Category: Law 2955

Since the inception of jury systems in United States, many Americans feel that it is the cornerstone of the nations justice system since it guarantees citizens fair impartial judgment. However the perception has changed with many feeling that it has tarnished in favor of others in delivering verdicts in both criminal and civil cases. It is evident that the jury system has affected the way trials are made in the United States either positively or negatively. Many people hold different opinions on the effectiveness of US jury systems with calls from all directions for reforms or abolishment. The effects of US jury system can be felt by all the stakeholders in the judicial system on the way trials are conducted by the jury which raises eyebrows leading to their calls for reforms or complete elimination.

The US jury system has affected the way trials are conducted in the US through abolishment of harsher sentencing to the criminals. In many cases, the jury has failed to administer punishments to the defendants arguing that they are not guilty due to insufficient evidence gathered by the jury. The jury is shirking their responsibility in making moral judgment making their conducts questionable in the judicial systems. Over the years before the introduction of jury systems, most of the trials related to civil offences used to be tried by judges and the offenders could be charged, this is in contrary to the jury system where many crimes offenders go unpunished and are set free because they are proved innocent by the jury.

With the introduction of jury systems, cases before them have been getting too complex each time they carry out a trial especially with civil suits. Complications of trials are caused by the inability of the jury systems to understand the scientific evidence produced which forces them to seek for experts and professionals in analyzing the evidences before giving their rulings. The complexity of cases arising from inability to analyze evidence by the jury has affected the way trials are conducted in the United States by prolonging the stipulated time (McAlinn, Rosen & Stern, 2010, p.186). Many juries ignore information which they tend not to understand well mostly concerned with the evidence and this has lead to more complications of cases resulting to delay of justice which compromises the judicial systems.

Advantages of American jury system

Fair hearing

American jury system provides more sympathetic hearing on individuals cases who are not part of the state since it involve peers. Trials of people who are not part of the government have been unfair since it is characterized by favourism. American jury system conducts fair trial among its peers which eliminates biasness in making verdict. The large number of people involved in the jury ensures proper consensus is reached in delivering judgment which guarantees fairness and sympathetic hearing. American jury system plays important role in checking against states powers. It checks the state from misusing its powers through sentencing of individuals without fair trials and any other actions which is not permitted by the law. American jury system considers cases emanating from the states office related to abuse of powers and correcting cases where abuse of powers is witnessed (Kobor, 2008, p. 40).

Interjecting societal values and Norms

Interjecting individuals norms and values legitimizes the law by providing opportunity to the offenders and ruling in accordance with the societal values. Jurist represents the public hence they judge in line with the generally accepted values and norms of the society. For instance, it takes into consideration all the factors related to individuals societal values and norms which are incorporated in delivering of justice (McAlinn, Rosen & Stern, 2010). Observation of societal values ensures that judgment passed is in accordance to societal norms which gives individuals fair trial and minimizes biasness on giving verdict. Values and norms in the society are meant to shape the individuals conduct and interaction, interjecting them by the jury is important in administering justice since they are accepted by the society (Kobor 2008, p.48).

Education of Citizens

American Jury system educates the citizens about self governance. Institutions of jury not only improve the law but help the citizens improve their understandings and the application of the law. It educates the citizens and the offenders about the legal process and helps them understand their responsibilities as citizens. American jury system hears the cases emanating from the public which gives them opportunity in educating the citizens on the application of the law and how they can be responsible citizens. The jury system is not quick in delivering verdicts but it takes time in getting statements from all the concerned parties as the jurists tries to inform the citizens about the responsible living and the need to live in accordance with the societal values and norms which governs their conducts.

Minimal Corruption

Corruption in the judicial system has been minimized through the establishment of the jury systems. Chances of corruption are limited due to the large number of jurist who sits on a case and it is difficult to corrupt them one by one to be in your favor compared to a single judge who handles a case (McAlinn, Rosen & Stern, 2010, pp.275-276). Over the past years, cases of corruption have been reported in the judiciary since cases have been handled by single judge making it easy to corrupt them in ones favor. Cases falling under the Americans jury are freely tried without cases of corruption being reported because of the high number of jurist who have to deliberate on a case and pass their verdict without getting corrupted.

Disadvantages of American jury system

Emotions and Circumstance influence

Jurys decisions are likely to be influenced by the emotions and circumstances in cases which seem to be too emotional. For instance, a jury may convict an individual accused of rape case following the jurors personal feelings rather than proceeding with the case. Different people have different feelings about certain issues hence this may influence the jurists decisions depending on the personal feelings. Sympathetic jurors may free the accused if the emotions are too high which will interfere with the justice. American jurist system decisions are affected by different emotions the jurist hold which directly impact the way they deliver their verdicts Segal, Spaeth & Benesh 2005, p.134).

Prejudice

A jury trial is not fair to the defendants if prejudice becomes the issue with local biasness influencing most of the outcomes of the trials. Jurors have been disregarding the facts presented by the judges and defense lawyers and acts in a prejudice manner in deciding the cases which have continuously compromised the judicial system in the delivery of justice to the people. Stereotyping and racial profiling have contributed to failures of justice in many cases. In a panel of jurist from different ethnic and religious backgrounds, cases of prejudice are rampant since they are likely to make rulings in favor of individuals of their ethnic or religious background (Kobor 2008, p.98).

Inexperienced jurors

Most jurors have no training about the law which they apply since the only legal requirement for juror is to understand the fact against the cases being tried. Many jurors encounter problems that are beyond their experience and training in dealing with everyday cases which compromises the delivery of justice. Lack of legal knowledge allows the prosecutors to convince the jurors and believe their assertions. Most jurors lack the capacity to analyze the scientific evidence which makes it difficult to verify the reliability of the evidence presented to them especially jurors in civil trials where financial matters are involved. Lack of qualified personnel in the American jury system is a problem in the delivery of justice since many cases are left due to inefficiency of the jurists.

Majority rule

American jury system does not allow for every member of the jury to give his or her verdict but instead rely on the majority rule which may be misleading. In a standard jury trial, the prosecution must convince all the 12 members serving in the jury on the defendants guilt which is a simple process if the evidences are available. Many jurors are forced to go with the majority rule even if they are not completely convinced about the evidences produced. Jurors who dont want to serve in the trial may do anything to ensure that the trial end by forming the majority rule which results to unjust verdicts (Dickinson, 2003, p.155).

Secretive

Jury system is very secretive in delivering verdicts which prevents their transparency during trials. They do not often give reasons to for their verdicts which bring unfairness in depriving life, property or liberty without informing the convict how the decision was reached and made. Being secretive may not be meant to give it its impartiality and protect it from the public attention and pressure but instead gives room to more questions how the verdicts are reached.

Conclusion

American jury systems have been celebrated over the years since its introduction in the legal system. It has faced different public opinions on its efficiency in handling the civil cases since its introduction with various proponents arguing on the way forward. Since its inception, it has affected the way trials are determined in the United States. More civil cases can now be handled and judgments can be made in accordance to the societal norms and values unlike with the judges who follow the law to the latter. The introduction of jury system have minimized the harsh punishments rendered to the convicts by being lenient in passing judgments which have been echoed by the business class in the united states. Chances of corruptions have been minimized by the jury system following the high number of people involved in determining the case which pose a challenge to unethical practices in comparison to a case being handled by one individual.

