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Case Brief

Byrne v. Cleveland Clinic, No. 12-4033 (3d Cir. Mar. 19, 2013)

Facts of the Case

What happened?

Focus on legally significant facts (facts that mattered to the outcome of the case).

Refer to parties descriptively (i.e., buyer/seller, not plaintiff/defendant).

The case involved William F. Byrne (plaintiff), who claimed that the Cleveland Clinic and Chester Country Hospital (defendants) breached the Emergency Medical Treatment and Active Labor Act (“EMTALA”). The contract claimed to be breached under the law of Pennsylvania. The plaintiff asserted that the hospitals did not treat him on an emergency basis, and he had to wait for many hours before accessing medical care.

Procedural Facts

Explain the actions taken in the lower courts

Who sued whom for what claim?

Who won at the trial court level?

Who appealed and why?

If Supreme Court opinion, who won at the appellate court level? Who appealed and why?

Mr. Byrne complained in court, IFP application filed, but the complaint was dismissed.

Mr. Byrne again filed an amended complaint after several weeks

The defendant challenged the amended complaint and request for its dismissal.

Plaintiff insisted on proceeding the claim according to the

marshal appropriate case law.

Issue

Should be in the form of a question.

Did Mr. Byrne file his complaint within the applicable statutes of limitations?

Holding

Should be a yes/no answer to the Issue, followed by Rule.

No, the complaint was not filed within the applicable statutes of limitations (Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) )

Rationale

Explain the basic reasoning that the court used to reach its decision.

Outline point-by-point using bullets or numbered paragraphs.

Entitlement as Matter of Law, Appropriateness

Emergency Care Negligence, Patient Ant- Dumping Act

The parties are not directly involved into a contract

Dicta

Dicta refers to statements by the court that are tangential or not relevant to the actual holding.

Note here any useful dicta.

The plaintiff brought a stabilization claim under EMTALA that is not a federal malpractice statute; rather is a statute related to anti-discrimination.

Breach of the implied contract; not actual, verbal, or written one

Dissent/Concurring Opinions

Identify author of the opinion.

Identify why the author is dissenting – does the author disagree with the majority’s reasoning or with the result (or both)?

Outline reasoning point-by-point using bullets or numbered paragraphs.

N/A

Subject: Law and International Law

Pages: 1 Words: 300

Case Brief

The DALLAS MORNING NEWS, INC and Steve Blow v. John Tatum and Mary Ann Tatum

The Supreme Court of Texas

(May 11, 2018)

Parties:

In the original trial, the Plaintiffs are Mary Ann Tatum and John Tatum, who are the parents of Paul Tatum. The Defendants are Steve Blow and The Dallas Morning News, the company for which he writes columns.

Facts:

Paul Tatum, a 17-year-old boy, wrecked his parent’s car while getting fast food. There was no evidence that he was under the influence of anything. The crash caused the airbags to deploy so strongly that Paul's eyelashes and facial tissue were found at the scene. After the wreck, Paul began drinking and called a friend. The friend, worried about how Paul sounded, went to Paul's house to check on him. He found Paul with one of his family's firearms. The friend went to tell his mom who was waiting in the car. While he was going to tell his mom, Paul shot and killed himself. Paul was described by everyone as smart, popular and athletic. Everyone including his mom, a mental-health professional, said Paul showed no signs of suicidal behavior. Due to this Paul's parents, Mary Ann and John Tatum turned to medical literature where they found a connection between brain injury and suicide. They felt that the car accident caused Paul a brain injury which led him to commit suicide.

To remember their son, Tatum’s purchased space in The Dallas Morning News and published an obituary which claimed their son had died as a result of a car accident. A month later a column writer, Steve Blow, published a column titled “Shrouding Suicide Leaves its Dangers Unaddressed”. This column quoted a piece of Paul’s obituary stating it was paid to be put in the paper. It also mentioned that Paul’s death was actually the result of a suicide. However, the column never mentioned Tatum’s by name. The column discussed the importance of talking about suicide and the dangers of ignoring it. It stated Blow did not want to put blame on the families of those who commit suicide. It also stated that the lack of conversation concerning suicide was understandable and it ended with claiming “awareness, frank discussion, timely intervention, treatment – those are the things that save lives. Honesty is the first step.”

The column was drafted without letting Tatum's know and those who knew Tatum's immediately knew it was referencing them. Tatum's filed a libel suit and libel per se against Blow and The Dallas Morning News. Tatum's claimed the column was defamatory. The Dallas Morning News filed for a summary judgment saying the column was an opinion.

Lower Court Holding:

The Lower court granted the summary judgment by The Dallas Morning News without explaining the reason. Tatum's appealed and the court of appeals reversed the trial court holding saying the column was not an opinion because it stated that Tatum's were attempting to deceive in their obituary. Moreover, it can be verified, due to which it is subject to defamation. The court of appeals rejected every defense made by The Dallas Morning News. The Dallas Morning News then petitioned for a review.

Issue Presented:

Was the accused defamation done in the column’s ‘gist’ or was the accused defamation implied or explicit? Another important question is, did the column written by Steve Blow defame Tatum’s by implying they had deceived the public about the cause of their son’s death or imply Paul had an ignored mental illness? Moreover, if the column did it, are those statements protected by the first amendment?

Holding:

The Supreme Court of Texas reversed the decision by the appellate court and returned to the trial court’s decision, deciding in favor of Steve Blow and The Dallas Morning News, Inc.

The Supreme Court of Texas said that Tatum's case relied on implied defamation from a portion of the column and the column accusing them of deceiving the public about their son's death was the only grounds for a libel suit. Even though it could stand ground for a legal suit, the Supreme Court of Texas considered the column written by Steve Blow to be a truthful, opinion column thus protected by the First Amendment.

Legal Principle:

The First Amendment protects accurate statements and those of opinion.

Reasoning:

While determining if this case can be considered defamation in its ‘gist,’ the court looked towards definitions of the word ‘gist.’ The American Heritage Dictionary of the English Language, Webster's Third New International Dictionary and Black's Law Dictionary, all state that ‘gist' means the main point. Therefore, Tatum's cannot sue for defamation due to the word ‘gist.’ The court believes the reference to Tatum's in the article was used to support the main point of the article, which was the importance of starting a conversation about suicide. Therefore, Tatum's could sue only for partial defamation.

After that, the issue is to assess if Musser v. Smith Protective Services, Inc. assisted in determining whether the defamation was explicit or implicit. The case states for a statement to be implicitly defamatory a reasonable person would have to understand them to be. For this instance, the court agrees that the column did intend to imply Tatum's deceived the public on the cause of their son's death, but it only does so as an example. However, the court rejects the idea that the column implied that Paul had a mental illness on the grounds of the language used around that statement. Since the column used the word "often" you cannot classify every suicide, therefore, you cannot classify Paul. The Court also states that since the statement regarding Tatum's deception and the statement saying suicide ‘often' is a result of mental illness are so far apart in the article you cannot connect them. They also do not believe the column insinuated the Tatum's ignored their son's mental illness. Given all that information, the only ground on which Tatum’s can sue is the column implying that they had deceived the public about the cause of their son's death.

New Times, Inc. v. Isaacks states that a statement has to be capable of being verifiable as false to be a ground for a defamation lawsuit. The court believes that the column's accusations that Tatum's had lied about their son's death was a true statement because they had literally lied about what caused their son's death. The Tatum's said that Blow should have included the research on the connection between brain injury and suicide in his article. Since they did not do it in the obituary, it is not a sufficient argument to claim Blow's statement was false. For something to be fully truthful, it cannot avoid necessary information. Since Blow's article ended with "the last thing I want to do is put guilt on the family of suicide victims," the court assumes the column is true. The court also believes that even if the article included all the information Tatum's would have preferred, it did not matter because both articles would be just as damaging to Tatum's reputation.

The court also mentions that even if the statement was false, Milkovich v. Lorain Journal Co. lets us know that you also have to consider the context the statements were made in. The court determines the use of phrases like "I guess" and "I think," the title of the column and the style of writing in the column, all depict that the column was an opinion and thus protected by the first amendment.

Concurring Opinions:

Justice Boyd concurred while Justice Lehrmann and Blacklock joined. They argued that the court was introducing new phrases for already defined terms in making this decision. They also argued that implied defamation just means that the plaintiff needs to include more information to determine if the statement is capable of being defamatory. Moreover, it is the courts' responsibility to vigorously attempt to confirm that the alleged statement of defamation does hold the meaning the plaintiff alleges. They also argued that while they agree with the court's decision, but they believe they did not need to consider whether Blow's statements were accurate or not. Rather the only thing that was necessary to consider this case, was the knowledge that Blow's article was an opinion.

Subject: Law and International Law

Pages: 4 Words: 1200

Case Brief 2

CASE BRIEF 2

Introduction:

The case Terry v. Ohio, 392 U.S. 1 (1968), was about the access of the police officer and his authority to stop a person in search of a weapon. The case is significant as it highlighted the narrowly drawn authority to permit a reasonable search and seizure. According to the rule, when a police officer found someone suspicious and has reason to consider that the suspect has some kind of weapon or he is dangerous for the people, irrespective of whether an officer has an arrest warrant to arrest the suspect for the crime. The case was decided on June 10, 1968, after making the argument on December 12, 1967.

The defendant "Terry" along with two other men were approached by the police officer who found their behavior suspected in the store. The police officers found their suspicious behavior and doubted that they were planning to rob the store. The police officer asked question-their names to know about their presence around the store and the reason for their repetitive movement in the same area. The men mumbled in response to the question of the officers due to which officer searched the three men. While searching the men police officers found gun from two of the suspect in which Terry and Clinton had convicted of having a concealed weapons. In response, Terry filed the case against police officer and claimed that the search violated the fourth amendment right against unreasonable seizures and searches. The category in which case falls was an illegal search and seizure. The supreme court of the united state held that the approach of the officers and search was reasonable as long as they have reasonable suspicion. The ruling, in this case, pertains to the fourth amendment.

Facts:

McFadden was the officer with thirty-nine years of experience performing his duty on a downtown beat where he found the two strangers with unusual behavior. The first man was the defender names Terry and other’s name was Chilton. Both Terry and Chilton became suspicious as they were moving around the same route. They proceed alternately along an identical area where they got stopped at a particular place to stare in the window of the same store. They did this back and forth movement for about twenty-four time in total. Every time they reached to the corner of the area they made discussion with each other. Later on, a third man named Katz joined the two and left quickly. All these activities made them suspicious and officer McFadden followed both. While following the two, the officer saw them meeting again with the third man in front of another store which was a couple of blocks away. The officer reached to them and showed them his identity. He asked them to tell their names. Instead of telling their names all men mumbled with each other. Afterward, the officer spun Terry around and checked his clothes. McFadden found Terry's overcoat pocket while patted down his outside dress, however, he was unable to remove the weapon. For checking purpose, the officer ordered them to move to the store where he took petitioner's overcoat from him and found the revolver in it, and then he ordered all the three suspects to raise their hand and face the wall. He took outside clothing of Clinton and Katz for further investigation where he got another revolver from Clinton's clothes. However, he did not put his hand in the third suspect that was Katz as he did not observe anything in his pat-down. Besides this, he did not even put his hand in the clothes of the petitioner and other man until he found a thing which can be a weapon ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"hzwOoWCL","properties":{"formattedCitation":"(Rankin, n.d.)","plainCitation":"(Rankin, n.d.)","noteIndex":0},"citationItems":[{"id":699,"uris":["http://zotero.org/users/local/mlRB1JqV/items/PUUBR9HY"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/PUUBR9HY"],"itemData":{"id":699,"type":"article-journal","title":"Terry v. Ohio 392 U.S. 1 (1968) Case Brief","source":"www.academia.edu","abstract":"Terry v. Ohio 392 U.S. 1 (1968) Case Brief","URL":"https://www.academia.edu/31742387/Terry_v._Ohio_392_U.S._1_1968_Case_Brief","language":"en","author":[{"family":"Rankin","given":"Robert"}],"accessed":{"date-parts":[["2019",6,27]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Rankin, n.d.).

McFadden took all the three men to the police station. Clinton and Terry were charged for having the concealed revolvers with them. Later, Terry brought the clash between harassing, intrusive conduct by the police and Fourth Amendment protection. Terry filed the case against the police officer in 1967 which later known as “stop and frisk” case. The defense moved to hold back the revolvers. The filed case was allowed for trial; however, the judge gave the decision against the petitioner and rejected the prosecution theory. The court rejected the movement to suppress and conceded the revolvers into proof on the ground that the officer had reason to accept that Terry and Chilton were behaving suspiciously, that their cross-examination was justified, and that the McFadden for his very own assurance reserved the privilege to search their external attire having sensible reason to accept that they may be armed.

Issue:

The subject that brought in the case of Terry vs. Ohio was related to the weapons and the fourth amendment. Therefore, the issue was:

Whether the checking or searching for weapons without having any probable reason for the arrest is an unreasonable search under the Fourth Amendment to the constitution of the United State?

Holding:

The Supreme Court of the United State held that it is not an unreasonable search for the weapon when an officer believes that the person can be armed. When the officer does a limited and quick search for the weapon then it is a reasonable search and seizure. A beat official would be excessively burdened by being denied from searching people that the official suspects to be dangerous or armed. There were three judges in which two of them agreed to the majority and one rejected the court decision. Therefore, judges' decision came against the petitioner and they held that it was the reasonable search for the weapon when the officer believed that a person can be armed or dangerous for the people in the surrounding. In addition, search and seizure can be only for people, not place ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"3EwScOld","properties":{"formattedCitation":"(\\uc0\\u8220{}Terry v. Ohio,\\uc0\\u8221{} n.d.)","plainCitation":"(“Terry v. Ohio,” n.d.)","noteIndex":0},"citationItems":[{"id":695,"uris":["http://zotero.org/users/local/mlRB1JqV/items/BCD6JSI6"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/BCD6JSI6"],"itemData":{"id":695,"type":"webpage","title":"Terry v. Ohio","container-title":"LII / Legal Information Institute","URL":"https://www.law.cornell.edu/supremecourt/text/392/1","language":"en","accessed":{"date-parts":[["2019",6,27]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Terry v. Ohio,” n.d.).

Rationale:

Justice William Douglas opposed the holding while Justice John Harlan and Justice Byron White disagreed with the majority. J. Douglas opposed with the reason that the holding of the majority will give powers to the officers to make search and seizure. They will be able to get the authority that a magistrate would not even acquire. J. White agreed, however, he emphasized that some of the case facts were suspicion of the violent act. J. Harlan also agreed to the majority and raised the concern that police officer should have reasonableness for the search and seizure without any warrant ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"mwUhWSAi","properties":{"formattedCitation":"(\\uc0\\u8220{}Terry v. Ohio 392 U.S. 1 (1968),\\uc0\\u8221{} n.d.)","plainCitation":"(“Terry v. Ohio 392 U.S. 1 (1968),” n.d.)","noteIndex":0},"citationItems":[{"id":696,"uris":["http://zotero.org/users/local/mlRB1JqV/items/8R6ZNZQV"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/8R6ZNZQV"],"itemData":{"id":696,"type":"webpage","title":"Terry v. Ohio 392 U.S. 1 (1968)","container-title":"ACLU of Ohio","URL":"https://www.acluohio.org/archives/cases/terry-v-ohio","language":"en-US","accessed":{"date-parts":[["2019",6,27]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Terry v. Ohio 392 U.S. 1 (1968),” n.d.). The court rationale was in courtesy of the officer with the decision that action of McFadden to stop the petitioner for search and seizure does not violate the rule of the fourth amendment. The rationale of the majority was not based on the previous case they disagreed to the points of the same case and without highlighting the previous cases judges raised their concerns. The decision, therefore, did not overturn a previous court decision on this issue.

Significance:

The case is significant to understand as it provides an important understanding regarding the willingness of the Supreme court of the United States to allow the police officer for search and seizure. The court decision provides the fact that acts of police officers satisfy the fourth amendment. If any officer found a person suspicious with the unusual behavior which makes the officer believe that the person can be involved in the robbery or any other violent crime, he can stop the person. This is because if the police officer makes "stop and frisk" for weapon and find any weapon then he would be in danger to approach the men for asking the question without making the search first. In addition, an officer might not be able to detain the suspects for a long period of time to make an arrest without reasonable fact. Therefore, search for the weapon is crucial for not only satisfies the police officer's concern but also for his safety.

A report indicates that the number of police officers was injured as well as killed during performing their duty. In 1966, 57 police officers were killed and during 1960-66 more than nine thousand officers were injured. Forty-one officers out of fifty-seven who got killed during their duty inflicted by handguns while remaining murders were made by the knives ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"dqYo5iGL","properties":{"formattedCitation":"(\\uc0\\u8220{}Terry v. Ohio (1968),\\uc0\\u8221{} n.d.)","plainCitation":"(“Terry v. Ohio (1968),” n.d.)","noteIndex":0},"citationItems":[{"id":700,"uris":["http://zotero.org/users/local/mlRB1JqV/items/8ZR4742P"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/8ZR4742P"],"itemData":{"id":700,"type":"post-weblog","title":"Terry v. Ohio (1968)","container-title":"Crime Museum","abstract":"Terry v. Ohio was a 1968 landmark United States Supreme Court case. The case dealt with the ‘stop and frisk’ practice of police officers, and whether or not it violates the U.S. Constitution’s Fourth Amendment protection from unreasonable searches and…","URL":"https://www.crimemuseum.org/crime-library/criminal-law/terry-ohio/","language":"en-US","accessed":{"date-parts":[["2019",6,27]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Terry v. Ohio (1968),” n.d.). The report highlights the credibility of the court decision that by not giving the power to the officer for stopping a suspicious person is reasonable if he believes that a person has a weapon to harm the other person. However, It is important to know that judges raised the explanation that police officer should have reasonable facts to defend that he had made "stop and frisk" with probable cause. Otherwise, it can violate the fourth amendment if the officer does not have probable cause and he stops a citizen anywhere for the investigation. The reason behind this fact was that judges found that many times officers unfairly target the minorities which are against the law. Therefore, to ensure the rights of the citizen, stop and frisk were made reasonable under the fourth amendment but with a probable cause.

References

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Rankin, R. (n.d.). Terry v. Ohio 392 U.S. 1 (1968) Case Brief. Retrieved from https://www.academia.edu/31742387/Terry_v._Ohio_392_U.S._1_1968_Case_Brief

Terry v. Ohio. (n.d.). Retrieved June 27, 2019, from LII / Legal Information Institute website: https://www.law.cornell.edu/supremecourt/text/392/1

Terry v. Ohio 392 U.S. 1 (1968). (n.d.). Retrieved June 27, 2019, from ACLU of Ohio website: https://www.acluohio.org/archives/cases/terry-v-ohio

Terry v. Ohio (1968). (n.d.). Retrieved June 27, 2019, from Crime Museum website: https://www.crimemuseum.org/crime-library/criminal-law/terry-ohio/

Subject: Law and International Law

Pages: 5 Words: 1500

Case Study

Business and Corporate Law

Part A

Issue

The issues presented in this scenario is related to contract law, i.e., if the published advertisement had the capacity to form a contractual relationship, if the forty customers, who came to the shop, could claim their haircut for $10, if the other ten customers, who have not brought the advertisement with them, could enforce Ming for the haircut, if the advertisement could create a legal relationship, and if such a relationship could be eliminated by putting a sign on the shop to terminate the offer.

Rule

The common law principles provide provisions regarding contract law and governance of a contractual relationship between contracting parties. As per these provisions, parties have to make sure that they make a differentiation between an offer and an invitation to treat (Fitzpatrick et al., 2011). A contract cannot be constructed between parties through an invitation to treat as given in Harvey v Facey since it does not fulfil the basic element of a valid offer; the parties must have the intention to create a legal relationship once acceptance is received on the offer. In the real-world scenario, it often happens that the contracting party does not have the intention to create a legal relationship but it invites the other party to make an offer through an invitation to treat via advertisements, as provided in the case of Partridge v Crittenden. Although parties cannot form contractual relationships through an invitation to treat but it is not an absolute rule. Thus, exceptions exist, such as in the case of Carlill v Carbolic Smoke Ball Co.

