aimed at subduing the loopholes which allowed for excessive judicial intervention in the 1940 Act. Some of the features of judicial review The words in Section 30 of the 1940 Act read “shall not be set aside” took away the jurisdiction of the courts to set aside an award except on one or more of the grounds specified in the section. Amended in 1996, however, the section re-numbered section 34 reads “An award may be set aside only if…” Hence, the court has no jurisdiction to set aside an award on any other grounds.

This amendment was brought with an intention to reduce the scope of judicial review to allow for a minimum level of court intervention. In R. S. Avtar Singh & Co. v. N. P. C. C. Ltd. , the court commented on the nature and extent of the court’s jurisdiction: It is a well settled principle of law that the award of the arbitrator who is a chosen judge of facts and of law between the parties cannot be set aside unless an error is apparent on the face of the award or it can be inferred from the award that the arbitrator has misconducted himself or the proceedings or that he has not applied his mind to the material facts.

Hence, the court is not sitting in appeal on the award, nor can it re-examine the material which was adduced before the arbitrator. The court cannot examine the correctness of the award on merits nor it is obligatory for the arbitrator to give detailed reasons. Unless the court comes to the conclusion that the award is preposterous, it cannot set aside nor substitute its own decision in place of the arbitrator. In short, the arbitrator is the final judge of facts and law, and the arbitral award is not open to challenge on the ground that the arbitrator has reached a wrong conclusion or failed to appreciate the facts.

Section 31 (3) of the new Act of 1996 states that an arbitral award shall state the reasons upon which it is based, unless the parties have agreed otherwise, or the award is agreed on the terms enumerated under Section 30. This was reiterated by the court in the case of Tamil Nadu Electricity Board v. Bridge Tunnel Construction Co.. The rationale behind this order of the court is to ensure that the arbitrator acts capriciously, and to give the parties assurance that the grounds for the course of action chosen by him and reasonable and just.

At the same time, however, to ensure the finality of the award, reasonable of reasons given by an arbitrator cannot be challenged on merits. Why judicial review? The main purpose of arbitrator’s is to try to decide disputes correctly on the basis of the applicable law, and subsequently, explain the rationale for their decision. The need for a provision for judicial review in the field of arbitration is born out of the state’s concern to maintain the integrity of the arbitral process, and maintain a balance between party autonomy and the laws of the land.

Judicial review is primarily intended to guard against arbitrariness of awards, and to ensure that the law of the land is followed within the state’s jurisdiction. No doubt judicial intervention is a requisite in the field of arbitration which lacks a certain decisional law in the matter. However, the issue to be addressed is to what extent, and an attempt is to be made to define the scope of this judicial intervention. To what extent can court’s come forward and substitute their judgment for the arbitral award?

Parties who are dissatisfied with arbitration awards often call upon the courts for review. Procedurally, review is sought in an action to modify the award or set it aside; by way of defense, in a proceeding brought to enforce the arbitrator’s decision; or, by way of replication, in an action where the dissatisfied party has sued on his original claim and the satisfied party has pleaded the award. One of the major problems with the 1996 Act, is that a person aggrieved by an arbitral award has to start right from the District court in order to hallenge an award. Additionally, in two recent Supreme Court decisions, Oil & Natural Gas Corporation v. SAW Pipes and SBP v. Patel Engineering, the scope of judicial review has been widened by interpreting anything contrary to “public policy” as being “patently illegal”, and since any award which contravenes Indian statutory provisions is patently illegal, it is also contrary to public policy, and hence, subject to the judicial review of courts. Generally speaking, arbitral awards are not subject to appeal.

However, in most countries, including India, there are provisions to set aside an award in extreme cases. Judicial review of foreign arbitral awards generally falls into two categories. First, the reviewing court inquires whether requirements of natural justice were observed in the arbitration proceeding and whether the arbitration agreement is valid under the applicable law. Failing so, the arbitral award will be denied recognition or enforcement on the grounds that the fundamental requirements of natural justice or legality have not been met.

Subsequently, the court inquires into the merits of the award, that is, whether the arbitral body has committed an error in rendering the award. The question of judicial review, however, is a two-headed coin. On the one hand, limiting the scope of judicial review reaffirms the roots of arbitration, that is efficient and speedy resolution of disputes. Conversely, however, widening the scope of judicial review defeats the very concept of finality of an arbitral award, and hence, moving back to square one of the legal court system.

