"The three-strikes-and-you're-out" law is the congress slogan that is used for the purpose of inducing relentless ruling for third lawbreaking convictions. Moreover, such legislation is ultimately aimed at addressing recurring, stern criminal behaviors. As one of the crime-fighting instruments, the popularity of this law comes just without having taken a deeper examination of its impacts or effectiveness (Walsh, 2007). As a tool for reducing crime rates, it means that the state could have failed to understand that a large percentage of the lawbreakers who are judged under this law could have committed nonviolent offenses.
Additionally, the law will result in a premature release of lawbreakers because of the overcrowding of individuals accused under this law and awaiting judgment. Other than increasing workloads of defense attorneys, prosecutors, and judges, it will also cause other civil cases and criminal cases to be delayed. As a tool for use in appeal bargaining, one of the pertinent issues, such as racial disparities in its application ought to be taken into consideration first (Clear et al., 2009). Therefore, it is better to determine whether there exist other viable means to shun the apparent unintended problems whilst being more effective and fairer.
PART B: Mandatory minimum sentences
Mandatory minimum sentencing laws have the potential of eliminating judicial discretion so as to impose judgments that are under the statutory or constitutional minimum. Therefore, such laws, termed as mandatory minimums, have the likelihood of producing unjust punishments. Although research indicates that mandatory minimums have the likelihood of reducing future crimes, when the power of the judges is transferred to prosecutors, chances are that they will unfairly pressure defendants to accept their mistakes (Kelly, 2015). Nevertheless, such laws have the potential of creating sentencing disparities. Since mandatory minimums are inflexible, they end up encouraging manipulation of the judicial system and fostering deceit.
References
Clear, T. R., Cole, G. F., & Reisig, M. D. (2009). American corrections. Belmont, CA: Thomson Wadsworth.
Kelly, W. R. (2015). Criminal justice at the crossroads: Transforming crime and punishment. New York : Columbia University Press
Walsh, J. E. (2007). Three strikes laws. Westport, Conn: Greenwood Press.
Case study on Star Athletica, LLC v. Varsity Brands,
Facts of the case.
In the case between the Star Athletica and Varsity Brands, disputes in design copyrights arise. Varsity Brands is a company which mainly deals with the making of fabric used in different athletic activities. The design procedure followed is that colour, models and dimensions are strictly adhered to. The use made on the final product is not put into considerations. It had secured copyright registration for two manufacturing designs similar to the ones which Star Athletica had started to use. Varsity brands claimed that the Star Athletica, the ones being accused, had not adhered to copyright Act of 1976. Star Athletica defended their opinion by arguing that Varsity Brands had made corrupted presentations to the copyright authorities over non-copyrighted designs. The designs herein are argued by the plaintiff that they could be separated from the attires which the star Athletica held that they could not be separated what so ever. The Sixth Circuit ruling party ruled that Copyright act authorized companies to have the copyright to design even if it is not separable.
The decision of the court over the matter
Due to the escalated dispute over the two companies, the matter was forwarded to the U.S Supreme Court for further hearing and decision making. The court, in a majority vote, ruled that production permit is allowed if the content included in the scheme procedures of a useful article; can be taken as a double or triple mode of production (Miller, 2010). The other ruling made in regards to the copyright protection was that, other than being dimensional, the copyright can qualify as a preventive measure for graphical arts independently or relying on other mediums of expression. This ruling is backed by the fact that the useful article can be separated from the material it is included in. The court affirmed that the designs were copyrightable.
In my opinion, the ruling made was fair and just. This is supported by the fact that designs in every aspect can be copied as long as the personalized effect is not tarnished. Varsity brands had their standards set clean in that the copyright they had acquired for their production did not hold much to the use made on their final products (Miller, 2010). Had their permit limited the use of the final product, the defendants could not have received justice in the ruling. This is due to that fact that unequal market competition could set into the disadvantages of the Star Athletica. Another reason backing why the ruling was is that the designs employed by the Varsity brands, which included; striping designs and colour patterns used could be separated from the uniforms. Again, their designs qualified to two dimensional according to section 101 of the Copyright Act.
To save the defendant from the extremes of the court decision, various arbitrating ways could have been used before having the case forwarded to the court authorities. The defendant could have considered having marketing and production terms aired on the grounds to the plaintiff (Vissak, 2010). Star Athletica could have considered having mutual agreement on how the product could be channelled between the two brands. Matters to have been agreed mutually would include; the colours both brands would use in their productions, the number of stripes to be made in the uniforms and the position of placing logos in their uniform.
Further to this, the defendant could have considered reading about the legitimate ways of securing copyright permits. In so doing, the defendant would have been enlightened on the possible ways through which copyright designs could be copyrighted lawfully. The plaintiff would also have considered joining hands with the defendant. This is because they had incorporated production designs which the defendants were already using. This move would have created a more harmonious production and increase the production output. The defendant could also have opted to change their products. Instead of making the whole uniform, they could agree on one company to produce the t-shirts while the other company produces shorts alongside other attires (Curtis, & Turley,2007). The production market offers unlimited ventures, and this would be the option to the defendant. This case results has an impact on the business goodwill. Business goodwill plays a crucial role in the operations of any given company. A loss in the goodwill consecutively poses a significant threat to the subject company (Glum, Landsman & Wyrwa, 2018). In the case above, the business goodwill of the defendant was negatively affected. It was affected in that their chances of joining hands in production with the plaintiff were altered during the case period.
To sum the above case, it is evident that good market relation is crucial in production. The defendant loses in the case for lack of proper knowledge on how to secure the copyright of producing similar commodities. The ruling made opens up the bridging gap in acquiring production permits and creates awareness of the legitimate ways of having merging production rights.
References
Curtis, E., & Turley, S. (2007). The business risk audit–A longitudinal case study of an audit engagement. Accounting, Organizations and Society, 32(4-5), 439-461.
Fleisch, E., Weinberger, M., & Wortmann, F. (2015). Business models and the internet of things. In Interoperability and Open-Source Solutions for the Internet of Things (pp. 6-10). Springer, Cham.
Glaum, M., Landsman, W. R., & Wyrwa, S. (2018). Goodwill impairment: The effects of public enforcement and monitoring by institutional investors. The accounting review, 93(6), 149-180.
Public prosecutors opened charges against nine surgeons after a kickback arrangement backfired. Authorities were able to salvage $950 million from the illegal kickback scheme. The $950 million belonged to California’s innocent patients in need of major surgeries. These illegalities were brought to light after the government caught wind of the plan to defraud workers of their hard-earned money. The court opened up charges against the nine defendants after sufficient evidence was tabled (Ellison, 2018). The medics received kickbacks in order to book in patients for spinal surgery at Pacific medical institutions. Out of the nine specialists indicted, three were orthopedic medical practitioners. One medic, Daniel pleaded guilty to receiving kickbacks and other additional conspiracy charges. Later on, the same doctor accounted for 142million insurer claims at Pacific medical institutions. Other physicians also received kickbacks for referring patients to Pacific Hospital. Pacific hospital management team were charged with overseeing illegal kickbacks and tax evasion.