The case of Carlill v Carbolic Smoke Ball Co provide several provisions based on which an advertisement can be considered an offer. The court provided the concept of the unilateral offer, which can be made by a party, and it remains open to the entire world (Fitzpatrick et al., 2011 p.85). In this particular case, an advertisement was published by a company in the newspaper while promoting their medication. They made a promise in the advertisement that people contracting influenza after using their medication will receive a reward of 100 pounds by the company (Poole, 2016 p.4). Mrs Carlill purchased and used the medication as per the instructions provided in the advertisement. However, she contacted influenza and thus made a claim for her reward. The company rejected the claim based on the ground that it was an advert and not an offer. The court decided otherwise. It was held that the advertisment was a unilateral offer since the wordings and the actions of the company to put money in the bank show the sincerity of the company to form a contract (Poole, 2016 p.14). In response to the claim brough forward by the company that an offer could not be open to the entire world, the court provided that a unilateral offer can be accepted by anyone (Fitzpatrick et al., 2011 p.91). The court further elaborated that communication of acceptance is made when the parties comply with the instructions provided in the advertisement.

In the case of consideration, the court provided that consideration can be of any value, as in the case of Thomas v Thomas. In the particular case under discussion, the amount of consideration consisted of the payment made by Mrs Carlill for puschasing the product. Since all prerequisites of a binding contract were met in this scenario, the court established that a legally enforceable relationship had been established between the two parties in the case of Carlill v Carbolic Smoke Ball Co. Further elaboration on the amount and form of consideration has been provided in the case of Chappell  Co Ltd v Nestle Co Ltd where the court held that a consideration needs to be adequate but it needs not to be sufficient, and it can be of any value. The court further provided that a unilateral offer cannot be terminated like a regular offer but only in two conditions. Firstly when the performance of the contract has not been started by the parties after the advertisement is posted and secondly when performance is not completed by the parties within a reasonable period.

Application

In the given scenario, the first issue relates to the validity of the advertisement posted by Ming to be constituted as a valid offer. The principles discussed in the case of Carlill v Carbolic Smoke Ball Co are necessary to be analysed in order to determine if a valid unilateral offer has made or not (Fitzpatrick et al., 2011 p.90). The intention of Ming was to post the advertisement in order to increase the number of customers of his business. He did not post it with the intention of an invitation to treat since he provided specific instructions for its customers, which they can follow in order to get a $10 haircut from him. The first forty customers complied with the instructions given in the advertisement since they brought a copy of the advertisement with them. The acceptance in a unilateral offer is given by the parties by complying with the instructions which are present in this case.

As discussed in Chappell  Co Ltd v Nestle Co Ltd (Fitzpatrick et al., 2011 p.157), the consideration in this case is present despite the fact that the usual cost of a haircut is $60 rather than $10 because consideration can be any value and it need not to be sufficient to form a valid contract. Thus, since the elements of a contract are present, the forty customers can legally enforce their contractual terms on Ming to claim their $10 haircut. However, the case is not the same with the other ten customers because a contract has not been formed with them. The element of acceptance is missing in their case because the customers did not follow the instructions mentioned in Ming’s advertisement. The sign put by Ming on the shop in order to terminate the offer through the advertisement is not valid since a unilateral offer can only be terminated by two mediums: performance has not started, or it is not finished within a reasonable period. As long as customers brought the copy with them, they can claim the $10 haircut. Thus, Ming should specify a time period for this offer after which the offer will be terminated.

Conclusion

To conclude, the advertisement is considered a valid offer which is open for the entire world, and it was accepted by forty customers who can claimed their $10 haircut. The other ten customers have not given their acceptance; thus, a contract is not formed with them. Also, the sign put up by Ming does not terminate the offer.

Bibliography

Books

Fitzpatrick J, Symes C, Velijanovski A and Parker, D Business and Corporations Law, LexisNexis Butterworths Australia, Chatswood, NSW, 2017.

Poole, J Casebook on Contract Law, Oxford University Press, Oxford.

Cases

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256

Chappell  Co Ltd v Nestle Co Ltd [1960] AC 87

Harvey v Facey (1893) UKPC 1

Partridge v Crittenden (1968) 2 All ER 425

Thomas v Thomas (1842) 2 QB 851

Bibliography

Web Document

ASIC, ‘Business name availability tests’, in ASIC, 2019, viewed on 23 May 2019, < https://asic.gov.au/for-business/registering-a-business-name/before-you-register-a-business-name/business-name-availability/business-name-availability-tests/>.

ASIC, ‘Guidelines for names relating to financial institutions’, in ASIC, 2019, viewed on 23 May 2019, < https://asic.gov.au/for-business/registering-a-company/steps-to-register-a-company/company-name-availability/guidelines-for-names-relating-to-financial-institutions/>.

Austlii, ‘Corporations Act 2001’, in Austlii, 2019, viewed on 23 May 2019 <http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/ca2001172/>.

CCASA, ‘Understanding the differences between a proprietary company and a small unlisted public company’, in CCASA, 2019, viewed on 23 May 2019, <https://www.ccasa.com.au/understanding-the-differences-between-a-proprietary-company-and-a-small-unlisted-public-company/>.

LegalVision, ‘5 Differences Between a Public Company and a Private Company’, in LegalVision, 2018, viewed on 23 May 2019, <https://legalvision.com.au/difference-between-public-and-private-company/>.

Legislation, ’Corporations Act 2001’, in Legislation, 2019, viewed on 23 May 2019,< https://www.legislation.gov.au/Details/C2018C00424>.

SLV, ‘Companies in Australia’, in SLV, 2019, viewed on 23 May 2019, <https://guides.slv.vic.gov.au/companies/structures>.

Subject: Law and International Law

Pages: 6 Words: 1800

Case Study

Case Study Three

Steven

Case Study Three

1.The company is moving from the private to the public company for the first time. It will face a number of delays in becoming a public company making it an Initial Public Offering (IPO) company CITATION STr03 \l 1033 (Certo, 2003). There is procedure laid by the Security Exchange Commission (SEC) that requires the cough Syrup company to comply with the IPO process. The SEC needs the companies to disclose their financial status, records, management analysis and information regarding the business shareholders. Three potential legal or regulatory issues are apparent in this case that the Miracle Cough Syrup might face in becoming a Public company. For the initial procedures to register, Fred needs to show the managerial and the financial position of the company. Jane’s forgery in the finances of the company will show the inefficiency in the accounts of the accounts. They will dispel the investors to invest their capital and shares elsewhere, making the company loose capital needed for expanded. Another issue that will halt the company from going public is the issue of the intellectual property rights that may be possible since Fred went public on TV regarding his drug and with the recipe available online, many others will be able to claim intellectual property right, making it difficult for Fred to go public with his company. And lastly Tammy’s accusation of sex discrimination; Fred will have to prove that Tammy did not carry the appropriate experience and qualification for the job. This would also prove that it was a case of failure to comply with the job requirements and an opportunity to harass the company since Tammy was a previous employee and did not have any previous complaints.

2.All Public companies are by law required to register themselves with the state. Fred’s Miracle Cough Syrup Company will also need to follow the procedure laid by the Security Exchange Commission to register themselves. The SEC will first look into the status of the company and then approve it for the public offering. The company will have to disclose the financial records, statements, business operations, management and complete regulatory processes that the cough syrup company holds under The Securities Exchange Act 1934 CITATION GJB73 \l 1033 (Benston, 1973). Sarbanes-Oxley Act 2002 is another law, the Miracle Cough syrup shall comply with. The Federal law regulates the financial practices and helps protect the shareholders from the errors in the regulations of the capital within it. The company would need to assure that no forgery or fraudulent transactions will take place in the future. Section 302 of the act impose corporate responsibility on the employees to show Financial Reports, while section 404 involves management assessment and the transparent of internal funds CITATION WGe05 \l 1033 (W Ge, 2005). And lastly, the Jumpstart Our Business Startup Act 2012, also has made the IPO’s to expand and grow in an expansive manner. The risks of failure or bankruptcy can be well examined through the laws sanctioned within these acts. Therefore compliance with this law offers the encouragement to invest in IPOs and regulate them for the shareholders. These laws determine and ensure the business practice for the improvement in the overall performance of the company

3.Fred’s Miracle cough syrup company need to strategize its policy for effective growth and expansion to become a public company. Fred needs to make sure the standards and the guidelines under the Security Exchange Commission are followed accurately and under no pretenses being ignored. The company should comply with the standards and regulations set by the SEC, they should involve in practices that ensure efficiency in delivering promises for the shareholders and investors. The company shall be monitored and internally controlled in a manner so that fraudulent activities are averted and minimized. The financial records shall be audited regularly for accuracy. The business operations and transactions should be maintained with the help of the performance mechanisms that help reduce inefficiencies and develop better. The company staff shall be recruitment on the basis of honesty without any discrepancies. Fred should also look forward to gaining copyrights and patents for the cough syrup, under intellectual property rights. The company should invest in the streamlining of technology to gain more investors CITATION CBo15 \l 1033 (C Bones, 2015). The streamlining use information systems to evaluate the performance of the business. In addition to this, it helps the company grow. Lastly, involving the stakeholders in making important decisions. The organization should take the consensus of the other investors and their valuable advice in the interest of the company so that the company can run efficiently and deliver to the market successfully.

References

BIBLIOGRAPHY Benston, G. (1973). Required disclosure and the stock market: An evaluation of the Securities Exchange Act of 1934. The American Economic Review, 132-155.

C Bones, J. H. (2015). Leading digital strategy: driving business growth through effective e-commerce. Kogan Page Publishers.

Certo, S. T. (2003). Influencing initial public offering investors with prestige: Signaling with board structures. Academy of Management Review.

W Ge, S. M. (2005). The disclosure of material weaknesses in internal control after the Sarbanes-Oxley Act. Accounting Horizons, 137-158.

Subject: Law and International Law

Pages: 2 Words: 600

Case Study

TO: Ron Giles

FROM: Michael Santana

Date:

Re: Jeffrey Beckles- Negligent Homicide Case

Facts

According to the facts presented to the Grand Jury, defendant, Jeffery Beckles is 30 years old, 5 feet and 10 inches tall and has a strong built and Tyrone Johnson is 54 years of age, 5 feet and 6 inches tall and weighs 60 pounds. Beckles, with the back of his hand, hit Johnson which resulted in the fracture of the deceased’s jaw. He fell to the ground and hit his head on an angular object which caused contusions and brain hemorrhage. Reportedly, he was drunk at that time. He did not visit the hospital until one day after the incident had happened. He was hospitalized where he developed pneumonia and died six days later. In the light of opinion presented by the medical examiner, brain hemorrhage was the reason for his death rather than the slap by the defendant.

According to the statement given by the police, Mr. Beckles was unaware of the pre-existing condition of the deceased.

The deceased did not visit the hospital or consult a doctor till the day of incident, rather stayed at home until he suffered from nausea, seizures and amnesia. No eye witness of the quarrel is known but the statements, given by the friends of the deceased, said that the deceased failed to pay the debt owned from Mr. Beckles, which made Mr. Beckles upset. Jeffery Beckles also stated that his mood fluctuates due to the bipolar disorder he is suffering from. It was evident from his statement that he had anger issues but no psychological reports or assessments of his disorder were obtained. Mr. Beckles did not have any intentions to murder the victim as he stated that the deceased threatened to smack him with the bottle of beer. In order to protect himself from the attack, he slapped him with the back of his hand. His friends reported that he has a past history of excessive drinking and quarrelling.

Discussion

The aim of this memo is to determine whether Jeffery Beckles is guilty of criminally negligent homicide of Tyrone Johnson. After stating facts, laws, and theories related to the crime, it will become evident whether or not Ron Giles is able to successfully defend the defendant Jeffery Beckles.

According to the New York Penal Law § 125.10, if a human dies due to another negligent crime, it will be considered negligent homicide. Also, according to the New York Penal § 125.00, Homicide means an action or behavior due to which the death of a person occurs or which results in the death of an unborn child, who is twenty-four weeks old, under conditions establishing murder, first degree manslaughter, second degree manslaughter in the second degree, criminally negligent homicide, first degree self-abortion or first degree abortion.

As the part of homicide statutes, negligent homicide usually lagged at government level. It is considered as the lowest form of offense which can result in the death of a person. Homicide can be described through different situations. The intent of the culprit decides the charge of the crime. Negligence homicide occurs when the culprit had no intentions of murdering the deceased ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Fi5OrVls","properties":{"formattedCitation":"(Riesenfeld)","plainCitation":"(Riesenfeld)","noteIndex":0},"citationItems":[{"id":131,"uris":["http://zotero.org/users/6144444/items/9929BFJ2"],"uri":["http://zotero.org/users/6144444/items/9929BFJ2"],"itemData":{"id":131,"type":"article-journal","title":"Negligent Homicide--A Study in Statutory Interpretation","container-title":"California Law Review","page":"1","volume":"25","URL":"https://heinonline.org/HOL/Page?handle=hein.journals/calr25&id=27&div=&collection=","journalAbbreviation":"Calif. L. Rev.","author":[{"family":"Riesenfeld","given":"Stefan A."}],"issued":{"date-parts":[["1936"]],"season":"1937"}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Riesenfeld)

Negligence homicide occurs when a person takes the life of another through criminal negligence. It also happens when the behavior of a person becomes risky. Even though it is of lower intent but still considered a serious crime ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"ucoyEb6n","properties":{"formattedCitation":"(Karaba)","plainCitation":"(Karaba)","noteIndex":0},"citationItems":[{"id":134,"uris":["http://zotero.org/users/6144444/items/D25ICLV8"],"uri":["http://zotero.org/users/6144444/items/D25ICLV8"],"itemData":{"id":134,"type":"article-journal","title":"Negligent Homicide or Manslaughter: A Dilemma","container-title":"Journal of Criminal Law and Criminology (1931-1951)","page":"183","volume":"41","issue":"2","source":"DOI.org (Crossref)","URL":"https://www.jstor.org/stable/1138424?origin=crossref","DOI":"10.2307/1138424","ISSN":"08852731","title-short":"Negligent Homicide or Manslaughter","journalAbbreviation":"Journal of Criminal Law and Criminology (1931-1951)","language":"en","author":[{"family":"Karaba","given":"Frank A."}],"issued":{"date-parts":[["1950",7]]},"accessed":{"date-parts":[["2019",11,29]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Karaba).

Negligence homicide can also be categorized as death by conduct which diverged from usual care. It may be charged as involuntary manslaughter. To fulfill specific requirements, local law should be referred to as the state law may differ ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"j2RJMnAG","properties":{"formattedCitation":"({\\i{}Negligent Homicide Law and Legal Definition | USLegal, Inc.})","plainCitation":"(Negligent Homicide Law and Legal Definition | USLegal, Inc.)","noteIndex":0},"citationItems":[{"id":127,"uris":["http://zotero.org/users/6144444/items/6B4N86YY"],"uri":["http://zotero.org/users/6144444/items/6B4N86YY"],"itemData":{"id":127,"type":"webpage","title":"Negligent Homicide Law and Legal Definition | USLegal, Inc.","URL":"https://definitions.uslegal.com/n/negligent-homicide/","accessed":{"date-parts":[["2019",11,29]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Negligent Homicide Law and Legal Definition | USLegal, Inc.)

The prosecutors need intent in order to prove the defendant guilty of involuntary manslaughter, as malevolence was not a part of the crime. The prosecution must show that the act of the defendant caused the death of a person which was fundamentally perilous or was committed carelessly. They also need to prove that the defendant should have been aware of the intensity and effects of his crime.

The act of defendant may be considered as self-defense if there is any evidence present that shows that he believed that the act he performed was in order to protect himself from the deceased.  

The court must release the defendant if he provides any solid evidence of his self-defense. The defendant can be found guilty if the state proves the claim of self-defense invalid. Many other significant factors have a great impact on the success of defense of self-defense. The circumstance such as who was the initial provoker of the dispute and which one intensified the situation towards a violent clash must also be highlighted while proving self-defense ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"tCeSYekN","properties":{"formattedCitation":"(HG.org)","plainCitation":"(HG.org)","noteIndex":0},"citationItems":[{"id":129,"uris":["http://zotero.org/users/6144444/items/6QG83K3Z"],"uri":["http://zotero.org/users/6144444/items/6QG83K3Z"],"itemData":{"id":129,"type":"webpage","title":"Self-Defense VS. Manslaughter","URL":"https://www.hg.org/legal-articles/self-defense-vs-manslaughter-36233","author":[{"family":"HG.org","given":""}],"accessed":{"date-parts":[["2019",11,29]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (HG.org)

In broad-spectrum, assault in New York is described as when someone aims to and is a source of harm to someone or an individual, or irresponsibly causes injury to another person during a quarrel.

The people who study victimology have focused on the features of both victims and victim-precipitated crime. The probability of victimization is considerably high among young and unmarried males than their regional corresponding victims; this phenomenon has connection with theories about daily routine activities. The relation between the social structures and the increased rate of victimization has enforced the importance of collective efficacy theory and explained the theory of social disorganization developed further by Shaw and McKay ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"EP1Nfnbk","properties":{"formattedCitation":"(McDonald)","plainCitation":"(McDonald)","noteIndex":0},"citationItems":[{"id":135,"uris":["http://zotero.org/users/6144444/items/TCGSY5LA"],"uri":["http://zotero.org/users/6144444/items/TCGSY5LA"],"itemData":{"id":135,"type":"chapter","title":"Theories of Criminal Victimization","container-title":"The Criminal Victimization of Immigrants","collection-title":"Palgrave Studies in Victims and Victimology","publisher":"Springer International Publishing","publisher-place":"Cham","page":"11-28","source":"Springer Link","event-place":"Cham","abstract":"There are two kinds of theories of criminal victimization: individual (micro) and aggregate/structural (macro) correlates. Victimologists have focused upon the characteristics of victims and victim-precipitated crime. Findings that young, unmarried males had higher rates of victimization than their demographic counterparts led to theories about lifestyles/routine activities. The association between social structures and aggregate victimization rates supported the theory of collective efficacy and clarified the social disorganization theory advanced by Shaw and McKay. Opportunity theory and Blau’s theory of heterogeneity help explain the effects of heterogeneity and residential segregation.","URL":"https://doi.org/10.1007/978-3-319-69062-9_2","ISBN":"978-3-319-69062-9","note":"DOI: 10.1007/978-3-319-69062-9_2","language":"en","author":[{"family":"McDonald","given":"William F."}],"editor":[{"family":"McDonald","given":"William F."}],"issued":{"date-parts":[["2018"]]},"accessed":{"date-parts":[["2019",11,29]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (McDonald). This theory suggests that there is correlation between the victim and the crime that is committed against the victim. So, this theory suits the condition of the victim, as the victim had been drinking and was not able to pay debt. It can be assumed from this fact that the victim was not cautious of his civil duties and cooperative with others.

The personality of an individual is the dynamic organization of the psychophysical structures which control the behavior, characteristics and thinking state of a person ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"dxZrc1gG","properties":{"formattedCitation":"(Fleeson and Jayawickreme)","plainCitation":"(Fleeson and Jayawickreme)","noteIndex":0},"citationItems":[{"id":136,"uris":["http://zotero.org/users/6144444/items/QD6IUX3W"],"uri":["http://zotero.org/users/6144444/items/QD6IUX3W"],"itemData":{"id":136,"type":"article-journal","title":"Whole Trait Theory","container-title":"Journal of Research in Personality","collection-title":"Integrative Theories of Personality","page":"82-92","volume":"56","source":"ScienceDirect","abstract":"Personality researchers should modify models of traits to include mechanisms of differential reaction to situations. Whole Trait Theory does so via five main points. First, the descriptive side of traits can be conceptualized as density distributions of states. Second, it is important to provide an explanatory account of the Big 5 traits. Third, adding an explanatory account to the Big 5 creates two parts to traits, an explanatory part and a descriptive part, and these two parts can be recognized as separate entities that are joined into whole traits. Fourth, Whole Trait Theory proposes that the explanatory side of traits consists of social-cognitive mechanisms. Fifth, social-cognitive mechanisms that produce Big-5 states should be identified.","URL":"http://www.sciencedirect.com/science/article/pii/S0092656614001111","DOI":"10.1016/j.jrp.2014.10.009","ISSN":"0092-6566","journalAbbreviation":"Journal of Research in Personality","language":"en","author":[{"family":"Fleeson","given":"William"},{"family":"Jayawickreme","given":"Eranda"}],"issued":{"date-parts":[["2015",6,1]]},"accessed":{"date-parts":[["2019",11,30]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Fleeson and Jayawickreme).