Why not? The way in which the proceedings under the Act are conducted and without an exception challenged in courts has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. An informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the courts been clothed with “Legalese” of unforeseen omplexity. To the critics of judicial review of arbitral proceedings, the likelihood and to an extent, inevitability of judicial review serves as a serious deterrent to individuals and companies seeking arbitration as a solution to commercial disputes. A certain school of thought views arbitration as a mere dress rehearsal for subsequent litigation, and disregards judicial review as a mere interference to the finality of the arbitral award. India is a country growing in leaps and bounds, with the coming of globalization.

Being a country looking to attract more foreign investment, developing a fool-proof, cost-efficient and speedy legal system is vital. When a foreign company explores the prospects of investing in India, they factor in the possible legal costs, and the opportunity to settle disputes through arbitration quickly and cheaply is an attractive selling point. However, with increasing judicial intervention, and the inevitability of ending up in court, hassle-free dispute resolution is no longer a pro on their list of pro’s and con’s.

Hence, the 1996 Act was passed with the objective to minimize the supervisory role of the courts in the arbitral process. The very epitome of minimal judicial intervention is contained in Section 5 of the Arbitration and Conciliation Act, 1996, which reads: “Notwithstanding anything contained in any other law for the time being in force, no judicial authority is to intervene except as provided in the Act” Section 34 of the Act imposes certain restrictions on the right of the court to set aside an arbitral award, and the limited grounds on which the award can be challenged have been enumerated.

The five grounds upon which an award can be set aside as per Section 34 (2) (a) are: -Incapacity of parties -Non-existence or invalidity of arbitration agreement -Exceeding jurisdiction -Non-compliance of due process -Composition of arbitral tribunal As per Section 34 (2) (b), an arbitral award may also be set aside by the court on it’s own initiative if the subject matter of the dispute is not arbitrable or the impugned award is in conflict with the public policy of India. Public policy, however, has not been defined anywhere in the Act.

Borrowing the definition of public policy from Section 23 of the Indian Contract Act, 1872: “The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy. ” The court, over the years, has subscribed to varying conceptions of public policy, swinging between the narrow view and the broader view. In Gherulal Parakh v.

Mahadeodas Maiya, the court favoured the narrower view, and commented that: “…though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world, it is admissible in the interest of stability of society not to make any attempt to discover new heads in these days. ” With respect to public policy in the field of arbitration, the court held in Renusagar Power Co. Ltd. v. General Electric Co. , that in order to attract the bar of public policy the enforcement of the award must invoke something more than the violation of the law of India.

It was held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to: -Fundamental policy of Indian law -The interest of India -Justice or morality The court in recent times, however, has subscribed to the broader view of public policy, choosing to widen the scope of judicial review. A landmark judgment in this respect is Oil & Natural Gas Corporation Ltd. v. SAW Pipes Ltd.. The crux of the case was that the arbitral tribunal had failed to take into account Section 73 and 74 of the Indian Contract Act, 1872.

The major issue, however, that it dealt with was whether the Court would have jurisdiction under Section 34 of the 1996 Act to set aside an award passed by the Arbitral Tribunal which is patently illegal or in contravention of the provisions of the Act, or any substantive law governing the parties, or is against the terms of the contract. The judgment of the court in this case, not only negated the purpose of the 1996 Act, but also widened the scope of judicial review beyond the realms provided for in the 1940 Act as well.

It was held that an award is opposed to “public policy” under the same heads laid down in Renusagar Power, but also if it is: -Patently illegal -So unfair and unreasonable that it shocks the conscience of the court Another important judgment of the Supreme Court in 2005 was SBP & Co. v. Patel Engineering, which sanctioned further intervention in the judicial process. The case dealt with the appointment of an arbitrator by the Chief Justice, and the contention was that the Chief Justice could adjudicate on contentious preliminary issues such as the existence of a valid arbitration agreement.