Analysis of the Health Care Regulations Violated
In this particular case, the primary illegality which led to arrest and investigation of the offenders is kickback. The False Claims Act applies to physicians- The Anti-kickback statute states that criminal regulations prevent the conscious and deliberate reimbursement of 'remuneration' to persuade or reward patient transfers or the fabrication of commercial on any article or serviceable payment by the federal medical care programs such as drugs, supplies, etc. (Office of inspector general USA department of health and human services, 2020). Remuneration comprises of anything valuable and can assume various forms such as rent and accommodation. Concerning this case and context, the nine surgeons openly received brides so that they can refer patients to Pacific Hospital. The anti-kickback statute does not permit these actions and the medics directly broke the law. Provisions of these laws protect people from social crimes and secure Medicaid finances. In the absence of this specific law, insurance policies would collapse due to the loss of money to fraudulent activities. Despite the additional clauses, this regulation inhibits medical practitioners from engaging in crime and neglecting their duties. Working in conjunction with other regulations such as the Stark law, this law is watertight as it ensures that medical procedures are handled ethically and lawfully. Through the Stark Law, the duties of medics are specialized and isolated hence making it easy to hold people accountable based on their actions. Consequently, this levels the playing field for all medical institutions. On the other hand, the anti-kickback statute forms the basis for professionalism and ethical conduct. Kickbacks abuse the prestige and transparency entrusted on medics. It corrupts and destroys the moral ground upon which humans survive and trust others with their lives. For instance, if a medical practitioner receives a bride, then it systematically impedes loyalty and tramples on the justice system put in place to protect and guide the medical practice (Ellison, 2018). Kickbacks take the dignity away from the medical sector and worsen quality delivery which in turn makes medical framework seem unfair to the patients and even subordinate workers. Most of the time, kickbacks affects poor people and prevents them from getting immediate medication. Therefore this law ensures the equal disbursement of medical resources and holds medical institutions responsible for failure to deliver quality medical services. The ability of anti-kickback statute to integrate and accommodate other medical regulations has led to the providence of supportable medical mechanisms meant for retaining medical development about the legal obligation of the people involved in safeguarding the legal structures of the medical facilities. Also, providing supplementary regulations to this particular regulation establishes the system underlying federal public medical department and building services based on management and accountability.
Implications of Anti-Kickback Statute On The Health Care System
The health care system's role in preserving human life through the delivery of quality medical services. Anti-kickback statute directly or indirectly helps to stop corrupt under dealings from interfering with fair medical processes. A kickback is unfair and may create an inroad for incompetence to take route within the medical systems. In other words, the anti-kickback statute maintains the credibility of professional health workers and ensures everything is of high quality within the confines of the hospital. Corruption corrupts everything and keeping it at bay may be the best way of earning the trust of all the patients. Moreover, this law gives draws the parameters which in turn influence the medics' practice. For instance, a doctor cannot receive brides from a patient and vice versa is also applicable hence creating a fair environment for conducting medical dealings. In terms of protecting funds, this regulation ensures that all the people are well aware of payments made, either from the client to the medical specialist or from the medic to the management. At the end of it all, the anti-kickback statute ensures that all medical procedures are legal and are done under the correct medical procedures.
Recommendations of How the Hospital Can Prevent Another Kickback Violation
The first thing they should do is to ensure that they sack the previous workforce who were found guilty of receiving bribes from patients. This way, the hospital management can have a fresh start free from any negative influence. Secondly, the inclusion of a third party who can oversee the payment process and secure a chance for each patient based on a first come first serve basis. A third party will hinder any outside influence and in the process protect the entire hospital from any suspicion incase the parties involved in bribery makes use of other mechanisms. Internally, the medical hospital must call in a meeting and incorporate the use of information systems in communication and the entire payment process. Information systems automated communication and map out the entire management hierarchy which in turn makes it possible for one can detect any illegality be it kickbacks or delayed payment hence streamlining the payment process and removing any barriers (Nelson et al., 2019). In terms of stipulating regulations which will in turn influence how both the patients and medical experts conduct themselves is key in reducing kickbacks. Hospital regulations set the pace for actions, mechanisms, opening and closing hours, discharge, and other matters that might require transparency. In time, the medical institution can come up with an additional department that will hold people accountable or report any illegal happening under their watch. As a matter of immediate intervention, the hospital can always look for outside assistance so that they can separate payment dockets from managerial sectors as an attempt to try and disburse the authority from top managers. All in all, the measure and interventions are supposed to close any weak loopholes found within the hospital payment system.
Supporting the Thesis Statement
The statement the thesis statement states that an anti-kickback statute protects medical operations both indirectly and directly.
Explain
The medical systems of any hospital depend on both the legal and ethical aspects of the individuals given the mandate to dispense their services. This eliminates the unfairness and introduces a leveled plating field within the medical sector as everyone gets an equal chance at accessing quality medical health care. Additionally, medics remain accountable for their actions and can be charged in a law of court for incase they break the law (Nelson et al., 2019). A profession that is given the chance to sustain and preserve life ought to be held at a higher standard than other professions hence penalizing them for taking part in bribery is still within the confines of the laws.
Support
Everyone has a right to fight for their lives. An anti-kickback statute sets the framework for the legal framework to be realized and applied during any medical operation. Transparency is the back of the medical profession and anyone who goes against ethical norms and principles governing his or her medical profession should be held accountable through the legal laws (Nelson et al., 2019). This way, every part of the medical institution is protected from inferior supplies or even inadequacy. Subsequently, medical operations are carried out under a truthful vicinity which anyone can assess its truthfulness.
Conclusion
The end of the medical profession is supposed to be free from any controversy while delivering its mandate to the public. Medical practitioners are to effectively and transparently conduct their profession based on fairness and legal frameworks such as the anti-kickback statute. All players in the medical field need a fair chance to cater to patients. Kickbacks might affect the quality of the medication received at the hospital hence reducing the level of trust people place on the doctors.
Nelson, J. A., Steward, S., & Vandigo, J. (2019). Pns129 Private Payer Perspectives On The Benefits Of Federal Anti-Kickback Statute Modernization To Promote Value-Based Arrangements For Medicines. Value In Health, 22, S307.
Are long mandatory sentences and three-strike policies adequate for reducing the chronic offender population?
Introduction
A mandatory sentence is a type of criminal sentence that require offenders who have committed a serious offense to receive a fixed penalty in the absence of judicial discretion. The three-strike policy is a law that states that offenders of a serious violent felony and have been convicted one or two times due to serious violent felony should receive mandatory imprisonment. Proponents of 'three strikes' and mandatory sentences assert that chronic offenders require mandatory sentences without probation or parole to decrease crime rate in the community. However, 'three strikes' and mandatory sentences are not adequate for reducing the chronic offender population in that the transfer of sentencing power from judges to prosecutors is unjust. As a result, the ‘three strikes' and mandatory sentences will not have a deterring effect but rather, it will increase crime since the offenders who have committed one felony will resist arrest to avoid a long jail sentence. Three strikes' and mandatory sentences is also associated with unintended consequences which increase crime rate and chronic offenders.
According to Smith (2010) ‘three strikes' and mandatory sentences are cruel and unusual. For example, cruel and unusual punishment is a punishment that violates human rights, a punishment that is not equal, and too much punishment that do not fit the crime. In this case, the 'three strikes' and mandatory sentences are cruel and unusual because some offenders will suffer from life imprisonment yet their offenses do not fit harsh punishment (Smith, 2010). For example, a criminal may be involved three-time felons. These crimes may be nonviolence such as burglary, shoplifting, or sales of drugs. According to the principle of proportionality, offenders of serious crimes require harsh punishment and criminal of less violent crimes require less punishment. Therefore, 'three strikes' and mandatory sentences will not deter crime or reduce chronic offenders and people will not agree with the long punishment in some crimes (Smith, 2010). They will feel that long imprisonment is unjustifiable and severe. This is will result in a conflict of interest between the state and the individual and once individuals realize that the state has neglected the principle of proportionality, they will believe that all offenses whether serious or not are subjected to long imprisonment. Therefore, the three strikes and mandatory sentences will not achieve the goal of deterrence since the offenders in the community will shift from small-scale offenses such as shoplifting to a large-scale offense like rape (Smith, 2010). Note that individuals are aware that rape and shoplifting are treated as similar offenses. Another important point to note that criminals are influenced by drugs. This means that many offenders either use drugs and alcohol before engaging in aggressive crimes. Since there is a direct relationship between crime and drugs, it means that criminals do have a second thought of being caught (Chen, 2008). Once they are caught, they will be taken in jail and they will report they were under the influence of drugs.
'Three strikes' and mandatory sentences cannot reduce the chronic offender's population because the policy targets offenders who are aging behind bars. Note that offenders who are subjected to mandatory sentences have already committed three serious crimes. What about those who have committed one crime? An important point to note is that majority of juvenile offenders continue with criminal behavior during adulthood (Rhoades et al. 2016). Though some desist during adolescents, the majority are at higher risks of performing criminal behaviors in the future. This indicates that if adolescents commit their first offense at adolescence, they will commit other offenses during adulthood. Therefore, there is evidence that the three-strike policies and mandatory sentences cannot reduce chronic offenses due to the strong continuity of offending. Criminologists assert that criminals who have committed three serious crimes have 32-36 years (King & Mauer, 2001). The young criminals who are in their late teens or early twenties will continue with a violent crime until their fit in the three strike criteria. Thus, it is important to understand that the crime-prone age is 15 and 25 and the age in which they a will commit the third serious crime they will be in their mid-30s (King & Mauer, 2001) .Therefore, the 'Three strikes' and mandatory sentences will not cause deterrence nor will it reduce chronic felonies.