In psychology, traits talk about the ways through which we describe a person. Traits can be behavior of a person like short tempered, extrovert or generous. Trait approach is a significant part of study in psychology which helps in identifying a person’s personality. They are defined as stable characteristics that depict the reaction of a person in certain circumstances. Traits can be identified as central and secondary traits.  Central Traits are the characteristics that form the basic grounds of personality.  Secondary Traits are the traits that are associated with attitudes or partialities.

Jeffery Beckles, due to his short temper, was a part of many quarrels and disputes. His anger issues got him out of control and his response was an abrupt slap to the deceased.  

Defense Argument:

The defense attorney can present three defense arguments to avoid the charges of negligent homicide on the defendant, Jeffery Beckles.

Firstly, the defendant Jeffery Beckles stated that the victim threatened to him hit with a beer bottle. The victim was under the influence of alcohol and could possibly hit the defendant with beer bottles laying around the house. Thus, it can be stated that the defendant was provoked by the statement of victim. However, there is no witness for the argument.

Secondly, the defendant suffers from the bipolar disease and acts irrationally when upset. According to the defendant’s statement, he has anger issues. However, no psychological reports or assessments of his disorder could be obtained. To pursue this argument in the court, the lawyer needs to present the medical report which confirms that Beckles suffer from mental health issues

Lastly, the defendant had no intent of killing the victim and was in no way aware that the victim would die because of his actions. The day incident happened the victim walked back to his home and seemed fine. There is a probability that if Beckles knew Johnson would suffer from hemorrhage, he would have arranged medical facility for him.

Moreover, according to the medical examiner, Johnson sustained a blunt impact to his head caused by an unknown object most likely due to a fall. The object hit the hematoma, causing acceleration and potential worsening of symptoms he was likely already experiencing.

Mr. Johnson could not have developed the subdural hematoma on the date of the incident. He did not seek any medical attention for the symptoms caused by the hematoma until September 27. The initial cause of the subdural hematoma is unknown. Most hematomas are the result of fall or impact.

Consequent injuries of hematoma escalate the chance of deaths up to 5-10% while patients diagnosed with acute subdural hematoma have death rate around 36-79%. If the victim had received medical help on the day he was hit, he could have been treated and survived. The victim died after he suffered from brain damage and developing pneumonia, which is categorized as personal negligence.

Conclusion

According to Section 125.10 of New York Penal Law, an individual or company can be charged for negligent homicide if due to criminal negligence, the death of another person occurs. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"KgiMC8lF","properties":{"formattedCitation":"({\\i{}Section 125.10 - Criminally Negligent Homicide, N.Y. Penal Law \\uc0\\u167{} 125.10 | Casetext})","plainCitation":"(Section 125.10 - Criminally Negligent Homicide, N.Y. Penal Law § 125.10 | Casetext)","noteIndex":0},"citationItems":[{"id":125,"uris":["http://zotero.org/users/6144444/items/5B36F8IJ"],"uri":["http://zotero.org/users/6144444/items/5B36F8IJ"],"itemData":{"id":125,"type":"webpage","title":"Section 125.10 - Criminally negligent homicide, N.Y. Penal Law § 125.10 | Casetext","URL":"https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-h-offenses-against-the-person-involving-physical-injury-sexual-conduct-restraint-and-intimidation/article-125-homicide-and-related-offenses/section-12510-criminally-negligent-homicide","accessed":{"date-parts":[["2019",11,29]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Section 125.10 - Criminally Negligent Homicide, N.Y. Penal Law § 125.10 | Casetext). This does not require the criminal to have intent to commit murder of the victim.

To summarize the case, the accused, Jeffery Beckles hit victim Tyrone Johnson with the back of his hand and fractured his jaw. The victim, who was probably an alcohol abuser, fell and hit his head on some pointed object. He suffered from bruises and brain hemorrhage. He did not visit the hospital until the next day. He was hospitalized where he developed pneumonia. After six days at the hospital, he died.

For analysis of the case, media alleged actions, client statements, and an autopsy report filed by the attending medical examiner are examined. Research was conducted by reviewing related past cases and penal code for New York. The attorney can defend the accused with arguments based on self-defense and lack of intent.

Thus, from the research, case analysis and discussion, it can be concluded that the defendant is not guilty of negligent homicide under the New York Penal Law. This proves that Ron Giles can successfully defend his client on the charge of criminally negligent homicide.

References

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Fleeson, William, and Eranda Jayawickreme. “Whole Trait Theory.” Journal of Research in Personality, vol. 56, June 2015, pp. 82–92. ScienceDirect, doi:10.1016/j.jrp.2014.10.009.

HG.org. Self-Defense VS. Manslaughter. https://www.hg.org/legal-articles/self-defense-vs-manslaughter-36233. Accessed 29 Nov. 2019.

Karaba, Frank A. “Negligent Homicide or Manslaughter: A Dilemma.” Journal of Criminal Law and Criminology (1931-1951), vol. 41, no. 2, July 1950, p. 183. DOI.org (Crossref), doi:10.2307/1138424.

McDonald, William F. “Theories of Criminal Victimization.” The Criminal Victimization of Immigrants, edited by William F. McDonald, Springer International Publishing, 2018, pp. 11–28. Springer Link, doi:10.1007/978-3-319-69062-9_2.

Negligent Homicide Law and Legal Definition | USLegal, Inc. https://definitions.uslegal.com/n/negligent-homicide/. Accessed 29 Nov. 2019.

Riesenfeld, Stefan A. “Negligent Homicide--A Study in Statutory Interpretation.” California Law Review, vol. 25, 1937 1936, p. 1, https://heinonline.org/HOL/Page?handle=hein.journals/calr25&id=27&div=&collection=.

Section 125.10 - Criminally Negligent Homicide, N.Y. Penal Law § 125.10 | Casetext. https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-h-offenses-against-the-person-involving-physical-injury-sexual-conduct-restraint-and-intimidation/article-125-homicide-and-related-offenses/section-12510-criminally-negligent-homicide. Accessed 29 Nov. 2019.

Subject: Law and International Law

Pages: 5 Words: 1500

Case Study

`

Law303 Taxation Law

Student’s Name

Institution

Course Code

Date

Introduction

Taxation and taxes continued to be an important component of revenue for most governments. In Australia, taxation is a major source of revenue for federal government. According to Tylor (2015), there are several laws, policies and regulations enacted to provide the guidance needed to be followed by every residents of Australia. The design and structure method of collection of taxes are essential for any nation. The Australia laws of taxations, which provide guidance in the way all taxes are supposed to be submitted are differ and it is based on the kind of income and whether an individual is a resident in Australia or not and the kind of business one practice. In the case study, Carla is a resident of Australia since she practice law and consultancy services in Australia and spend most of her time in Australia. The tax law covers corporate, income exercise, luxury and estate taxes. Therefore, Carla will be subjected to capital gain tax (CGT), Good Service Tax (GST), Fringe Benefit Tax (FBT), Medicare levy and income tax for both personal and business taxation and tax payable to the federal government of Australia.

Goods and services tax (GST)

The good and services tax (GST) is the tax submitted by business, if the revenue of a company is greater than $75,000. As stated by Warner, Pengilley, & Glass (2010, p. 12) GST is paid by all companies in Australia and if a company fails to make a revenue of more than $75,000, it would be required of the company not to submit and apply for an exception for that particular year. Carla practices law through her law in Australia and therefore, her company must have been registered for GST. In the case, it is pointed that she makes a revenue of $80,000 from her law her and does not have any employee. This means that Carla’s law firm is subjected to GST, which is supposed to pay annually. It is important to point that good service tax is payable by companies. It is different from income tax which is supposed to be paid by an individual based on the incomes earned from different works done within Australia and when living in Australia.

Capital gains tax

Capital gains tax is described as any gains from the sales of property or shares in the stock market. If a business has made loses from capital gain then, it is required for a business to account for those losses in the return. In this case, it is pointed that Carla sold her shares from Australia bank at a rate of $1000 per share. According to capital gains tax, this sale of share will be subjected to 47% of the net gains. It means that her earning from the sale of shares approximated to be $2,000,000 would be subjected to 47% CITATION Hal17 \p 14 \l 1033 (Hall and Willcock Advocate, 2017, p. 14).

Income tax

Income tax is paid based on income made by the business. It is an important type of taxation for Australia government. The income taxation to individual is done or calculated progressively. The income taxation is calculated at the rate from 0% to 45% of an individual income from business income. Carla will also be expected to pay even Medicare levy of 2%. The company tax rate is 30% of the income generated by the company, and non individual nonresident tax is depends on the income of an individual. The taxable income tax of Australia required that any income ranges from $1 – $90,000 is taxed at the rate of 32.5%, $92,001 - $180,000 is subjected to a tax rate of 32.5 to 34.8% and $180,001 and over is subjected to an income tax rate of 34.8 to less than 45% CITATION War10 \p 23 \l 1033 (Warner, Pengilley, & Glass, 2010, p. 23).

Carla total income will be tabulated based on all her incomes from the organizations she worked for within Australia. Carla law firm obtains revenue of $80,000 income per years; she does not have any employees in her law firm and does live in Auckland, New Zealand. Carla also makes $80,000 as a consultant Australian law firm (Law Firm X or LFX). Carla’s annual total income is therefore, estimated to be above $180,000. In this case, she will be expected to pay income tax of 45% of the total income, for all the revenue she earned as a resident of Australia. However, the consultancy income of $80,000 from Law Firm X or LFX will not be subjected to income tax. It is pointed that Carla works for Law Firm X as a consultant and stays in Auckland New Zealand during the time. The fact that she stays in Auckland New Zealand does not make liable to pay income tax under Australia tax income law. She is considered domicile because it was listed that her permanent address was in New Zealand. This could be illustrated further based on the ruling of judges on three cases FCT v Applegate, where the judges ruled that only people whose permanent address is registered in Australia should be pay income tax. This is because during her period as a resident of New Auckland New Zealand, she was registered for Medical services in Australia and she still had an address in Australia.

It is also noted that she was still working for a company in Australia as a consultant earning income. According to the case FCT v Applegate, it was pointed that there is an exception where there is a place of abode outside Australia. Under the income tax assessment Act of 1932 – 1972 a person is also considered to as result of Australia only when he or she has been living in Australia for the last 6 months before CITATION Aus14 \p 21 \l 1033 (Australia taxation office, 2014, p. 21). Therefore, it is evident that Carla was not a registered resident of Australian by the time she was working for a consultant firm and therefore, the income she made during that period would not be subjected to income tax as illustrated by the income tax law. It was stated that the use of the permanent is everlasting and therefore, it should be a period of not less than six months for a person to be considered permanent resident to be able to pay income tax as required by the Australia income tax law. However, the rest of her income she earned as a resident of Australia will be subjected to income tax rate of 45%.

Fringe Benefit Tax (FBT)

Fringe Benefit Tax (FBT) is regarded as tax extended to every employee and it is taxable at the rate of 30%. It is calculated separately from PAYE. Tylor (2015, p. 21) pointed out that Fringe Benefit Tax are bonuses, vacation expenses, amount paid to employees for relocation and employee provided vehicle and group term life insurance. Carla is provided with a car valued at $25,000, which she uses for both private and business reasons. It is pointed that Carla works for governmental law reform advocacy, which is an organization, a NSW state-sponsored organization (Law Reform Organization or LRO) CITATION Bus \l 1033 (Businessgove.au, 2019). The LRO provided Carla with a phone, a laptop and a car, which she is supposed to use to serve the organization. Carla does not use laptop and phone for private and only use the car for private and to serve LRO, therefore, the car valued at %25,000 would be subjected to Fringe benefit tax. In this case, Carla would be deducted 30% from her salaries paid by LRO. LFX provides a laptop and phone to Carla for both private and business usage, therefore, the phone and laptop is subjected to Fringe Benefit Tax (FBT) CITATION All14 \p 21 \l 1033 (Alley & Bentley, 2014, p. 21). In short, Carla income paid by LFX will be subjected to 30% FBT tax because she uses laptop and phone given by the company for her personal benefit not for the company alone.

In brief, Carla will have to pay income tax, Medicare Levy and Medicare Levy Surcharge, Fringe Benefits Tax (FBT), and Consumption taxes. The Medicare levy payable by Carla will be the 2% of the total income earned for her work in Australia. She is also indicated that she works in Australia and therefore, she is required by the law to pay Medicare levy of 1%. However, Carla will not be expected to pay as you go (PAYG) tax because the company does not have any employee in Australia.

Bibliography

BIBLIOGRAPHY Alley, C. R., & Bentley, D. 2014. In Need Of Reform? A Trans-Tasma Perspective On The

Definition Of"Residence". Section 25(1) of the Income Tax Assessment Act 1936 , 2-14.

Australia taxation office. 2014. Taxation Ruling.

https://www.ato.gov.au/law/view/document?Docid=ITR/IT2650/NAT/ATO/00001 , 2-15.

Businessgove.au. 2019. Fringe Benefits Tax (FBT).

https://www.business.gov.au/finance/taxation/fringe-benefits-tax , 2-15.

Hall and Willcock Advocate. 2017. A Guide To Taxation In Australia.

https://hallandwilcox.com.au/thinking/a-guide-to-taxation-in-australia/ , 2-15.

Tylor, M. 2015. Compliance Risk Management: Managing and Improving Tax Compliance.

Managing and Improving Tax Compliance , 2-15.

Warner, H., Pengilley, D., & Glass, P. 2010. Review of aspects of the Australian Taxation Offi

ce’s administration of privatebinding rulings. Inspector-General of Taxation , 2-15.

Subject: Law and International Law

Pages: 5 Words: 1500

Case Study 1

Case Study 1

Name of the Writer

Name of the University

Case Study 1

Q1

There are 5 main types of business entities and they are as follows (Forsythe, et al, 2016).

Sole proprietorship

This form of business is under the control of one man and it is considered the simplest form a business can take. The business has no existence without the owner and any liability associated with the business is the liability of the owner.

Partnerships

Consists of an agreement between two or more people, who come together to form a business venture. Each partner has to bear the profit and loss of the company but only according to the amount of their investment into the business.

Limited Liability Company

This is a combination of a partnership and a corporation. Its operation and income are divided similar to a partnership but it allows for very limited exposure to liability. There are some statutory differences between this and a limited partnership.

Corporation

This is a legal entity and is constructed under state law. In order to establish a corporation, articles of incorporation must be filed with the state. Furthermore, its stockholders are protected from liability.

S- Corporation

These are closed corporation specially created in order to grant small corporations some form of tax benefits. If all requirements of IRS are met, owners avoid double taxation such as the case with regular companies.

Q2

According to product liability law, a manufacturer is liable if a defective product is given to a consumer and it causes harm. With Fred’s product, the problem arises when it is taken in conjunction with aspirin as it leads to a severe reaction. In order to mitigate this risk, Fred should inscribe it on the packaging of his products and on the product itself of the harm it can cause if it is taken with aspirin. This would minimize the chance of anyone having a severe reaction because instructions would be clearly mentioned on the bottle.

Q3

In my view, Sam’s involvement in the business before and after its creation would not lead to an agency relationship. This is because the business is his fathers and both him and his father would have the single goal of making it bigger. This allows for no self-interests to exist in the actions of Sam. Furthermore, even if Sam role would be an employee, he would still inherit the company one day. This means that he will still have to work on making it successful if he wants to take the reins one day.

Q4

The primary issue that Fred might face is legal restrictions that prohibit the use of his home for business use. Certain covenants prohibit the use of the home property for business use. Furthermore, if any nuisance or damage is caused to the neighbors because of the business they have the legal right to take Fred to court. Also, if Fred has taken out a mortgage or is planning to take out a mortgage on his farm to start the business there also might be restrictions in that that prohibit him from starting a business at his home.

Q5

The manufacture of the cough syrup will require a transfer of ownership because the owner of the lands decides what occurs on his land (Nancekivell, et al, 2018). The family can choose either simple interest or joint estate form of ownership. The better option would be the simple interest as this will allow Fred to hold ownership of the land and he has the right to make decisions regarding whatever he wants to do with the land without taking any recommendations from his family. This gives Fred the sole power to either dispose or use the land for his own use.

Q6

There are several personal property issues that can form from using Sam’s personal vehicle for business use such as vehicle liability, and vehicle policies (Hughes, et al, 2019). If Sam gets into an accident while on a business errand, the compensation for this accident will be paid by the business making it a liability. Furthermore, vehicle policies would need to be drafted which will dictate how much of the car's expenses would be paid by the business back to Sam. As Sam would be covering the expense of the car from his own pocket, under state law businesses are supposed to pay the expenses of vehicles used for business purposes.

Q7

In the case of the business, it will be subject to liability if Sam’s personal vehicle is used in the course of the business. This liability is known as vehicle liability and stems from the fact that accidents happen on a routine basis on roads. So if in any scenario Sam’s car gets hit or gets into an accident, the other party can sue the business in order to gain compensation for their damages. As Sam would be acting within the activities of the business, the courts will administer that the business is liable to pay for the damages.

Q8

The issue in terms of estate planning will have detrimental effects on Fred’s family if he dies without a will. If Fred doe not have a will so his property will be divided by the laws of the state. Furthermore, the farm and the business would be divided within his children on the basis of the prescribed law. This would not always align with Fred’s wishes. So if he does form a will before his passing, it could definitely lead to a lot of infighting among his family members. This can be because of the conflicting ideas of how to take their business forward.

Q9

Fred and Sally have two important methods of estate planning that they could use in order to transfer ownership to Sam and Lily. These can be a will and or a trust (Nathanson, et al, 2018). Through a will, they would be able to equally divide the ownership of the farm and the business to their children as it is a legal document that is implemented by law but it comes with problems such as estate taxes. Whereas, a trust would also be able to transfer ownership of the property and the business to Sam and Lilly. The trust avoids the estate taxes but cannot be easily revoked

Q10

The best recommendation would be to treat the business as a sole proprietership. This would allow dor Fred to have complete ownership of the business. Furthermore, he needs to devise a policy regarding the use of Sam’s vehicle for business use. Lastly, he should create a will that outlines how the business and the property would be distributed among his children after his death.

References

Forsythe, L. M., Davis, L., Mueller, J., & Whitehead, C. (2016). How To Get Started-Helping Entrepreneurs Understand Business Entities. In United States Association for Small Business and Entrepreneurship. Conference Proceedings (p. CO1). United States Association for Small Business and Entrepreneurship.

Hughes, J. D., Patricia Trish, L., Hobart, C. A. E., & PPS, A. (2019). Personal Property: Valuation, Validation, and Original Cost.

Nancekivell, S. E., Friedman, O., & Gelman, S. A. (2018). Ownership matters: People possess a naive theory of ownership. Trends in cognitive sciences.

Nathanson, M. J., Craig, J. T., Geoghegan, J. A., Lee, N. G., Haber, M. A., Hieken, S. P., ... & Stelljes, S. R. (2018). Estate Planning and Why It’s Really So Important. In Personal Financial Planning for Executives and Entrepreneurs (pp. 115-133). Palgrave Macmillan, Cham.

Subject: Law and International Law

Pages: 3 Words: 900

Case Study 2

Law and International Law: Case Study 2

Law and International Law: Case Study 2

Steven

Case Study 2

1. What legal defenses might Fred and Sally raise with regard to the checks written by Jane to Don? Why do you believe they will be successful or unsuccessful?