The court agreed, while holding that the Chief Justice’s findings would be final and binding on the arbitration tribunal. This judgment makes a mockery of the principle of Kompetenz Kompetenz, which is the power of an arbitral tribunal to determine its own jurisdiction, enshrined in Section 16 of the 1996 Act. This opens up a Pandora’s box of opportunity for parties to sabotage the appointment process of arbitrators and make spurious arguments simply to delay the arbitration proceedings. Looking Ahead

It is easy to forget the purpose of arbitration and get carried away with the nuances of the law. Therefore, in an attempt to move forward, it is important to incorporate the very aspect of finality and amicable resolution in the contract itself. Of course the most apparent solution at the face of it is to close all doors to review of the award by incorporating a clause for the same in the contract. However, this can only be done at the risk of receiving an award not in line with the principles of natural justice.

On the legislature’s part, the Arbitration and Conciliation (Amendment) Bill, 2003, currently pending before the Parliament, proposes to introduce a new section 34A, which would allow an award to be set aside “where there is an error apparent on the face of the arbitration award giving rise to a substantial question of law”. This narrows the scope for review laid down by the SAW Pipes ruling, but it still affords losing parties an opportunity to approach courts in an attempt to second – guess arbitral tribunals, very similar to the position during the applicability of the 1940 Act.

An interesting avenue to be explored in the future, particularly in the case of contracts involving large sums of money, is a system of contemporary and concurrent dispute resolution, involving the establishment of Dispute Review Boards (DRBs). This system has been adopted by the National Highway Authority of India (NHAI), Maharashtra Sewerage Board and Delhi Metro in recent times. A Dispute Review Board basically consists of three experienced, respected and impartial reviewers.

It is constituted before the commencement of the contract, and regular inspections are carried out to ensure smooth functioning of the contract and ensure good working conditions. This serves to familiarize the reviewers with the job process and the basic environment as well, so that in case a dispute arises, a well-informed decision can be made. In such a case, a hearing is convened where the reviewer’s hear arguments of both sides and after deliberation submit a non-binding recommendation to the contractors.

Canada prides itself at home and abroad as a country made up of a cultural mosaic rather than a cultural melting pot. The mosaic is based on our belief that Canada as a whole becomes stronger by having immigrants bring with them their cultural diversity for all Canadians to learn from. The cultural melting pot, as adopted in the United States, tells immigrants that no matter who they have been in the past, upon landing on American shores, they are Americans and are expected to adopt and follow the American way. At the heart of Canadian society is our legal system.

Our legal system is based on the English Common Law model, which in turn is based on a value system that places a strict adherence to following procedural rules over the substantive matter before the Court. The Canadian model is based on precedence which means that Courts are loath to do anything that has not been done by some Court previously. This in turn makes Cana- dian Courts very slow to adapt or adopt new ideas or social mores. From a cultural perspective, the Canadian legal system takes the `melting pot’ approach, which is to say that culturally unique methods of dispute resolu- tion are not accepted by our legal system.

Instead, our legal system imposes its values on all who come before it. For example, in the family separation cases the courts apply English or French legal systems, yet there are varied cultures and people in Canada with different notions of what a family separation should mean or entail and that is not always reflected in court decisions. The courts are not always obliged to take cultural values in account when decisions are made. One of the issues this dichotomy presents are how the Canadian legal system can be more flexible in accepting different values for settling disputes.

Or the victim choosing not to have a blood transfusion? * Court Ruling: * Guilty. Thin skull rule Those who use violence against others must take victims as they find them Blaue had to take the victim as a Jehovah’s Witness * The defendant is not responsible if the victim dies as a result of an unrelated event If his actions led to the event, he is still guilty R v Hummel (Stare decisis- lower courts must follow higher courts) * Summary: Judge Perkins did not follow a binding decision of a higher court (contravening the doctrine of stare decisis) * Perkins struck down a section of the criminal code, in favour of the defendant * The crown appealed, and judge Clements disagreed with Perkins, allowing the appeal * Shortly after, Perkins had another ssimilar case, and refused to follow Clement’s judgment. He once again adopted his own reasoning as in the previous case. * Legal Principle: * Decisions of a higher court must be followed because that is what holds common law together.