'Three strikes' and mandatory sentences are also unable to reduce chronic offenders due to other unintended consequences. For example, higher rates of incarceration are causing social disruption in the community. For example, the government concentrates so much on corrections and less on education, economy, health, and other social factors (Chen, 2008). The families and society at large experience financial problems. The financial burden and lack of employment increase social insecurity. Young people engage in violent crimes such as robbery and burglary to make ends meet. Thus, rather than deterring crime and reducing chronic offenders, 'three strikes' and mandatory sentences contribute to other unintended consequences that increase the rate of offenses such as theft, rape, robbery, and others (Chen, 2008). It is important to note that the community plays a significant role in enforcing rules and ensuring that people abide by social norms. However, when the government weakens social institutions, people have no other option other than engaging in violence and crime. Even though long imprisonment may prevent criminals from continuing with crimes, the strategy is not enough to reduce chronic offenders simply because young offenders will emerge (Chen, 2008). An important point to note is that many factors increase the rates of crime. For example, if one offender is imprisoned for drug sales, there other criminals selling drugs and therefore, there is no reduction of crime. It is important to note that when offenders who have committed three offenses are incarcerated, the prison is full of aging population and the community is full of younger offenders (Chen, 2008). The prison will also need higher costs to care for the older population. The number of chronic offenders will never go down because when the older offenders will be released, there is a likelihood that they will commit non-violent crimes.
Conclusion
Opponents of three strikes and long mandatory argue that incarcerated offenders will commit new crimes in the community and hence lower the crime to reduce chronic offenders. However, mandatory imprisonment contribute to future danger in that offenders convicted due to their serious offenses have left behind other offenders who have committed one serious crime. There is a likelihood that the young offenders in the community will continue to engage in the violent act and the society will not be able to control the crime. Note that only active offenders will be incarcerated and the frequency of offending will continue to rise among the younger criminals.
References
Chen, E. Y. (2008). Impacts of “three strikes and you're out” on crime trends in California and
throughout the United States. Journal of Contemporary Criminal Justice, 24(4), 345-370.
King, R. S., & Mauer, M. (2001). Aging behind bars:" three strikes" seven years later.
Sentencing Project.
Rhoades, K. A., Leve, L. D., Eddy, J. M., & Chamberlain, P. (2016). Predicting the transition
from juvenile delinquency to adult criminality: Gender‐specific influences in two high‐
risk samples. Criminal Behaviour and Mental Health, 26(5), 336-351.
Smith Rich. (2010). Eighth Amendment: The Right to Mercy. ABDO Publishing Company
Tabona shipping firm held possession of Saiga tanker at the time of its capture on October 28th, 1997. On March 12th, 1997, the oil tanker was temporarily listed in Saint Vincent and the Grenadines in March 1997. The crew members were Ukrainian citizens. Among the crew members, there were three Senegalese watercolorists. The Saiga sold gas oil and water for fishing purposes. Addax BV owned the gas oil load that was on the ship.
On January 13th, 1998 Saint Vincent’s representative and the Grenadine initiated an interim measures recommendation according to article 290 of the United Nations Agreement on sea regulations (Evans et al., 2007). This came after the seizure and confinement of M/V Saiga. The application was followed with a notice duplicate sent to Guinea hence commencing arbitral events based on AnnexVII to the agreement concerning the Saiga dispute. A certified duplicate request was also given to the Guinea Tribunal registrar.
In January 1998, the registrar received a notification on Mr. Bozo's nomination. On January 20th, 1998, the registrar also received a notification on the appointment of Mr. Hartmut as the attorney of Hamburg (Al-Abdulkarim et al., 2016). According to Tribunal statute’s article 24, the convention’s state parties were all alerted on the provisional measures recommendation through voice notes from the registrar. The registrar also notified the secretary-general.
Issues of the Case
One of the main issues, in this case, was the fact that Guineas refuted the claims that there was a valid connection between Saiga and Saint Vincent and the Grenadines. Guinea claimed that failure to establish a connection between Saint Vincent and Grenadines and Saiga, only proved that navigation rights were not violated at all. Hence, the vessel was not permissible before the tribunal because Guinea was not obliged to recognize the Vincentian race. The establishment of the ship and the company was one of the preconditions of the case. According to article 21 of the United Nations Convention on sea regulations, there ought to be a reliable connection between a national and a ship. Additionally, two questions needed to brought to light during the establishment of the association. First, if the absence of a connection gives another nation the right to refuse the association (Cabrelli, & Siems, 2015). Secondly, confirming if there existed a connection between the Saiga and Saint Vincent and Grenadines during the occurrence period. All these aspects end up shaping the evidence of the case. Considering all the above sentiments, the tribunal ruled that there were no legitimate grounds for Guinea's claims. In terms of the second question, the tribunal saw it fit in this case to claim that Guinea did not present enough evidence to substantiate its claims and concerns. Thus, the court ruled in favor of a connection between Saiga and Saint Vincent and the Grenadines.
Decisions and Reasoning
The tribunal relied on the convention during the entire case. The convention content held comprehensive requirements on the flag state obligations (Wyner et al., 2010). Article 94 and 217 specifically, outlined the duties of the standard flag state which may be discharged exclusively via exercising suitable legal and regulation over basic and juridical individuals (Maryns, 2013). After analyzing evidence tabled in front of the tribunal, the tribunal ruled that when a state causes damaged to another, then reparations are in order. Reparation must contain and eliminate all the negative impacts incurred due to the damages. Reparations may come in different forms: repayment and assurances.
Case 3-4
Shell V RW Sturge Ltd.
Facts of the Case
In November 1993, petitioners initiated this legal case in Hamilton claiming that the perpetrators sold unlisted and ratable securities hence breaking Ohio security regulations (Maryns, 2013). The Common Pleas discharged provisional restrictive order instructing perpetrators not to present any credit bank mails which the petitioners had effected while supporting their contract with the defendants. The Common pleas gave a fourteen-day postponement of the trial.
Issues
On December 10th, 1993, the sitting judge ordered a report and approval advising that the perpetrators’ motion to be thrown out to give room for the proper venue (Nievelstein et al., 2013). The judge also advised on giving the applicant’s motion a primary injunction. Hence, the case was in court under the title of the report and recommendation.
Decisions
After an informed evaluation of the accuser’s arguments, the judge resolved that the defender’s motion to terminate ought to be accepted due to the parties’ contract which had the subsequent implementable forum assortment clauses: each party was to agree with England court on matters pertaining private jurisdiction in order to decide on controversial matters emerging from the membership.
Reasoning, Analysis, and Discussion of the Case
The reasoning behind the case influenced by both parties and the judge's analysis additionally was consistent with two past cases which entailed enforceable forum assortment clauses within worldwide business dealings comparable to this particular case (Wyner, 2008). The court of appeal decided that the complainant’s essential privileges may be justified in England via the mitigation English constitution offered.
Case 6-7
Libyan Arab Foreign Bank V Bankers’ Trust Company
Facts of the Case
An English court of law concluded that Bankers Trust Corporation should compensate Libyan Arab Bank (Wyner, 2008). Part of the compensation was frozen by the then-president Reagan in 1986. The court order put the Bankers Trust Corporation in a challenging situation due to the simple fact that as it obeys the court directive, it will be breaking a presidential command in the USA. Bankers Trust corporation had only two alternatives: it can either first seek permission from the USA administration before paying the money or it appeals to the court ruling in England.
Issues
USA treasury spokesperson claimed that the Reagan administration was not aware of the Britain court order hence not commendable to comment on the matter. The compensation was to be paid in two chunks. The first chunk comprised of $131 million deposited in the bank's London division. The remainder $ 161 million deposited in the USA branch (Wyner, 2008). Thus, after all, is said and done, the main question would be, does one nation, in this USA, has the authority to hinder bank subdivisions’ assets in a foreign nation that has not recognized the freeze.