Many legal defenses can be raised against Jane for writing checks to Don without authorization from Fred or Sally. The intent of fraud is evident from these acts. In the court, both Fred and Sally can testify that they did not authorize or delegate the power to write checks to Jane. A significant conce4rn here is that the court might consider in case of negligence, whereby both of them may have acted in a manner leading to, "substantially contributing to….making of a forged signature" in which case the party may have been prohibited from escaping liability. Don the loan shark can also be held responsible for taking and cashing those checks. Since loan sharks are involved in illicit practices, it is possible that Don knew that the checks were forged but he still accepted them (DA Abbott, 1995 ). Forgery is considered a crime in many states. Therefore he may be held for cashing checks without verifying. With these two defenses, Fred and Sally may recover some money successfully through restitution.

2. What legal defenses might Fred and Sally raise with regard to the check written by Jane and delivered to the church? Why do you believe they will be successful or unsuccessful?

Fred and Sally can contact the church and inform them about the forged check. In addition to this the check is made to "cash", which will raise suspicion with for the church to regarding accepting or not. In the meanwhile, the law gives the status of holder-in-case (HDC) to the church since they received it in good faith and therefore the law protects those under HDC in certain situations (Hamilton, 2002). Moreover, the church may respond to dishonoring the check, under UCC [3-501 (b)(3)] "without dishonoring the instrument, the party to whom presentment is made may (i) return the instrument for lack of necessary endorsement".This will help Fred and Sally retrieve the money donated to the church by Jane successfully under the illegal authorization; invalidating the check.

3. What, if any, civil claims do Fred and Sally have against Jane based on her actions? Why do you believe they will be successful or unsuccessful?

Securities Act 1993, section 11 hold the bookkeepers and the accountants liable for forging and omitted the details from the company records. As a bookkeeper, this carries serious implications for Jane. Defrauding and misrepresenting the registered claims is a felony under the law (GL Salamon, 1979 ). The case of Fred and Sally can be successfully tried for misrepresentation in the court. Representing the personality of someone is an infringement of personal right s and no one except the person has to privilege to claim these rights. Moreover, Fred and Sally can also file a plea for embezzlement and identity theft. Jane is considered a civil offense whereby failing to keep accurate records for the company is considered theft. Jane misled the company into failing financially, which will not be overlooked by the court and it will rule in the favor of Fred and Sally.

4. Analyze the forms of bankruptcy available to the business in this instance (assume the business entity is the same form as you chose in Case Study 1). What form is most appropriate and why?

In the previous case study, a Trustee was appointed to sell the assets and to pay the creditors their due as per the availability of the funds. Many bankruptcy options do not apply in this particular case. Fred and Sally may not effectively operationalize their business due to debts and other financial obligations. Insolvency can occur in the company with the embezzlement within the organization. The reorganization as mentioned in Chapter 11 is a better choice since it will keep the business operational. This option allows the debtors and creditors to reorganize their financial affairs under the mediation and supervision of the court. Within this option, the assets of the organization are not liquidated or dissolved (MJ White, 2001). By incorporating adopting this strategy Fred and Sally would be able to keep their business, reorganize their finances.

5. Analyze the implications of a potential bankruptcy action on the business assets (assume the business entity is the same form as you chose in Case Study 1). Explain which, if any, are subject to forced sales, liens, or forfeiture.

The bankruptcy option is suggestively most suitable for Fred and Sally is a reorganization. With this option, the assets for Freds Cough Company will not be liquidated under the supervision of the court. Both the creditors and the debtors usually agree to let go of some part of the debt, while the other is paid in due time. Although this is a feasible option most of the control of Fred and sally would be lost to the court. The court in such situations authorizes the sale of assets, mortgage, business expansion, modifications, licensing and other financial provisions. The benefit of this reorganization is that it helps in running the business debt-free (K Lajili, 2010). This type of bankruptcy option is most appropriate in situations when it comes to forced sales, liens or forfeiture because it would not require the selling of assets unless the owners choose to sell off all their assets and pay off debt.

6. Analyze the implications, if any, of a potential bankruptcy action by the business on the assets of the individual family members (assume the business entity is the same form as you chose in Case Study 1). Explain if the assets of business owners are subject to forced sale, liens, or forfeiture.

The primary issues in the scenario comprise trademark and patent infringement. It is essential to critically assess the implications of both these elements to conclude Bob's action. The intellectual property rights were violated by Bob but the court may decide otherwise. Since the invention of cough syrup does not fall under the radar of non-obvious, Bob's action may be deemed reverse engineered. Moreover, trademark underpins a distinct design, picture, word or logo utilized by a producer to accentuate a product which further causes consumers to identify it. Bob advanced to use your logo, Fred's Miracle Cough Syrup while sharing the recipe online. Consequently, the action becomes contradictory to the trademark license. The bottom line is that a potential case can be established against Bob but intricate aspects mentioned may repeal the case in Bob's favor.

7. What legal recourse does Fred have against Bob for infringement of intellectual property rights? Do you believe he will be successful? Why or why not?

It is important to indicate that there are federal bankruptcy exceptions by the U.S. Code § 522 (JT Cross - Bankr. Dev. J., 1989 ). There are various reasons behind such bankruptcy and one of them is to provide the opportunity to a debtor with a fresh start. It is considered that debtor should be provided with an exception for items that are essential to earning money. Various exemptions are provided to a debtor, but some of them include an unused portion of homestead, motor vehicle in a limit of fewer than 3,655 dollars, burial plots up to a limit of 22,975 dollars, and health aids up to 12,250 dollars. Exemptions also include real property up to 22,000 dollars, animals, crops, books, household, and musical instruments up to 575 dollars. There is a need to understand the fact that the court is not authorized to take all the personal property of the family to pay the debt.

Works Cited

DA Abbott, S. C. (1995 ). Pathological gambling and the family: Practice implications. Families in Society.

GL Salamon, E. S. (1979 ). Corporate control and managerial misrepresentation of firm performance. The Bell Journal of Economics.

Hamilton, J. (2002). Theories of categorization: a case study of cheques. Canadian Journal of Law & Society.

JT Cross - Bankr. Dev. J. (1989 ). The Application of Section 522 (f) of the Bankruptcy Code in Cases Involving Multiple Liens. HeinOnline.

K Lajili, D. Z. (2010). Corporate governance and bankruptcy filing decisions. Journal of General Management.

MJ White, 2. (2001). Corporate bankruptcy. Banking, Capital Markets, and Corporate Governance.

Subject: Law and International Law

Pages: 3 Words: 900

Case Stuudy 1

Case Study: Eric Smith

Student’s Name

Institution

Date

Psychoanalytical Perspectives

Eric Smith was often bullied throughout his childhood. People made fun of him because of his physical appearance or look. This could have him to start to believe that he can hurt someone as well because he has been hurt all through by his colleagues. It seems hurting someone became no issue and it seems he argued that if he can be hurt then he can hurt someone else as well. The nature of crime was very brutal, since Eric battered and assaulted Derrick Robbie and sodomized the 4 years old with a branch of a tree. According to investigator, Smith spent a lot of time near the body of Derrick, which clearly indicates that he enjoyed it. It is also clear that Smith did not tell the family or the police about Derrick and he volunteered to search for the child. He showed no remorse when during the search a clear indication, he never felt any different and he lied to people regarding the whereabouts of Derrick Robin.

It is possible that Eric Smith was suffering from mental problem and nobody knew. It was revealed that a day before he committed the crime, he approach his father and his father brush him off. The mental problem could be development as a result three aspects. First, the drugs his mother was using when she was pregnancy could have been the cause of mental disorder. It is stated that his mother used powerful drug for epilepsy and this could have caused the problem. Eric had no friend and this could have been an issue, which affected him Teenkillersorg (2011). He was lonely both at school and home and this could have affected his mental leading him to be violence. Eric was also bullied in school, which made him to feel being hurt without any help. This could have made him to believe that hurting someone is not bad and therefore, he found no difficulty in hurting Derrick Robin. And therefore, his mental problem could have been as a result of abuse, bully, loneliness and the epilepsy drugs, which his mother took when she was pregnant.

The behavior of Eric Smith could have been caused by three factors. First, Eric being bullied in school by his classmates and insult regarding his physical appearance might have made him too violence. According to Listversecom (2011), being bullied affect children psychological and the fact that Eric was bullied and he received no help changed his behavior. And therefore, he found violence as a comfort to his soul and this could be the reason he did not feel bad of killing Derrick. The investigator revealed that he stayed next Derrick copse for a while after murdering him. This indicates soul search which relates to mental problem of comfort. It is therefore, important to point that the behavior of Eric could have been caused by his mother’s drugs, being bullied and loneliness.

The theory of positivism could be best used to describe the situation of Eric Smith. According to Neulaworg (2017), the theory of positivism is related to biological factors which lead an individual to commit crime. It is noted that the problem of Eric started a long time before, the insult and bully became a factor. It means that his violence behavior is biological and he could not control it. He had abnormalities in growth, which left him less prepared to deal with cruelty and this made it impossible for him to deal with bully at school. He was left lonely and therefore, became more violence and used it as a way to comfort or appease himself.

Smith case could have been addressed through psychological evaluation. Smith wanted mental treatment solve the problem. He could have helped at an early without being ignored. It was noted that he approached his father and he was brushed off. He wanted to peaceful and friendly environment, mental and medication to treatment to solve his condition.

References

Listversecom. (2011). Listverse. Retrieved 31 July, 2017, from

http://listverse.com/2011/05/14/top-10-young-killers

Neulaworg. (2017). Neulaworg. Retrieved 31 July, 2017, from http://neulaw.org/1034-blog/class-blog/1627-a-child-murderer

Teenkillersorg. (2011). National Organization of Victims of Juvenile Murderers. Retrieved 31 July, 2017, from http://www.teenkillers.org/index.php/memorials/york-victims/derrick-robie

Subject: Law and International Law

Pages: 2 Words: 600

Change Management Report

Autonomous Schools: Change Management

Student’s name

Institution

Course Code

Literature review

Concept of change management and challenges

The organizational change is not effective without application of strong leadership. Therefore, managing change requires unwavering and strong commitment from the head of an organization and strong teams which can effectively drive change. It has been pointed that change cannot be managed but instead people should be prepared for leading and responding to change CITATION Iai19 \l 1033 (Lancaster, 2019). According to Lancaster (2019), change is unavoidable and therefore, the development of an organization and its survival depends on the ability to adapt and proactively accept change. Therefore, implementation of successful change management starts with effective leader who can be able to respond and create transformation leadership by establishing a new system to revive the process. Indeed school managements are facing several organizational and leadership challenges, which can only be solved effectively through change management.

It is pointed by Martinci (2010) that the demand of quality education has triggered the development of various concepts to improve schools performance. A study conducted by Othman & Rahman (2013), concluded that proficient and quality performance required change management to address challenges in the schools. Martinci (2010) pointed that change management in schools can be obtained by involving all the stakeholders to spearhead collaboration. The aspect of change is related to the motion to introduce new concepts or ideas to the running of schools. As many education stakeholders would agree, change is inevitable in an organization and aspect of change is usually connected to solving of problems. Therefore, the management of schools or school principals is usually faced with constant problems related to the management of schools which need to be solved. We observe change through monitoring the behavior occurring among key stakeholders. According to Othman & Rahman (2013) the change in an organization affects the process of growth and creates transformation within an organization. We live in the world where we are governed by the organizations and therefore, most people see organizations as the basic foundation of a society and also regard them as stable and firm structure. Therefore, change management of organizations is essential for effective delivery of services. In education sector, the change management create avenue for delivery of quality education and better society.

Kerubo (2014) reported that the important aspect of change in the schools is the creation of dual education system and making some schools autonomous. A study “Change Management in Adult Educational Organizations: A Slovenian Case Study” by Martinci (2010) concluded that successful implementatiomn of change is neccessay for each adult education organization. The change is utilized through assimilation of culture, and other way of life to improve the learning content. According to Mansor, Mohamed, & Suliman (2018), change in the education can also be obtained through liberal application of culture in the education. The change management also required some leadxership skills. Knowledge, behavior and varsatilities which sometime may require the the implementation of change of the organizational cullture.

However, a study conducted by , reported that making school automous is one of the management strategies which can be used speadheard growth and improve education standard in the country. Kerubo (2014) concluded that automous of school create efficient management of schools at the local level. It create inclusive management and therefore, quality education could easily be achieved. The successful of change management can be achieved only when it includes the benefit of the management and creating awareness of defined measurable stakeholders goals and aims. The creation of automous school therefore, could be the best umbrella for establishing a quality management system in schools. As stated by Webster & Webster, (2010), centralized management of schools creates a lot of loopholes. Most importantly, there is disconnection between the central management team and the local management which are the principals of the schools and the board of of school. Without bridging the gaps between the central and local schools the performance can be improved. According to Sande, Wamukoya, & Walela (2015) automous school have local management, monotoring, or inspection and evaluation to ensure that quality education is provided in schools. Therefeore, the change management which can improve the performance of schools is the descentralization of schools management and power to principals of schools and the board of management. A study conducted by Mansor, Mohamed, & Suliman (2018) concluded that making schools automous facilitates efficient management. The board and principals of schools being directly responsible and accountable to the loca,l stakeholders. With decentration of schools efficiently of management if reintroduced and the schools’porformance shall skyrock. Mansor, Mohamed, & Suliman (2018) stated automous of schools also facilitates cultural integration. The local cultural would easily be integrated into the school teachngs. This can make it for learners to embrace culture which is a key aspect in education.

Petterson (2018) concluded that implementation of change management in schools is achieveable when all stakehodlers are involved. The implementation of change should thererfore, begins at the point of establishing the decifit. Thi could be done through intensive research and consultation of all the stakeholders in the education. As point out by , understanding the deficit would ensure that change is accepted by all the stakeholders of schools. The benefits or importance of the change must be identified, the objectibe and goals highlighted as well. Undestanding of change by all stakeholders is a critical component for the success oif change management.

Research methodology

The quatitaive research method was utilized to compolete the study. Qualitative research method is regarded as the used survey, question and interveiws to gather data and the analysis is conducted using mathemati, and statistic method. In order to complete the study, a semi-structured face to face interview was conducted at institution of autonmous school in Bhutan. Tbe participants (interviewee ) were top school management team. The principal of school and other top leadership were invited for interview. However, because of the sensitive matter manay people were not willing to give their opinions.

The questions asked the participants were designed and drew up Kotter’s eight (8) steps to successful change. The three intereviewers were used to deliver the concepts and the questions to the interviewees. This was to make sure that the interviewees answered were accurately, intensive and appropriate answering all the reasearch objectives. Moreover, the secondary resources including journals, articles and books were also used to complete the research.

Analysis and findings

For the purpose of managing change successfully, organizations have used Kotter’s eight (8) Step Modelling to change to successfully influence changes in the organization. Kotter’s steps of change management is mentioned in the literature review and it shows a clear roadmap how how change can be implemented. Therefore, in this study, Kotter’s strategies is used an operational framework to analyze the information which were gathered from through the use of interviews.

Step1: create or establish sense of urgency

Kotter recognized this first steps as important for the implementation of change. This is because it is essential to have power people willing to lead change plan.

Quote 1: There have been a decline in education quality in the country. This came to limelight after the Minister of Education review some essay from some university graduates.

Analysis: This statement means that a problem with education standard was identified by the Ministry of Eucation and therefore, it was an urgent matter to address the problem to uplift the quality of eductaion. Though there have been persistent improvements in students’ academic performances in the national bard examinations, students not being able to write a decent essay was viewed by some as a ‘perceived conclusion’ on the quality of education. This triggered the education to stipulate the vision of change and made it urgent for the the quality of education to improved inn the country. The illustrations means that the Ministry of Education and all ist stakeholders were distuirbed and form a team to help unwavel the problem. The Ministry of education was spurred by this incidence, the Ministry of Education was tasked to do soul-searching and one of the common findings was a lack of autonomy to the school principals and staff for the management and administration of the schools. The centrally managed system of school administration was found to be ineffective in addressing the actual needs on the ground.

Step 2: Forming a Powerful Coalition

Quote1: The Ministry of Educatioon was disturbed by the poor show of undergruates and therefore, it was time form a team to investigate the cause of the problem and provide recommendation on what is needed to be done to address the problem.

Analysis: Upon realizing the problem a team of experts were selected including the District administrators and school principal was invited at the Ministry to sign a tripartite Delivery and Performance Agreement (DPA) between the District Governor, School Principal and the Secretary of the Ministry of Education. The DPA clearly outlined the specific roles and responsibilities of each key stakeholder.

Step 3: Communicating the Vision

Quote 1: After the formation of the team to look into the problem, the signing of the DPA was followed by an orientation and training of the Principals that set the vision and directions of operations of autonomous school.

Analysis : This statement could mean that immediately after the team formed by the Ministry of Education compoleted and presented teir report, the vision was established which can drive the change in the education system.

Step 4: Communicating the Vision

Kotter illustrate communicating vision as one of the essential ways to ensure that everyone is brought on board to understand the intended change. It point that every channel should be used communicate the vision and strategies so that everyone can adopt. It also meant to provide guidence and teaching of new behavior.

Quote 1: Email communication to the board of school and directors of education

Quote 2: Email communication to the principals and other education stakeholders to highlight some of the chnages recommended by the committee formed by the Ministry of Education.

Analysis : It means that the stateholders had to communicate the recommendation made which could change the the management. It was therefore, required for the schools had to submit their Strategic Plan of Action for 5 years with provisions for midterm review and evaluation mechanisms in place by the schools themselves and experts outside the school. Primarily, the review mandate was to be taken by the Education Monitoring Division (EMD) of the MOE. A consultative approach to decision making was designed in the entire concept formulation, planning, implementation and review of the initiative involving all the key stakeholders

Step 5: Empowering others to act on the vision

Empowering others according to Kotter means that obstacles are removed and the change is implemented.

Quote 1: The implemented of change occurred by using various report to change the system and the management of schools. The school mangement was changed from centralized to autonomous management system.

Analysis: It was realized that the centralized management used does not add value to the education system. It create a loophole and therefore, it is difficult to ensure that there is accountability. It was therefore, essential to change the management of schools throughout he country.

Step 6: Planning for and creating short term wins

Kotter stated that this involve the planning to show visible performance. It include implementation of the derived strategies to improve the education standard.

Quote 1: the stategies derived by tbe team would achievd.

Analysis: One of the major highlights of the change initiative was the involvement of the local decision makers, including the District Governor and the Local Village Headman. In addition, the teaching and the non-teaching staff were involved to seek their views during the submission of the expression of interest and the crafting of the strategic plan. The entire initiative was through a thorough consultative process to share the ownership of the programme.

Step 7: Consolidating improvements and producing still more change

It involve the use of approve credibility to change the system. It involved the use of the correct methods to introduce change

Step 8: Institutionalising new approaches

Analysis: I was spearheading the institution of Autonomous Schools in the country and it was of particular pride and an honor for this onerous yet noble task. As a Chief of the SLCD in the MOE, I had to act as a trustworthy and a credible bridge between the stakeholders to ensure smooth implementation of the programme. The lessons of Master of Public Administration and Educational Leadership and Management were very useful for me to initiate the change process. I acted as a middleman to bring the key stakeholders on a common platform of consultative discussions to finalize all major documentation and coordination towards ensuring universal ‘buy-ins’ from the parties involved. Importantly, in lieu of the national decentralization programme, a significant component of decision items was handed over to the field officials.

Discussion

The findings is similar to what is captured in the literature reviw regarding issues which trigger change, problems and how to address the change management in school. the result indicates thatg urgency is the main issues which trigger the beginning of change in any organization. Based on findings, it was established that the the poor essay performance by undergraduate students made the Ministry of Education to realized that there is a problem in the ducation system which reauire immediate solution. In this case, the urgency was derived and mechanism are used to form a team of powerful people including the istrict governor to help in solving the problem on the eductaion sector. It is established by the study that the automony of school create a level of management different from the federbal governmment and also brought schools managemnent closer to the peopled and therefore, introduce efficient in the process of management of schools. This is achieved by bringing monitoring of schools closer to the stakeholders and therefore, it is important to make schools independent from the control of government. This could be a positive change managenent which can ensure that schools become accountable and performance of education sector improve as well. It is also important to implement change by involving all the stakeholders for effective result to be achieved.