Although the American jury system is celebrated by many citizens, it has myriad shortcomings. For instance, most of the rulings by jurists are based on their emotional feelings about the case at hand which has always affected the delivery of justice. The procedure used in selecting the jurist can not select the experienced or jurist with law background and this has pose challenge in determining cases since the jurist lacks proper knowledge on how to apply the law. Prejudice and majority rule has allowed biasness in delivery of justice since there are cases of stereotypes that have been reported. For instance, jurists are in favor of people from their racial and ethnic backgrounds.

Reference list

Dickinson, J. 2003. Administrative Justice and Supremacy of law in the United States. New Jersey: Harvard university press.

Kobor, S. 2008. Bargaining in the Criminal Justice Systems of the United States and Germany Framkfurt: Deutshe National bibliothek.

McAlinn, P.G, Rosen, D. & Stern, P.J. 2010. An Introduction to American Law (2^nd ed.), Durham: Carolina Academic Press.

Segal, J, Spaeth, H & Benesh, S. 2005. The supreme court in the American Legal System. New York: Cambridge University Press.

Introduction

The amount of attention brought to the issue of lead poisoning in the United States cannot be overestimated. The latter specifically concerns children. In that regard, despite the government ban on the use of lead-based paint in 1978, yet, as the 1991 issue of Newsweek stated, lead poisoning is now being called the nations No. 1 environmental threat to children (Waldman, 1991). Only from to 1993 through 1994 more than 800 stories involving lead poisoning were covered in major newspapers with national readership, covering different aspects in such case, varying from environmental threat issues to overburdened Landlords, whose liability were discussed. The latter can be seen among the controversial aspects of lead poisoning, specifically in Massachusetts legislation, which is considered by many as being unique and very burdensome for landlords because it provides that an owner is strictly liable, without negligence or fault, for a childs injuries due to lead exposure (Stephens and Governo Law Firm LLC, 2005). In that regard, this paper analyzes Massachusetts lead paint legislation as well as the issue of lead poisoning in general, in terms of the effects of lead poisoning, landlord duties, liabilities and public policy concerns. The paper argues that despite the fact that landlord liability for lead poisoning may come under attack as being biased in favour of the plaintiff, the liability of landlords should be upheld due to landlords negligence, their ability to prevent injury and from a broad public policy perspective. Therefore, the current law and current trend supports that landlords should be strictly liable for lead paint tort actions on behalf of Massachusetts children.

History/Examination/Purpose of MA Lead Paint Legislation

A landlord who is responsible for lead poisoning of children should be punished severely, as he/she is responsible for the actions performed. In fact, the attacks directed to landlords are upheld in a number of reasons. First of all, landlords disclose the negligence in the relation to lead paint use in the dwelling. Second, there are some examples of children poisoning that show that in most cases there was possible to prevent the injury, but either wrong actions of landlords or their ignoring of the problem sometimes led to unpredictable effects. Third, there is a number of public policies that regulate the responsibilities and obligations of landlords in relation to lead poisoning of children. To consider the mentioned problems and understand the state methods to combat them, the Massachusetts law and regulations are going to be reviewed from the perspective of history, examination, and purpose of Massachusetts lead paint legislation.

The standards for human habitation fitness state that no paint that contains lead shall be used in painting any surface of any dwelling (DEPARTMENT OF PUBLIC HEALTH, n.d., p.1627). If the cases take place and people go to court with the complaint of harmful effect of lead paint on peoples organism, this policy may be the crucial one to prove landlord guilt. Moreover, the ignoring of this document leads to fine and reparation of damages to the victim. Still, the guilt of the landlord should be proved. In this case, people should turn to lead inspector and he is responsible to conduct a research on the demand and either prove or reject the complaint.

There is the policy that regulates the actions of lead poisoning prevention and control. To prove landlord guilt in lead poisoning, a plaintiff should turn to a lead inspector. Still, the lead inspector intrusion may have the different purposes from the compliance process, such as informational ones. Notwithstanding the purposes, the lead inspector should come through the following stages to detect dangerous level of lead, if present:

1. pre-inspection information,
2. identification of surfaces covered with paint,
3. loose paint,
4. moveable impact surfaces and accessible mouthable surfaces,
5. discovery of evidence of unauthorized deleading (Department of Public Health, 2002a, p.1957).

The pre-inspection information stage requires from lead inspector to explain to the landlord their responsibilities and reasons to provide the inspection. In the case of landlord absence, the necessary documents should be sent him/her. On the identification of surfaces covered with paint stage a lead inspector should clearly identify the location of the poisoning surface for testing the gathered material in accordance with internal regulations. The next stage is the loose paint that requires from the lead inspector to take the examples of the paint surface. In the case of inability for the inspector to reach the surface, it is the direct responsibility of the landlord to provide the free access to it. The other stage of the inspection is identifying the movable impact surfaces and their testing as well. There are cases when lead inspectors have right to refuse from the inspections, the unauthorized deleading. If the situation occurs, the lead inspector should create a report where to record signs of unauthorized deleading (Department of Public Health, 2002a, p.1957).

A landlord is responsible for the property he owns and has either to remove the source of the harmful effect or reduce the level of its impact. In accordance with the Chapter 111: Section 127B½. Petition for agreement to remove underground fuel storage tank, media contaminated by home heating oil or lead paint, or to provide proper service by a septic system; costs; authority to evict (Commonwealth of Massachusetts, 2009), a landlord has the right for the detection of dangerous lead paint levels and the repair, replacement or upgrade of a septic system the owner of a structure used for human habitation may petition the board of health in a city or town to make findings consistent with its authority (Commonwealth of Massachusetts, 2009). In other words, there are cases when a landlord may petition to the board of health in a city or town for the improvement of bad influence and for the financing of the repair, replacement or upgrade of a septic system the owner (Commonwealth of Massachusetts, 2009).

The strict pursuit of lead substances in the dwelling is explained in the law policies. First of all, the lead harmfully affects the nervous, reproductive and musculoskeletal systems and kidneys. Moreover, the high level of lead in the building pain influences dose-response relationships and differential effects on adults and children (Commonwealth of Massachusetts). The current deleading regulation (2010) is the main document that explains the reasons of lead harmful effects, the process of examination of the substance and the procedure of the lead deleading. Moreover, the regulations point to the behaviour of different specialists while work performance, for example, the protection of the workers and medical monitoring requirements are stated with the reference to the fact that they do not take a direct part in the lead deleading process, the renovation works are described in detailed as well as the certification procedures of the specialists of different levels and training programs. In fact, it may be concluded that the current deleading regulations (2010) state the main principles of the deleading procedures, identifies the restrictions and rules of lead poisoning effect identification and elimination.

There is one more important document in Massachusetts law that regulates the lead paint removal from the place of its direct danger and influences peoples life, the 760 CMR 14.00: lead paint abatement loan program. The main purpose of the program is to assist residential property owners in financing the abatement and containment of lead paint hazards (DHCD, 1993, p.1). The document regulates the relations of the LPALP and people who want to take loans. The program is rather effective abs lead poisoning influence is one of the most dangerous problems in the world. The lead effect is impossible to notice at once, still, the further consequences may greatly affect peoples health.

Thus, it may be concluded that the Massachusetts law and regulations follow the process of lead poisoning impact on peoples organisms and try either to reduce the level of the effect or absolutely remove. The Massachusetts law has the instruments of influence on dishonest landlords who do not want to follow the law. The reasons of attacks against lead poisoning dwelling of landlords are explained by serious nervous and health problems that impact people. In addition, the health legislation and administrative one are busy with the problems connected with lead poisoning and the possibility to combat the problem effectively.