Decisions and Rationality
At the end of it all, Bankers’ Trust had no option but to obey the court order and compensated the Libyan bank. The compensation was no illegal in England hence the Bankers Trust paid accordingly while adhering to terms and conditions of the contract. Additionally, the repayment never facilitated any illegality forum. This decision deterred any other nation considering freezing assets from Eurodollar accounts in the foreseeable future (Nievelstein et al., 2013). Besides, a bank has to obey the rules of the host nation where the account is hosted. This way, in case the USA freezes accounts in the future, it will have to invoke IMF defense if the host nation, supports a general version of article VIII part 2b.
Case 7-2
Japan Taxation on Alcoholic Drinks
Facts of the Case
Canadian administration, the European Union, and the USA raised complaints on the low taxation Japan imposed on Shoshu Company as compared to other international alcoholic companies. Taxing international companies more than the local ones went against Article III, paragraph two. The panel handling the case took note of the Japan tax policies and how their taxation went against the GATT article III (Evans et al., 2007). This article barred the host nation from directly or indirectly imposing taxes on goods and services belonging to any contracting party.
The panel established that the word ‘like product’ makes an appearance on numerous GATT sections. On further analysis and inquiry, the panel realized that the terms could be interpreted differently. This way, the panel took note of the provisions of different articles found in GATT. Hence, the panel made use of the term interpretation before coming up with a solid conclusion to the case (Evans et al., 2007). These are the underlying reasons why the conclusion of the case was tied to the interpretation of the terms used in the GATT article.
Issues of the Case
Also, the panel made use of the previous panel's agreements on the term 'like product'. Previous panels claimed that the term should be perceived based on the particulars of the case hence no standard application of the law in terms of interpretation (Evans et al., 2007). For the sake of finding similarities, previous panels made use of various term evaluation mechanisms to build likenesses such as item characteristics, quality, and even target market.
Decisions and Discussion of the Case
The appellate institution sustained the panel’s findings that stated that the taxation imposed on vodka was higher than that of the local Shoshu. Thus, Japan violated article III. By upholding the panel decision, the appellate showed that it had accepted the panel’s interpretation of the terms. Also, the appellate accepted that the article’s first sentence needed assessment to ensure conformity with internal taxation interventions by defining two aspects: the similarities between local and imported goods and whether imported goods needed to be taxed similarly as the domestic goods. Besides, the appellate court endorsed the panel’s conclusion that domestic alcoholic drinks were taxed less so as to safeguard local productions from the unfair competition even though it was broke Article III content (Maryns, 2013). Moreover, changing part of the panel's rationale judgment would mean that the Appellate entity needed to clarify three isolated matters that must first be brought to light before ensuring the conclusions of the case are consistent with the standard regulations. Thus the decisions of the appellate court were reliant on the interpretation of the GATT article. The appellate entity settled that the first part of article III contained general principles that informed other sections of article III and further clarified that due to the contextual differences found in the two sentences.
Case 9-4
Experience Hendrix LLC V Hammerton
Facts of the Case
Experience Hendrix, the petitioner, is an organization situated in Washington. The defendant, Hammerton, and the complainant share the same domain name hence bringing about a dispute. The domain name is Jimi Hendrix. The plaintiff has the rights to the brand Jimi Hendrix hence common regulations permit the owner to sue anyone with the same name. It is vital to note that the complainant registered other Jimi Hendrix names such as jimihendrix.org. A simple google search outcomes would reveal where the bone of contention lies in this particular case (Maryns, 2013). According to the database, the domain name was listed on April 5th, 1996, and belonged to the 'Jimi Hendrix Club' with Hammerton defendant as the executive contact. The following year on April 30th, 1997 the respondent generated a web site www.jimihendrix.com which provided on Jimi Hendrix related email addresses.
Issues of the Case
The complainant states that sharing a domain name is confusing and waters down the credibility of his brand. Also, the complainant argues that the accused has no right to use the brand name. Hence, when the respondent makes use of the name, it's illegal and misappropriates (Maryns, 2013). Moreover, the complainant has never given the defendant permission to use the domain name in any way thus the defendant has no right whatsoever to use the name Jimi Hendrix under any forum.
Decisions and Discussion
Mr. Hammerton defended his case by claiming that domain names are sold for profit and there is no legitimate underlying reason barring him from purchasing a domain name he finds appealing for his brand. However, the complainant had used the domain name for material and commercial gain hence his argument was not valid (Maryns, 2013). The case relied on three elements: the policies of the domain name registration especially while solving a conflict. The findings established that sharing a domain name was confusing and diluted the impact of the complainant's brand which in turn affected the consumer feedback.
References
Al-Abdulkarim, L., Atkinson, K., & Bench-Capon, T. (2016). A methodology for designing systems to reason with legal cases using abstract dialectical frameworks. Artificial Intelligence and Law, 24(1), 1-49.
Cabrelli, D., & Siems, M. (2015). Convergence, legal origins, and transplants in comparative corporate law: a case-based and quantitative analysis. The American Journal of Comparative Law, 63(1), 109-154.
Evans, M., McIntosh, W., Lin, J., & Cates, C. (2007). Recounting the courts? Applying automated content analysis to enhance empirical legal research. Journal of Empirical Legal Studies, 4(4), 1007-1039.
Maryns, K. (2013). ‘Theatricks’ in the courtroom: the intertextual construction of legal cases. InLegal-Lay Communication: Textual Travels in the Law, edited by Chris Heffer, Frances Rock, and John Conley, 107-125.
Nievelstein, F., Van Gog, T., Van Dijck, G., & Boshuizen, H. P. (2013). The worked example and expertise reversal effect in less structured tasks: Learning to reason about legal cases. Contemporary Educational Psychology, 38(2), 118-125.
Wyner, A. (2008). An ontology in OWL for legal case-based reasoning. Artificial Intelligence and Law, 16(4), 361.
Wyner, A., Mochales-Palau, R., Moens, M. F., & Milward, D. (2010). Approaches to text mining arguments from legal cases. In Semantic processing of legal texts (pp. 60-79). Springer, Berlin, Heidelberg.
Effective law and order in the trial of Susanna Martin was overly determined on people’s opinion and beliefs that formulated stereotypes used to govern society. Despite the existence of a judge and some form of legal system, the rulings made were based on personal opinions, beliefs and ideologies spread by influential people in the community (Brooks 1). Criminal behaviour was also determined by ideologies and personal opinions from members of society. A good example is the first time Susanna was accused of witchcraft by William Browne. Browne accused Susannah of tormenting his wife with her spirit, an incident that resulted in Susannah’s arrest and payment of bail before the case was dropped. Despite lacking evidence on the harm that Susannah had caused, she was made to answer for crimes such as tormenting someone with her spirit and even made to pay bail.
Criminal behaviour was described as any suspicious activity suggesting witchcraft or that could not be understood by those in authority. A good example is the ruling that found Susannah guilty of witchcraft and sentenced her to death. The accusation arose from claims made by village girls residing in Salem that claimed that Susannah was a witch (Brooks 1). All the girls that accused Susannah lived in different parts of Salem and it was near impossible for all of them to have come into contact with Susannah to make the claim that she was a witch. Despite this however, Susannah was arrested and forced to undergo humiliating ordeals during the course of the trials (NEHS 1). Susannah was forced to undertake a physical examination that sought to reveal a teat that witches use to feed their familiars. The inappropriate behaviour was as a result of people’s fear of witches rather than relying on facts and due process when dealing with suspects.
The approach taken to convict Susannah of witchcraft bore close similarity to the legal codes used in The Code of Hammurabi. In each emphasis is on the delivery of retribution in the name of justice but fails to take into account the circumstances leading up to the accusation. Under the code of Hammurabi, various crimes had set punishments that only required the suspect to be dubbed guilty (Brooks 1). Concerning Susannah, the punishment for witchcraft was death and although she had been accused and released two times before her conviction, it was mostly because the people making the claims focused more on other crimes rather than witchcraft. On the day of the ruling, the proof needed was a teat that was associated with witches. When the physical exam failed to identify the teat however, the accusers resulted to other claims such as the shape and position of the suspect’s breasts (Brooks 1). Although there were various factors that could have attributed to the change in shape and appearance of Susannah’s breasts, the previous accusations combined with the fear of witches in the region led the judges to treat the occurrence as a sign of witchcraft.