Conclusion and Recommendation

It is obtained that change management is an important aspect in organization success. The study shows that identification of the problem, as an urgecy, setting up coalition of power people and set vision of the chane are some of the most important aspect of change management. In order to realize immediate and effective change the Ministry of Education established clear road map through working together with all the stakeholders to address the problem of poor eduacation in the country. Through the use of Kotter’s eight (8) steps of change management it was established that making schools autonomy would be the best decision which could change how the schools are managed and therefore, help in improving the performance of schools in the country. The autonomy of schools would give principals to have a free will in management of the affairs of the school through the consultation with the board of schools. Kotter’s Change management therefore, provide elaborate method or strategies which can be sued to identify organizational problem in order to establish effective change management which can reform the organization.

It is recommendation to create a clear channel of communication to convey change to all the stakeholders. The schools thriugh the country must have effective method or ways of delivery information. As stated ealier, this would be helpful in ensuring the change information is understood among the key stakeholders in the education sector. It would make it appropriate to solve the problem existin through understanding and through proper channel of communication it would be easier to understand the problem and the stakeholders would focus on the vision and objectives of change.

Bibliography

BIBLIOGRAPHY Kerubo, B. 2014. The Management Of Change In Education. International Journal Of Chnage

Management , 2-14.

Lancaster, I. 2019. Strategies For Managing Change In Schools. Journal of organization

change and culture , 2-15.

Mansor, A. N., Mohamed, Y. M., & Suliman, A. 2018. The practice of school based

management: special reference to malaysian clusters schools and UK autonomous schools. Jour of Adv Research in Dynamical & Control Systems , 1618 -1626.

Martinci, R. 2010. Change Management in Adult Educational Organizations: A Slovenian Case

Study. Managing Global Transitions , 12 (8), 79-96.

Othman, A., & Rahman, H. A. 2013. Innovative Leadership: Learning from Change

Management among Malaysian Secondary School Principals. World Applied Sciences Journal , 167-177.

Petterson, N. 2018. Challenges Of Change Management In Secondary Schools Of Bhuta.

Journal Of Educational Management , 21 (4), 2-38.

Sande, O. A., Wamukoya, O., & Walela, B. K. 2015. Change Management And Performance

Of Public Secondary Schools. International Journal Of Scientific & Technology Research , 2-18.

Webster, V., & Webster, M. 2010. Successful Change Management — Kotter’s 8-Step Change

Model. Journal of Business management and operational , 2-15.

Subject: Law and International Law

Pages: 9 Words: 2700

Code Of Ethics And Law

Code of Ethics and Law

Your Name (First M. Last)

School or Institution Name (University at Place or Town, State)

Code of Ethics and Law

Introduction

The code of ethics and code of law assume a critical role within the structure of the criminal justice system. The legal profession is essentially derived from the ethical principles which were observed in the previous decades and were later formulated and consolidated by the provisions of law. Primarily, a code of ethics underpins a set of principles of conduct existing within a body which guides and regulates the nature of behavior and decision making. The fundamental purpose of the code is offering members and other persons with an ethical framework to make ethical choices in their conduct. Law code or a code of law lies at the very heart of the core legal provisions. It is a kind of legislation which purports to thoroughly encompass a complete structure of laws or a specific body of laws through the process of codification and promulgation. Similar motivations and process are utilized in the promulgation of several civil and common laws system but their usage is different. Both codes of ethics and law contribute toward regulating the state of affairs in law and criminal justice system. Their relation is worth examining to assess the differences between the interpretations and implications in the criminal justice system.

Differences

Laws can essentially offer a neutral view on ethical issues or they can be harnessed to endorse the ethics. In simple terminology, the law is comprehended as the organized body of accepted regulations and rules promulgated by the governing authority as regional, national or international bodies. It is primarily aimed at governing the behavior and action of the members which is enforced by levying penalties ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"u6jzNl3M","properties":{"formattedCitation":"(\\uc0\\u8220{}Relationship Between Ethics and Laws | We Think, Therefore We Are Relationship Between Ethics and Laws | The site is about our reflection on certain issues.,\\uc0\\u8221{} n.d.)","plainCitation":"(“Relationship Between Ethics and Laws | We Think, Therefore We Are Relationship Between Ethics and Laws | The site is about our reflection on certain issues.,” n.d.)","noteIndex":0},"citationItems":[{"id":"Yxn6ADft/1AqeMMzB","uris":["http://zotero.org/users/local/yvjivw9i/items/BBRITJ8B"],"uri":["http://zotero.org/users/local/yvjivw9i/items/BBRITJ8B"],"itemData":{"id":166,"type":"webpage","title":"Relationship Between Ethics and Laws | We Think, Therefore We Are Relationship Between Ethics and Laws | The site is about our reflection on certain issues.","URL":"https://blog.nus.edu.sg/is1103g5/2013/03/01/relationship-between-ethics-and-laws/","accessed":{"date-parts":[["2019",5,4]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Relationship Between Ethics and Laws | We Think, Therefore We Are Relationship Between Ethics and Laws | The site is about our reflection on certain issues.,” n.d.). However, a wide range of people tends to juxtapose law with ethics. There exists a stark difference between both of these terms as the ethical code is inherently deployed to guide the system or society to choose right and wrong in a particular situation. Unlike law, it regulates a person’s conduct and behavior to strengthen the moral and ethical values in society. Besides, the law presents a set of distinct regulations while ethical code highlights the set of essential guidelines. One of the most critical difference is the very nature of documentation and implementation of the code of law and code of ethics. For instance, the law is explicitly published and expressed in writing but ethics are always in an abstract form and none can impose the obligation of ethics on the system through punishment or coercion.

In addition, violation of the code of law manifests in punishment as imprisonment, fine or other severe treatment. The ethical code is devoid of punishing a person for violating the ethics. The binding nature of laws makes them have explicit consequences as punishment, forgiveness or similar implications. Laws and ethics are essentially opposite to each other as directing and guiding a person to act ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"CFn3SeKM","properties":{"formattedCitation":"(katharina.kiener-manu, n.d.)","plainCitation":"(katharina.kiener-manu, n.d.)","noteIndex":0},"citationItems":[{"id":462,"uris":["http://zotero.org/users/local/h6KbaPMu/items/HXYWCH3B"],"uri":["http://zotero.org/users/local/h6KbaPMu/items/HXYWCH3B"],"itemData":{"id":462,"type":"webpage","title":"Integrity Ethics Module 12 Key Issues","abstract":"Doha Declaration - Education for Justice","URL":"//www.unodc.org","language":"en","author":[{"family":"katharina.kiener-manu","given":""}],"accessed":{"date-parts":[["2019",5,4]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (katharina.kiener-manu, n.d.). The former is accepted universally while the latter underpins the essential human conduct that is agreed upon by a majority of people. Each person has deemed equal in the eyes of law and ethics that nobody is inferior or superior. It is noteworthy to highlight that the code of ethics can be different within a particular system based on the norms, beliefs and perceptions. However, the code of law is always uniformly observed within society regardless of the discrepancies and differences in the beliefs of people.

The Relationship between Ethics and Laws

Laws and ethics are intimately linked with each other. Laws are a reflection of the minimum ethical behavior observed in a society. It is not imperative for both ethics and laws to overlap but they can combine the way society should respond to the specific circumstances. Besides, the most significant relationship between them is the virtue of a morally right and illegal act. For instance, if a person robs a crooked rich person to help poor communities, the ethical paradigm will commend the act in true letter and spirits. The law offers a contradictory interpretation of the matter. The person will be considered to have performed an illegitimate act because the code of law prevents from committing such act or else the person is punished as per legal provisions ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"dDblgYFB","properties":{"formattedCitation":"(\\uc0\\u8220{}Code of Ethics - Academy of Criminal Justice Sciences,\\uc0\\u8221{} n.d.)","plainCitation":"(“Code of Ethics - Academy of Criminal Justice Sciences,” n.d.)","noteIndex":0},"citationItems":[{"id":"Yxn6ADft/YCdnJV0m","uris":["http://zotero.org/users/local/yvjivw9i/items/YXYQQDT9"],"uri":["http://zotero.org/users/local/yvjivw9i/items/YXYQQDT9"],"itemData":{"id":168,"type":"webpage","title":"Code of Ethics - Academy of Criminal Justice Sciences","URL":"https://www.acjs.org/page/Code_Of_Ethics","accessed":{"date-parts":[["2019",5,4]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Code of Ethics - Academy of Criminal Justice Sciences,” n.d.). One of the essential guidelines of ethics is obeying the state of law thoroughly. The statement is an explicit illustration of the argument that laws are fueled by the ethical interpretation but laws do not necessarily adhere to the ethical provisions as discussed above.

Furthermore, the historical context of laws reveals they are critically derived from the provisions of the combination of ethics, fairness and equity. Laws can be rooted in ethics and act in an unequal manner. The viability and rationality of ethics are based on the perception of society and the code of law can never enforce the adherence to an ethical or moral principle. In this context, a wide range of philosophical and legal experts have advanced to state their views.

Cases in the United States Coinciding with Law and Ethics

In the United States of America (USA), the principle of ethics in an unwritten or written form not only organize the legal practices but also highlights the fundamental basic assumptions. The cases and lawyers often rely on these assumptions. The ethical paradigm in a democratic state as the United States calls for sanctioning additional responsibilities on the lawyers as the public responsibility with the private interest ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"sEwlf4Ve","properties":{"formattedCitation":"(\\uc0\\u8220{}Fostering Innovation in the U.S. Court System: Identifying High-Priority Technology and Other Needs for Improving Court Operations and Outcomes | RAND,\\uc0\\u8221{} n.d.)","plainCitation":"(“Fostering Innovation in the U.S. Court System: Identifying High-Priority Technology and Other Needs for Improving Court Operations and Outcomes | RAND,” n.d.)","noteIndex":0},"citationItems":[{"id":466,"uris":["http://zotero.org/users/local/h6KbaPMu/items/WQTAQ9E3"],"uri":["http://zotero.org/users/local/h6KbaPMu/items/WQTAQ9E3"],"itemData":{"id":466,"type":"webpage","title":"Fostering Innovation in the U.S. Court System: Identifying High-Priority Technology and Other Needs for Improving Court Operations and Outcomes | RAND","URL":"https://www.rand.org/pubs/research_reports/RR1255.html","accessed":{"date-parts":[["2019",5,4]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Fostering Innovation in the U.S. Court System: Identifying High-Priority Technology and Other Needs for Improving Court Operations and Outcomes | RAND,” n.d.). For instance, when a witness is telling the fundamental truth, whether or not the lawyer should cross-examine by undermining him pertains to the ethical provisions rather than the code of law. These issues ultimately manifest in creating a conflict of interest. For instance, the system prevents the attorneys to present more client concurrently to further the interest of a client and enabling the conflict of the other. The lawyers are forbidden to testify a confidential communication between the client and himself without the permission of the client in the United States of America (USA) ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"tp5s9EHw","properties":{"formattedCitation":"(\\uc0\\u8220{}Ethical challenges for psychology in the justice system,\\uc0\\u8221{} n.d.)","plainCitation":"(“Ethical challenges for psychology in the justice system,” n.d.)","noteIndex":0},"citationItems":[{"id":"Yxn6ADft/FSxYCH2A","uris":["http://zotero.org/users/local/yvjivw9i/items/TRIEV54H"],"uri":["http://zotero.org/users/local/yvjivw9i/items/TRIEV54H"],"itemData":{"id":170,"type":"webpage","title":"Ethical challenges for psychology in the justice system","container-title":"https://www.apadivisions.org","abstract":"Ethical dilemmas faced by forensic psychologists in the criminal justice system.","URL":"https://www.apadivisions.org/division-41/publications/newsletters/news/2016/02/legal","language":"en","accessed":{"date-parts":[["2019",5,4]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Ethical challenges for psychology in the justice system,” n.d.). However, there may rise the need to disclose the information when the attorney is obliged to adhere to the interest of the state.

Moreover, lawyers essentially define the state of affairs related to the legal and ethical code when dealing with the client and the criminal justice system. The legal profession in the US has essentially recognized the responsibility to serve the needy without compensation. It has caused the emergence of the paid legal service for the poor as the public defenders and legal aid societies. The fee is dependent on the outcome of the litigation especially in the cases involving the automobile accident and negligence cases. The legal code of law accepts these values as ethical and crucial. The fee is an agreed proportion of the recovery. In cases where the outcome cannot be explicitly predicted, the attorneys may also assume the risk of being deprived of the fee. The free aspect of legal aid has contributed toward the removal of the need for a poor person to face such transaction but legal aid is never available to those who belong to the middle class. In other states than the United States, the contingent fee is prohibited. They are also not allowed in the United States in divorce and criminal cases to secure the pardon or the enactment of the legislation.

There exist a legal and ethical duty in the cases to disclose the information to the defense which can mitigate the punishment or exonerate the defendant. The economic globalization has aided in essential ways to the expansion of the legal profession across the world but has also caused a conflict between the ethical and legal paradigm. Irrefutably, the legal profession of several states has struggled to establish regulations to address ethical issues.

Conclusion

The code of ethics and law assume an instrumental role in the paradigm of the national, international and regional body of laws. There exist stark differences between both the terms which are further categorized into different dimensions. For instance, ethics are the guidelines and framework established to assist people to make decisions and choose the option. The code of law highlights the obligatory provisions which ought to be observed regardless of the circumstances or the violator is subjected to punishment as imprisonment or another charge. Law is derived from the ethical values as reflected in the historical context while the ethical values stem from the societal norms, beliefs and values. The key factor is interpreting the differences and the intricate relationship both of them. As mentioned above, the law is discrete, written and obligatory to be observed while ethics are in an abstract form which are often shunned by society. The domestic structure of the United States exemplifies several cases where the legal provisions and ethical code coincide and create a conflict. The prosecution is the primary element which faces impediments in the dimensions of the code of law and ethics.

References

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Code of Ethics - Academy of Criminal Justice Sciences. (n.d.). Retrieved May 4, 2019, from https://www.acjs.org/page/Code_Of_Ethics

Ethical challenges for psychology in the justice system. (n.d.). Retrieved May 4, 2019, from https://www.apadivisions.org website: https://www.apadivisions.org/division-41/publications/newsletters/news/2016/02/legal

Fostering Innovation in the U.S. Court System: Identifying High-Priority Technology and Other Needs for Improving Court Operations and Outcomes | RAND. (n.d.). Retrieved May 4, 2019, from https://www.rand.org/pubs/research_reports/RR1255.html

katharina.kiener-manu. (n.d.). Integrity Ethics Module 12 Key Issues. Retrieved May 4, 2019, from //www.unodc.org

Relationship Between Ethics and Laws | We Think, Therefore We Are Relationship Between Ethics and Laws | The site is about our reflection on certain issues. (n.d.). Retrieved May 4, 2019, from https://blog.nus.edu.sg/is1103g5/2013/03/01/relationship-between-ethics-and-laws/

Subject: Law and International Law

Pages: 5 Words: 1500

Common Law Assignment

Common Law Assignment

Students’ Name

Institution

Date

Introduction

The law of contract is a common English law, which is used to determine cases, which touch on the business deals. It is regarded as binding when there are terms, offer and acceptance. A binding agreement is a written legal document entered between two entities, in which courts can be imposed CITATION Geo12 \l 1033 (Hawkins, 2012). Legal agreement should be written based on the agreement of the two parties. And therefore, in agreement there must be a document to support the terms of agreement and signed by the parties involved. However, part of the contract is fully applied once a party has agreed to work under the condition. It is therefore, means that abiding agreement exists when parties have showed willingness to create an agreement and therefore, there was abiding agreement between Julie and Simon. This paper, therefore, provides illustration of various cases, which exist in the law of contract and mostly guiding business or in the business law. It analyses the cases of Julie and Simon, Peter and Julie, Tina and Julie and Michael and Julie to determine whether there was abiding agreement or not.

Simon vs. Julie

It is important to note that Julie and Simon had showed willingness to create legal relation between them. They have discussed terms and conditions of their working relationship and only signing the agreement remained. The two parties had also indicated that there was an obligation and the offer had been made and accepted by both parties. And therefore, there was an agreement between Simon and Julie and the fact that Simon sent a text on February, act as a confirmation. The law of contracts therefore, forces Julie to abide by the agreement and deliver services to Simon. As stated by Hawkins (2010) in law of contract there must be an offered and acceptance of the offer. For instance, the case of Lalman Shukla v. Gauri Dutt, Lalman had sued his boss Gauri Dutt for the claim of the reward for getting the Guari Dutts’ son who abscond school. In this case, Lalman was not aware of the missing boy and had left to look for the boy and therefore, by bringing the boy home he did not qualify for the reward. This case restates that in law of contract the two parties must be aware of the terms of agreement. The judge ruled in favor of the defendant and therefore, the plaintiff was not given the reward. It means that the contract is only binding when it involves two parties present at the discussion. It is evident that the plaintiff was not present when the defendant was making the pronouncement and therefore, there was not agreement between him and the defendant. However, since Simon and Julie had had a discussion and the agreed on terms of working, the two had abiding agreement and therefore, Julie is forced by the law to work for Simon on February 4th as early discussed and agreed.

Julie vs. Peter

However, in the case of Julie and Peter there is no abiding agreement. First, Julie did not confirm she will be helping. She only indicated that she will be willing, which is a confirmation and therefore, it is not abiding. In abiding agreement there must be terms and condition accepted to both parties, which are agreed and therefore, in the case of Julie and Peter the offer was not properly communicated and therefore, there was no binding agreement. According to Lewellyn (2015), the law of contract requires that an offered should be communicated to the party involved and accepted. This did not happen between Peter and Julie and it seems Julie was only willing to volunteer, which was tagged on several factors. And the fact that she realized her double booking, it was not illegal to participant help Peter. For instance, in the case of Felthouse v. Bindley, the judge rules that Bindley failed to communicate the acceptance of the offer to Felthouse and therefore, the agreement was not binding CITATION KNL10 \l 1033 (LEWELLYN, 2010). The offer was not communicated to the offeror. The offoror cannot also impose duties to the offeree and therefore, in the case of Peter and Julie there was no proper communication of the offer to the Peter and there was no acceptance of the offered from Peter and therefore, it is Impossible for any party to claim of any the existence of agreement. Therefore, there was no agreement between Peter and Julie regarding the intended work.

Tina vs. Julie

It is evident that there us a new agreement between Tina and Julie. Based on the conversation, Tina does not have money and therefore, she suggested giving Julie business so to pay for the loan. In the case of Julie and Tina, there are terms of agreement and the two parties discussed the concept. The offer was given by Tina and Julie accepted and therefore, there is a new agreement between Tina and Julie. As stated by Konishi (2012), in law of contract the offer must be communicated and the offeree must accept the offer from offeror for the contract to be binding. In the case of Tina vs. Julie, Tina is the offeror and Julie is the offeree and since Julie confirmed that she agreed with the offer it is now clear that Tina has cleared any debts own to Julie by giving her business contract. For instance, in the case of Carlill vs. Carbolic Smoke Ball, the statement made by Carllil was treated as agreement and therefore, the judge ruled against him CITATION Kon12 \l 1033 (Konishi, 2012). The law of contract takes in consideration the statement made and any statement is treated as part of the agreement and if accepted by either the party it become binding. And therefore, the fact that Tina stated that she is willing to give Julie business contract means that the business deal was reached. The terms were stated and both parties accepted the agreement and therefore, Julie and Tina have a new agreement and through the new agreement Tina had settled the debts she owed Julie. The defender in this case Wrench took time to consider the offer and by the time the plaintiff cannot claim of the existence of offer based on the duration the defendant took before communicating.