Duties of Landlords

As most of the laws relating to lead based paint are shaped by litigation, it can be stated that in the case of landlords duties and obligations, the latter is specifically true. Chapter 111, sec.199 of the General Law of Massachusetts states that the owner of any premise for all damages to a child under six years of age at the time of poisoning& caused by his failure to comply with the provisions and requirements, [which include] apply[ing] or caus[ing] to be applied any lead-based paint& contain and control paint, plaster or other accessible structural materials containing dangerous levels of lead (Commonwealth of Massachusetts, 2010d, Commonwealth of Massachusetts, 2010b, Commonwealth of Massachusetts, 2010c, Commonwealth of Massachusetts, 2010a). Although the obligations mentioned in the sec. 199 of chapter 111 of the General Massachusetts law does not contain a provision whether a proof of negligence or noncompliance is required, the case of Rafael Bencosme vs. Nicholas Kokoras (1987) established that the owner of residential property is liable under the aforementioned provision without proof of negligence. It was stated in the case that neither negligence nor knowledge of the risk is an element of liability under the first paragraph of Section 199 (Commonwealth of Massachusetts, 1987).

The liability of the landlord is not only enforced under the lead laws, where such liability extends under the provisions of wrongful acts of landlord, namely quiet enjoyment violation. A landmark case in Massachusetts case law can be considered Husam H. Al-Ziab vs. George A. Mourgis (1997), where the court concluded that violation of the lead paint statute constitute a violation of the statutory covenant of quiet enjoyment. The difference in the aforementioned can be seen in the obligation of showing of at least negligent conduct by the landlord (Commonwealth of Massachusetts, 1997). Accordingly, the obligations of the landlord can extend to not to interfere with the quiet enjoyment of any residential premises by the occupant (Commonwealth of Massachusetts, 2010e), where the interference with quiet enjoyment in the context of lead paint can be interpreted as the consequences of the failure of the landlord to act reasonably in the circumstances concerning a problem known to the landlord (Commonwealth of Massachusetts, 1997). In that regard, it can be seen that the duties of the landlord enacted through strict liability can be rationalised through the emphasis on prevention, rather than punishment. It should be stated that Massachusetts is among a few states which provides guidelines for controlling lead hazards (Osborn, 1999). The regulations of connected to the compliance of landlords are explicitly stated in Chapter 111, section 197, in which the law included the minimum regulations for inspectors, in order to certify compliance with the emergency lead management plan. The latter might serve as an indication that the law being burdensome is fact, a protection for landlords against litigation.

Lead Poisoning in Children

Outlining the duties and the cases of lead poisoning, it should be mentioned that the basis is the seriousness of the health hazard, caused by lead to children. In fact, the punitive damages sought in various cases, only reflect a portion of the medical expenses the children and accordingly their parents are going to bear. Lead poisoning is measured through the presence of lead in the blood, which is expressed as micrograms (1/1,000,00 of a gram) per deciliter (1/10 of a liter or about 3 oz.) or µg/dl (Stephens and Governo Law Firm LLC, 2005). The level of concern, as established by the Centre for Disease Control, is 10 µg/dl, where the experts believe that such level can cause hyperactivity, loss of IQ points, and can interfere with learning of language (Stephens and Governo Law Firm LLC, 2005). Nevertheless, Massachusetts established a higher threshold for lead poisoning, in which disease [is] present in a child when the child has a concentration of lead in whole venous blood of 25 micrograms per deciliter or greater (460.020) (DEPARTMENT OF PUBLIC HEALTH, 2002b).

The short term effect of lead poisoning in children can be seen through a set of symptoms, which are associated with high lead levels. Generally, the symptoms and the signs of lead poisoning might be subtle and nonspecific, where the classical features include irritability, loss of appetite, weight loss, sluggishness, behaviour and learning difficulties, abdominal pain, vomiting, constipation, anaemia and renal failure (Pearce, 2007, p.119). Prolonged lead exposure might be seen in such symptoms as ataxia, forceful vomiting, lethargy, or stupor, and can progress to coma and seizures (Erickson, 2005, p.463).

The exposures to low doses of lead can also lead to serious consequences, which might be revealed in the long term. The latter is specifically associated to the neuropsychological and academic performance of children. In Needleman, Schell, Bellinger, Leviton, and Allred (1990), the results of a follow-up study of children with low-lead exposure found that young people with dentin lead levels higher than 20 ppm had a higher risk of dropping out of high school and a reading disability, as compared to with dentin levels lower than 10 ppm (p.83). Additionally, high lead levels in childhood were significantly associated with such long-term effects as lower class standing in high school, increased absenteeism, lower vocabulary and grammatical-reasoning scores, poorer hand-eye coordination, longer reaction timers and slower finger tapping (Needleman et al., 1990, p.83). Additionally, an inverse correlation was found between blood lead levels and IQ scores, where an increase in concurrent blood lead levels from 2.4 to 30 ¼g/dL led to 6.9 IQ point decrement for children, followed from birth until 510 years of age (Lanphear et al., 2005, p.894)

Tort Actions

It can be stated that the developments of lead laws and regulations in Massachusetts as well as in other states were largely driven by litigations and lawsuits. The law has undergone numerous changes during the last thirty years, and as regulations have not been forthcoming, much of the impetus to address these issues has come from lawsuits (Osborn, 1999, p.1). In addition to the previously mentioned, Rafael Bencosme vs. Nicholas Kokoras (1987) and Husam H. Al-Ziab vs. George A. Mourgis (1997), there are other cases, in which parents/guardians filed for tort actions on behalf of minors for injury resulting from lead paint.

Prior to mentioning examples, it should be stated that lawsuits involving lead manufacturers as one of the parties are generally unsuccessful, where the reasons behind the absence of a successful lead paint suit can be seen in the view that landlords are the proper target for lead paint injuries because lead paint only causes problems when landlords fail to adequately maintain the property (Rudlin and American Bar Association. Mass Torts Litigation Committee., 2007, p.342). In Jeanette Leblanc vs. the Sherwin Williams Company (1990), the laws suit was initially against the landlord Joseph Marderosian, who amended the complaint to add, as defendants, lead manufacturers (Commonwealth of Massachusetts, 1990). The claims against manufacturers were dismissed. The cases in which the claims against the manufacturers, unlike landlords were dismissed are numerous, and in that regard, cases such as Coren v. Cardoza v. Sherwin-Williams Co., Pacheco v. Ortiz v. Sherwin-Williams Co., and Barros v. Pires v. Sherwin-Williams Co., demonstrate that the landlords are acting as third parties, bringing manufacturers as defendants are merely reducing their responsibility in preventing lead poisoning. Tort actions on lead poisoning specifically outline the role of landlords due to their ability to control lead-based hazards in their respective properties.

Public Policy Concerns

The public policies, enacted on the issue of lead paints, established laws that show concern for both parties, in the landlord-tenants relationships. In that regard, the updated provisions of Massachusetts Lead Paint Law ensure that the strict liability of landlords will not be exploited. The obligation to provide written information about the lead status of the home or apartment they occupy or are about to rent is not only a guarantee for the tenants, but also a protection for the landlords themselves against potential lawsuits. In such way, it can be stated that the preventive measures are also a major focus of public policy, where the obligation to provide any existing lead status documentation to tenants will eliminate any disputes on whether the landlord knew or should have reasonably known about any lead hazards contained in the property he/she owns.