The approach taken in the trial of Susannah Martin differ from the ones used in the 21st century America because the latter seeks to deliver justice while the trial only sought to settle people’s concern and fear of witchcraft. There was no form of actionable evidence against Susannah in all the three accusations. Despite this however, the judges relied on propaganda and personal beliefs to make a ruling. The examiner for instance argued that the suspect was guilty because her nipples appeared full in the morning indicating that she had enough milk to breastfeed (Brooks 1). The breasts would however appear slack in the day and the examiner interpreted this to mean that Susannah was a witch and the change in shape was because she fed her familiars in the afternoon rather than in the morning. In 21st century America however, emphasis is placed on implementing the law rather than the punishment. To achieve this, the court goes through the evidence against the suspect and only relies on actionable evidence to determine whether the suspect is guilty or not (Yorke 12). Although rulings borrow from decisions made by judges in the past regarding similar crimes, each judge has the authority to make a different ruling depending on the nature of the crime committed. Rather than relying on agreed punishments to enact on all crimes related to a crime such as theft, policies and codes of conduct in the American society treat each theft as different and try to analyse the situation before determining what action to take.
Despite the differences however, there are significant similarities between the Susannah’s trial and how law is enacted in society today. In both, individuals are regarded as innocent until proven guilty. Despite the emphasis on punishment and retribution, Susannah was released on two occasions because there was not enough evidence to tie her to the crime she was accused of (Brooks 1). Similarly, society regards all individuals as innocent until they are found guilty in a court of law. Suspects are apprehended and taken to court so that a ruling can be made to determine what consequences will follow their actions.
In addition, the two also agree on the use of the death penalty as an ideal punishment for some form of crimes. In both, death is considered a form of justice and retribution but the decision to use the death penalty is only reserved for specific crimes. Despite this similarity however, there are varying definitions on what crimes can warrant the death penalty. From the ruling, it was evident that witchcraft was punishable by death but some crimes were not (Brooks 1). When Susannah was accused of affecting another with her spirit, she was only made to pay a fine before the charges were dropped. The death penalty was however issued not because of the nature of the crime, but rather the impact it had on the victims. In today’s society however, the death penalty is only reserved for heinous crimes and criminals that have proven a risk to society. Although there are incidents where the death penalty has been used, there is constant debate over its use and a significant number of people are against it.
One of the major controversies that surrounds the death penalty today is that it is immoral, unethical and a way of playing god. Although there are different religions and beliefs regarding creation, most people believe that it was God who gave people life and only he has the right to take it away. Religion has also been used to try and do away with the death penalty as it violates God’s commandment forbidding people from killing (Yorke 22). Those against the death penalty argue that no human being has the right to determine when another dies or continues living. Those in support of the death penalty however argue that some crimes deserve retribution and the only way to deliver justice is to ensure that the punishment first the crime. In cases where the crime is murder, rape or genocide, the death penalty is often suggested as the best form of punishment and retribution.
As stipulated by the law, a company is a corporate body of a corporation and an artificial legal person. This consequently means, once a company is merged it becomes a legal personality, a juristic body, which is separate and discrete from its associates and shareholders. According to the law, the company’s predetermined capacity in its own right and can sue and also be sued in law, such that those laws are not able to bind the company. For the reason that it is not a natural person and hence referred to as artificial person as such it is run by the board of directors. The obligations of members are limited by the shares held. Directors are not therefore supposed to act as the owners of the company and not also as agents nonetheless they are required to undertake their responsibilities in accordance with the laws of the company. Artificial person lawful entity and it is permanent until or unless wound up for a set of reasons and under the processed laws of the company.
Macaura v Northern Assurance Co. Ltd (1925).
This case clearly depicts an illustration of the impact of separate personality and limited liability. In Macaura’s case, he was the owner of both an estate as a well as some timber. He agreed to sell all the timber on the estate in return for the entire issued share capital of Irish Canadian Saw Mills Ltd. The timber which amounted to almost the entire asset of the company, was later on stored on the estate. After two weeks, a fire broke out and destroyed all the timber on the estate, a move which prompted Mr. Macaura to claim under the insurance. In a turn of events, the insurance company refused to pay arguing that Mr. Macaura did not have insurable interest in the timber, since the timber belonged to the company (C. R. N. W., 1926). In addition, the insurance company also went ahead and charged Mr. Macaura on accounts of fraud, nonetheless the case lacked evidence. Ultimately, the issue arrived to the House of Lords who found out the timber belonged to the company and not to Mr. Macaura. In as much as he owned all the shares in the company, he did not have insurable interest in the company’s property. The mistake he had made was insuring the timber under his name.
Luguterah v. Northern Engineering Co. Ltd (1972) 1 GLR 153
On the other hand, in Luguterah’s case, he was summoned to attend an extraordinary general meeting which had been signed by the company’s secretary. The meeting was attended by eight respondents which included the company’s acting managing director, who held 25 per centum of the company’s shares. Nonetheless, initially, all the eight respondents had initially paid the company a total of ₡6,000 as deliberations for the shares in the company, but to Luguterah’s realization, none of the members name had been entered in the company’s members register. The meeting therefore passed a resolution to replace the initial board members with new seven member board of directors. Hence the applicant filed an instant, on the issue, however the sixth respondent who was the acting managing director said that the company in the year 1975 had increased the company shares from 10,000 to 100,000, and went ahead to submit that the applicant had not been served with prior notice (Nartey, 2017). The Case was ruled in favour of Luguterah by Taylor J. who stated that the shareholders have a right as members of the company to have company’s affairs conducted in accordance with the regulation of the company.
Findings from both Cases
The company is legal person, hence it can participate in contractual relationship, even with the owners. The owner does not have the authority to make decisions without consulting the shareholders, since in as much as he might be the majority shareholder of the company. For instance, in Luguterah v. Northern Engineering Co. the acting managing director did not have the authority of not registering all the members, but was confined to the company’s rules and regulations. A breach of regulations cannot therefore be categorized under mere anomalies (HG.org., 2019). On the contrary, a company is a legal person, hence it has its own debts as well assets. This is in relation to Mr. Macaurah’s case, whereby he insured the timber under his own name, and stored it in the estate which was under a registered company. Even though he owned all the shares in the company, he was entitle to insurance interest, since the timber was stored in a company’s premises. Henceforth, a company can only stand for itself, in matters involving debt or insurance since it is a sole entity. Similarly, the company is not an agent of the shareholders, but a legal person. The rules and regulations of a company are what govern it, hence nobody has the authority of manipulating the company in a specific, regardless of the amount of shares he or she owns in the company. Furthermore, shares do not have legal or impartial interest in the company’s property. The company runs only the set principles and not on the influence of the highest shareholder.
Reference
HG.org. (2019). Ghana Has a New Companies Act - The Companies Act 2019 (ACT 992). HG.ORG Legal Resources.
R. N. W. (1926). Extent of Shareholders' Interests. Macaura v. Northern Assurance Co., Ltd. [1925] A.C. 619. The Cambridge Law Journal,2(3), 397-399. Retrieved May 22, 2020, from www.jstor.org/stable/45151
Nartey, S. (2017). Did The Minister for Finance Flout Corporate and Banking Rules for Political Interests? Gahna Law Hub.
As stipulated by the law, a company is a corporate body of a corporation and an artificial legal person. This consequently means, once a company is merged it becomes a legal personality, a juristic body, which is separate and discrete from its associates and shareholders. According to the law, the company’s predetermined capacity in its own right and can sue and also be sued in law, such that those laws are not able to bind the company. For the reason that it is not a natural person and hence referred to as artificial person as such it is run by the board of directors. The obligations of members are limited by the shares held. Directors are not therefore supposed to act as the owners of the company and not also as agents nonetheless they are required to undertake their responsibilities in accordance with the laws of the company. Artificial person lawful entity and it is permanent until or unless wound up for a set of reasons and under the processed laws of the company.
Macaura v Northern Assurance Co. Ltd (1925).