Julie vs. Michael

Julie and Michael did not have any agreement and claiming of agreement is baseless and not binding according to the law of contract. Although Julie and Michael discussed the business opportunity and modality of working together, the two did not sign any legal document, which could bind them. Michael failed to fill the document online or draft agreement as agreed in the previous communication and he failed to do so. This means that the offer to the offerror was not accepted by the offeree. Julie’s offer was not accepted by Michael because there is no evidence of acceptance being communicated to Julie. It is therefore, not proper for Julie or any other person to claim that Michael should pay for the agreement. For instance, in the case of Hyde v Wrench, the judge ruled that Wrench had no obligation to purchase the farm from Hyde. Hyde offered to sell a farm to Wrench at a specific value. The two discussed and negotiated to a certain point but Wrench left and promised to contact Hyde later he never called back. In this case, the case was ruled that there was no agreement because Wrench did no communicate the acceptance of the offer. It is the same scenario, in the case of Julie and Michael and therefore, it would be difficult to claim that Michael had agreed and had to fulfill his side of the agreement CITATION Ree15 \l 1033 (Reeves, Little, & Armand, 2015). According to Reeves, Little and Armand (2015), in the law of contract being interest is not considered as a confirmation of agreement. And therefore, the fact that Michael pointed that they are still interested does not confirm that they will hire their services.

Summary

The cases of touching on the law of contract I based on the terms of agreement. The agreement is determined based the offer and acceptance from both parties. For the abiding agreement to exist there must be properly communication of terms of agreement, offer and acceptance by both parties. Without these the agreement is regarded as invalid and cannot be enforced by the courts in any jurisdiction. And therefore, the case of Simon and Julie, there was abiding agreement, since there was an offer, terms and acceptance from both parties. In the case of Peter and Julie, there was no binding agreement since the offer did not exist and the acceptance was not communicated effective and the fact that Julie pointed that she will be willing did not confirm her acceptance. However, Tina and Julie had new agreement, which is biding since, Julie accepted the offer from Tina and therefore, it seems Tina does not owned Julie any money or debt and finally there was no agreement between Michael and Julie since Michael did not send the draft agreement or contract. It is clear that he did not accepted the offer to work with Julie and therefore, it is evidence that contract or agreement must involve offer and acceptance for it to be regarding a binding agreement.

Bibliography

BIBLIOGRAPHY Hawkins, G. (2012). The Law of Contract: The lega Dictionary. New York : Pearson.

Konishi, E. (2012). Case study. Nursing ethics of treatment refusal by patients in Japan. Law Study , 2-31.

LEWELLYN, K. N. (2010). OUR CASE-LAW OF CONTRACT: OFFER AND ACCEPTANCE, II. Yale Law Review , 2-31.

Reeves, S., Little, J., & Armand, T. (2015). Building the Classic Physique: The Natural Way. Internatiuonal Journal of Law , 2-31.

Subject: Law and International Law

Pages: 5 Words: 1500

Compare Contrast

[Name of the Writer]

[Name of Instructor]

[Subject]

[Date]

Similarity and Differences between Real and Courtroom in TV Shows

Differences between Real Courtroom and Courtroom in TV shows

The legal system of Canada has a foundation in the English common law which is exercised by the provinces and the parliament. There are significant differences and similarities in layout, clothing, and the place where lawyers stand in the real courtroom in British Columbia Supreme Court and in the movies and TV shows. They wear the dress at hearing in court where the advocates have short wigs on their head. Due to unusual circumstances, lawyers can dispense the clothing with the permission of the respective judge.

A witness stand for the individual is available to give evidence to the court on behalf of an individual case. The bench of the judge provide space to the judges where they decide matters of conflicts. Along with the seat, there is a counsel table where the lawyers assemble regularly (Berk-Seligson, N.p). Generally, the dress of the courtroom is not used for appearance before the magistrate's or hearing in chambers. Members of the jury sit in the jury box, and accused person in a criminal trial is considered as guilty if he or she is proven during the trial. Gowns and the wigs are used as current court address which is usually not happened in the TV shows and movies.

Solicitor wears the wing collar with band, however there are no hard and fast rules for clothing in the courts. It creates a good impression if the individual smartly and appear in tidy and neat dress. Court officials and sheriffs wear suits with robes on their head and following the nature of the case and layout the person will sit in a particular area (Chen, N.p). There is a significant difference in the real courts of laws and those who are represented in the TV shows and movies. Like there is a custom that during arraignment defendants stands in front of judge, and while hearing a motion, they sit at counsel table.

Similarity between Real Courtroom and Courtroom in TV shows

In the real courts, there is a systematic way for following the court conducts and code of proceedings while TV shows and movies are based on entertainment and act for a specific lesson. While depicting all the characteristics of legal moves, there is no offensive action, and it reflects the universality. However, celebrities in a tricky move resemble the real courtroom like the one used in British Columbia Supreme Court. High profile celebrities are concerned about their image, and they wanted to show a good reputation beyond the case. In the form of original proceeding and legal hearing, a court show has the same dressing, layout and stand where the lawyers represent their client. In other words, we have an image of groundwork done in the respective and imaginary form.

Pseudo-judge presides the cases and hear the defendants and produced an action while responding to small claims in the studio of television. Even the shooting of courtroom drama is done in the real courts which are reflected through movies and films (Schulz, N.p). There is no use of wigs by the lawyers in the courts and judges are also not professional. All they are dummy judges, solicitors, and set place of standing for defendants. Various roles are played by actresses and actors like announcers, court reporters, bailiffs, and the litigants. As per their instructions they never cross or get too far off the angle of the case. Lawyers who are acting in the shows dressed up in the black gowns like the one which is reflected in real movies. The studio set design for portraying the real picture of courts. Litigants sometimes surrender their apparatus and experience fair justice system ruled by presiding television judge and acting personalities.

Works Cited

Berk-Seligson, Susan. The bilingual courtroom: Court interpreters in the judicial process. University of Chicago Press, 2017.

Chen, Meishan. A Comparison of the Situational and Linguistic Features of High-Profile Criminal Trials and TV Series Courtroom Trials. Diss. Northern Arizona University, 2018.

Schulz, Jennifer L. "A Transnational Study of Law & Justice on TV: Canada." (2016).

Subject: Law and International Law

Pages: 2 Words: 600

Connecting Theory To Criminal Or Delinquent Behavior

Patrick

Instructor Name

Course Number

Date

Travis Hirschi’s Social Control/Social Bonds Theory

The theory of Social Control/ Social bonds by Travis Hirschi suggests that any criminal behavior is fundamentally based on development of criminal motivation. He proposes that every individual has a pleasure-seeking urge that forces him to commit a crime. Hirschi suggested that there are four kinds of bonds that are behind this temptation. The first bond discussed is ‘Attachment’, which is associated with affection one has for others. If one has a healthy relation with a parent, guardian or mentor, that person will adopt good habits and develop prosocial behavior. On the other hand, if a role model figure is absent and social circle is involved in delinquent activities, it is likely that the person will fall astray. The second type is ‘Commitment’ which means that if one cares about what people close to him think or feel about his wrong acts, he will abandon the path of crime. Next social bond is ‘involvement’ which is correlated with activities one is involved in. It is based on the ancient idea ‘Satan finds work for idle hands to do’ which means that those who have nothing good to do will be attracted towards evils deeds. It is evident through research that in the U.S., crime rates are higher where higher number of jobless people reside ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"g2z51AxO","properties":{"formattedCitation":"(Raphael and Winter\\uc0\\u8208{}Ebmer)","plainCitation":"(Raphael and Winter‐Ebmer)","noteIndex":0},"citationItems":[{"id":41,"uris":["http://zotero.org/users/local/YgsdZK9k/items/KZHEF586"],"uri":["http://zotero.org/users/local/YgsdZK9k/items/KZHEF586"],"itemData":{"id":41,"type":"article-journal","title":"Identifying the Effect of Unemployment on Crime","container-title":"The Journal of Law and Economics","page":"259-283","volume":"44","issue":"1","source":"journals.uchicago.edu (Atypon)","abstract":"In this paper, we analyze the relationship between unemployment and crime. Using U.S. state data, we estimate the effect of unemployment on the rates of seven felony offenses. We control extensively for state‐level demographic and economic factors and estimate specifications that include state‐specific time trends, state effects, and year effects. In addition, we use prime defense contracts and a state‐specific measure of exposure to oil shocks as instruments for unemployment rates. We find significantly positive effects of unemployment on property crime rates that are stable across model specifications. Our estimates suggest that a substantial portion of the decline in property crime rates during the 1990s is attributable to the decline in the unemployment rate. The evidence for violent crime is considerably weaker. However, a closer analysis of the violent crime of rape yields some evidence that the employment prospects of males are weakly related to state rape rates.","DOI":"10.1086/320275","ISSN":"0022-2186","journalAbbreviation":"The Journal of Law and Economics","author":[{"family":"Raphael","given":"Steven"},{"family":"Winter‐Ebmer","given":"Rudolf"}],"issued":{"date-parts":[["2001",4,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Raphael and Winter‐Ebmer). The last kind of bond is ‘belief’. It includes people who believe in moral values and respect others’ rights and do not cause harm to the society ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"RRL5lMj2","properties":{"formattedCitation":"(Hirschi)","plainCitation":"(Hirschi)","noteIndex":0},"citationItems":[{"id":40,"uris":["http://zotero.org/users/local/YgsdZK9k/items/9QC5SRCD"],"uri":["http://zotero.org/users/local/YgsdZK9k/items/9QC5SRCD"],"itemData":{"id":40,"type":"article-journal","title":"Key idea: Hirschi’s social bond/social control theory","container-title":"Key Ideas in Criminology and Criminal Justice,(1969)","page":"55-69","journalAbbreviation":"Key Ideas in Criminology and Criminal Justice,(1969)","author":[{"family":"Hirschi","given":"Travis"}],"issued":{"date-parts":[["1969"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Hirschi).

The story of a serial killer can be related to this theory. The serial killer as a young boy, used to get beaten by his alcoholic abusive father daily. The kid in rage killed the father, but when police arrived, the mother took the blame. She was sent to serve in prison. Meanwhile, he killed his foster parents’ dog because it did not protest the killer’s abuse. Later, he started kidnapping young depressed people specially those who did not get enough attention from parents or mentors. The serial killer did not have a healthy relation with parents and developed a feeling of hatred as described by first bond of theory. The killer lacks ‘commitment’ which is shown by the fact that the only person close to him, his mother, already knows he committed his father’s murder. This makes him reckless and ‘involved’ in delinquent activities. After he is sentenced to death, he requests Human Rights Commission to send him to Hospital for better medical treatment. He lacked ‘belief’ in human rights as he did not regret anything at all.

Works Cited

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Hirschi, Travis. “Key Idea: Hirschi’s Social Bond/Social Control Theory.” Key Ideas in Criminology and Criminal Justice,(1969), 1969, pp. 55–69.

Raphael, Steven, and Rudolf Winter‐Ebmer. “Identifying the Effect of Unemployment on Crime.” The Journal of Law and Economics, vol. 44, no. 1, Apr. 2001, pp. 259–83. journals.uchicago.edu (Atypon), doi:10.1086/320275.

Subject: Law and International Law

Pages: 1 Words: 300

CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, Et Al., Plaintiffs-Appellants, V. TOWN OF GRAND CHUTE, Defendant-Appellee.

CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al., Plaintiffs-Appellants, v. TOWN OF GRAND CHUTE, Defendant-Appellee.

[Name of the Writer]

[Name of the Institution]

CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330, et al., Plaintiffs-Appellants, v. TOWN OF GRAND CHUTE, Defendant- Appellee.

Fact of the Case

This is the case about rates who grew up to be Giant and inflatable rates and how they depicted that union is exposing their lack of happiness at the employers that are not paying for the union scale wages. There are cats too, which are the inflatable cats that are wearing the business suits and they are the depiction of how things are being done during the course of the legal dispute. The pictures show that the rat and the cats are together staked at the ground and the idea on their part is to make sure that there is prevention of wind to be blowing them away. Those are the stakes that had lead to the litigation as far as this case is concerned. What can be seen here is that how Grand Chute had forbade the sign, specially the private signs. These signs were not allowed to be displayed on the public level.

Legal Issues Involved in the Case

The Municipal Code and the Picket signs has clearly defined the premises of the case that how the sandwich boards are lawful under the given definition. The major issue here is that how the Town had not interfered with them with regards to how the Union is supposed to work. The major issue here is that how the Union has inflated the rate at the given point of time and the cat in the median that is going towards the highway. At the same time, the other major issue that has emerged from this case is that as they were staked to the ground, the Town had to treat them according to the structures at the particular point of time. Now, the key thing that has to be noted in this case is that if there was the case that the picketers had to held down by the ropes, and this would not have been problem when one talks about the Rules of the Town. That was not the case here as they had been inflated and the inflation was done with the help of the Helium and floated six inches that were located above the ground. The suggestion Town came from the protestors and mount the cat and rat that is located on the flatbed truck at the particular point of time. This is something that is not going to be the part of the structure. Corresponding, Union had removed them.

Ruling for the Case

The suggestion was being made by the Town that how the protestors should be mounting the cat and the rate on the flatbed truck, and it is specifically needed to be made sure that they are not made the part of the structure. The key thing that has happened here was to make sure that the acceptance of the Union was important in order to make that decision and that was correspondingly done. As the cat and the rat were staked on the ground, they were forbidden in the given case. The Union removed them when they were directed to do so and the suit was file. The ruling that came from the district court was denying the preliminary injunction. Later on, after one whole year, the summary judgement was being made for the Town. It has to be noted that in the particular case, the Union has appealed from the second order only. The important thing that has to be noted about the ruling was that there was not a case that how the parties that were considering the possibility at that point of time were under the impression that how the oral argument was going to work out in the given case.

*

Holding of the Court

It has to be noted that in the given case, how at times it is not possible to make sure that the taxpayers money has to be avoided to be used by the Vincent and how the rats and cats were acting as a symbolic speech during the course of the whole process. The other point that has to be noted here is that the public body in this case might be forbidding them an action in a sense that how the whole thing was illustrated as the part of the symbolic speech.

Opinion about the Ruling of the Case

In this case, the argument can be made that except for the case when shouting was being carried out, the virulent protest that was witnessed in the given case was protected in the light of the McCulley decision. This is despite the fact that how the stress that is needed to be there in terms of how imposition is needed to be there in terms of the way whole thing was managed. The giant rate in this case has caused distressed to the executives in the given case In the unlikely event that a victory for the union would lead to a proliferation of signs on public rights-of-way, however, the town might well be justified in strictly enforcing the sign ordinance even against expressive activities normally protected by the First Amendment from government interference. Cf. Clark v. Community for Creative Non–Violence, 468 U.S. 288, 296–97, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Members of City Council of City of Los Angeles v. Taxpayers for Vincent, supra, 466 U.S. at 807, 104 S.Ct. 2118. But the town has presented no evidence that the rat stimulated other signage.

References

Northrup, H. R. (1989). Construction doublebreasted operations and pre-hire agreements: Assessing the issues. Journal of Labor Research, 10(2), 215-238.

Vantine Jr, J. G. (1976). Labor Law-Religious Discrimination-Accommodation of Refusal to Pay Dues in an Agency Shop beacuse of Religious Beliefs. Wayne L. Rev., 23, 1171.

Subject: Law and International Law

Pages: 3 Words: 900

Contrast And Compare Katz V. United States (1967) With Olmstead V. United States (1928)

Contrast and compare Katz v. United States (1967) with Olmstead v. United States (1928)

[Name of the Writer]

[Name of the Institution]

Contrast and compare Katz v. United States (1967) with Olmstead v. United States (1928)

Compare and Contrast:

The two cases Katz v. United States (1967) and Olmstead v. United States (1928) have some similarities as well as differences. Olmstead v. United States (1928) was one of the first cases that interpreted the scope of the fourth amendment. The case was argued on February 20-21, 1928. The decision was made in 1928. On the other hand, Katz v. United States (1967) was ruled on December 18, 1967. By comparing both the cases, it can be observed that both the cases pertained to the fourth amendment. Supreme Court expanded the fourth amendment right against "unreasonable search and seizure". In addition, both the cases covered the electronic wiretaps i.e. whether the use of electronic wiretaps to obtain the conversation is against the fourth amendment or not. Both the cases were filed against the government and law enforcement. Government used the electronic wiretaps to collect the evidence of illegal activities of the petitioners.

One of the differences between both cases was the act of the petitioners. In the case Olmstead v. United States (1928), the petitioner was a bootlegger during the prohibition while Katz bets for interstate gamblers. The major difference between both the cases was the decision. The decision of the judge in Olmstead v. United States (1928) was against the petitioner. The judges believed that the government has the right to record the conversation for safety purposes and it does not violate the Fourth Amendment or the Fifth Amendment of the Constitution. On the other hand, the decision was reversed in Katz v. United States (1967) where judges made the decision that recording someone's personal conversation illegally is against the Fourth Amendment. This is because when a person makes a conversation, he makes an expectation of privacy. Therefore, the government does not acquire the right to record the conversation without the warrant. The bottom line is that Olmstead v. United States (1967) was reversed by Katz v. U.S ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"RUqqr818","properties":{"formattedCitation":"(\\uc0\\u8220{}Olmstead case was a watershed for Supreme Court - National Constitution Center,\\uc0\\u8221{} n.d.)","plainCitation":"(“Olmstead case was a watershed for Supreme Court - National Constitution Center,” n.d.)","noteIndex":0},"citationItems":[{"id":787,"uris":["http://zotero.org/users/local/mlRB1JqV/items/VV6AAGHU"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/VV6AAGHU"],"itemData":{"id":787,"type":"webpage","title":"Olmstead case was a watershed for Supreme Court - National Constitution Center","container-title":"National Constitution Center – constitutioncenter.org","abstract":"Today marks the anniversary of the landmark Olmstead v. United States wiretapping case decided by the Supreme Court, which had a far-reaching impact still felt today.","URL":"https://constitutioncenter.org/blog/olmstead-case-was-a-watershed-for-supreme-court","language":"en","accessed":{"date-parts":[["2019",7,2]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“Olmstead case was a watershed for Supreme Court - National Constitution Center,” n.d.).

Katz Ruling Guided Police Electronic Surveillance Procedures

Electronic surveillance starts with the Fourth Amendment, which guided the police that the privacy of the people of United State should not be invaded without a warrant on reasonable cause. Katz’s ruling was helpful to make it clearer that entire privacy protection should be covered by administration spying. It means electronic surveillance is not completely illegal for the law enforcement or government by the constitution, but it is illegal under certain conditions. Total three laws make government spying legal that are title III, FISA, and ECPA. The decision of the Katz was made with the explanation that when the person enters into a public booth and closes the door for the outer world then it indicates that the person made the expectation for his conversation privacy. If government records the conversation without any warrant or giving reasonable cause then the privacy expectation is violated which is against the fourth amendment. Fourth amendment rules that search and seizure is for the people, not place ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"0hZvk7vO","properties":{"formattedCitation":"(\\uc0\\u8220{}NSA Spying on Americans Is Illegal,\\uc0\\u8221{} n.d.)","plainCitation":"(“NSA Spying on Americans Is Illegal,” n.d.)","noteIndex":0},"citationItems":[{"id":785,"uris":["http://zotero.org/users/local/mlRB1JqV/items/3HFZ2YAY"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/3HFZ2YAY"],"itemData":{"id":785,"type":"webpage","title":"NSA Spying on Americans Is Illegal","container-title":"American Civil Liberties Union","abstract":"Click here for more on NSA Surveillance","URL":"https://www.aclu.org/other/nsa-spying-americans-illegal","language":"en","accessed":{"date-parts":[["2019",7,2]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (“NSA Spying on Americans Is Illegal,” n.d.).

Opinion on the U.S. Government and Other Private Agencies

My opinion on the U.S government and other private agencies collecting data on the population is against the government access to conversation. The video raised the point that the person who has not done anything wrong must not be worried. However, I agreed to the psychological fact discussed in the video that people often react fake when they know that they are being observed ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"QD3KSQ7v","properties":{"formattedCitation":"(Greenwald, n.d.)","plainCitation":"(Greenwald, n.d.)","noteIndex":0},"citationItems":[{"id":789,"uris":["http://zotero.org/users/local/mlRB1JqV/items/I45IEFKT"],"uri":["http://zotero.org/users/local/mlRB1JqV/items/I45IEFKT"],"itemData":{"id":789,"type":"webpage","title":"Transcript of \"Why privacy matters\"","abstract":"TED Talk Subtitles and Transcript: Glenn Greenwald was one of the first reporters to see -- and write about -- the Edward Snowden files, with their revelations about the United States' extensive surveillance of private citizens. In this searing talk, Greenwald makes the case for why you need to care about privacy, even if you're \"not doing anything you need to hide.\"","URL":"https://www.ted.com/talks/glenn_greenwald_why_privacy_matters/transcript","language":"en","author":[{"family":"Greenwald","given":"Glenn"}],"accessed":{"date-parts":[["2019",7,2]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Greenwald, n.d.). It is true as it can be observed through religious people who stay away from sins. They reason behind their behavior is the belief that God is watching them. Similarly, people have the right to live freely without a perception that someone is monitoring them. This fact is true and makes electronic surveillance against the right of reasonable search and seizure. It is important to keep the nation safe from terrorist attack or other illegal activities but it is also important to maintain the privacy of the people.