Civil suits on children exposed to lead hazard, considering the potential severe medical consequences, are one of the areas of concern for public policies. In that regard, the key aspect for filing for damages is in acknowledged violation, where the amount liable by the landlord to the lessee equal to 3 times the amount of damages incurred by such individual, under the federal law (US Congress, 1992). The acknowledgement factor can be seen in the refusal of the landlord to take an action after being ordered to do so. Analyzing the balance between the medical costs, the actual costs, and the punitive damages which are three times equal the actual damages, it can be stated that the cost of medical treatment is considerably small, comparing to the future problems that the child might face, including the risk for learning disability. Accordingly, part of the costs can be seen associated with the purpose of making the violation of the law costly for the landlord, as compared to undertake efficient and reasonable measures precautions, e.g. abatement.

A major achievement for the management of children deal poisoning in Massachusetts was the Childhood Lead Poisoning Prevention Program (CLPPP). The purpose of the program was formulated in three terms, which are prevention, diagnosis and treatment. The range of services included within the scope of the program include educational case management services, which can be seen through providing consultation regarding treatment and follow-up and referring identified children for assessment and education(Massachusetts Department of Public Health, 2004, p.4). Additionally the program provides environmental services, which can be represented through lead paint inspections, tenant and owner education, and enforcement of the MA Lead Law (Massachusetts Department of Public Health, 2004, p.4). Accordingly, it should be stated that regulatory development is largely driven by the efforts of the CLPPP, where one of nations strongest and most comprehensive state laws addressing lead poisoning, the provisions of which were addressed in this paper can be considered among the accomplishment so the program, where sections 189A-199B of Chapter 111 of Massachusetts general law are derived from the Massachusetts CLPPP Act of 1971 (Massachusetts Department of Public Health, 2004, p.3). The current efforts of the program are related to designing, promulgating and administering Commonwealths Regulations for Lead Poisoning Prevention and Control. These regulations address the blood screening, lead inspections, authorizations of performing lead abatement, liability, and others.

Conclusion

It can be concluded that the claims of landlord liability being biased are largely ungrounded. In that regard, it can be seen that such liability has a major preventive aspect, which in the context of the children as plaintiffs is specifically significant. The role of the state of Massachusetts in such a sense cannot be overestimated. Not only Massachusetts was among the first states to adopt a lead prevention law, they were also leading in continuous developments of new lead legislation. The provision of strict standards and guidelines for landowners to control lead hazard eliminate the possibility for exploitation and give the chance for landowners to protect themselves. Thus, it can be stated that the current law and current trends of keeping landlords strictly liable should be upheld.

References

Commonwealth of Massachusetts. Division of Occupational Safety: Deleading [Online]. Commonwealth of Massachusetts.Web.

COMMONWEALTH OF MASSACHUSETTS. 1987. RAFAEL BENCOSME & others vs. NICHOLAS KOKORAS & another [Online]. Massachusetts Cases. Web.

COMMONWEALTH OF MASSACHUSETTS. 1990. JEANETTE LEBLANC vs. THE SHERWIN WILLIAMS COMPANY [Online]. Web.

COMMONWEALTH OF MASSACHUSETTS. 1997. HUSAM H. AL-ZIAB & another vs. GEORGE A. MOURGIS & another [Online]. Web.

COMMONWEALTH OF MASSACHUSETTS. 2009. Section 127B½. Petition for agreement to remove underground fuel storage tank, media contaminated by home heating oil or lead paint, or to provide proper service by a septic system; costs; authority to evict [Online]. Commonwealth of Massachusetts. Web.

COMMONWEALTH OF MASSACHUSETTS. 2010a. Chapter 111: Section 194. Detection of sources of lead poisoning; inspection; search warrant; notice; examination of children; reports; records [Online]. Web.

COMMONWEALTH OF MASSACHUSETTS. 2010b. Chapter 111: Section 196. Prohibited acts; punishment; embargo of personal property [Online]. Web.

COMMONWEALTH OF MASSACHUSETTS. 2010c. Chapter 111: Section 197. Duty of residential premises owners; interim control measures; removal or cover of offending paint, soil, or material [Online]. Web.

COMMONWEALTH OF MASSACHUSETTS. 2010d. Chapter 111: Section 199. Liability of owner of premises; punitive damages [Online]. Web.

COMMONWEALTH OF MASSACHUSETTS. 2010e. Chapter 186: Section 14. Wrongful acts of landlord; premises used for dwelling or residential purposes; utilities, services, quiet enjoyment; penalties; remedies; waiver [Online]. Web.

DEPARTMENT OF PUBLIC HEALTH. 2002a. Lead Poisoning Prevention and Control [Online]. Commonwealth of Massachusetts. Web.

DEPARTMENT OF PUBLIC HEALTH. 2002b. LEAD POISONING PREVENTION AND CONTROL [Online]. COMMONWEALTH OF MASSACHUSETTS. Web.

DEPARTMENT OF PUBLIC HEALTH. 2007. State Sanitary Code: Minimum Standards of Fitness for Human Habitation [Online]. Commonwealth of Massachusetts. Web.

DHCD. 1993. LEAD PAINT ABATEMENT LOAN PROGRAM [Online]. Department of Housing and Community Development. Web.

ERICKSON, T. B. 2005. Pediatric toxicology : diagnosis and management of the poisoned child, New York, McGraw-Hill, Medical Pub. Division.

LANPHEAR, B. P., et al. 2005. Low-Level Environmental Lead Exposure and Childrens Intellectual Function: An International Pooled Analysis. Environmental Health Perspectives, 113, 894-899.

MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH. 2004. Massachusetts Strategic Plan To End Lead Poisoning By 2010 [Online]. Center for Disease Control and Prevention. Web.

NEEDLEMAN, H. L., et al. 1990. The Long-term effects of exposure to low doses of lead in childhood: An 11-year follow-up report. The New England Journal of Medicine, 322, 83-88.

OSBORN, J. E. 1999. Lead Liability Trends: Practical Steps To Avoid Liability For Lead-Based Paint Exposure [Online]. Web.

PEARCE, J. M. S. 2007. Burtons Line in Lead Poisoning. European Neurology [Online], 57. Web.

RUDLIN, D. A. & AMERICAN BAR ASSOCIATION. MASS TORTS LITIGATION COMMITTEE. 2007. Toxic tort litigation, Chicago, American Bar Association, Section of Environment, Energy, and Resources.

STEPHENS, C. J. & GOVERNO LAW FIRM LLC. 2005. Legal Developments in Lead Poisoning Claims for Landlords: Lead Poisoning Myths  True or False? [Online]. Governo Law Firm LLC. Web.

US CONGRESS. Residential Lead-Based Paint Hazard Reduction Act of 1992 [Online]. Web.

WALDMAN, S. 1991. Lead And Your Kids. Newsweek. Newsweek, Inc.

Introduction

Most learning teams are made up of different people with different goals, objectives and even missions in life. In most cases when different people who do not share the same goals, dreams, objectives, missions and ambitions come together disagreements always arise. These disputes must be resolved so as to bring harmony and understanding between these people. In this document different alternative dispute resolution clauses and tools are discussed. The paper also discusses how to use these clauses and tools and how they help in solving different disputes.

