The principal restriction of impeachment, by the use of evidence of misconduct, can result in a conviction of a witness
According to the principal restriction of impeachment, the use of evidence of misconduct can cause the conviction of a witness. Any misconduct that is compliant with the truthfulness of the witness evidence can result in impeachment of a witness even if an individual was not convicted for the kind of misconduct as a crime. If the witness intentionally gives false evidence and it is proven by the court, the witness can be convicted.
There are two main restrictions which need to be observed by a cross-examiner before asking a witness any provocative questions with the aim of questioning his/her trustfulness and possible impeachment of an individual as a witness. These are the factual basis for asking particular questions because no unfounded fishing expeditions are permitted for this form of cross-examination (Garland, 2006, p. 160).
According to the second restriction, the interrogator has to accept the witness answer as it is if the witness is not convicted for this particular misconduct in the past. Extrinsic evidence of instances of conduct that show false statement or dishonesty is not allowed (Bocchino and Sonenshein, p. 157). For example, if a witness lied on his/her tax returns but was not convicted for it, the examiner can ask a related question because it can shed light upon the witness trustfulness but the answer should be accepted as it is.
Specific acts of misconduct can be related to the witness credibility but proper procedures of cross-examination need to be observed for using this evidence of misconduct for the impeachment of a person.
Examples pertaining to the waiver of privilege against self incrimination
Under the current legislation, the witness privilege against self-incrimination can be waived at the witness discretion. It is significant, that the right for this privilege can be claimed only by the witness and waiving it, the witness will have to keep to this decision throughout the whole case.
If the accused decides to take the stand in most cases it would mean waving the privilege against self-incrimination though there are rare exceptions to this rule. Thus, taking the stand and waving the privilege against self-incrimination, the accused will not be able to testify only about the issues which are favorable to him/her and then reject to answer the questions relating to unfavorable issues.
Still, the privilege against self-incrimination can be retained by the accused who takes the stand under particular circumstances. Unless the defendant, during direct examination, testifies in such a way as to deny the crime generally or testifies to facts and circumstances relating to the crime, there is no waiver of the privilege (Garland, 2006, p. 170).
For example, if a person is accused of robbery in a particular place and somebody claims of recognizing him because he was seen nearby a high school some 8 years ago, the defendant can take the stand for saying that he/she did not attend the school in question without waiving the privilege against self-incrimination. In this case, the defendants evidence is not linked to the crime or related circumstances.
Thus, the privilege of the accused against the self-incrimination has been retained and the prosecution will not have the right for the cross-examination.
Making a decision to waive the privilege against self-incrimination, an individual should bear in mind the waiver would be applied to the entire investigation and cannot be used for answering only the questions on favorable matters. The privilege can be retained by the accused who decides to take the stand in case if the evidence he/she gives is not related to the crime.
Reference List
Bocchino, A. & Sonenshein, D. (2006). A practical guide to federal evidence: Objections, responses, rules and practice commentary. (7th ed.). Louisville, CO: National Institute for Trial Advocacy.
Garland, N. (2006). Criminal evidence (5th ed.). New York, NY: McGraw-Hill.
This paper will address the basic elements of business formation. It will evaluate both legal and regulatory aspects which, may be considered during the creation and modification of the business. Additionally, it will provide an analysis of how professionals may be selected to provide business advice including their would-be qualifications. Here, the researcher will look at the role of expatriates. Finally, the study will suggest the best choice of legal entity that may be selected and the reasons behind such a move. The above analysis will be used to address a case study involving Harry and Sons.
Legal and Regulatory Issues
This section will address legal and regulatory issues that may be considered in creating/modifying a business.
The main legal issues to be considered during the creation or modification of a business are as follows:
Agreement process and ownership
External compliance or government policy and regulations
Therefore, it would be important to look at the contractual relationship if the business involves two or more parties. Here, the basic issues to take into account are that all parties should be involved in a valid contract. In other words, the creation or modification of any business must ascertain that any kind of agreement involved is backed up by a real contract. In the same vein, the contractual agreement must incorporate all legally binding aspects (Beale 23; Halson 19). For instance, there must be an offer that refers to the intention to agree on certain terms; acceptance refers to the agreement of the terms specified in the offer. Moreover, a valid contract must have consideration since each party must get something of value (Young 31). Lastly, parties involved in the creation or formation of a business should have intentions to seek legal relations.
The above-mentioned aspects are critical during the creation of a business especially if it involves an agreement between two or more parties. It is more applicable in cases of partnership agreements. The other consideration is that the parties should ensure that their partnership deed outlines the rights and responsibilities of all the parties. This may require them to ensure that it complies with other relevant legislation such as Partnership Act 1980 among others.
Choice of Professionals
In choosing professionals outside the business, it is important to ascertain that they have all qualifications needed to address the problem. Therefore, the use of expatriates to provide professional advice should not go outside the requirements the company would choose if it sought to seek the same at the local level. In this case, the selection criteria for professionals to offer guidance on how to operate a business may be anchored on the following aspects:
Qualifications: This means that they should possess all expertise to undertake or offer any consulting services. The management should see to it that it hires people who have a good reputation and whose profiles support their candidature on the same
Availability: The other requirement is that the professionals should be available to undertake such a duty. This is because the management will need people who can be reliable in the entire process. In so doing it would save time and have minimal instances where its resources may get wasted as a result of delayed consultancy services. This requirement also underscores the possibility of the professionals to commute from their homeland to the premises of the business especially if it involves the need for technical input.
Financial Implication: Last but not least, management should ascertain that the choice of professional consultants from abroad does not create unprecedented costs for the business. In other words, the choice should be value-adding both financially and in terms of personnel. Indeed, the need to have international professionals may be inevitable if such involves replacing a deficiency with the local personnel. However, the company should not direct all its finances to such since it is an expense.
Legal Entity Choice
This section will look at the legal entity choice one would make in the creation or modification of a business. The main choice would be that of partnership.
Analysis of Business Situation No.2
After Harry passed away Dick and Jane, run the business as a general partnership. This includes contracting with companies such as ExxonMobil and BP-Amoco. It is also the case that each of the two had 25% ownership of the business while 50% belonged to Wilma and Betty. The business originally operated as a sole proprietorship but Harry had brought Fred and Barney into the business without a formal partnership agreement. The main issue is that Dick and Jane intended to expand the business and at the same time sell it to a consolidator. As such a consolidator is a company that purchases local businesses in exchange for a combination of stock, cash, and debt.