Their decisions are “binding decisions” * It doesn’t matter that Perkins could have been more intelligent than Clements * Rulings of higher courts bind lower courts R v Ladue (Does mistake negate mens rea? ) * Summary: * Woman at a party died from drinking too much alcohol * Forensics showed that Ladue had sex with her after he died * He couldn’t be charged with sexual assault because he was dead * He was charged with doing an indignity to a dead body * Used the defense that he did not know she was dead, so he had no mens rea

R v Bird and Bolduc (Doctor allowed friend to examine patient) * Summary: * doctor told a female patient that his friend was a medical intern * she gave consent for the friend to observe a medical examination * The fraud was as to the identity of the onlooker, not as to the act, of which she knew and understood. * Legal Principal: * Was consent obtained fraudulently as to the nature and quality of the act? * Court Ruling: * Bolduc did exactly what the victim understood he would do.

There was no fraud on his part as to what he was going to do * Victim knew that Bird was present and consented to his presence * Innocent: the fraud had nothing to do with the act, but with Bird’s identity * If he touched her, it would have turned into an assault R v Campbell and Mlynarchuk (Stripper case, mistake of law) * Summary: * Campbell was convicted of dancing naked * Previously, Alberta supreme court made dancing naked legal * Campbell did not know that the Court of Appeal overruled it * Legal Principle: Mistake of fact is a defense to a criminal charge, mistake of law is not * Court Ruling: * Campbell’s mistake was one of law She coincluded that the decision of the judge correctly stated the law, which it did not * Although this is not fair, it is necessary in order to prevent ignorance of the law as a defense * Out of the sense of justice, (naked dancing is not a prevalent problem), Campbell got an absolute discharge * Mistake of fact is a defense to a criminal charge, mistake of law is not R v Keegstra (Freedom of speech vs hate speech) * Summary: Keegstra was a schoolteacher who taught his sstudents anti-Semitism and expected them to use his teachings on exams. If they didn’t, their marks suffered * A few months after a paren’t complained, Mr. Keegstra was dismissed * Legal Principle: * S. 319 bans promoting hatred against an identifiable group * Charter protects freedom of speech * Court Ruling: * Court of Appeal states it was protected under s. 319 2(b), which protects innocent and imprudent speech (people who think that their hate speech is actually true) * Majority: Failed the Oakes proportionality test.

Hate propaganda contributes little to the quest for truth, or the protection and fostering of a vibrant democracy The infringement was justified R v Rabey (Automatism) * Summary: * Stabbed a woman after finding out that she doesn’t like him * Used the defense of non-insane automatism, stating that he had a blackout due to his rage (powerful emotional shock) * Legal Principle: * Was his dissociative state due to a disease of the mind? * Court Ruling: * His automatism was insane * Ordinary stresses and disappointments of life do not explain the mind alfunctioning * Rabey’s emotional stress from the girl’s rejection is not reasonable It was due to his psychological or emotional make-up, thus constituting “disease of the mind” R v Ruzic (Duress) * Summary: * Ruzic landed in Pearson airport with 2 kilos of heroin and a fake passport * She used the defense of duress, because a man in Serbia would kill her mother if she didn’t listen to him

Right to Counsel CJA/364 October 9, 2011 Right to Counsel Every individual is afforded the right to counsel in criminal proceedings. It is the liability of the government to provide every defendant facing criminal charges with legal representation that also is considered sufficient (2011). The Sixth Amendment to the U. S. Constitution guarantees every individual the right to a swift and public trial from an unbiased jury of his or her peers in the state or district in which the crime was committed in (1995-2011).

The district should have been beforehand established by law, and to be educated of the nature and reason for the charge, the right to face the eyewitness in opposition of him or her, to have necessary process for gathering eyewitnesses in his or her support (1995-2011). Last, the Sixth Amendment affords and individual the right to have the aid of an attorney for his or her defense (1995-2011). The last statement of the Sixth Amendments establishes that every individual has a right to counsel from the very second he or she is placed in police confinement (2011).

The judgments of the U. S. Supreme Court also indicates that the Right to Counsel be provided to any individual who is insolvent or penniless and that the individual is guaranteed the right to the attendance of a court-appointed counsel at a crucial point in the criminal trial (2011). The crucial points of these proceedings are composed of custodial questioning, pre-charge lineups, preliminary examinations, arraignment, trial, punishment, and the first appeal of guilty verdict (2011).