Description

To help solve disputes between people, the members of the learning team usually refer to a document called a team charter. This document is developed to help in administering the team effectively. It contains alternative dispute resolution clauses and tools that can be applied by the team in case of any disagreement. The clauses include mediation, arbitration, negotiation and conciliation depending on the environment in which the problem has occurred (Atlas, Huber & Trachte-Huber, 2000). In an environment where a learning team is involved the most effective clause is mediation. When the mediation method does not solve the issue at hand, the arbitration method is usually employed. Mediation is where a mediator is used. The mediator acts as a go-between between the two disputing parties. He listens to the views and opinions of each individual group separately. He then analyzes their views and brings them together with the aim of having them come to an agreement. The mediator then allows the two parties to listen to each others side of the problem by letting each team air their views. His or her presence enables the teams to do so calmly without causing commotions or even making the dispute worse (Dauer, 2004).

Conflicts that are common in learning systems arise as a result of people not participating in group work. Conflicts also arise when members do not hand in their assignments in time or even when members are constantly not available for meetings. The mediator normally is a person that is elected by both parties involved and is expected not to take side with any team, thus he or she is supposed to be neutral. He then organizes a meeting in which both groups showcase their opinions about the problem at hand in his or her presence. He then examines their opinions and gets all the available information then finally comes up with a possible solution.

During dispute resolutions different tools are usually used. The tools and the clauses help in gathering information that is necessary for solving the problem at hand. In mediation case evaluation can be used. Here, the groups hand their views and opinions to the mediator. The mediator then tells them the strong and weak points of their points of view and then lets them come up with a solution. Another method is an unbiased evaluation of the problem. This happens immediately after the problem has been presented to the mediator. The mediator helps the teams to examine the case and eventually to come to an agreement (Cheeseman, 2010).

Conclusion

To be able to solve a dispute completely, it is always good for both groups to provide concrete information that will enable the negotiation process to be a success. They can tell the cause of the dispute, the major point or fact they want clarified and the goal they would like to achieve. This helps in peaceful and successful resolution of the conflict.

Reference List

Atlas, N., Huber, S., & Trachte-Huber, W. (2000). Alternative dispute resolution: the litigators handbook. Chicago: American Bar Association.

Cheeseman, H. R. (2010). Business law: Legal environment, online commerce, business ethics, and international issues (7th ed.). Upper Saddle River, NJ: Pearson Prentice Hall.

Dauer, E. (2004). Alternative dispute resolution: law and practice. New York: Juris Publishing, Inc.

Aims of the research

The research is about juvenile offenders laws in North Carolina state and it discusses the legal differences between juvenile offenders and juvenile delinquents. It also includes status offenses and the age at which the juvenile becomes eligible for processing in adult courts. A court disposition a juvenile on the basis of his/her interests and at the same time, it ensures the community is being protected. Such a release usually imposes some restrictions on the victim and in this case, its the responsibility of the parent to see the juvenile has followed the restrictions. (Maxwell, 2006)

Difference between a juvenile delinquent and a juvenile offender

In North Carolina, the law states that a juvenile delinquent is an individual aged 7-16 years who engage in an act that would be considered criminal if the same was committed by an adult. The law, therefore, finds it necessary for a juvenile delinquent to be supervised, treated on confined in a family court by a hearing. On the other hand, a juvenile offender is an individual aged 13-15 years who commit a more serious act mostly using violence and is eligible for prosecutions similar to adults. Most of the cases of juvenile offenders are handled by a supreme court but in some special cases, they can be handled by a family court. In general, offenders are subjected to severer penalties compared to juvenile delinquents. Although in North Carolina the age at which a juvenile can be prosecuted as an adult is eighteen, the victim can be tried at a lower age if the offenses are more serious. Such serious offenses include homicide as well as sexual assault. (Maxwell, 2006)

Juvenile offender laws

If a juvenile is found to be eligible for prosecution in a juvenile court, the main objective of the court is to rehabilitate the victim but not to punish the victim for the acts that he/she committed. The court, therefore, defines the action as a delinquent act but not as a criminal offense. The law provides wide discretion to the court to give a sentence to the victim according to his/her needs and therefore it recommends large juvenile prisons as well as treatment facilities. However, some juvenile offenders commit very dangerous acts and therefore deserve incarceration as the only appropriate measure despite their age. (Maxwell, 2006)

Status offense

In North Carolina, a status offender is defined as a juvenile who commits an act that would not be termed a crime if an adult commits the same. For example, youth aged 16-17 years would be charged if he/she is found possessing alcohol or tobacco and this would constitute a status offense. Other offenses that would constitute a status offender are a runaway youth and those that violate curfew as well as cases of truancy. Regarding custodial interrogation; any juvenile deserves the right to be advised before he/she is questioned. He/she should be informed of the juveniles right to remain silent as well as have a parent or a custodian present when being questioned. (Maxwell, 2006)

References

Maxwell C. (2006): child abuse, neglect, and violent criminal behavior: Blackwell Synergy pp29-38

There are over 2 million incarcerated people in prisons of the United States, and approximately half of them work. Many prisons have job-training programs, which allow putting the incarcerated people to labor. This system has existed in the United States since the end of the 19th century. Today, there are over 100 prison factories, producing a great variety of goods for big companies. The situation is controversial and can be treated variously from different points of view. On one hand, the training and work help prepare people for life after they are at liberty. On the other hand, the situation seems awkward when realizing that imprisoned Americans work for smallish sums, while other people are getting rich due to this business.

This industry of prison factories is not completely understood, as official statistics of employment do not count the incarcerated people. There is one main example of such a corporation, Federal Prison Industries, also known as UNICOR. The government of the United States owns and operates it, and it is a clear illustration of the way prisoners can work and produce many products, which are used for marketing purposes. A large number of goods are manufactured at prisons: clothing, furniture, mattresses, food packages, lingerie, car parts, and food. Many big companies use the labor of prison workers, for example, Victorias Secret, Walmart, and Whole Foods. Many people would be surprised to know that even IKEA employed them once, at the end of the 20th century. In addition, different government agencies buy all the range of products, which are produced in prisons. For example, license plates are being sold in Nebraska, park equipment and business cards are being produced in Oregon. Moreover, today prisoners make masks and hand sanitizers to help the world cope with COVID-19.

An important argumentative point is that most of the workers at such prison factories are doing their job without labor protection and practically no rights. Moreover, they receive little money for their functions, and sometimes, they are not paid at all. According to the research held in 2017, on average, incarcerated people earn between 86 cents and $3.45 per day for the most common prison jobs (Sawyer & Wagner, para. 12). Less than one percent of workers are officially employed by private companies through the federal Prison Industry Enhancement Certification Program (PIECP), which obliges them to pay them at least the minimum wage. In some states of the US, workers do not receive any payment. This way of treating prison labor allows the government to hide the true cost of supporting jails. Experts suggest that detention facilities would be unaffordable without the system of incarcerated labor, thus, their existence would be hardly possible.

Economists argue about the impact of prison labor on the economy. Private companies often make a stand against UNICOR, asserting that a cheap working force interferes with their right to compete. They affirm that state and local governments are saving much money by engaging the incarcerated people in work, because, otherwise, they would have to pay at least minimum salaries to employees doing the same job.

In conclusion, the prison system in the United States is complex, and it is one of the industries with the fastest growth. This billion-dollar facility has its catalogs, trade exhibitions, and websites. Though, the actual workers receive little payment, if any at all. The labor of incarcerated people is cheap, and it makes serious competition to small private companies. The biggest problem in the system is the lack of justice for the prison workers, as even being jailed, they remain people with certain rights, but the law does not protect them in this situation.

Reference

Sawyer, W & Wagner, P. (2020). Mass incarceration: The whole pie 2020. Prison Policy Initiative. Web.