Now, looking at the issues above it can be seen that Dick and Jane are making decisions that may create conflicts among the stakeholders, for instance, Wilma and Betty as well as Fred and Barney. This is because by their right they can claim for an explanation why the two chose to sell the business to a consolidator without involving them. Normally, a partnership requires that decisions be made by all the partners contrary to a sole proprietorship. However, looking at the scenario above it is not clear if the business left behind by Harry was a partnership or sole proprietorship. Well, it has been established that it was originally the latter case but looking at beneficiaries involved one will regard it as a partnership. This is because there are many stakeholders involved with the shares of the business. All the same, since there was no legal indication that it was a partnership business then it may be assumed that it was passed on to other generations in such status quo. What Dick and Jane ought to do is convert the original status of the business to being a partnership and indicate the rights of every member. Thus, assuming that they would be the active partners and the rest being dormant partners then they can proceed to sell the business to a consolidator without fear of legal conflicts from other beneficiaries.
Private defense firms employ defense personnel or guards to safeguard property and the citizens of a given region or country. Opposed to police officers, private security personnel are civilians who are formally employed to prevent illegal activities or actions that are inappropriate on the property through high visibility observation, conducting patrols, checking various alarm systems installed within an organization, and/or through direct checks on people and belongings including baggage. The primary function of the security personnel is to detect, observe, deter, and report acts of crime (Van Steden & Nalla, 2010, p. 215). They are not mandated to execute the arrest. However, they are given authority to arrest citizens or execute any activity that fulfills their functions as agents of law enforcement when requested by sheriffs and/or police officers (Wakefield, 2007, p.13). The increasing importance of the roles of security personnel in enhancing law and order has forced many states and nations to set legal guidelines for training security personnel. The purpose of this paper is to discuss various legal issues in the process of training security personnel.
The emergence of Training Concerns among Security Personnel
Tantamount to the police professional training approaches, training of personnel serving in private security companies have been evolving as time progresses. Van Steden and Sarre (2007) reveal how security personnel receives poor payment and training (p.227) perhaps because private security companies are paid poorly for the security services that are provided by their security guards. According to Wackenhut Training Institute (2004), initially, contracts to offer security services were given from the basis of cost competitiveness as opposed to levels of professionalism and experience in the industry showcased by the bidding companies (p.13). However, this trend was altered radically in the US following September 11 2001 revolutionary assault. Organizations began taking security issues seriously. They began altering their methodologies for evaluating bids for private security organizations based on professionalism and experience as the chief factors for winning contracts.
In response to the new trend of the private security industry, private security firms began to pump more money to fund training programs for their employees. Different states also started initiating legislation on the training of security personnel. Button (2007) amplifies this argument by asserting, the term security professionalism began to surface, with large private security firms such as Blackwater, USA beginning to offer training services for the private security industry that approached the level of training provided by the military (p.23). Emphasis on professionalism in private security sectors made security firms offer higher remuneration to their employees in the bid to attract personnel having background training in the military to be deployed in special and strategic operations. This meant that security personnel would argue the state security systems including the police in some instances. The situation, therefore, created friction in the mandates of various law enforcement agents. This challenge necessitated the creation of legal frameworks to guide the approaches deployed by private security firms to train their personnel in many states of the US and other parts of the world. For instance, in the state of New Jersey, from 2006, it became mandatory for every security personnel to undergo a state-enforced and certified training program. This law is termed SORA. This legislation was created in the quest to increase the states control over the quality of security services.
Legal Issues in the Training of Security Personnel
For organizations in the private security sector to have effective personnel, they need to hire and train people acquainted with the operation of security surveillance systems together with the ability to assess potential threats. They also need to have the ability to work collaboratively with the public (Van Steden & Nalla, 2010, p. 220). Based on this argument, the law in the state of New Jersey requires security personnel instructors not to involve themselves in acts that impair public trust for them to have their licenses renewed. According to Rigakos (2005), competence is an essential aspect for consideration in the training of security personnel since the ability of US companies to protect the nations critical infrastructure and/or contribute to homeland security efforts depends largely on the competence of private security officers (p.78). This implies that the legal provisions on the training of security personnel as established by different states are significant in the extent that they help in the proper screening of security personnel and their instructors before they are allocated duties within organizations.
Considering the increasing significance of private security firms in enhancing the success of security initiatives developed by the department of homeland security, it is also important to consider various legal distinctions between state law enforcers and security officers. The state of New Jerseys legal provisions on the training of security personnel defines a security officer as a person who offers security services such as protection of a person or property, real or personal, from injury or harm, deterrence, or any other purpose whatsoever for either for hire, fee or rewards (State of New Jersey, 2006, p.2). Law enforcers are people who are employed permanently and working full time to serve functions such as arresting, rehabilitating people who have violated the law, detecting, detaining and or convicting people who have violated the law as directed by municipal law provisions, state law, county laws or laws prescribed by the U.S. constitution. This implies that law enforcement officers only serve in the realm of criminal law. They do not involve themselves in civil law. Indeed, in the case of Warren v. District of Columbia, the court held that police officers do not have any legal authority to protect citizens at an individual level (Stucky, 2005, p.151). However, private security personnel may have this obligation. However, they are not legally anticipated to offer protection for all people within private properties.
Legal frameworks on the training of security personnel set the minimum qualifications for persons who are deemed fit to serve in the security firms together with training requirements, licensing requirements, and even qualifications for tutors in the training of security personnel. However, these laws vary from state to state and from nation to nation (Pastor, 2003). From 2008, the state of New Mexico demanded all security personnel to undergo mandatory FBI certified training having been taken through intensive FBI background scrutiny. It is also required for security personnel who are authorized to carry firearms to go through additional training on handling and caring of firearms. They are also supposed to pass psychological health tests (Anderson, 2008, p.83).
In North Carolina, safety personnel must be enlisted within the records of classified defensive services board to be qualified. This body serves the principal functions of licensing security personnel and addressing issues related to training coupled with education of people, association companies, and corporations, which provide security services across North Carolina. Under the legal guidelines for the operation of the board, security personnel are classified into two. The first category is unarmed security personnel while the second category involves all armed security personnel. Unarmed security personnel must complete 16 hours direct classroom training program for them to acquire certification (Anderson, 2008, p. 83). Armed security personnel are required to attend additional direct classroom training for 16 hours. The citification to carry a firearm is based on the qualification for gun range that is carried on regular duties. For Oklahoma, decree enforcement schooling board approves defense personnel. Unarmed security personnel must be 18 years and above while armed security personnel must be 21 years and above. Unarmed security personnel undergo 40 hours classroom training. They must also excel in criminal tests and checks. Psychological test is another requirement for armed security person apart from undergoing 40 extra training hours in comparison with the unarmed security personnel.