The Right to Counsel was initiated as a response to the English custom of refusing the aid of counsel in severe criminal proceedings that forces individuals to be present in court and represent his or herself in his or her own words (2011). An example of the strictness of the practice to deny counsel is evident in the trial of Mary Stuart, Queen of Scots in 1568 (2011). Queen Mary was indicted for treason for supposedly plotting to kill Queen Elizabeth I (2011).

Queen Mary requested the aid of an attorney on the basis that the laws and statutes of England were unfamiliar to her, she was without an attorney and no one would stand up and speak for her (2011). Queen Mary was eventually found guilty of her crimes and sentenced to death by beheading (2011). The creators of the U. S. Constitution deemed the denial of an attorney revolting to the fundamental ideology of criminal justice (2011). The creators of the U. S. Constitution ascertained that the aid of an attorney was an important factor in sustaining an accusatorial method of justice (2011).

The accusatorial method of justice leaves the problem on the state to determine the guiltiness of the defendant (2011). The accusatorial method is in disagreement with the inquisitorial method in which fault or blamelessness is established through questioning of the defendant (2011). The Supreme Court also has interpreted the Sixth Amendment to mean that a defendant is entitled to an attorney that the attorney must also be effective in representing the defendant (2011).

The Supreme Court interpreted this to mean that the representation must be diligent and significant (2011). The Supreme Court established that if a defendant is not provided with effective counsel during court proceedings, the conviction could be overturned (2011). The Supreme Court has also established that although the Sixth Amendment guarantees an individual the right to have an attorney, whether the attorney is hired or delegated by the courts that an individual may also represent his or herself (2004-2011).

Any individual has the right to represent his or herself in court but a judge may refuse the individual that right to be his or her own counsel if the judge deems the individual lacks the capability to exercise a knowing or competent dismissal of an attorney (2004-2011). The judge may also deny an individual the right to represent his or herself if the representation is in any way disorderly of normal court proceedings (2004-2001). The right for an individaul to represent his or herself is granted only at normal court proceedings and is not available when a case is before the courts on appeal (2004-2011).

If a person is granted the right to represent his or herself in court, that individual cannot later state the quality of his or her defense deprived him or her of sufficient aid to an attorney (2004-2011). The crucial components of right to an attorney is highlighted in the case of McKaskle v. Wiggins that detailed the self-represented defendants rights vis-a-vis “standby counsel” delegated by the trial court (2004-2011). If the defendant is representing his or herself, he or she has the power of how information is presented to the jurors (2004-2011).

Even if there is an attorney on standby, the attorney’s presence should in no way alter the jury’s assessment that the individual is representing his or herself (2004-2011). But involvement of a standby attorney in the company of the jury and despite the protest of the defendant does not infringe on the defendants constitutional rights afforded by the Sixth Amendment when the aid is in agreement with normal courtroom principles and practices that alleviates the trail judge of these responsibilites (2004-2011).

Some defendants may think it is wise to represent his or herself but if the individual is not well versed in the law he or she could make major mistakes that may cause him or her to lose his or her freedom. It is said that a person who represents his or herself has a fool for a client. An attorney is a delegate of citizens, an officer of the criminal justice system and the public that has an accountability to ensure justice is dispensed (1995-199). The role of an attorney has many facets; a consultant, promoter, delegate, mediator, and an assessor (1995-1999).

As a consultant an attorney notifies his or her client with knowledge of his or her constitutional rights and responsibilites and clarifies his or her realistic suggestions (1995-1999). As a promoter an attorney feverously emphasizes the client’s point under the standards of the adversary method (1995-1999). As a delegate an attorney searches for an outcome beneficial to the client but uniform with the necessities of truthful dealings with others (1995-1999).

As a mediator among clients an attorney searches to settle his or her conflicting interest (1995-1999). As an assessor an attorney researches his or her client’s legal dealings and informs the client or others of the legal dealings (1995-1999). In criminal court proceedings the prosecutor who works for the state, and the defense attorney who can also work for the state but is there to aid the defendant. The U. S. Supreme Court established in the case of Gideon v. Wainwright that the basic role of applies in a just criminal justice system (2011).