References

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Greenwald, G. (n.d.). Transcript of “Why privacy matters.” Retrieved July 2, 2019, from https://www.ted.com/talks/glenn_greenwald_why_privacy_matters/transcript

NSA Spying on Americans Is Illegal. (n.d.). Retrieved July 2, 2019, from American Civil Liberties Union website: https://www.aclu.org/other/nsa-spying-americans-illegal

Olmstead case was a watershed for Supreme Court - National Constitution Center. (n.d.). Retrieved July 2, 2019, from National Constitution Center – constitutioncenter.org website: https://constitutioncenter.org/blog/olmstead-case-was-a-watershed-for-supreme-court

Subject: Law and International Law

Pages: 2 Words: 600

Controversial Topic Argumentative Essay

Controversial Topic Argumentative Essay

In the contemporary age, the debate on the practice of the death penalty or a life sentence has assumed a contentious role. There exist both advocates of the execution and life in prison. However, a wide range of nations across the world have advanced to abolish the death penalty across the world. The international comity of nations is advancing to abrogate the practice of death sentence. Life in prison is advocated by several schools of thoughts. In 1976, the government of Canada took critical steps to remove the death penalty from the Criminal Code to strengthen the justice system and provision of justice and fundamental human rights. After the abolition of the death penalty, the per capita rate in Canada for homicide has drastically declined and is currently at the lowest rate since 1966. Irrefutably, the abolition of the death sentence is essential to preserve the fundamental human rights and life sentence in prison is a potential mean to reduce the crime rates and rejuvenate the spirits of the Human Rights Charter.

To begin, the death penalty desecrates the very fundamental principles of the right to life that is sanctioned to each individual across the globe. The United Nations General Assembly (UNGA) has also called for abolishing the death penalty and it agrees that its implications fundamentally breach the human right norms and values. In addition, the death penalty has been deemed to have breached the prohibition, inhumane and cruel treatment. The recognition of these essential values has caused 16 countries to abolish the practice in the recent thirty-five years. The United States executed 220 people from 207 to 2011. In addition,the public opinion is of utmost importance to assess the manifestations of the death penalty in Canada. The previous decade witnessed a critical state of events in this regard. In the case of United States v. Burns, the Supreme Court of Canada identified that Canada ought not to extradite the persons for facing criminal trials in other states from the crimes punishable by the death sentence unless Canada is ensured that the foreign state will not enact the death penalty. These policies are similar to the policies of other states as France, Germany, Italy, Spain and the United Kingdom. These states also refuse to extradite the prisoners based who may have been condemned to death. Extradition, with the possibility of the death penalty, was ruled an explicit violation of the European Convention of Human Rights. All these instances reveal that the death penalty is a menace which is against the fundamental essence of law.

Furthermore, there exist a strong rationale for the eradication of the death penalty to strengthen the manifestations of a life sentence. The death penalty is a vigorous process which is a long process and drains the closed ones of the victim financially and emotionally. It is an alternative delusion for them which serve the purpose of consolation for their protracted suffering and concluding in a radical manner. If the death penalty is reinstated in Canada after years, the debate of sentencing the right person will catch the heat. Since DNA testing is reliable, the likelihood of sentencing the innocent and wrong person gets reduced to a minimum. It is still considered a possibility and is the fundamental argument nourished against the death penalty. The appeal system in the court manifests the process of a death sentence. The court system clogs and the appeals pile up which further affect the processing of the court matters. Besides, the advocates of the death penalty stipulate the views that the death penalty is likely to shield them from the widespread peril of crimes in society. A critical appraisal of the view shuns the argument and reflects a contrasting picture. As per the reports published each year, the states with the death penalty witnessed an increased rate in murders in comparison to the states without the death penalty. There exists a significant scarcity of the evidence that the death penalty deters crimes and murders because of the fear of severe punishment. Several criminologists are of the belief that the death penalty makes the population prone to crime. A research study conducted at Susquehanna University highlighted that approximately 1.12 is additionally consumed to confine an inmate on death row in comparison to the general population of inmates. For instance, the needless consumption of limited resources from the policies that were promulgated to reduce crime is taken away by the process of executing a person. Had death sentence been initiated in Canada, it would require large expense to ensure that the inmates of death row are kept in high-security areas. Article 2 of the charter of the Human Rights Act offers a potential alternative to this adversity. It stipulates that the right to live is the absolute right.

Likewise, the case namely Pretty v the United Kingdom manifests the inherent norm of permitting a person to be sentenced rather than execution. A woman combating an incurable disease desired to supervise the time and manner wherein she died. The primary purpose of the aspiration was to avert am undignified death due to which her husband assisted her to kill her. However, she sought a guarantee that her husband would not be charged. The European Court of Human Rights stated that the fundamental human rights can never be desecrated by amending them as per will and against the charter of the Human Rights Act. This case demonstrates that neither a public authority nor a third person can advance to take the life of anyone regardless of the intent, motives or actions of the person. A similar state of legal affairs is promulgated and pursued in Canada which ought to continue in true letter and spirits.

To discuss the implications of a life sentence as a permanent regulation, it is a criminal sentence for particular offenses that comprise an indeterminate length. These laws of life imprisonment are enacted by the Parliament of Canada and applied thoroughly across the state. However, it is imperative to address the arguments made by the cynics of the practice of life sentence. A popular case namely Bruce McArthur murder case constituted the instance where a man pleads guilty after charged with 8 counts of first degree murder. Since each count carried an obligatory life sentence, a judge could only sentence a person to a single life sentence. The advocates of the promulgation of the death sentence critically assert their argument on the basis of this complexity. The argument sounds potential but is nullified by the intricacies of parole. For instance, such a person charged with eight life sentence ought not to be charged with the death sentence to serve the purpose of punishment. The Criminal Code of Canada will authorize the judge to prevent him for requesting parole during the imprisonment of twenty-five years. Moreover, the judge also holds the prerogative to add further years of ineligibility to the parole request. To substantiate the argument, the prisons in Canada are relatively enhanced in regards to exhibiting lower recidivism rates and rehabilitating the offenders. For instance, the average recidivism rate in Canada is approximately 40. It reveals that the prison facilities in Canada are worthy of sustaining the life sentence in a systematic and restoring manner for the prisoners. A comparison of the rate with the United States of America (USA) is instrumental to postulate the differences caused by the abrogation of the death sentence. The recidivism rates in the United States account for approximately 60. This is a remarkable demonstration of the positive ramifications of abrogating the death sentence in Canada. Consequently, not only the rehabilitation and rejuvenation of the spirits of the fundamental human rights is boosted but also the crime rate is also reduced while comparing with the state of events with the enactment of the death penalty.

To conclude, the deliberated instances highlight the positive consequences of a life sentence in comparison to the promulgation of the death sentence. Each citizen, across the world, is entitled by the United Nations, the Human Right Charter and the international law to exercise the right to live. Canada is a state where the death penalty was abrogated in the previous century and the intermediary role played by life sentence has reduced the murder rates and enhanced the rehabilitation of prisoners. The argument is made after the comparison of statistics with the states exercising the radical practice of the death penalty. In essence, these events are an explicit illustration of the reality that death sentence casts adverse consequences. Thus, it should never be reinstated in Canada despite the overwhelming advocacy by certain groups in the states. The intricate criminal cases and sentences highlighted above further strengthen the argument by supplementing the argument with Article 2 of the Human Rights Charter. Irrefutably, the abolition of the death sentence is essential to preserve the fundamental human rights and life sentence in prison is a potential mean to reduce the crime rates and rejuvenate the spirits of the Human Rights Charter. The death sentence causes detrimental ramifications not only for the society but also for the criminal code and thus the implementation of life sentence ought to be pursued in true letter and spirits.

End Notes

1. ADDIN ZOTERO_BIBL uncited,omitted,custom CSL_BIBLIOGRAPHY 5 Myths About the Death Penalty. Death Penalty Focus. Accessed April 3, 2019. https//deathpenalty.org/facts/5-myths-death-penalty/.

2. Deterrence States Without the Death Penalty Have Had Consistently Lower Murder Rates Death Penalty Information Center. Accessed April 3, 2019. https//deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates.

3. Feb 06, Stephanie Hogan CBC News Posted, and 2019 400 AM ET Last Updated February 8. How Does a Judge Decide between Concurrent and Consecutive Sentences CBC News. CBC, February 6, 2019. https//www.cbc.ca/news/canada/cbc-explains-sentences-concurrent-consecutive-1.5005853.

4. Should Life Imprisonment Be Replaced by Capital Punishment Accessed April 3, 2019. https//www.debate.org/opinions/should-life-imprisonment-be-replaced-by-capital-punishment.

5. Why Life in Prison Rarely Works out That Way in Canada. Accessed April 3, 2019. https//www.theglobeandmail.com/opinion/why-life-in-prison-rarely-works-out-that-way-in-canada/article24301991/.

ADDIN ZOTERO_ITEM CSL_CITATION citationIDq8I7Tbbe,propertiesformattedCitationuc0u8220Deterrence States Without the Death Penalty Have Had Consistently Lower Murder Rates Death Penalty Information Center,uc0u8221 accessed April 3, 2019, https//deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates.,plainCitationDeterrence States Without the Death Penalty Have Had Consistently Lower Murder Rates Death Penalty Information Center, accessed April 3, 2019, https//deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates.,noteIndex1,citationItemsid260,urishttp//zotero.org/users/local/h6KbaPMu/items/M7W7JKJS,urihttp//zotero.org/users/local/h6KbaPMu/items/M7W7JKJS,itemDataid260,typewebpage,titleDeterrence States Without the Death Penalty Have Had Consistently Lower Murder Rates Death Penalty Information Center,URLhttps//deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates,accesseddate-parts2019,4,3,schemahttps//github.com/citation-style-language/schema/raw/master/csl-citation.json Deterrence States Without the Death Penalty Have Had Consistently Lower Murder Rates Death Penalty Information Center, accessed April 3, 2019, https//deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates.

ADDIN ZOTERO_ITEM CSL_CITATION citationIDG21NrWXz,propertiesformattedCitationuc0u82205 Myths About the Death Penalty,uc0u8221 Death Penalty Focus, accessed April 3, 2019, https//deathpenalty.org/facts/5-myths-death-penalty/.,plainCitation5 Myths About the Death Penalty, Death Penalty Focus, accessed April 3, 2019, https//deathpenalty.org/facts/5-myths-death-penalty/.,noteIndex2,citationItemsid256,urishttp//zotero.org/users/local/h6KbaPMu/items/MVNQFL54,urihttp//zotero.org/users/local/h6KbaPMu/items/MVNQFL54,itemDataid256,typewebpage,title5 Myths About the Death Penalty,container-titleDeath Penalty Focus,URLhttps//deathpenalty.org/facts/5-myths-death-penalty/,accesseddate-parts2019,4,3,schemahttps//github.com/citation-style-language/schema/raw/master/csl-citation.json 5 Myths About the Death Penalty, Death Penalty Focus, accessed April 3, 2019, https//deathpenalty.org/facts/5-myths-death-penalty/.

ADDIN ZOTERO_ITEM CSL_CITATION citationIDVlwR4trE,propertiesformattedCitationStephanie Hogan uc0u183 CBC News uc0u183 Posted Feb 06 and 2019 400 AM ET Last Updated February 8, uc0u8220How Does a Judge Decide between Concurrent and Consecutive Sentences CBC News,uc0u8221 CBC, February 6, 2019, https//www.cbc.ca/news/canada/cbc-explains-sentences-concurrent-consecutive-1.5005853.,plainCitationStephanie Hogan CBC News Posted Feb 06 and 2019 400 AM ET Last Updated February 8, How Does a Judge Decide between Concurrent and Consecutive Sentences CBC News, CBC, February 6, 2019, https//www.cbc.ca/news/canada/cbc-explains-sentences-concurrent-consecutive-1.5005853.,noteIndex3,citationItemsid258,urishttp//zotero.org/users/local/h6KbaPMu/items/V48NGZXF,urihttp//zotero.org/users/local/h6KbaPMu/items/V48NGZXF,itemDataid258,typewebpage,titleHow does a judge decide between concurrent and consecutive sentences CBC News,container-titleCBC,abstractWe sometimes hear that a U.S. judge has imposed several consecutive prison sentences on a criminal, adding up to more than 100 years. That is far less common in Canada, but the issue has come up in some recent high-profile cases.,URLhttps//www.cbc.ca/news/canada/cbc-explains-sentences-concurrent-consecutive-1.5005853,shortTitleHow does a judge decide between concurrent and consecutive sentences,languageen,authorfamilyFeb 06,givenStephanie Hogan CBC News Posted,familyFebruary 8,given2019 400 AM ET Last Updated,issueddate-parts2019,2,6,accesseddate-parts2019,4,3,schemahttps//github.com/citation-style-language/schema/raw/master/csl-citation.json Stephanie Hogan CBC News Posted Feb 06 and 2019 400 AM ET Last Updated February 8, How Does a Judge Decide between Concurrent and Consecutive Sentences CBC News, CBC, February 6, 2019, https//www.cbc.ca/news/canada/cbc-explains-sentences-concurrent-consecutive-1.5005853.

ADDIN ZOTERO_ITEM CSL_CITATION citationID6RLFpDsC,propertiesformattedCitationuc0u8220Should Life Imprisonment Be Replaced by Capital Punishment,uc0u8221 accessed April 3, 2019, https//www.debate.org/opinions/should-life-imprisonment-be-replaced-by-capital-punishment.,plainCitationShould Life Imprisonment Be Replaced by Capital Punishment, accessed April 3, 2019, https//www.debate.org/opinions/should-life-imprisonment-be-replaced-by-capital-punishment.,noteIndex4,citationItemsid264,urishttp//zotero.org/users/local/h6KbaPMu/items/XGDSYE7E,urihttp//zotero.org/users/local/h6KbaPMu/items/XGDSYE7E,itemDataid264,typewebpage,titleShould life imprisonment be replaced by capital punishment,abstractDebate.org is a dynamic social community where you can voice your opinion on todays hottest issues.,URLhttps//www.debate.org/opinions/should-life-imprisonment-be-replaced-by-capital-punishment,languageen,accesseddate-parts2019,4,3,schemahttps//github.com/citation-style-language/schema/raw/master/csl-citation.json Should Life Imprisonment Be Replaced by Capital Punishment, accessed April 3, 2019, https//www.debate.org/opinions/should-life-imprisonment-be-replaced-by-capital-punishment.

ADDIN ZOTERO_ITEM CSL_CITATION citationIDLfbc3Fgo,propertiesformattedCitationuc0u8220Why Life in Prison Rarely Works out That Way in Canada,uc0u8221 accessed April 3, 2019, https//www.theglobeandmail.com/opinion/why-life-in-prison-rarely-works-out-that-way-in-canada/article24301991/.,plainCitationWhy Life in Prison Rarely Works out That Way in Canada, accessed April 3, 2019, https//www.theglobeandmail.com/opinion/why-life-in-prison-rarely-works-out-that-way-in-canada/article24301991/.,noteIndex5,citationItemsid262,urishttp//zotero.org/users/local/h6KbaPMu/items/N45E7SHK,urihttp//zotero.org/users/local/h6KbaPMu/items/N45E7SHK,itemDataid262,typearticle-newspaper,titleWhy life in prison rarely works out that way in Canada,sourceThe Globe and Mail,abstractWith 22 per cent of paroled murderers having their parole revoked over a 14-year period, the system is flawed,URLhttps//www.theglobeandmail.com/opinion/why-life-in-prison-rarely-works-out-that-way-in-canada/article24301991/,accesseddate-parts2019,4,3,schemahttps//github.com/citation-style-language/schema/raw/master/csl-citation.json Why Life in Prison Rarely Works out That Way in Canada, accessed April 3, 2019, https//www.theglobeandmail.com/opinion/why-life-in-prison-rarely-works-out-that-way-in-canada/article24301991/.

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Subject: Law and International Law

Pages: 5 Words: 1500

Corporate Law

Part A

Is the duty to prevent insolvent trading a fiduciary duty? Why or why not? You must give detailed reasons

Yes, under Section 588G of the Corporations Act, it is a fiduciary duty to prevent insolvent trading of a company. This is because the fiduciary or the Director is aware of the company’s financial position. It is the responsibility of the Director or the Fiduciary to keep the company protected from all sort of financial risks, and for this purpose the person must ensure that all debts are paid on time. In case, the company is unable to pay the debts, then Director must take accounting and legal advice timely, and must find an appropriate way to deal with the challenges faced to pay its debts when fall due. Director’s such efforts reduces the risks faced by the company, and help it to deal with its all financial matters. Also, if required, the Directors may also peruse ASIC’s National Insolvent Trading Program. The program was established in June 2003 by the government of Australia. The principle objective of this program is to identify the possible insolvent trading of the company, before it occurs. The Director may then discuss the financial risks faced by the company, through which s(he) may get suggestions of how to deal with company’s debts on time, otherwise the Director may face penalty CITATION Mel09 \l 1033 (Bird, 2009).

How does the safe harbour defence s588GA operate?

S588GA imposes criminal and civil liability on the fiduciary of the company, who is responsible to ensure that all debts of the company have paid on time. Thus, the safe Harbour Defence s588GA addresses a concern the Directors of the company are not only responsible to deal with the risks of potential insolvent trading instead they must be provided with a second chance to restructure the company’s financial administration to deal with all debts related challenges. In this way the government of Australia has struck a better balance between encouraging the honest directors and the protection of company’s credits. This amendment in Corporations Act was very important to motivate the Directors for their better performance and positive behavior towards company’s financial progress, otherwise Act blamed the Director for all sort of financial losses and they had to pay penalty up to $200,000 to help the company in its recovery. Also, according to the Act, the Directors were banned to perform their duties for a number of years as a result of which they were discouraged to stay in the course. The Safe Harbour Amendments enabled the directors to think differently and prove their worth by restructuring the financial administration of the company. It helped the directors to try to turn the company’s financial situation than just focusing on the risk mitigation and solvency of the company CITATION DAM18 \l 1033 (KNOBLANCHE, 2018).

Who does it (s588GA) protect, and is this different to the business judgment rule s180 (2)? Give reasons.

Section 588G of the Corporation Act protects the Directors of the company, who are responsible to ensure that all debts of the company have paid on time. Specifically, the safe Harbour amendment of the Act addresses a concern the Directors of the company must show a positive behavior towards company’s financial progress and must not take any decision for the sake of personal benefits. The decision, taken by the Directors, must be for the better future and financial structure of the company. In this way, the Safe Harbour Amendments enables the directors to think differently and prove their worth by restructuring the financial administration of the company. It helps the directors to try to turn the company’s financial situation than just focusing on the risk mitigation and solvency of the company CITATION DAM18 \l 1033 (KNOBLANCHE, 2018). When comparing the Act to the business judgment rule s180, then there exist no difference between both regulations. As, business judgment rule s180 is established to restrict the Directors for thinking positive for the Company and to take decision for the sake of Company’s future without considering their personal interests. In this way, both regulations are same and are focused on the positive attitude and highly responsible behavior of the Director, while restricting them to think about their personal interests CITATION Ano191 \l 1033 (Anon, 2019).

Are there any restrictions on the operation of the s588GA defence? If so, what are they?