In South Carolina, legal issues in the training and management of security personnel are different from the above-discussed three states. Security personnel are conferred equal powers to arrest people tantamount to deputies of sheriffs when such people are on the grounds of the properties they (security personnel) are charged with their protection (Anderson, 2008, p.79). However, many security firms provide policies, which prohibit their personnel to arrest in the fear of strict liability issues together with inadequate confidence on the persons (the security personnel) they have deployed to conduct business on their behalf. The law also gives the security personnel the freedom to utilize blue lights together with traffic radars. SLED is the main body responsible for the licensing of the security personnel. Such personnel must undergo 8 hours of training in case they are not to carry firearms while those carrying firearms undergo 8 extra hours of training.
In Virginia, from 1980s, the law provides the department of criminal justice to certify and register security personnel. The department is also charged with the registration of people who enforce the law within the state of Virginia (Button, 2007, p.44). Unarmed security personnel are required to undertake 18 hours training in a classroom that is administered by a certified instructor. The certification cards are obtained within a period of 90 days upon employment by a private security firm. The card is subject to renewal after every two years. For certification as armed security personnel, law in the state of Virginia provides that a person must successfully undergo 16 hours of training in firearms handling, additional 6 hours training on how to execute arrest that is considered legally lawful besides qualifying for the caliber required for arms that are intended to be handled by such persons. The armed security personnel are also subject to annual firearm qualification testing for them to receive endorsement to continue handling the firearms. The state code authenticates armed security personnel to conduct arrest. However, it denies unarmed security personnel this authority (Button, 2007, p.45). Arrests are only legally valid if they are conducted in the jurisdictional areas where the security personnel are employed to execute their duties. Defense personnel are given powers through the state regulation to give orders for people to appear before judges to answer charges of transgression coupled with other illegal acts.
Security personnel are given the privilege by the law of the state of Virginia to undergo a 40-hour extra training to achieve the status of peace conservators within the firms that employ them. Upon successful appointment to this position by the circuit court judge, the personnel acquire similar powers to police officers. These powers are only executed while on the property guarded by the security personnel. Such powers include the legal duty to act as a witness in a court of law for a felony act, and the power to pursue fleeing offenders. Peace conservators are also allowed to utilize red illumination together with car sirens. Similar to the case of other states discussed above, FBI checks and police checks for criminal background history are also important for security personnel in the state of Virginia.
Upon consideration of the above-discussed legal issues in the training of security personnel in the US, it is evident that training is a necessary requirement for security firms to consider if they are to have merits in the industry in terms of winning contracts. Hence, it is important to consider legal issues related to the selection and recruitment of instructors to provide the training services. These legal issues are different, though similar in some ways for different states. Since the discussion of the laws in all states is beyond the scope of this paper, a general consideration of the laws is made with reference to the state of New Jersey.
According to the State of New Jersey (2006), people who seek employment in the security firms as security personnel must undergo 24 hours of classroom training course (p. 9). Certified instructors administer this course. Section 4.1 (b) of the legislation on security personnel training as provided for by the state of New Jersey requires the security personnel to be taught a minimum of 2 hours. Subjects taught include counterterrorism together with homeland security, mechanism of emergency responses, and communication process during incidences of emergency. Avoidance of theft, extents of the use of forceful interventions, law-safeguarding civilians on matters of forced detection, and ethics and codes of conduct in law enforcement and first aid are also taught (State of New Jersey, 2006, p.9). The law further provides, all registered security officers shall complete an approved eight-hour refresher course of classroom instruction taught by a certified security officer instructor prior to having the certificate renewed pursuant to N.J.A.C. 13:55 A-3.6 (State of New Jersey, 2006, p.9). This provision implies that security companies must consider certain acceptable legal credentials while hiring persons to act as instructors for new security personnel recruits.
Among the many credentials, age is an important parameter for successful selection as an instructor across many states in the US. The state of New Jersey sets this age at 25 years (State of New Jersey, 2006, p.10). Such persons also need to possess 20 years working experience in supervisory roles at a managerial capacity in a security organization. The organization must be legally licensed to offer security services subject to action of the chapter on private detectives as enumerated in the 1939 act or subject to action of other jurisdictional laws of established by US. Alternatively, a successful security instructor needs to satisfy these requirements, but with an experience of 15 years in addition to possession of associates degree acquired from an university or a college that is credited by the state. 10 years experience in the service at a security managerial caliber may also be considered while accompanied by the possession of an undergraduate degree from a fully-fledged university or college (State of New Jersey, 2006, p.10).
In the state of New Jersey, application for security training instructor requires formal applications. The law provides, a person seeking to become a certified security instructor shall submit an application for registration as a security officer instructor on a form provided by, and in a manner prescribed by, the superintendent (State of New Jersey, 2006, p.10). Other legal requirements include submission of fingerprints accompanied by consent on clean criminal background history in such a manner that complies with the direction from the superintendent. The law requires security-training instructors to complete refresher courses prescribed by the superintendent. Such courses last for 16 hours. This training is done before renewal of instructors licenses as prescribed by N.J.A.C 13:55 A-5.5. These requirements place emphasis on the need to have security personnel trained by academically qualified and experienced persons in the effort to enhance professionalism in the private security industry.
The above legal requirements do not automatically guarantee the renewal or acquiring of a license to execute the function of a security personnel instructor. In many states, superintendents are given authority to deny license applications by persons seeking to become trainers for security personnel. They may also revoke or even suspend licenses for different reasons ingrained within legal frameworks for training of security persons subject to the operation of different states legal clauses or laws on training of security personnel. In case of New Jersey, legal issues guide the appropriate action of the superintendent such as conviction of a licensed instructor for 1st, 2nd, 3rd, and 4th degree acts of crime as enumerated in the New Jersey criminal justice codes and/or provided for in title 2C. N.J.S.A. 2C:35-2 defines acts of unlawful sale of dangerous substances or possession of such substances, which may prompt the decision to cancel the license of a practicing security personnel instructor.
The discussion of various applications of law in the in matters of selection of instructors and security personnel proves that competence and the ability to handle security issues are important considerations that private security companies need to understand. In fact, according to the National Association of Security and Investigative Regulators (2005), private security selection and training criteria vary from state to state ranging from comprehensive training requirements for every private security officer to little or no training at all (p.15). Compliance with various legal provisions in matters of training of security personnel is necessary in the effort to provide effective security services and/or meeting the anticipation of the department of homeland security.