Facts of the Case

Gary Small, the petitioner in this case, had been imprisoned in Japan for three years for illegally importing firearms into that country and violating Japans weapons-control and customs laws and regulations. After serving the three-year sentence in Japan, the petitioner returned to the United States in 1998 where he bought a 9-millimeter SWD Cobray pistol. The pistol was discovered by the federal law enforcement authorities during a search of his house, business office and motor vehicle. Gary Small was arrested and charged of violating statute 18 U.S.C. §922(g)(1), which prohibits any person& convicted in any court & of a crime punishable by imprisonment for a term exceeding one year to possess any firearm, (Wrightsman, 2006, p.20). Small had a right to challenge the conviction based on the argument that the statute does not apply to foreign convictions. This argument was initially rejected by both the Federal District Court and the Third Circuit.

Issues of the Case

One important issue arose from the conviction of Small. The issue is whether the phrase convicted in any court refers only to domestic convictions or it includes foreign convictions as well (Wrightsman, 2006).

Arguments Made

The first argument that was made by the United States court of appeals for the third circuit was based on the assumption that legislations are normally made by the Congress with domestic concerns in mind. Therefore, the court argued that such legislatures apply only to domestic convictions unless where foreign issues are clearly stated. In making this argument, a reference was made to Foley Bros., Inc. v. Filardo, where the court argued that although the terms any person or persons can refer to any human being on the planet, they can only apply to cases involving persons within the states jurisdiction (Lauterpacht, p.132). The second argument made was that the phrase explains only one essential part of the gun possession act, which is banned by the domestic laws. Convictions made domestically differ significantly from convictions made abroad.

The court argued that some convictions for crimes punished by foreign laws for imprisonment of more than one year may involve actions that are permitted or even encouraged within the United States, for instance, economic crimes. Most important, some crimes committed may be punished severely by foreign countries but the same crimes committed in the US may only receive a lenient punishment. The inconsistency of foreign laws with the American standards of fairness and human rights makes the statute inapplicable to foreign convictions. The court argued that many people who are convicted abroad for a sentence of more than one year are individuals who commit serious crimes. Therefore if the statute was to include foreign convictions, the seriousness of crimes committed in the US would increase.

The third argument made by the court involved the language used in the statute. The court argued that the language used does not suggest any intent of foreign convictions. This is so especially because of the inclusion of the words Federal or State in the statute which imply that the law is applicable only to persons convicted within the United States jurisdiction (Vizzard, 2000).

Holding

The court argued that it had no cause to believe that the Congress took into consideration the additional enforcement benefits that could arise from including foreign convictions in the statute. It was therefore held that the phrase convicted in any court is only applicable to domestic convictions and does not include any convictions made abroad (Wrightsman, 2006, p.21). Based on this holding, the initial judgment of the Third Circuit was revered.

Dissent

The opinion of the Third Circuit was dissented by Justices Thomas, Scalia and Kennedy. Their dissent was made based on a number of arguments. The Justices argued that the word any in unambiguous and includes all courts that have jurisdictions to try and convict persons for an imprisonment sentence of more than one year. They argued that because the Japanese court of crimes had the power to try and convict Small to a one-year sentence in prison, the petitioner was prohibited by the statute from owning a gun within the United States (Vizzard, 2000, p.215). Secondly, the dissenting Justices argued that the Third Circuit erred in assuming that the Congress did not have foreign convictions in mind when making the statute. They argued that no judgment should be made based only on assumptions rather than on facts.

The Court also erred in comparing convictions of crimes made abroad with those made in the United States. Justice Thomas and his colleagues argued that the Court was discriminatory in comparing only those serious cases convicted abroad with cases convicted at home yet there are so many crimes committed abroad whose sentencing is similar to those made at home and which do not violate American standards of fairness and human rights. The Justices therefore dissented on the grounds of the inability on the part of the Third Court to explain its departure of the statutes meaning from its natural meaning (Wrightsman, 2006).

Reference List

Lauterpacht, E. (1963). International law reports. Cambridge: Cambridge University Press.

Vizzard, W.J. (2000). Shots in the dark: the policy, politics, and symbolism of gun control. Boston, MA: Rowman & Littlefield.

Wrightsman, L.S. (2006). The psychology of the Supreme Court. Oxford: Oxford University Press.

Introduction

In the past Michigan like any other American state has always given its prisoners time credits, which primarily depend on prisoners behavior during jail terms. It gave the majority of these time credits on a continuous basis, whereby the number of credits increased progressively as one spent more time in prison. However, this practice never lasted for long because of many changes that the judicial system has undergone. For example in 1978, Michigan adopted ballot proposal B, which sought to remove giving credits on minimum sentence. In 1982, due to the negative impacts of the proposal, the state re-introduced the credit awarding system, which primarily helped to reduce the number of years prisoners spent behind bars. However, this too never lasted for long due to the adoption of the truth in sentencing law in the early 1990s. (Brown p.2

The Truth in Sentencing Law

The federal government introduced the truth in sentencing law in the early 1990s, whereby it advocated for all prisoners with serious offenses to spend 85% of their jail term behind bars. In 1998, Michigan introduced in its corrective centers another version of the truth in sentencing law, which was a little bit different from the original version. The law recommended that all prisoners are to serve their whole jail term behind bars, whereby it abolished all credits on well-behaved prisoners. Such credits were important because they helped in reducing the amounts of jail terms individuals spent behind bars, hence reducing over-crowdedness in prisons.

Impact of the various credit schemes on individuals

Minimum number of years prisoners should serve under various credit schemes

Truth-in-.

In addition, the law directed that all offenders serving minimum jail terms should complete them before parole boards consider their paroles. In addition, corrective centers should not include disciplinary time directly to normal minimum jail sentence offenders, but rather the state-directed that parole boards should take into consideration all time spent behind bars by specific prisoners (Department of corrections Para. 1-2).

The second section of the Michigan Truth in sentencing law directed that all offenders should spend their jail terms in corrective centers with enough security. This has led to the elimination of the previously used prisoner transitional system, whereby the states allowed offenders whose parole dates were near to join communal activities as they complete their jail terms. Primarily this has contributed to the reduction of numbers of individuals who are joining community residential programs (CPR), which was the main transition methodology for prisoners back to the community.

The state passed this law in order to eliminate looming corruption, which had affected the correct functioning of correction systems in Michigan. To ensure the law worked effectively, Michigans judicial system enacted guidelines to which law-enforcers were to use in ensuring their practices followed correct criminology ethics when handling criminal offenses (Burdick Para. 4-6).

Impacts of the Law on Prisons

Due to the new law, there has been continuous growth of prisoner numbers both with minimum and maximum jail terms. For example between 1997 and 2007, the prison population increased from 45,219 to 65,040, and since then the figures have increased making the state use more resources on correction centers than it uses on all its higher learning institutions (National criminal reference services Para. 1-7). Controlling such increasing populations has been the main challenge for prison authorities. The majority of offenders serving long terms are major security threats in prisons in that

they know their jail term cannot be reduced nor be cut short by any credits, hence the need to amend the law. On the other hand, many prisons face expansion challenges due to escalating expenditures on prisoner needs, hence the deteriorating prison standards. Research shows that Michigans prison expenses almost amount to $ 1.9 billion, which makes it the most expensive of all corrective centers in the U.S. (Topix para.1)

Impacts on state budget

Due to the removal of credits awarded to prisoners, there has been an influx in the number of prisoners in prisons, hence the need for continuous state spending to meet their needs. Research conducted by the U.S. justice system in 1997 found that almost 1.7 million offenders were in prison, whereby Michigan only accounted for almost 45, 426 prisoners. This has made the state expand its prisons to accommodate the ever-increasing numbers of prisoners. For example, research shows that Michigan has set up more than eleven new correction centers in the recent past, which almost accounts for $ 1.3 billion of its annual budget. Corrective centers use the majority of these funds to increase bed space and other basic essentials for prisoners.