Under Section 588G of the Corporations Act, the Director of the Company is responsible to prevent insolvent trading of a company. This is because the Director is aware of the company’s financial position, and thus keep the company protected from all sort of financial risks. It is his/her responsibility to ensure that all debts are paid on time, otherwise the Director must take accounting and legal advice timely, and must find an appropriate way to deal with the challenges faced to pay its debts when fall due CITATION Mel09 \l 1033 (Bird, 2009). However, in this all process, the Director cannot take any action without maintaining an evidentiary record CITATION ICA13 \l 1033 (ICAEW, 2013). Thus, the Act restricts the Directors to maintain an evidentiary record in the form of files or book of information regarding all debts, being paid or need to be paid when fall due. In this way, the court or audit team can evaluate how does the Directors manages all finance related matters of the organization. Through such restrictions, the Government of Australia maintains a balance between encouraging the honest directors and the protection of company’s credits. Though, the Safe Harbour Amendments enabled the directors to think differently and prove their worth by restructuring the financial administration of the company but their each concern and the action in the favor of the company must be supported by proper documentation. This documentation or the book of information is further used at the time of inspection to evaluate if the person was involved in unethical activities or have been performing his/her duties with honesty CITATION Jas17 \l 1033 (Harris, 2017).

Do you think the changes to Division 3 will have an effect on the number of voluntary insolvencies in Australia in the future? Why or why not?

Yes, the changed to Division 3 will have a significant impact on the of voluntary insolvencies in Australia in future, as it will strengthen the capabilities of the Directors and will let them to think differently for the company’s better financial future. This is crucial to motivate the directors, as they are the key role players of any organization or the company. They have complete command over finance related dealings and information regarding the financial matters. Thus, motivating them to show their worth and to do something for the better future of the company means keeping the company under protected zone. Furthermore, the change Act was very important to encourage Director’s positive intentions towards company’s financial progress, otherwise previously Directors of the companies were responsible for all sort of financial losses and they had to pay penalty up to $200,000 to help the company in its recovery. Also, according to the Act, the Directors had to be banned to perform their duties for a number of years as a result of which they were discouraged to stay in the course. The change simply protected the directors and enabled them to restructure the company’s financial profile. In this way, the companies become stronger to meet all their debt requirements and show better financial progress in futureCITATION DAM18 \m Aus19 \l 1033 (KNOBLANCHE, 2018; Government, 2019).

Part B

Did Mr Daly breach any directors’ duties? If so, which ones and how?

Yes, Mr Daly breached the director’s duties. He was working in the company, in which several investors were interested to invest their thousands of dollars. He borrowed money from the investors, misleading clients, violating Corporation Act, and misappropriation of funds. According to the Corporation Act, it is the responsibility of the Director of the Company to keep the company protected from all sort of financial risks, and for this purpose the person must ensure that all debts are paid on time and for that he has access to all assets of the company. The same is the case here, Mr Daly had access to all financial dealing and information of the investors of the company. According to Corporation Act, Mr Daly was responsible to take strong and effective decisions in the favor of the company, but he took all decisions in the favor of his personal interests and got indulged in unethical breaching activities, such as misleading the clients and borrowing thousands of dollars from the investors. The Act clearly states that in case of financial issues to the company, the Directors are responsible to find an appropriate way to deal with the challenges faced to pay its debts when fall due. Mr. Daly not only violated the regulation but also used company’s funds in an unethical and misappropriate way. As a result of his this act, the company became unable to pay the debts. In such situation, instead of taking accounting and legal advice timely, Mr. Daly through about his personal benefits and continued breaching the duties. This resulted in financial loss to the company.

Did any of the other directors breach their duties? If so, who, which duty and how?

Yes, Peter Daly’s fellow director also breached the director’s duties. Daly and his fellow directors showed that they were having some financial difficulties at their home and so they used the company’s personal finance to deal with all their financial matters. They used company’s funds in a misappropriate way and used the funds for their personal investments. The Daly and his fellow Directors violated the Corporation Act, as a result of which they brought the company in a risky position, where every investor was worried and asked about will they get their money back or not? It was a challenging situation for the company, where the directors had used company’s funds in an unethical ways. When the investigators asked Daly and his fellow director regarding misappropriate usage of the funds, the Daly revealed that he used the funds to meet all his family financial matters, as he was going through several financial challenges. However, the other director revealed that he had to attend an expensive wedding in few weeks, for that he borrowed company’s funds from the investors, and used company’s money for his personal interests. No matter how did they use the money, the concern is that they breached their duties and used company’s funds in a misappropriate way. Also, they violated Corporation Act by considering their personal interests.

Do you think the company was trading while insolvent? Give reasons.

The company was trading while insolvent because Mr. Daly and his Fellow director has used the investor’s money. Now, the company has to deal with all investor’s expectations, as they brought the money to keep it going. Also, the investors had no idea of what had happened in the company and they were not aware of the tricks played by Daly. Mr. Daly misguided the investors and used some of the funds to keep the company trading going, while invested other invested amount in his unregistered funds. Daly was aware that he is violating the Corporation Law, and so he did not want the investors to discover what is going on in the company. He was also aware that with such trick he can have more investors’ amount and can enjoy better profit on his unregistered funds. Though, Mr. Daly tried to defend him by claiming that his efforts brought the company in a strong position, where it can meet all its financial requirements, but still his great efforts cannot allow him to breach his duties CITATION Jac19 \l 1033 (Nzinga, 2019).

If the company was trading while insolvent – are there any defences available to Mr Daly and/or other directors? If so, what are they? Give reasons.

The trading of the company is dependent on the availability of the funds. In this way Mr Daly and other Directors can be defended. As the company was trading, this simply means that company had enough funds, and some of the amount was taken by Mr. Daly and his fellow Director to meet their financial requirements. They borrowed the money from the client’s investments and thought to pay back after a short time. In this way, they did not actually harmed the company’s financial progress, but violated the Corporation Law. However, when analyzing the situation from other perspective, Mr. Daly got indulged in increasing his unregistered funds, and to think about his personal interest, which is not allowed according to Corporation Act. Also, , business judgment rule s180 is established to restrict the Directors for thinking positive for the Company and to take decision for the sake of Company’s future without considering their personal interests. Thus, the investigation revealed that Daly stored funds to his unregistered company and his fellow director used millions of dollars on weeding, which was not part of company’s activity. Thus, both were found guilty but as the company was trading while it was insolvent so the directors can be defended.

If the company was trading while insolvent – are there any defences available to Mr Daly and/or other directors? If so, what are they? Give reasons.

The trading of the company is dependent on the availability of the funds. In this way Mr Daly and other Directors can be defended. As the company was trading, this simply means that company had enough funds, and some of the amount was taken by Mr. Daly and his fellow Director to meet their financial requirements. They borrowed the money from the client’s investments and thought to pay back after a short time. In this way, they did not actually harmed the company’s financial progress, but violated the Corporation Law. However, when analyzing the situation from other perspective, Mr. Daly got indulged in increasing his unregistered funds, and to think about his personal interest, which is not allowed according to Corporation Act. Also, , business judgment rule s180 is established to restrict the Directors for thinking positive for the Company and to take decision for the sake of Company’s future without considering their personal interests. Thus, the investigation revealed that Daly stored funds to his unregistered company and his fellow director used millions of dollars on weeding, which was not part of company’s activity. Thus, both were found guilty but as the company was trading while it was insolvent so the directors can be defended.

References

BIBLIOGRAPHY \l 1033 Anon, 2019. Commonwealth Numbered Acts. CORPORATIONS ACT.

Bird, M., 2009. Australia: The Director’s Duty To Prevent Insolvent Trading. Mondaq.

Government, A., 2019. Issued by authority of the Assistant Treasurer. Federal Register of Legalization.

Harris, J., 2017. Safe harbour ipso facto 2017. Slide Share.

ICAEW, 2013. Case law: When directors can be personally liable on company insolvency. ICAEW.

KNOBLANCHE, D., 2018. INSOLVENT TRADING: NEW SAFE HARBOUR DEFENCE. The Peak Partnership.

Nzinga, J., 2019. Australian Corporate Law.

RN, 2018. Update: The talented Mr Daly. RN.

Subject: Law and International Law

Pages: 8 Words: 2400

Corporate Law

Director’s duty to prevent insolvent trading

Student’s Name

Institution

Course Code

Date

Introduction

The Corporation Laws have changed in Australia over the last decade. Several amendments have been included for the protection of corporations against insolvent and shareholders from incurring losses. The Corporation Act has imposed positive duties on individuals and therefore, the Act has provided the directors with the responsibility to prevent insolvent of a corporation. Insolvent is a state where a corporation is unable to pay its liabilities and therefore, it cannot operate efficiently. Most companies get to the position of insolvent due to mismanaging or lack of effective strategy to make a niche from the market. According to Pitman (2018, p. 13), the director of a corporation is liable to the action taken by the company, which leads to its current status of the insolvent. And therefore, if a director walks out when an attempt is being made to rescue the company, the director would take personal liability, which might lead to criminal and civil fines. This paper, therefore, analyses whether the duty to prevent insolvent trading a fiduciary duty. It illustrates How does the safe harbor defense s588GA operate, and illustrates who does it (s588GA) protect, and is this different from the business judgment rule s180. The paper also illustrates whether there are any restrictions on the operation of the s588GA defence and establishes why changes to Division 3 will have an effect on the number of voluntary insolvencies in Australia in the future.

Is the duty to prevent insolvent trading a fiduciary duty?

The directors are solely responsible for the management of corporations to profitability. However, under the Corporations Act 2001, the directors are delegated or entrusted with the responsibilities to ensure that a company trade without incurring any debt. Any debt incurred by a company the director become solely responsible for those debts. Therefore, the duty to prevent insolvent trading is a fiduciary duty. According to Pitman (2016), the directors are direct reports to the shareholders and therefore, it means that the shareholder's trust directors with the responsibilities to ensure that a company is managed profitably. Under sections 180-185 of the Act, the directors have the responsibilities to oversee the whole management of a company. Directors are also the sole advisers of the shareholders and therefore, he or she is required to make an appropriate decision on behalf of the company CITATION Jam14 \l 1033 (James, Clayton, & Ramsay, 2014). Those decisions should be based on the interest of the shareholders and the customers to ensure that corporations do not incur losses and even debts which they cannot repay. Under section 180-185 of the Company Act, the directors have duties to act with diligence and care and in good faith. It is also illustrated that directors should not use their positions in the company for their own selfish gain, which can cause detriment to the company CITATION Jam14 \l 1033 (James, Clayton, & Ramsay, 2014). The act gives a lot of responsibilities to the directors which are only given to an individual who is trusted by the shareholders and therefore, the duty of the director to prevent the company from insolvent is the fiduciary duty.

How does the safe harbor defense s588GA operate?

A safe harbor defense is a new act, introduced with clear intention to protect directors of companies from being direct personally liable from insolvent trading. It came into effect to provide a safe harbor for dieters and also allow the company to come up with a workable solution to the problem of the insolvent. The Act came into effect in 2017, to promote more positive business culture in the society and provide directors with opportunities to look into different ways of turning around a company into a fortune. The 588GA Act stipulates that directors are provided with a safe "harbor" from the insolvent trading accusation when a specific company is declared insolvent. The Act, therefore, protects the integrity of the directors and excuse directors of corporations from taking personal liability against the insolvent of a company. Winter (2017) pointed out that the act relies on the decision whether the said directors received specific advice from qualify experts and what actions are taken to prevent the situation. It is, therefore, means that directors cannot be solely be blamed for insolvent trading. Under section 588GA (b), the directors are given the mandate to consult experts in the relevant field in order to help prevent the company from being declared insolvent. However, in order to protect both the corporation and the directors, the Act prevents the appointed person from having a prior discussion with the appointed person before appointed. It is to ensure that the appointed directors are protected from liability. Therefore, the act was enacted to protect directors of corporation trading in insolvent from direct blames on the condition of the company. The safe harbor under section 588GA (2) protects the director against the debts incurred by a company. It also meant to ensure that the directors remain in charge of the management of a company during the insolvent trading until the problem is properly addressed.

Who does it (s588GA) protect, and is this different from the business judgment rule s180 (2)?

The act 588GA is meant to protect the directors from personal liability from a company trading in insolvent. Under section, 588GA directors are protected and therefore, they cannot be a liability for the decision they made in good faith. As stated by Tomasic, Bottomley, & McQueen, (2017), the act was drafted to ensure that directors are not wrongly accused and become culprits when a business fails to gain profit hence become insolvent. However, the judge rule does not make expose directors but it ensures that directors become responsible when conducting their duties as head of corporations. However, under rule s180 (2), directors have a safe harbor in regard to civil liability, which can arise from breaches of their duties of care of diligence as established in s 180 (1) CITATION Tom17 \l 1033 (Tomasic, Bottomley, & McQueen, 2017). The fact that section 588GA protects directors from direct personal liability, it does not mean that directors are excused from personal responsibilities to protect the corporation from insolvent. The fundamental of judgment was to protect the authority of directors when exercising the duties but not insulate them from liabilities. Though directors are expected to show and practice a high level of accountability when exercising their duties, it is not appropriate to hold them liable for the decisions, which directors made in good faith. But in the case of recklessness and intended decision to cause loses are made knowing against the advice of experts then, directors are liable and take personal liability under section 588GA (1).

Restrictions on the operation of the s588GA defense

There several restrictions on the operation of s588GA defense. These restrictions are a safe harbor period. The directors or administrators are expected to provide liquidator with required detailed information, which can lead to the open analysis of the performance of a corporation. The directors are abided by under the law to ensure that information needed for liquidation is made available. The restrictions are drafted to ensure that directors do not keep the books of accounts from inspection in case of liquidation. It is also noted that the restrictions are made to ensure that the information especially financial information, which was not made available are prepared and submitted to the liquidator for inspection. It is, therefore, evident that the restriction was made to ensure that section 588GA operate efficiently and avoid a situation where a director can decline to provide critical information to liquidators. The restrictions also state that the directors would not be able to depend on the safe harbor in a situation where the company is unable to meet its obligations when it comes to financial reporting.

Changes to Division 3 will have an effect on the number of voluntary insolvencies in Australia in the future

Division 3 illustrates that directors have responsibilities to address the insolvent trading. The change made by the treasurer will have an advance effect on the voluntary insolvencies in Australia. The changes under Treasury Laws Amendment (2017 Enterprise Incentives No.2) Bill 201, provide a safe harbor for directors from facing any civil liability for insolvent trading of the company if the said company is restructuring outside the formal insolvency. This, therefore, is likely to affect the voluntary insolvent of companies. It is because the directors are in charge of the company even during the insolvent period and therefore, voluntary insolvent cannot address the problems and help the company realizes better outcome CITATION Sla17 \l 1033 (Michael, 2017). The fact that directors have safe harbor makes them not liable for actions done in good faith and therefore, voluntary insolvent cannot help the company in addressing the problems until it comes out of the insolvent trading.

Did Mr. Daly breach any directors' duties? If so, which ones and how?

Mr. Daly breached the duties of directors has provided under section 588GA. The Company Act requires directors to be honest, diligent and act with care when dealing with the management of the company CITATION Aus19 \l 1033 (AustLII, 2019). Mr. Daly violated ASIC Regulatory Guide 217, which stated that directors have the responsibilities to prevent the company from experiencing difficulty in cash flow. The analysis established that Mr. Daly took cash to settle his divorce without permission and therefore, it is a violation of the responsibilities of directors. The Corporate Act requires that directors should make all decisions regarding the affairs of the company in good faith. But Mr. Daly did not follow the regulation and the decision as stipulated under the law. The company Act 588G requires that the directors should act in honest and provide information when needed. The firm was not telling the regulators the truth about the challenges it was facing regarding the cash flow. The director is required by the law to be honest to regulators, shareholders, and customers but Daly failed to comply with the Company Acts and therefore, he is not protected under the safe harbor.

Did any of the other directors breach their duties?

The director of the Investment fund also breached the directors’ duties. It is stated that the director borrowed client’s money to cover his financial problems. The director borrowed money without the client's consent and therefore, it can be viewed as stealing. It also reported that the director approves a loan for cover for his fellow director's divorce. Some directors also lied to the regulators regarding the investment associated with many companies. The fact that these directors lied violated the corporate activities, which requires directors to act in good faith and practice honesty throughout their terms as directors. The Act also requires directors to be always aware of the financial position of the company CITATION Fed19 \l 1033 (Federal Register of Legislation, 2019). In this case, the law requires directors to act within the law when dealing with the company. It is the responsibilities of the directors to protect the finances of the company. But based on the report, the directors failed to protect the finances of the companies rather misuse their position in the company to enrich themselves.

Do you think the company was trading while insolvent?

It is likely that the company was trading when in insolvent. The investigation established that the company was being monitored by regulators. This could mean that it was being monitored because it was facing insolvent and therefore, it was put on the radar to finding out the outcome of the insolvent. It is also noted that the director borrows cash to cover the cash flow problem. This could mean that the company was having serious financial problem, which the director never wanted the shareholders, board and the regulators to know and therefore, it decided to cover it up. This was a mistake and creates mistrust between the shareholders, and the director. It is required of the directors to be honest and inform the shareholders of any difficulty, which the company might be facing. But the director decided to cover up by borrowing money to ensure that the cash flow is stable, which was merely for a shorter period.

If Company was trading while insolvent – are there any defenses available to Mr. Daly

If the company was operating under insolvent there would be no defense available for Mr. Daly. First, Mr. Daly did not inform the board and the shareholders about the challenges even though he was aware. This already has violated the company Act section 588G, which requires directors to act in good faith and for the interest of the company

New safe harbor' defense assists the directors

The new safe defense protects directors against taking the liability of the decision made in good faith without any biases. Again, the company was not operating insolvent and therefore, if he is not protected by the safe harbor. The safe harbor was derived to protect directors but to prevent them from honestly carrying out their duties. First, the directors of the company including Mr. Daly acted knowingly to misappropriate the finances of the company. This is not protected under section 588GA and therefore, the directors would be personally liable for the losses the company incurred during the period CITATION Jaa17 \l 1033 (Murphy, 2017). Even if the company was operating insolvent Mr. Daly and other directors would have not been able to get protection under section 588GA of the Company Act 2001. The Company Act is very strict when it comes to the violation of trust and based on the analysis the directors of the company violated all the regulations and laws which stipulate how a company should be managed. The safe harbor only protects directors who serve with purpose and diligence and care but out of control, the company went to insolvent. But in the case of Mr. Daly and his fellow directors, the decision made was wrong and clearly shows misuse of a company’s funds. The behavior of the directors was also very inappropriate since Mr. Daly gave one of the directors’ soft loans from the client funds.

In conclusion, the Corporate Act 2001 is an important law, which streamlined the operations of most corporations in Australia. It ensured that directors and any other person involved in the management of an organization become reliable and accountable to avoid causes losses to the shareholders. This has been a key factor for the successful operations of most companies in Australia in the United States.

References

BIBLIOGRAPHY AustLII. (2019). CORPORATIONS ACT 2001 - SECT 588GA. Commonwealth Consolidated Acts, 2-15.

Federal Register of Legislation. (2019). Insolvency Practice Rules (Corporations) Amendment (Restricting Related Creditor Voting Rights) Rules 2018. https://www.legislation.gov.au/Details/F2018L01669/Explanatory%20Statement/Text, 2-34.

James, P., Clayton, U., & Ramsay, I. (2014). INSOLVENT TRADING – AN EMPIRICAL STUDY. Centre for Corporate Law and Securities Regulation, 2-18.

Michael, S. (2017). A safe space for directors: the ‘safe harbor' defense to insolvent trading. 2-15.

Murphy, J. (2017). Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017. Law and Bills Digest Section, 2-15.

Pitman, B. (2016). Director’s duty to prevent insolvent trading. http://mba-lawyers.com.au/articles/directors-duty-prevent-insolvent-trading/, 2-15.

Tomasic, R., Bottomley, S., & McQueen, R. (2017). Corporations Law in Australia. Sydney: Federation Press.

Winter, J. (2017). Providing Safe Harbour Advice - Issues for Insolvency Practitioners to Consider. 2-34.

Subject: Law and International Law

Pages: 8 Words: 2400

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