Conclusion
Legal provisions on the training of security personnel have evolved over years from no training requirement to specification of training hours in legislation for different states. Legal requirements for instructors interested in the training of security personnel have also been evolving with time in the effort to ensure that security personnel employed by different security firms help in the fulfillment of initiatives of the department of homeland security. The paper proved that, although the specification of the number of training hours for security personnel varies in different states, there is legal contention that training for security personnel is necessary. Evidence for such training is reflected by certification requirements. In all states of the US, it is an offense to employ uncertified security personnel.
Reference List
Anderson, T. (2008). Affairs of State. Security Management, 2(1), 83-84.
Button, M. (2007). Security Officers and Policing: Powers, Culture and Control in the Governance of Private Space. Aldershot: Ashgate.
National Association of Security and Investigative Regulators. (2005). Model State Regulation of Private Security Officers and Their Employers. Waterloo, IA: National Association of Security and Investigative Regulators.
Pastor, F. (2003). The Privatization of Police in America: An Analysis and Case Study. Jefferson, NC: McFarland.
Rigakos, G. (2005). The New Para-police: Risk Markets and the Commoditization of Social Control. Toronto: University of Toronto Press.
State of New Jersey. (2006). Law and public safety: security officer and security officers companies. Web.
Stucky, D. (2005). Local politics and police strength. Justice Quarterly, 22(2), 139-169.
Van Steden, R.., & Nalla, M. (2010). Citizen satisfaction with private security guards in the Netherlands: perceptions of unambiguous occupation. European Journal of Criminology, 7 (3), 214-234.
Van Steden, R.., & Sarre, R. (2007). The growth of private security: Trends in the European Union. Security Journal, 20(3), 222-235.
Wackenhut Training Institute. (2004). Wackenhut Security Officer Training Materials. Palm Beach Gardens, FL: The Wackenhut Corporation.
Wakefield, A. (2007). The study and Practice of Security: Today and Tomorrow. Security Journal, 20(1), 13-14.
Buchwald vs. Paramount Pictures Corp case was milestone litigation argued in California Court and decided in the year 1990 (Hartman 100). In the case, Art Buchwald accused Paramount Pictures of illegally using his script idea and turning it into a film in the year 1988 (Boyle 45). Buchwald won the court case and was paid for the damages. Notably, he accepted payment from the company before any plea took place.
Facts
In the year 1982, Buchwald composed a treatment titled A Crude, Crude World. He later forwarded the material to Alain Bernheim, who worked for Paramount. The company adopted the treatment and renamed it, King, for a Day. In the year 1983, the company signed an agreement with the producer about the production of the movie (Leibman 535). In the contract, it was agreed that Bernheim was to be the director of the film. The agreement stated that he was to receive a percentage of the net profit if Buchwalds idea became a success.
After two years of scriptwriting, the company dropped the project (Gardner 565). When the initiative failed, Buchwald took the treatment to Warner Bros Studios. In the year 1987, Paramount started working on the production of a film that had a similar storyline with Buchwalds treatment. The movie was Coming to America. The motion picture was accredited to Eddie Murphy. When Warner Bros learned of the development, they terminated Bucklands plan alluding to the Paramount project. When Paramounts production was released in the year 1988, Murphy was awarded all royalties. As such, Buchwald was not remunerated or even recognized as the source of the script idea. Following this, Buchwald took legal action against the company for breaching its contract. In the contract, they had agreed that Buchwald was to be paid if his idea was to be made into a movie.
Legal issues
Based on the court proceedings, the court tried to analyze if the contract between Paramount and Buchwald had been breached. The court had to investigate if Coming to America, which had been accredited to Murphy, was based on the accusers idea.
Equally, it was not clear how much Buchwald was to be compensated for the damages. In the contract, a net profit formula had been highlighted to illustrate how he was supposed to be paid. However, the company had not made any net profit from the production.
Decisions
In the year 1990, the court delivered a ruling. The law court established that the company had used Buchwalds treatment in their project (Weinstein 68). In this regard, the court ruled that the contract had been breached. In the second part of the ruling, the court directed the accuser to follow distinct tort litigation against the corporation.
Reason for the decision
The court pointed out that Coming to Americas scriptwriter and director had access to the accusers treatment. The court ruled that the contract between the two parties had been breached because Paramount did not recognize or remunerate Buchwalds after the production of the film.
In the subsequent stage of the trial, the court ruled that although the company had made millions of sales from the movie, it had not earned net profits. In the contract, the accuser was to be paid based on the net profit formula agreed by the two parties (Goldberg 524). The court ruled that the approved payment method was unconscionable. Therefore, the accuser was urged to follow distinct tort litigation against the corporation.
Works Cited
Boyle, Joseph. Special Education Law With Cases. Boston: Allyn and Bacon, 2001. Print.
Gardner, Nard. Mediation and Its Relevance to Intellectual Property Disputes . Journal of Intellectual Property Law & Practice 9.7 (2014): 565-574. Print.
Goldberg, Victor. The Net Profits Puzzle . Columbia Law Review 97.2 (1997): 524-525. Print.
Leibman, Jordan. Review Essay: Fatal Subtraction: The Inside Story Of Buchwald V. Paramount. Pierce . American Business Law Journal 31.3 (1993): 535-552. Print.
Weinstein, Mark. Profit-Sharing Contracts In Hollywood: Evolution And Analysis . The Journal of Legal Studies 27.1 (1998): 67-68. Print.
Students have a variety of rights to be enjoyed while they are in the learning institution. However, these rights have been comprised and students have to fight for them. In Canada, there are certain claims that students should fully enjoy their rights although this is yet to be incorporated into law. People argue that, they are specific rights that these students are entitled to but this is seen as mere words because they have not been institutionalized. By comparing Canada with the United States, we find that, in the last two or three decades, these countries have been fighting for students rights but Canada lags behind in their implementation.
There are many claims of students rights being implemented in Canada which seems suspicious because they have not been supported by law and are just founded on imaginary rights. Students have been denied their freedom of speech, freedom of assembly, the right to study in subjects of their choice, and the right to take part in structuring school guidelines. A claimed right can not be compared to a right that has received regal recognition (Magsino, 2010). In Canada, it is obvious that students do not enjoy their rights because their have not been recognized by the law nor made sanction. This paper will give an in-depth analysis of some of the rights that Canadian students have been denied but which they are entitled to. Its clear that students rights have not been recognized and any endeavor to validate them have been perplexed. Further, I emphasize on the discrimination faced by the first nation children in the education system.