The Justices collectively determined that the states possess a legal responsibility afforded within the Sixth and 14th Amendments to offer counsel to any individual who cannot afford one (2011). The judgment emphasized that a penniless individual in a criminal proceeding is guaranteed the aid of an attorney as a basic civil right necessary to ensure a just trial, a client’s trial and sentence deprived of an attorney is an infringement of the 14th Amendment (2011). The privilege to have an ttorney is the most basic bureaucratic safety measure to ensure a just trial in which the government and the defendant stand alike in the eyes of the law (2011). As stated earlier, the Supreme Court established that if a defendant is not provided with effective counsel during court proceedings, the conviction could be overturned (2011). References Right to Counsel 2011 http://legal-dictionary. thefreedictionary. com/right+to+counsel Retrieved October 9, The Exclusionary Rule January 16, 1999 The United States Constitution 1995-2011 U. S.

Constitution Online http://www. usconstitution. net/const. html#Am1 Retrieved October 9, 2011 Self Representation 2004-2011 http://supreme. justia. com/constitution/amendment-06/16-self-representation. html Retrieved October 9, 2011 Preamble: A Lawyer’s Responsibilites 1995-1999 Touch N’ Go Systems http://touchngo. com/lglcntr/ctrules/profcon/profcon. htm Retrieved October 9, 2011 National Committee on the Right to Counsel 2011 National Legal Aid and Defender Associaton http://www. nlada. org/Defender/Defender_Kit/NCRC Retrieved October 9, 2011

Traditional and Nontraditional Litigation Systems Law/531 [ July 30, 2012 ] The traditional legal system of utilizes law as it is foundation for all decisions. Laws in the United States have four sources; constitutional, statutes and ordinance, common law and administrative. The features of these four are: * Constitutional Law is based on a formal document that defines broad powers. Federal constitutional law originates from the U. S. constitution. State constitutional law originates from the individual state constitutions. Statutes and Ordinances are legislation passed on the federal, state, or local levels. * Common Law is based on the concept of precedence – on how the courts have interpreted the law. Under common law, the facts of a particular case are determined and compared to previous cases having similar facts in order to reach a decision by analogy. Common law applies mostly at the state level. It originated in the 13th century when royal judges began recording their decisions and the reasoning behind the decisions. * Administrative Law – federal, state, and local level.

Administrative law is made by administrative agencies that define the intent of the legislative body that passed the law. These four steps are used to structure and interpret laws to remedy situations as they arise the enforcement occurs at three levels and they are called courts. The Supreme Court, Appellate courts and Trial courts, in the business environment the trial court is a popular choice because it handles the civil disputes and it is only when unique cases appear it is sent to be viewed by the Supreme Court for a ruling.

Cases such as NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. (Supreme Court of the United States 2011) otherwise known as the healthcare law which mandates healthcare for all, when this kind of law is in place and it affects the citizens on a whole that decision must be weighed against the rules of the constitution which is the law of the land. Alternative Dispute Resolution (ADR) this is the mitigation process where the end result is the agreement according to the process of litigation.

ADR is the involvement of a third party to who is unbiased but encourages a discussion between the parties. This features is particularly important to businesses because of this feature the discussions are private and so it reduces the negative publicity which may arise, the process is quicker because it because the terms of the agreement is then presented to judge for his/her viewing and then a ruling is made. Finally, the agreement is also covered by a caveat of confidentiality which reminds both parties that the agreed terms must not be discussed.

This type of discussion is helpful in mergers and acquisitions as is used in the work environments where a union supplies the employees. Comparison Both processes are features of the judicial system and the remedy is legally binding. Most times the remedy is monetary and the TORT is settled in the civil courts, however, laws have two features, state and federal and whenever applicable the federal ruling is the governing law. Contrast

The judicial system in terms of the courts is time consuming and the pretrial hearings can be a lengthy task, the courts that will hear the case is also determined by the monetary remedy that is asked by the plaintiff. References Supreme Court System, American Legal System; Quick MBA, Law and Business http://www. quickmba. com/law/sys/, viewed July 30th 2012. Healthcare Reform Ruling; NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL; http://www. supremecourt. ov/opinions/11pdf/11-393c3a2. pdf, viewed July 30th 2012. Definition of Tort; The Lectric Law Library LECLAW. com, http://www. lectlaw. com/def2/t032. htm, viewed July 30th 2012. ——————————————– [ 1 ]. A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties. )