This case clearly depicts an illustration of the impact of separate personality and limited liability. In Macaura’s case, he was the owner of both an estate as a well as some timber. He agreed to sell all the timber on the estate in return for the entire issued share capital of Irish Canadian Saw Mills Ltd. The timber which amounted to almost the entire asset of the company, was later on stored on the estate. After two weeks, a fire broke out and destroyed all the timber on the estate, a move which prompted Mr. Macaura to claim under the insurance. In a turn of events, the insurance company refused to pay arguing that Mr. Macaura did not have insurable interest in the timber, since the timber belonged to the company (C. R. N. W., 1926). In addition, the insurance company also went ahead and charged Mr. Macaura on accounts of fraud, nonetheless the case lacked evidence. Ultimately, the issue arrived to the House of Lords who found out the timber belonged to the company and not to Mr. Macaura. In as much as he owned all the shares in the company, he did not have insurable interest in the company’s property. The mistake he had made was insuring the timber under his name.
Luguterah v. Northern Engineering Co. Ltd (1972) 1 GLR 153
On the other hand, in Luguterah’s case, he was summoned to attend an extraordinary general meeting which had been signed by the company’s secretary. The meeting was attended by eight respondents which included the company’s acting managing director, who held 25 per centum of the company’s shares. Nonetheless, initially, all the eight respondents had initially paid the company a total of ₡6,000 as deliberations for the shares in the company, but to Luguterah’s realization, none of the members name had been entered in the company’s members register. The meeting therefore passed a resolution to replace the initial board members with new seven member board of directors. Hence the applicant filed an instant, on the issue, however the sixth respondent who was the acting managing director said that the company in the year 1975 had increased the company shares from 10,000 to 100,000, and went ahead to submit that the applicant had not been served with prior notice (Nartey, 2017). The Case was ruled in favour of Luguterah by Taylor J. who stated that the shareholders have a right as members of the company to have company’s affairs conducted in accordance with the regulation of the company.
Findings from both Cases
The company is legal person, hence it can participate in contractual relationship, even with the owners. The owner does not have the authority to make decisions without consulting the shareholders, since in as much as he might be the majority shareholder of the company. For instance, in Luguterah v. Northern Engineering Co. the acting managing director did not have the authority of not registering all the members, but was confined to the company’s rules and regulations. A breach of regulations cannot therefore be categorized under mere anomalies (HG.org., 2019). On the contrary, a company is a legal person, hence it has its own debts as well assets. This is in relation to Mr. Macaurah’s case, whereby he insured the timber under his own name, and stored it in the estate which was under a registered company. Even though he owned all the shares in the company, he was entitle to insurance interest, since the timber was stored in a company’s premises. Henceforth, a company can only stand for itself, in matters involving debt or insurance since it is a sole entity. Similarly, the company is not an agent of the shareholders, but a legal person. The rules and regulations of a company are what govern it, hence nobody has the authority of manipulating the company in a specific, regardless of the amount of shares he or she owns in the company. Furthermore, shares do not have legal or impartial interest in the company’s property. The company runs only the set principles and not on the influence of the highest shareholder.
Reference
HG.org. (2019). Ghana Has a New Companies Act - The Companies Act 2019 (ACT 992). HG.ORG Legal Resources.
R. N. W. (1926). Extent of Shareholders' Interests. Macaura v. Northern Assurance Co., Ltd. [1925] A.C. 619. The Cambridge Law Journal,2(3), 397-399. Retrieved May 22, 2020, from www.jstor.org/stable/45151
Nartey, S. (2017). Did The Minister for Finance Flout Corporate and Banking Rules for Political Interests? Gahna Law Hub.
A juvenile court is a body given the authority to pass judgment for crimes committed by children. It also deals with underage persons who have been neglected and protecting the rights of children. Juvenile crime is an unlawful act committed by a person who is below the age of 18 years and is referred to as a minor.
According to Riviera (2018), common juvenile crimes are underage drinking, shoplifting, vandalism, minor assaults, and possession of drugs. Most of these crimes involve crimes committed for the first time and are less serious. The juvenile justice system offers rehabilitation to juvenile offenders rather than punish them. Another alternative for them is participating in community work, and paying criminal fines rather than serve jail terms. They are also involved in counseling sessions and probation programs. Some juvenile offenders engage themselves in serious crimes and sometimes have to be tried as adults. These serious crimes include homicide, major theft, and rape.
Feld (2017) explains the intersection of the two sections of juvenile courts which are youth policy and crime policy. The policies for justice in juvenile courts have brought different views about children, how to control crime, gender, and race and the proper ways to address children’s crime. Some juvenile reformers believe that children should be rehabilitated rather than be punished. Others believe that they should go to court and learn the consequences of their crimes. Substantive law is a set of rules that govern how members of a society are supposed to behave. Procedural law refers to rules that are used to enforce the law. The laws help to guide the process to be used to intervene when a child breaks the law.
Dowd (2015) explains that status, background, and race can determine the rule that will be made for you in court after committing a crime. A child who comes from an able family will be charged differently from one who is from a poor background. The one from the rich family might even escape being charged with the crime or it may be taken lightly. This shows how a social class can be effective and the kind of unfairness that exists in the juvenile system. Just because you can afford to pay for crimes committed you can be scot-free. A child from a low-income family is likely to be charged with a crime and this will probably become worse and make an impact throughout your life. The juvenile justice system makes things worse for these children, and instead of helping them to change their behaviors, the system bases their jurisdiction on race and the financial capability of a family. The system does not guide the children on the ways to stay away from crime or how to go back on the right track if one has already committed a crime. This means that the system does not serve the society the way it is supposed to.
According to Dowd (2015), the most unlucky children are children with disabilities and kids of color more so if their parents have a low income. Their families and parents suffer the most because their children have to go through the unfair system. It has been criticized by many including the prosecutors and the judges as a failed system. Strategies and programs need to be developed to help in improving the juvenile system. The aims of the new system should be to assist and serve the children, give them opportunities to be successful even in their future. It should be able to find solutions and address the situations and serve the public fairly. Children must be held accountable when they break the law but putting them back on track should be done the right way. This will make the child listen and learn and not rebel. The new system will aim at reducing the number of children that are locked up by treating every family equally. Development of positive programs and opportunities for children to offer guidance, support, and rehabilitation.
Juvenile Justice (2015) states that the justice system available for adults is not suitable for juveniles or anyone including parents and guardians, social workers, or voluntary organizations. Some proposals have been made to make the juvenile system appreciate the developmental needs of a child. Making juvenile law consider the rights of a child is an implementation that needs to be adhered to. A uniform age of 18 years for both boys and girls should be followed and principles to be used for providing justice to the children in the proposed bill. Voluntary organizations and social workers should be involved in the juvenile system. Training the authorities on handling juvenile cases to have a humane approach to juvenile offenders. Developing child welfare boards and programs that are easily accessible for the children. There should be a separation in handling cases of the offenders and the children that need to be cared for and protected. Different rehabilitation methods such as foster care, sponsoring the poor and abandoned children should be provided. A juvenile case should be presented before the board as soon as possible.
The Juvenile Justice (2015), explains that the juvenile system should give the child a right to be heard. The child’s explanation and opinions should be listened to and before the judgments are made. The offender’s case should be judged with their best interest being considered. There should be no discrimination against juvenile offenders based on gender, family background, race, religion, social status among others. Every child and their family should be treated equally. The children who come to conflict with the law should have a right to privacy and confidentiality. The juvenile offenders should have a right to reunite with their families and continue with their lives just as they did before going against the law. They should be allowed to start afresh and their records should be removed from the system. This will enable them to move forward with their lives and not dwell in the past. These rights will allow them to reflect on their previous mistakes and keep them focused.
According to Khron &Lane (2015), strategies that need to be put in the justice system include behavior therapy and having a teen court. A program that focuses on learning the strategies of being accountable and stopping abusive behavior and taking full responsibility for your actions. Specific gender services should be provided since the needs and problems of girls and boys are different. This is important so that they could all be treated according to the state of their emotions. The mental health needs of juvenile offenders should be addressed because when some of them get into these distressing events get traumatized. After all, some of them are not mentally mature to understand what is happening. For substance abuse offenders, reentry courts should be made available. Programs that involve job training opportunities and leisure activities should be implemented to engage the minors and make sure they have no time to engage themselves in committing a crime. These strategies would bring change to the juvenile justice courts and families would know that their children are safe and getting the best corrections for their mistakes.