Canadian education system
In Canada, the education system is quite different from that practiced in other nation. In some cases it may even differ from one province to another. When one is planning to transfer his/her children to Canadian schools, he must be prepared to adopt the education system. Because obviously it is deemed to affect the childrens learning. An academic year goes from September to June. School policies are made at the provincial level while funding and supervision takes place at the central level, territorial level, and national level. Education is normally administered in both French and English in order to give all children equal chances of learning. From the provincial level, schools are estranged into districts and then into school boards. It is in the school boards that local policies are made that must be in line with the curriculum from the provincial level (Anon. The Canadian education system: an overview 2010).
In Canada, there are ten provinces which are responsible for organizing as well as supervising education at the primary, secondary, and vocational levels because there is no central department in the education system. Unlike other nations were learning is monitored at the federal government, in Canada, all the responsibility of supervising learning as well as assessing students and teachers performance takes place in the provincial level. The provincial education system can be compared to the territorial system although they differ in their assessment, curriculum, and education policies.
Education starts at the kindergarten which takes in children as young as five years. From the kindergarten, children proceeds to the elementary school at the age of 6 to 12 years then move to the junior high school. Normally, elementary school includes six grades although it can be extended to eight grades. Junior high school acts as a transition stage where children move from the elementary school to the high school. After successful completion of the high school, students proceeds to the university or vocational schools (Townsend, 2010).
Although the central government has a legitimate role in promoting learning, it is the responsibility of the provinces and territorial government to ensure that learning goes on smoothly in their respective provinces. Foreign students who want to study in Canada can do so through the central department that deals with immigration issues as well as citizenships (Anon. The Canadian education system: an overview 2010). Foreign students are allowed to study at any level and in any subject although they have to comply with the entire requirements for them to be admitted. Information about eligibility is available on the web site organized by the Association of universities of Canada.
Overview of students rights
All students, not only in Canada, have a right to education. This right has been supported by many nations which have gone to the extent of providing free and compulsory primary education. Many children, who would not have made it in education due to lack of finances have benefited from these programs. Not to mention, many students form Africa especially sub-Saharan Africa are the ones who have benefited most because now they can be able to attend to leaning institution, a facility that they could not afford. In Canada, all students are assured of equal chances to education unlike before. For instance, pregnant students were not allowed to go to school but this has changed and they can now attend learning institutions of their choice (Canadian Education Association, 2010). The government has gone further to provide special schools for the physically disabled students for example, the deaf, blind and crippled. They are no longer denied their rights to education like before and they can even sue the government if they are not attended to. Religion has also been recognized and students are allowed to wear their religious symbols. However, this does not mean that, students can behave anyhow.
The administration has put strong disciplinary measures which legally punish any student who goes against the school rules. Punishable behaviors include resistance to authority, use of abusive language, or any kind of behavior that the administration may consider a violation of the schools norms (Anon. Marketing to teens: A captive Audience? Students rights, students activism 2000). Some serious punishment include suspension and expulsion, although, many school jurisdictions have granted students the right to sue their teachers if they feel that the punishment is far beyond the offence committed. In such cases, teachers are required by law to provide enough reasons for their actions. However, this is just a voluntary process allowed by the school jurisdiction.
Right to be involved in policy-making process
Students are still regarded as minors and are not allowed to exercise all their rights as adults do. For many years, students (especially those in public schools) have not been allowed to take part in the policy making decisions. However, many critics argue that, students should be involved in policy making because they are the ones who are directly affected by these policies. Denying them the right to contribute is the same as violating their rights. These critics argue that, it is in the school environment that the students get exposed to political awareness hence; they should be incorporated in making the school decisions. Through this they learn how schools operate and this might help them in future.
To respond to this plea, some schools in Canada have developed school advisory councils that include students leaders. For a long time, students have been demanding for their rights, for instance, the right to form student associations, and student political involvement although this has not been defined clearly nor is it understandable. By giving students the right to form students association, they are able to cultivate their leadership skills which might be of use in their future careers.
Right to free speech and expression
In the 1960s, students rights in both Canada and the United States were considerably extended as a result of protestation of students movement in both high schools and universities for their right of assembly, speech, and movement. High school students gained some limited rights regarding smoking and their personal manifestation. Students in many schools were allowed to form organizations where they could invite external speakers, and express their views and concerns. Even with this right, principles still follow the students and they can not form any assembly without being supervised.
In 2000, students from Meadowvale secondary school formed a small organization for protesting for their rights, to be precise, the right of expression, and the right to air their views regarding the education policy. However, their initiatives were not welcomed by the administration but resulted into conflicts. They continue to suffer in silence since they have been banned from forming any movements. Something needs to be done to the Canadian education system because it is going far beyond the expectation. With the freedom of speech, children can not be able to grow and all they will gain is theoretical knowledge. The education system has gone to the extent of forcing the students to take certain subject even if they are not relevant to their careers. This is nit only a violation of the students right to choice, but also a destruction of their careers.
Rights of the native people
The theme for the 10th anniversary of Universal Declaration of Human Rights was Dignity and justice for all . UDHR is an international body that ensures that all people, irrespective of their race or ethnicity, enjoy their human rights. According to UDHR, human rights belong to everyone and should be enjoyed by all. During the ceremony it was noted that Canada denies its indigenous people some of their rights which is a violation of the core values of UDHR. The national chief of the congregation, Phil Fontaine, observed that, it was perplexing for a developed nation like Canada to oppress the indigenous people. Canadas hostility against the rights of its native people was quite obvious during the assembly especially when the government refused to put its signature on the motion passed by UDHR in April (Pugliese, 2008). Children rights in Canada were compromised and the government had refused to look after their welfare and education.
Canadas first nation children are not given the same rights are those in provincial schools. It was noted that the first nation children received $2,000 less annual funding than the other children. They also received 22% less financial support than the local agencies. This was noted by the national chief who described the funding program as discriminative since the government had failed to meet the needs and requirement of the first nation children. This was not only a violation of UDHR core values and principle, but also an example of the inefficiency that was evident in Canadians education system. The discrimination of these students extends even in their learning institutions were they are not given equal recognition as the local students. They are forced to take certain subjects which do not help them in their careers. Their have been denied the freedom of choice and seldom do they have a choice when it comes to dress codes, and appearance among other things. This is seen as a contradiction of the Canada government position which states that, Canadian human rights apply to all children (Pugliese, 2008). Other schools need to be set up and others repaired to provide enough learning environment for all children
The discrimination of the first nation children is just an example of the oppression that goes on in secondary schools and universities in Canada. Students have been fighting for their rights of expression but this has fallen into deaf ears. There are many claims that students have not been denied their rights although this seems more theoretical than what happens in practice. Students can not even hold meetings or form groups. All they are supposed to do is to comply with the school policies and its violation attracts serious punishments. There is an intensifying gap in the quality of education given to the first nation children in comparison to the Canadians. Canada is a nation where we would expect all people to be treated equally in all spheres of life although that is not the situation (Magsino, 2010).