Conclusion

In conclusion, the abolishment of the credit system has had minimal effect on security in the majority of Michigans corrective centers. For the state to ensure its prisons are safe, then the state must consider many factors, in order to avert criminal activities in prisons. The state should convert the Majority of revenue spent on prisoners to assist Michigan citizens who are currently facing high unemployment and poverty problems. In this regard, the U.S. government should do a critical analysis of Michigans judicial system to make sure the state overhauls it, hence adopting a system that serves its communities wider needs. The state should give prisoners with good behavior incentives, and if possible, the states should adopt better incarceration methods for their prisoners (Petition spot Para. 1-3)

Works Cited

Brown, Robert. Re-assessing « truth in sentencing: the impact of eliminating disciplinary credits and community residential programs, 2008. Web.

Burdick, Larry. Prosecuting attorneys for Isabella country. The Morning sun, Web.

Department of corrections. How do I learn about truth in sentencing? Department of corrections Michigan, 2009. Web.

National criminal justice reference services. Corrections. Public sector consultants. 2008. Web.

Petition spot. Enact Michigan house bills 5129, 5130, 5131. Petition spot. 2006. Web.

Topix. Truth in sentencing in Michigan prisons. Topix. 2009. Web.

The issue of jurisdictional double taxation and other fiscal questions of the same technical nature led to the formation of the Organization for Economic Co-operation and Development (OECD). OECD was formerly known as the Organization for European Economic Cooperation (OEEC). Double taxation presented obstacles to international trade relations and foreign investments. Double taxation posed a degree of uncertainty both on the part of persons (both individuals and body corporates) and the government in which a business enterprise, engaging in cross-border activities, operates. Unilateral measures for the avoidance of double taxation proved incapable and inconsistent, hence the formation of the convention (Saunders, 2001). The OECD model is not a tax treaty; it merely provides a basis for negotiations of treaties between states. For example, the United Nations treaty, the US and Netherlands models used the OECD model as a basis. The OECD model is not limited to OECD members; non-OECD countries can also use the model in negotiations. The OECD convention applied to persons who were residents of one or both states on the issues of treatment of body corporates, partnerships, individuals and other non-corporate organizations.

For the OECD convention, definitions of terms such as person, company were necessary. Article 3 of the convention defined the term company as anybody of persons or organization that is treated as a body corporate for tax, while the term person includes any individual, a company and other body corporates. Article 4 defines a resident of a state as any person who, under the laws of that state, is liable to tax therein because of domicile, residence and place of management (Hoor, 2010 p.14). However, this definition left out persons liable to tax in that state in respect of returns from investments.

OECD members are free to differ from OECD observations by entering a reservation; non-members may also enter statements of positions in respect to OECD articles. For example, Denmark reserves the right to consider the selling price from shares as dividends and tax accordingly. Under the OECD commentary, for purposes of taxation with regard to partnerships, states that impose a tax on partners based on the shares of partnership profit, regard the partnership as not to be liable to tax and thus a non-resident. The partners are, in such a case, the persons liable to tax and can as such enjoy the benefits of the convention as agreed by the states of which they are residents. This will be so even if, the laws of the state of source regard a partnership as taxable (Rinaldi, 2011). In the U.S. model, a limited liability company is treated as a partnership. The treatment of a limited liability company under the model depends on the treaty and the other states tax laws.

Under the convention, the phrase liable to tax does not necessarily mean that a person must pay tax in the contracting state. Persons who meet the specified requirements in the tax laws are exempted from tax. Therefore, a person does not have to pay tax to be liable to tax. Article 4 of the OECD convention states that the term liable to tax should have the following meaning: a full liability to tax or comprehensive liability to tax Article 10 of the OECD model examines the term liable to tax. According to the article, a persons worldwide income is to be taxed depending on the persons residence. In article 4 of the OECD convention, a person is not a resident of a contracting state if for treaty purposes he is liable to tax in that state in respect only of income from sources. Liability to tax also requires a person to be actually liable to tax on his income. In a commentary on Article 4 of the convention, a persons comprehensive liability to tax acts as a decisive factor as to the persons residence (Rinaldi, 2011).

On 31^st July 973, the Republic of Kenya and the Government of the United Kingdom of Great Britain and Northern Ireland agreed for the avoidance of double taxation in respect to income tax and capital gain tax. The taxes involved in this treaty included: the income tax, the corporation tax and the capital gains tax in the U.K., the income tax and graduated personal tax in Kenya. In this treaty persons liable to tax which focuses on the term resident were to a great extent reviewed in both nations.

The treaty encompassed the following on the U.K. A resident of the U.K., who receives dividends from a company resident in Kenya, may be taxed in the U.K. The Kenyan government may also levy tax, not exceeding 15% of the dividends, on such dividends. This holds only if the recipient is subject to tax in the U.K. and owns less than 10% of the class of shares in respect to such dividends. Management fees received by a resident of the U.K. may be taxed in both countries. Pensions may be taxed in both countries. Students from Kenya are exempt from U.K. tax on receipts from outside the U.K. intended for their upkeep and education and on salaries from employment in the U.K. which is necessary for their upkeep for a period of less than three consecutive years. A visiting teacher in the U.K. shall be exempted from tax in respect of remuneration from teaching for a period of fewer than two years.

The treaty encompassed the following on Kenya. A Kenyan resident receiving dividends from a company that is a resident of the U.K. shall be entitled to a tax credit to the amount in which a U.K. resident would have been taxed had he received such dividends. This holds only if the recipient is subject to tax in Kenya and owns less than 10% of the class of shares in respect to such dividends. The Kenyan tax on royalties and interest shall not be more than 15% of the aggregate only if the recipient is subject to tax in the U.K. on the same income. Tax on management fees arising from Kenya is limited to 12% of the gross fees. Kenyan tax on pensions is limited to the lower of 5% of the pension or the amount taxed in the U.K. on pension (The Kenya Gazette Supplement No. 63, 1977).

Canada partners with the United States in the U.S. treaty (Canada-United States Income Tax Convention). In TD Securities Limited Liability Company (TDLLC) vs. the Queen, the Canadian tax court held that the Limited Liability Company (LLC) was a resident of the U.S. for the purposes of the convention. The interpretation of the phrase liable to tax contemplates treaty residence.

TDLLC (the U.S. solely owned entity) was a registered broker-dealer that conducted business in both countries through permanent establishments. As a non-resident taxpayer in Canada, it was subject to branch tax under the Federal Income Tax Act. The issue was its reduction claim in the branch tax rate from the acts rate of 25% to the treaty rate of 5. The CRAs position was that concerning its fiscal transparency for U.S tax purposes, TDLCC was not liable to tax under U.S. laws as established in the treaty. On the other hand, TDLCCs position was that it was a resident of the U.S. for purposes of the treaty and that it was entitled to benefit from the treaty as such; on the basis that its only member was, U.S. tax purposes, taxable.