Conclusion
Juvenile courts need changes in the way the justice system works. Juvenile offenders need policies and strategies that should be followed when they commit a crime or are found on the wrong side of the law. These courts need to train personnel to handle the children or the minors and their cases as well. There should be no favoritism in the systems to ensure that every offender is treated equally and judged correctly according to their crime.
References
Dowd, N. E. (2015). A new juvenile justice system: Total reform for a broken system. New York
University Press
Feld, B. C. (2017). The evolution of the juvenile court: Race, politics, and the criminalizing of
juvenile justice: New York University Press
Krohn, M. D., & Lane, J. (2015). The handbook of juvenile delinquency and juvenile justice:
Chichester, West Sussex, UK Malden, MA Wiley Blackwell
Riviera J. (2018).Most Common Juvenile Crimes: www.legalmatch.com
The Juvenile Justice (2015). Care and Protection of Children Act, 2000: universal law
publishing Act. Co. Pvt. Ltd
From the case report, Judy was employed by the organization initially not on contract but as an employee. She also performed different kind of duties, which include working as a waitress as well as helping in the kitchen chores. However, the issue surrounding her resignation due to persuasion from her human resource manager together with the contract they entered is what brings the controversy of whether she is still an employee or not. The question that runs, in this case, is whether yet an independent contractor can be considered as an employee of an organization.
Relevant Law
Due to the confusion that results from differentiating employee and independent contractor, the common law test has been applied to determine their relationships in courts. However, some of the legislation have captured contractors and considering them as employees and considering the payment made similar for bought workers and contractors (Robertson, 2019). The common law test makes use of features that are weighed to establish where the balance lies. Based on the measure of control carried out by the employer, a contractor exercises duties at own initiative to attain the intended goal (Robertson, 2019). He/she maintains flexibility to ensure that all the task are done without fail, but at times contracts specify the materials and all other things that should be employed. On the other hand, the employer usually has control over when, how and where a worker carries out duties.
Furthermore, the difference can also be found based on the exclusivity where an employee works specifically for the employer as opposed to an independent contractor who can choose to work for multiple clients (Rawling, 2015). Besides, a worker generally performs duties and carries out the assigned activities using the tools and equipment which are provided by their clients. Expenses that may also be incurred during service provision by the employee are also reimbursed by the employer. This is the opposite of an independent contractor who works and performs all the activities and offering services using their resources.
Besides, an employee’s time on duty exclusively depends on how the employer has set. However, human resource recommends favorable scheduling with rights to be offered leave on request (Sappideen, O'Grady & Riley, 2016). This is not similar for the independent contractors because they set their own hours of work as long as they carry out the duties and provide the services they are required to do (Robertson, 2019). They are not also entitled to leave as in the case of employees. In terms of payment, employees are paid for their time, which has no similarity with an independent contractor who is paid depending on the services and the units of work they engage in.
Moreover, the presence of other legislation that can deem individuals as employees rather than independent contractors is also available. For example, the superannuation which considers a person as an employee in the cases where individuals are rewarded principally or wholly for their skills or labor, the worker has no right to delegate, or an individual is not paid for them to attain a goal.
Application of the law
There is a difference between employment and independent contracting, although they have a significant similarity that can make it difficult to differentiate. Contracting has served as one of the alternatives for traditional relationships that exist in business and also to bridge the gap that exists between individuals that want to provide services to multiples customers (Latimer, 2015). Judy saw this as an opportunity because of the fair pay and more flexible schedule which was indicated by the human resource manager. When dealing or willing to enter into a contract, individuals are usually advised to have a written agreement though it not unusual for businesses or individuals to engage in it verbally.
The issue in Judy’s case was to determine whether she is still an employee after her resignation. From the case, various aspects came up, which states clearly how she performed her duties, what she was paid for, and who gave instructions on the responsibilities she was assigned (Rawling, 2015). The common law test provides a clear way that can show the category that she can be placed. Firstly, the termination of the employment which came about after her resignation followed a contract with the same organization, of which she continued to perform the duties she was performing before (Sappideen, O'Grady & Riley, 2016). Although the written contract is recommended, the law also recognizes contracts that are entered verbally.
Judy worked for almost the same number of hours as she was still employed before resignation and later working as an independent contractor. With consideration of the common law test, she does not meet the features of an independent contractor; this is because, the employer decided on what she was supposed to do including the time and location (Employsure, 2019). The payment Judy received was not suggestive of the services she offered, instead, for the time worked. Besides, the kind of duties she carried was not unlikely to allow for delegation of responsibilities.
Conclusion
With significant consideration of the case and common law test, it can be concluded that Judy can still be considered as an employee of the Orienteat.
Part B
Identification of the legal issue
The issue, in this case, is whether there was a breach of any specific sections of the employment laws. From the report, it is indicated that Judy received a flat rate which was much lower than what she received before for same working hours and similar duties. The contract was later dismissed for expression of unsatisfactory payment rates she received. The issues around this are whether a worker has a right for better pay and how employment can be terminated.
Relevant Law
The Employment & Labour Law 2019 of Australia indicates some of the terms and conditions that a worker is entitled to be given. This was set by the National Employment Standards and include provisions of maximum weekly hours, request for flexible working arrangements, Fair Work Information Statement, and a notice of termination (Hor & MacDermott, 2019). They are the minimum levels that an employer must meet and therefore, they provide the most basic requirements that are expected by the workers in their working environment. In the case of Graham v Bankstown District Sports Club Ltd [2012] FWA 7977, the applicant claimed unfair dismissal which the employer alleged serious misconduct. He sought reinstatement under section 394 of the Fair Work Act 2009 (Cth) (the Act). Althought there was criticism on the procedure that was taken by the club, the tribunal held that the dismissal was no unjust, harsh or unreasonable and thus, it was not unfair. In this case, the club had set procedures in place which supported its contentions
Besides, the law also provides the process in which an employer can conduct termination. This involves the issuance of a notice of termination of their employment which must be provided and needs to indicate the last date to report for work (Hor & MacDermott, 2019). However, employees are also protected from terminations of their employment that are unjust, harsh, or unreasonable, arising from exercising rights in the workplace and discriminatory (Howe, 2016). Consent for termination though, is not required by the employer to initiate it.
An employer has the right to terminate and employment for reasons such as individual worker poor performance or unsatisfactory behavior as long as appropriate notice is given or payment in lieu is made. However, dismissal without warning can be given in the case of serious misconduct (Hardy & Cooney, 2016). Furthermore, an employer is required to follow procedural factors for dismissal which then provides the relevant information whether it is unfair including if the employee was notified and given a chance to respond to the situation (Floyd et al., 2017). In other cases such as unsatisfactory performance, a worker should be provided with an opportunity for them to improve.
Application of the law
As indicated by the National Employment Standards, all the employers are required to meet the needs of their workers. This was not the case in Judy’s report since fair pay was not offered despite performing the same duties as before. Also, the procedure for termination indicates that individuals should not lose their jobs because of exercising their rights in the workplace (The people in dairy, 2019). Judy’s attempt to negotiate for better pay resulted in the termination of her employment which merely is unfair.
Furthermore, she was not served with notice of termination of employment which must be given except in the cases of serious misconducts. The letter should have been presented to her with more elaborate information that includes the last day she is expected to report to work (Hor & MacDermott, 2019). In contrary to the requirements, the manager terminated her employment immediately and without notice.
Although an employer has the right to terminate employment, due process needs to be followed. For example; the manager should have given notice and provide the reasons behind the decision. Then give Judy a chance to defend herself or to look for ways to improve her performance (Hor & MacDermott, 2019). In case all these are done, or the situation behind the notice remains the same, then there might be the reason to terminate. However, from the report, this was not done.
Conclusion
The report suggests that Judy was not offered with a fair pay together with unfair termination of her employment; hence, Orienteat breached the law on termination of employment and National Employment Standards.
Howe, J. (2016). Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK, Australia, and the USA. Routledge.