Conclusion
In conclusion I would say that, everyone has the right to education. The right to education does not mean going to a learning institution but it means being able to enjoy all the rights available in learning institution. Canada has a very controversial education system that differs from other nations. The education system is supervised in the provincial levels other than the federal level. The provincial level is separated into districts and then schools boards which make local policies. Other policies are made in the provincial level. For a long time, students in Canada have not being enjoying equal rights as those enjoyed by students in other nations (such as the United States). They have been denied the right to free speech and expression and can not even form students associations. In some provinces, students can not even choose the subject they want to specialize. They have to comply with the schools policies and failure to do so attracts some punishments.
Some critics argue that, students should be involved in the policy making process. This is not the case in Canada where students are not allowed to contribute in making the schools policies. The education system should realize that, schools form the basis where students get their first awareness to political matters and thus they should be involved in the schools operations. Some provinces have responded to this and they now involve some members from the students body to take part in developing the school policies.
Reference list
Anon. (2000). Marketing to teens: A captive Audience? Students rights, students activism. Web.
Anon. (2010). The Canadian education system: an overview. Web.
Canadian Education Association (2010). Frequently asked questions about education in Canada. Web.
Magsino, R. F. (2010) Student rights in Canada: Nonsense upon stilts? Memorial university of Newfoundland. Web.
Pugliese K. (2008). Canadas opposition to the human rights of indigenous people at UN conference on climate change is shameful says AFN National chief. Web.
Townsend, R. G. (2010). Students rights: Basic right to education. The Canadian encyclopedia. Web.
Caldwell, E.S., Lu, H., & Harding, T. (2010). Encompassing multiple moral paradigms: a challenge for nursing educators. Nursing Ethics 17 (2), 189-199.
Aim
This is a case study conducted on a Chinese student studying in a European nursing school to explore the challenges that this student and his instructors face upon encountering complex ethical situations.
Summary
The authors present a case study that indicates how globalization and internationalization of the medical education impacts the way ethical traditions are presented to international students in western Universities. The study further indicates that most Universities in western countries are home to thousands of international students particularly from Asia and Africa. These students bring with them various ethical traditions reflecting the practice in their countries of origin. Therefore, these students will face numerous challenges in their practical nursing practice, and their practice may be regarded as unethical by many patients in western countries. In line with this, the authors recommend that the nurse educators should continuously review their teaching programs to give room for integration of ethics into the curriculum.
Discussions
This article provides resourceful facts addressing the topic in that one major way of implementing ethical issues in nursing practice is to integrate ethics into nursing curricular. Studies indicate that the ethical tradition is based on the existing culture, which plays a fundamental role in building peoples beliefs, values, and customs (Johnstone, 2004, p. 24). Therefore, there is the need to incorporate culture into the teaching practice in order to avoid the challenges that many international students acculturated to their respective traditions face during practical nursing practice. As observed in the case, an individuals culture can influence his/her behavior in such a way that it violates the traditions of the nursing profession or those of the patients. The behavior of the nurse will also influence the nurse-patient relationship because it affects the level of confidentiality between the patients and nurse (Swider et al., 1995, p. 108). In case, the nurse and the patient come from different cultures, there may be a conflict of interest, which lowers confidentiality between the patient and the nurse. In such a case, it would do well if the nurse followed the ethical traditions governing the nursing profession rather than following his/her tradition. This is the basis of the professional code of ethics for healthcare professionals, which requires that no information concerning the patients condition will be disclosed without the clear consent of the patient (Hans & Ahn, 2000, p. 113).
Hanssen, I. & Alpers, L. (2010). Utilitarian and common-sense morality discussions in intercultural nursing educators. Nursing Ethics 17 (2), 201-211.
Aim
This article presents two major areas of ethical disagreement that most nurses come across when working in intercultural health facilities. These issues include the tribal minority patients needs and the level of compliance on the part of nurses to those needs.
Summary
This study looks at the ethical issues facing nurses in intercultural health facilities whereby different patients share varied perceptions of healthcare services and illnesses among other issues. The authors present a study addressing the ethical issues from a Utilitarian and common-sense perspective. The study indicates that, the two premises determine the nurses behaviors, which influence the decisions made by these nurses when faced with challenges associated with ethnic and human diversity. The challenges involved in this case are mostly irresolvable because the nurses lack the ability to address them. Through incorporation of the two theories into practice, it is shown that the nurses will be able to deal with various complex ethical issues associated with ethnic and cultural diversity.
Discussions
Studies indicate that the utilitarian theory is based on the fact that an individuals actions are judged relative to the outcome that arises from them. An action is thus said to be ethical when it provides the greatest positive benefits to the greatest number of people or otherwise (Williams, 1985, p. 23). On the other hand, the common sense view of morality involves one individual committing oneself towards fulfilling the obligation of achieving the right thing and avoiding the wrong one (Rachels, 1995, p. 10). The article states that most nurses build sensitivity feelings towards their patients and in the process they become aware of their suffering. In the event that a nurse is aware of the patients suffering, chances are that the nurses ethical considerations will be adjusted towards doing the right thing (Vaartio et al., 2008, p. 504). Therefore, this article provides resourceful factual materials that can address the topic from the utilitarian and common-sense perspective. However, it is worth noting that there are some fundamental differences between the two premises. The common sense theory provides a more intense connection between the nurse and the patient more than the one observed under the utilitarian theory. In line with this, an individual addressing an issue from the common sense view-point is bound to realize greater ethical benefits than the one practicing utilitarianism (Jameton, 1984, p. 34).
Lachman, V.D. (2008). Whistleblowers: troublemakers or virtuous nurses? Medical Surgical Nursing, 17 (2), 125-134.
Aim
The article seeks to look at whistle blowing as an ethical issue in nursing practice.