The court ruled in favour of the plaintiff, it decided that TDLLC was a resident of the United States thus entitled to the branch tax rate reduction. In regards to the OECD model revisions of 2003, where its commentaries concluded, on treaties created on basis of the OECD convention that treaty benefits should be provided to the extent that an LLCs income is taxable on its partners under the laws of a treaty country. The court took an opposite approach describing the OECDs approach as a diplomatic ambiguity (Sheppard, 2011).

There are numerous case laws on the term liable to tax within the meaning of the OECD convention-based treaties. For example, the ruling by Swedens Supreme Administrative Court of 1996, the ruling by Finlands Supreme Administrative Court and the rulings by the Paris Administrative Court of Appeal (Connery et al., 2010).

References

Connery, J. Poms, D. Blasdel, J. (2010). Eligibility for Treaty Benefits Under the 2009 Protocol to the France-U.S. Income Tax Treaty.

Hoor, O. R. (2010). The OECD Model Tax Convention: A Comprehensive Technical Analysis. Legitech, 17-56.

Kenya Gazette Supplement No. 63 (1977). The Income Tax Act (cap 470): Legislative Supplement No. 48.

Rinaldi, M. J. (2011). Tax Transparent Entities. San Diego, CA: Thomas Jefferson School of Law.

Saunders, R. (2001). Understanding Double Tax Treaties. London: International Fiscal Services Ltd.

Sheppard, L. A. (2011). Tax Analysis: Can Courts Resolve Treaty Ambiguities? 571-580.

There are four major types of justification defenses all of which can be instrumental in explaining peoples actions. The necessity defense and self-defense have long been considered to be closely related. Both of them center around the situation in which a person is exposed to immediate threat and protects himself or herself in a way which is considered unlawful under other circumstances. Although these two types may seem similar, there is an important detail which helps distinguish between the two.

Self-defense focuses on the situation where a person has to harm or kill an individual which poses immediate threat to him or her. The defense in such case claims that a person had no other choice but to harm or kill the offender. The situation with necessity defense typically involves more complex issues where free will is one of the main concepts. Nelson (2017) points out that at the foundation of the criminal law is the assumption that criminals have free will. Whereas the necessity defense justification is actually based on the assumption that human beings do not always exercise free will. Some lawyers argue that there are situations (like starving to death) which are clearly centered around survival and leave no other options but to find basic resources by any means.

R v Dudley and Stephens (1884) criminal case involving survival cannibalism resulted in establishing a precedent stating that necessity is not a defense to a charge of murder. Dudley and Stephens were shipwrecked and decided to kill the cabin boy who fell into a coma. Both men were charged with murder, as the panel found that there was no defense of necessity. In 1997 a Northeast Baltimore liquor store owner shot a robber while struggling for a gun. It was the second holdup when Sung Kim had to shoot a man. Both cases were considered self-defense and shootings were justified.

Reference

Nelson, D. (2017). The free will distinction between self-defense & the necessity defense. Kentucky Law Journal. Web.

The Plessy and the Briggs and Brown Cases

Although the Plessy, Briggs, and Brown cases sought to end segregationist policies, various elements differentiated the three landmark lawsuits. In the Plessy V. Ferguson case, the defendant was charged with defying the racial sitting arrangements in public transport, contravening Louisianas statutes. Plessy argued that such legislation infringed the constitutional provisions of the Thirteenth and Fourteenth amendments. However, the Trial and Supreme Court disagreed with Plessys submissions and asserted that racial separations were legal, provided the facilities were equivalent. Conversely, in the Brown V. Board of Education of Topeka, Kansas, the Supreme Court held that racial discriminatory practices constituted inequalities, regardless of similar facilities. There, the cases presented differing opinions regarding discrimination and racism in the United States.

Moreover, the Supreme Court judges, in Plessys case, contended that selective treatment based on race and color did not breach the Equal Protection provision of the Fourteenth Amendment or constitute slavery. However, this view differed with the judges pronouncements in the Brown V. Board of Education of Topeka, Kansas, which indicated that the separation generated feelings of inferiority and deprived people of equal opportunities. Therefore, regardless of the equality of the facilities, segregation was unconstitutional.

Furthermore, the decision in the Plessys case indicated that exclusionist legislation did not impose a mark of inferiority on the segregated, an assumption disputed by the judges submission in the Brown and Briggs lawsuits. Besides, the judges in the Plessys litigation observed that the Thirteenth Amendments application was limited to practices appeared to reintroduce slavery. Consequently, the Plessys judgment legitimized and institutionalized the enactment of open discriminatory laws. On the contrary, the decision in Brown and Briggs cases indicated that segregation produced servitude and amplified inequalities, rendering such laws unconstitutional. Thus, while the Briggs and Browns court actions explored the specific constitutional elements, the outcome of the Plessys case was based on non-constitutional suppositions.

Evidence Presented by NAACP Lawyers to Desegregate Public Schools

The National Association for the Advancement of Colored People (NAACP) formulated a legal strategy to abolish the racial caste distinctions and segregation in public schools. The NAACPs first attorney, Nathan Ross Margold, opined that launching an open attack on school segregation would be counterproductive as it would attract intense opposition and strife. Notably, Margold challenged the constitutional validity of the Plessy V. Ferguson decision, particularly the ideology of separate but equal since most states could not afford duplicate schools setting for the Blacks.

In the Margold Report, the lawyers demonstrated the inferior and low maintenance standards of the public schools provided for Blacks. Margold showed evidentiary the violation of the separate but equal principle, where public schools had varying upkeep standards. Since most states did not have parallel infrastructures to accommodate law, medicine, and other graduate-school programs, the all-white colleges could send Black students to other jurisdictions that could support the separate but equal treatment. Margold averred that the absence of a separate and parallel school system denied African Americans opportunities to study in their localities, which contravened the Plessys doctrine. For instance, Lloyd Lionel Gainess case forced the University of Maryland to either admit or establish a separate system for black students. Similarly, the three small basement enclosures at the University of Texas, where part-time tutors could teach Heman Sweatt, could not accord him equal legal education to that offered to the white students by full-time trainers in ordinary settings. Thus, the NAACP submitted evidential information, which demonstrated that black students would be required to wait until parallel systems were constructed or send them to other states with a twin structure.

Origin and Meaning of Separate but Equal

The racial policy of separate but equal originates from the promise of equality and the equal protection of all people as envisaged by the Constitution. However, following the Civil War and Reconstruction, white supremacists reasserted themselves across the South, culminating in discriminatory laws that provided separate cars for different races. In New Orleans, Homer Plessy challenged the 1890 Louisiana statute in the Plessy V. Ferguson legal action, which proceeded to the U.S. Supreme Court. The ruling was that racial separation did not breach any constitutional stipulation, provided the different races enjoyed similar and equal facilities. Plessy asserted such a statute negated the principle of equality as envisaged by the 13^th and 14^th Amendments. Additionally, he contended that the legislation degraded the blacks and consigned them into a lower standing than the whites. The ruling rendered in the Plessys Case birthed the ideology of separate but equal and legitimized the passage of exclusionist laws. The principle meant that the blacks could be legally discriminated against if granted equivalent facilities.

The decision in the Plessy V. Ferguson case led to the enactment of many state legislation that legally endorsed racial segregation. Many jurisdictions decreed that the whites and blacks could not use the same public utilities and were provided with a parallel establishment. Additionally, the case expanded the existing infrastructure to accommodate the blacks. Eventually, it enforced integration due to the inherent inequalities in the separation of the two races, as seen in Brown V. Board of Education of Topeka, Kansas, Heman Sweatt V. The University of Texas, and Lloyd Lionel Gaines V. The University of Missouri.