Hardy, T., & Cooney, S. (2016). The Transformation of Enforcement of Minimum Employment Standards in Australia: A Review of the FWO’s Activities from 2006-2012. Centre for Employment and Labour Relations. Law of Melbourne Law School. Disponível em:< http://law. unimelb. edu. au/__data/assets/pdf_file/0008/1556738/FWOReport-FINAL. Pdf>. Acesso em, 12, 563-575.
Floyd, L., Steenson, W., Coulthard, A., Williams, D., & Pickering, A. C. (2017). Employment, Labour, and Industrial Law in Australia. Cambridge University Press.
Latimer, P. (2015). Australian Business Law, 2015. CCH Australia Limited.
A brief description of a case history entails a structured summary of the facts of a case and issues. Note that in evidence submission, there should be consistent information. An important point to note is that the submission form should also contain a brief description of the case history (Girard, 2006). Note that the evidence collected together with an evidence submission form is sent to the crime lab where forensic scientist uses the information to conduct analysis or test evidence. The importance of including the case history is to assist forensic science in understanding the essential details and perform additional analyses (Girard, 2006). In testing the evidence, the forensic scientist requires a brief history of the case to identify the facts and the procedurally significant facts.
Q2
First, it is important to note that an investigator should collect the evidence, document all items, and protect and preserve the information. Then, the evidence is transported to the crime lab. The forensic scientist presents the evidence to the court, and the court uses all the evidence to start court proceedings (Girard, 2006). Note that if an investigator fails to handle, collect, and pack the crime scene evidence properly, he or she breaks the chain of custody. Such evidence becomes tainted, inadmissible, and unacceptable (Girard, 2006). When the chain of custody is broken, the evidence is excluded at trial. Therefore, the evidence is an important element in the investigation, and thus, investigators should understand the manner in which the evidence should be collected, documented, and analyzed to avoid evidence exclusion at trial (Girard, 2006). It is also important to understand that the court will exclude the evidence if they find that it wastes time, it lacks material information, it is misleading, and it is hearsay, among other factors. Such evidence will not be used in the court, and it will be defined as irrelevant (Girard, 2006). It is important for the investigators to understand the evidence rules and make sure that the evidence is handled carefully for trial.
Reference
Girard, J. E. (2006). Criminalistics: Forensic science and crime. Sudbury, Mass: Jones and
Law enforcement intelligence and private security work together in combatting domestic terrorism. The role of law enforcement intelligence is to gather information. Intelligence agencies collect information, analyses, and circulate the information to other agencies such as military units, state agencies, federal agencies, and others (Bolz et al., 2001). These agencies use the information to conduct the investigation. In general, law enforcement intelligence prevents terrorism through information sharing. The agencies responsible for combatting terrorism must share effective information, and when the information is combined, it should provide an insight and a culture of awareness. The goal of information must be for counterterrorism activity, and the information sharing must use technical capabilities (Bolz et al., 2001).The agencies use the information to understand the nature of threats, develop response strategies, allocate resources, and prevent threats. On private security, it is important to understand the private security has invested in national infrastructures such as transportation, manufacturing, and more. The private sector coordinate security plans with intelligence agencies (Bolz et al., 2001). Through collaboration and coordination, the private sector gains information which helps the agencies protect transportation and other properties. Private security organization and investigators combat terrorism threats such as computer crime, identity theft, counterfeiting, and other offenses. They use specialized equipment such as tactical robots.
The law enforcement intelligence should increase effectiveness through creating a working relationship so that the agencies can understand intelligence functions. In other words, there should be functions integration between regulatory and intelligence agencies (Rose, 2014). Integration of functions will allow these two areas to understand contemporary events and eliminate uncertainty. The second recommendation is that the intelligence functions should be extended. This means that law enforcement intelligence should employ a business intelligence approach. The purpose of extending the role to include professional business intelligence is to assess risk in areas of interest (Rose, 2014). For example, money laundering activities in one enterprise may proceed to other enterprises. Therefore, business intelligence will help understand emerging crime risk. The last recommendation is that the private security sector needs training and development. The security environment is changing, and therefore, the private security personnel should receive training so that they can handle terrorist scenarios such as high-tech crime (Rose, 2014). The terrorists are improving their techniques, and so it is important to increase security education so that the security agencies can be well prepared to address terrorism-related crimes.
On labeling a suspect as an enemy of combatants, I feel that the court should have the authority to designate. This is because all suspects of crimes should face trial in the court so that the judge can hear the evidence and make a decision (Napolitano, 2007). The issue on who should label someone as an enemy of combat is a current debate. Note that the president has been designating suspects as an enemy of combatant and this means that the president has the authority. However, I argue that the totalitarian system that gives the president the authority to act as a dictator should be eliminated and allow the court to protect the citizen's rights. The court should decide if a suspect is an enemy of combatant or a criminal through a court hearing (Napolitano, 2007). Note that the court will apply well-established criteria, use judicial review, and implement the principles of international law to decide whether someone is an enemy of a combatant.
References
Bolz, Jr Frank., Dudonis J. Kenneth., & Schulz P. David. (2001). The Counterterrorism
Handbook: Tactics, Procedures, and Techniques, Second Edition. CRC Press
Rose Gregory. (2014). Following the Proceeds of Environmental Crime: Fish, Forests and
Filthy Lucre. Routledge.
Napolitano, A. P. (2007). The constitution in exile: How the federal government has seized
power by rewriting the supreme law of the land. Nashville, Tenn: Thomas Nelson.
In early America, colonists' used the English real property law to protect their properties such as land. However, the law had complications that resulted to land disputes. To avoid conflict and war, a new law that supported the right to acquisition was developed. A discovery rule was established in European sovereigns (Kades, 70). The rule was designed to allow the sovereign (European nations) to purchase land. Thus, the rule could allow the Europeans to claim the new World and the Indian inhabitants. However, the discovery rule did not put emphases on European-Indian relations. Opponents argued that the law was misleading, and it was an exclusive principle since America was given the sole right to regulate the land. All Europeans were excluded from this rule (Kades, 70). The earliest settled created a second doctrine that restricted Indians from owning land. They only had a general residence but not occupants. Indians were only allowed to possess the lands they cultivated. Other common settlers supported the principled and even said that the land-rich Indians should share their wealth (Kades, 72). However, despite all these justifications, the royal commissioners argued that the lord created the earth and gave it to children of men, including Indians and thus they should own the land. Indians were allowed to possess the area but were denied the right to property or power to sell the land.
The Johnson v. M'Intosh case is a disagreement between the Indians, and British and American officials. Indians wanted to the right of occupancy, whereas the colonists wanted to control the land title. Note that by mid-1700s, the British government controlled the Indian affairs, and it instructed the New York government to restrict private individuals from purchasing lands (Kades, 77). In solving this case, Chief Justice Marshall asserted that it's very rare for laws to exclude Indians from enjoying property rights. However, restriction and control were influenced by political factors. Thus, the sovereign should allow the Indians to sell lands the same way colonial Massachusetts were doing (Kades, 78). Marshall supported the ‘Indian title of occupancy.' He argued that even though the discovery rule denied Indians the right to sell land, the grant allowed the Indians to sell the property. He explained that the title of occupancy was established before the common law. Therefore, the U.S courts did not have legal jurisdiction or the power to make decisions concerning the Indian title (Kades, 79). The Marshall decisions promoted a United Front Government that caused a significant change in that it gained the ability to control the country's fundamental interests. It also improved relations with global powers such as the United Kingdom.
From the case, it is clear that the M'Intosh caused deleterious effects since Indians experience economic hardships. However, they conquered and became winners, and they could sell the land. An important point to understand is that the M’Intosh rule is questionable. It seems like the colonists focused on the distribution of wealth and assemble huge capital (Kades, 111). The case also depicts the strategic opinion of Chief Justice Marshall in solving the case using a narrow statutory grounds. Rather than employing the universal American custom, he established a rule that allowed the Indians to gain freedom (Kades, 111). It is also important to note that Justice Marshall used legal logic and showed the integrity of legal reasoning.
Work cited
Kades, Eric. "History and interpretation of the great case of Johnson v. M'Intosh." Law and
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