Summary
The author presents a detailed account on whistle-blowing as an act undertaken by one individual in an organization with the aim of uncovering the unethical issues, which are masked by the organization. The article further provides an account of the necessity of whistle-blowing in nursing practice and the moral justifications behind it. In this article, a whistle-blower is defined as an individual who opposes the practices perceived to be unethical in the workplace. Such an individual risks certain consequences such as isolation and humiliation among others. However, the U.S. constitution provides for protection of whistle-blowers through certain amendments introduced into the State laws and federal regulations. In this article, a guide is provided that shows the procedure of ethical decision-making before engaging oneself in whistle-blowing. Moreover, the article provides a variety of approaches meant to curb whistle-blowing in different organizations.
Discussions
Unethical issues in an organization ranges from incompetence, disregarding the safety of the patients, and deception. In nursing practice, competent practitioners are required who will not only practice the nursing ethics as required of them but who should also follow ethical traditions as provided for by the society (Catalano, 2008, p. 33). In this case, the practice of whistle-blowing becomes important and morally acceptable if only it is employed in uncovering the wrong-doing hidden from the community (Ahern & McDonald, 2002, p. 303). Additionally, the theory of utilitarianism plays a major role in justifying the morality of whistle-blowing. There are other theories, which also justify the necessity of whistleblowing in an organization. These include the deontological and the virtue theories. The theory of virtue requires that an individual observes high standards of integrity and courage during whistle-blowing. On the other hand, the deontological theory encourages the practice of truth-telling (Bolsin et al., 2005, p. 612).
The basis of whistle-blowing is pegged on the idea that failing to report the wrong-doing is not only unfair to the victims but it is also termed as going against the code of conduct that governs the nursing practice. Therefore, this article is resourceful in addressing the topic in that whistle-blowing, which is a practice opposed by many, is justified as being moral and ethical. On the other hand, the article provides a variety of guidelines on the various ways of preventing whistle-blowing while avoiding the legal implications involved.
Reference list
Ahern, K.M. & McDonald, S. (2002). The beliefs of nurses who were involved in a whistle-blowing event. Journal of Advanced Nursing, 38 (3), 303-309.
Bolsin, S., Faunce, T. & Oakley, J. (2005). Practical virtue ethics: healthcare whistle blowing and portable digital technology. Journal of Medical Ethics, 31 (10), 612-618.
Catalano, J. T., (2008). Nursing now: todays issues, tomorrows trends (5th ed.). Philadelphia, PA: F.A. Davis Co
Hans, S.S. & Ahn, S.H. (2000). An analysis and evaluation of students nurses participation in ethical decision making. Nurs Ethics, 7 (1), 113-123.
Jameton, A. (1984). Nursing practices: the ethical issues. Englewood Cliffs, New Jersey: Prentice Hall.
Johnstone, M. (2004). Bioethics: a nursing perspective (4th ed.). Sydney: Harcourt Australia.
Rachels, J. (1995). The elements of moral philosophy (2nd ed.). New York: McGraw-Hill.
Swider, S., McElmurry, B.J. & Yarling, R. R. (1995). Ethical decision-making in a bureaucratic context by senior nursing students. Nurs Res, 34 (1), 108-112.
Vaartio, H., Leino-Kilpi, H., Suominen, T. & Paukka, P. (2008). The content of advocacy in procedural pain care-patients and nurses perspectives. Journal of Advanced Nursing, 64 (5), 504-513.
Williams, B. (1985). Ethics and the limits of philosophy. Cambridge, Massachusetts: Harvard University Press.
The APRNs scope of practice depends significantly on the regulations in the particular state. Certified nurse midwives, nurse practitioners, nurse anesthetists, and clinical nurses belong to the category of APRN. The demographic tendencies show that the population in the United States will become older, and the expected need for professional nurses is almost 50% during the next decade (NCSL., 2022). Colleges, in turn, do not prepare enough nurses to satisfy the aging populations needs and increase life expectancy. It shows that American public healthcare faces a general shortage of qualified nursing personnel, which requires precise attention to this sphere.
Discussion
It is especially critical for nurses to meet the scope of practice connected with the specific regulations and rules that guide the professionals actions. The scope of practice allows nurses to understand their responsibilities at work and describe the expected level of professionalism that is vital for the nurses work. It ensures their nurse has the required education, practice, and licensing to perform her tasks. At the same time, it shows the nurses where they have autonomy for actions and where they should share responsibilities with the physician. The nurse needs to understand the legislation concerning the nurses scope of practice when the person moves to another state that can have a completely different view on similar medical actions (NCSL., 2022). For example, the legislation on abortions is other in American states, and the nurse should be aware of these peculiarities when she starts working in another city. It is possible to see all regulations concerning the scope of practice in a particular state, including Arkansas, on the official site. The laws show that the states policy affects the views on nurses work directly.
There is a difference between the full and restricted scope of practice based on the state of licensure in Arkansas and Oklahoma. Restricted scope of practice describes the general principles according to which the professional nurse should work, including the delegation of professional duties, long-term supervision of the nurse, and solving partisan issues at the workplace with the provider of medical services. The full scope of practice, in turn, is a more detailed description of the responsibilities of the professional nurse. It includes the level of education required for the particular work, the governmental authorities who have the legal opportunity to give licenses to nurses, the activities that the APRN nurse has to perform at the workplace, her functions in the healthcare team, and the roles she might perform. Arkansas is where the nurses work according to the reduced scope of practice (NCSL., 2022). In difficult decisions, physicians and nurses from Arkansas consult the medical board.
APRNs face various legal, regulatory, and credentialing issues in their work. They include such state laws as drug enforcement administration and prescriptive authority. Credential issues include the level of education and certification the nurses require to become APRNs. The Consensus Model for APRNs describes the current situation concerning the accreditation of advanced practice nurses (NCSL., 2022). The regulatory aspect of the APRN is connected with the privacy and safety issues that advanced practice nurses face daily. It shows that the work of APRNs is associated with numerous official details that restrict their activity, but at the same time, they protect the nurses. For example, the advanced nurse understands where she has the legal right to decide the treatment process and where she has to ask for the piece of advice from her co-workers. In most cases, the regulations give advanced nurses a clear understanding of how to optimize their work.
The barriers that continue to exist for APRNs include various aspects essential in public healthcare. There is a shortage of professional nurses with licenses to perform complicated and specialized tasksthe questions concerning the independent work of the APRN without supervision from the physician. In addition, there is a lack of social and professional recognition of this work (NCSL., 2022). Even though the number of skilled nurses has increased stably during the last few years, and colleges continue to prepare them, there is still much work in this sphere. There is a shortage of APRNs, and many young people do not choose this career due to its comparatively low status in society. It is less well-paid and prestigious than the physician, but it requires much knowledge and practice from the person.
Professionalism in nursing is connected with the patient-centered approach, responsibility, and working according to all healthcare standards. These concepts pertain to APRNs because they share the same code of ethics as other healthcare professionals (NCSL., 2022). As a result, the advanced nurse also makes everything possible to improve the physical and emotional state of the patient, she is responsible for the decisions concerning the treatment process, and she works according to the rules that are the same for all healthcare professionals in the United States (NCSL., 2022). It makes the work of the advanced nurse standard from the point of view of professionalism in healthcare.
At the same time, professionalism in the APRN role is slightly different from the professionalism in my current registered nurse (RN) role due to more duties at the workplace. The APRN has more autonomy at work, but it imposes more responsibilities on her decisions, which is complicated. The APRN works with drug prescriptions and is fully responsible for the way the patient uses these medications, while the registered nurse can share this responsibility with the physician, and she does not make such decisions alone (NCSL., 2022). The patient might misuse serious drugs that might lead to the persons disability or death, and the advanced practice nurse will be legally responsible for these adverse health outcomes. This responsibility is an essential component of the work of the advanced nurse. Even though she has significantly more autonomy in the decisions that she makes at the workplace, she also has more duties, which is challenging in practice. Therefore, the APRN nurse should be more qualified and assured in her professional skills to support her qualification than the registered nurse.
Conclusion
The advanced practice registered nurse (APRN) must improve professional qualifications to correspond to this level. The qualification includes the particular level of practice, regulations, and legal issues connected with this work. A high level of professionalism is essential for this group of nurses, supported by licensing and masters degrees in their specialization. It is possible to assume that an advanced practice career in nursing requires much practice, knowledge, and legal certification of professionalism. A high level of qualification allows them to have more autonomy in clinical decisions but also imposes many responsibilities on them.
Reference
NCSL. (2022). Scope of practice policy. Arkansas. Scopeofpracticepolicy.org, Web.
Education is one of the core foundations for the development of any society. The educational initiatives in the United States including No Child Left Behind (NCLB) and the Individuals with Disability Act aim at ensuring the inclusion of all students in the accessing education. The educational policies and acts that govern students with disability bear potential legal issues on all stakeholders (Osborne & Russo, 2014). This paper discusses some of the legal matters in education that the courts are expected to face in the future. The relevance of the legal issues and their essence in the education profession will also be outlined.
Educational initiatives dealing with disability
Various efforts have been established in the United States to ensure equal education opportunities for all the children including those with disability (Turnbull, Turnbull, Wehmeyer, & Shogren, 2013). The NCLB seeks to determine how the students perform their tests and undertake learning, how money is allocated to the education sector, and the levels of training of the teachers. This initiative has been facing a raging debate between the Democrats and the Republicans concerning its efficiency in the improvement of educational outcomes (Bryant, Bryant, & Smith, 2016). The Individuals with Disability act is a formulated federal law that seeks to serve the educational requirements for students with disabilities.
To ensure special education services have been delivered appropriately, it is mandatory to follow the outlined legal procedures (Turnbull et al., 2013). The United States special education laws ensure the protection of the rights of children with disabilities together with their parents. The education initiatives seek to provide free and appropriate public education to the children with disabilities. Additionally, the parents have a voice in the decision-making process concerning their children (Osborne & Russo, 2014). However, the present and future educational initiatives of students with disabilities have potential legal impacts on the court systems.
The measures on school safety
School safety is a major concern for local school districts in the United States. All schools must provide assurance through documented plans of how to uphold the safety of all the students including those with physical disabilities (Bagenstos, 2014). These initiatives have to ensure the improvement and advancement of the emergency response after an eruption of crises in schools. The initiation of the National Schools Safety Center is to free learning institutions from the burdens of combating crises, thus ensuring maximum concentration on education-related issues (Osborne & Russo, 2014). Schools are mandated to provide a safe environment that is free from hostility, drugs, and panic by initiating policies that encourage a safe and disciplined learning atmosphere.
Several future legal implications can emerge from the educational initiatives that focus on the students safety. The majority of the measures to respond to threats are not considerate of students with disabilities. In most situations, disabled students are left out when planning on how to respond to threats (Emens, 2012). The courts may require the formulation of new educational policies that deal with handling potential disasters. Special measures that focus specifically on students with special needs are crucial. Rioting, bomb explosions, rape, and hostage-taking among other threats leave disabled students in a disadvantaged position as opposed to their abled counterparts (Turnbull et al., 2013). Appropriate facilities and measures ought to be incorporated in the safety initiatives to avoid impartiality.
Bullying in schools
All the school personnel including officials and teachers must focus on eliminating all instances of violence. Teachers must focus on the behavior of the students especially during the extracurricular activities and note all the instances of bullying (Osborne & Russo, 2014). No student should be given the chance to threaten, harass, or make prejudiced comments about others. The educational initiatives should address irritation, mood swings, and violent behaviors that amount to the lack of learning enthusiasm by the pupils (Bagenstos, 2014). Bullying is common in most schools in the United States, thus resulting in serious injuries to the victims and hostility in the school environment.
Bullying in schools has legal implications for the court system in the United States and especially the cases that involve students with disability. The negligence by the school administration to develop standards of care has resulted in increasing cases of bullying. The courts could strengthen educational initiatives that address bullying by passing charges against the bullies (Bagenstos, 2014). The offences should include threatening behaviors, indecent assaults for bullies involved in sexual abuse, and criminal offence of assault for defendants involved in causing physical injuries.
The legal systems may also initiate charges against the school officials for negligence that amounts to physical and psychological damages caused to victims of violence and especially where similar cases of bullying have previously occurred (Emens, 2012). The future legal systems can demand the school officials to compensate for damages caused by bullies to students with disabilities.
Freedom of expression in schools
Most educational initiatives and policies in the United States acknowledge the constitutional rights in all sectors including school. The American Civil Liberties Union mandates the students to express their opinions and views if their actions do not materially distract learning and other school activities (Osborne & Russo, 2014). Despite the efforts of ensuring the freedom of expression, most students with disabilities lack the requisite platforms to air their opinions. The freedom of speech does not exceed the limits of using a language that sounds biased and indecent. Students must have representation in the school decision-making committees and improvement teams (Bryant et al., 2016). Equality among all students including those with special needs should be incorporated into all the education initiatives and reforms.
The freedom of speech is accompanied by given constitutional implications to the court system. Defamation among the students is common in most schools. The false statements made by individuals concerning others and specifically towards the students with disabilities amounts to stigmatization (Bagenstos, 2014). The perpetrators often ruin the reputation of the victims through hatred and ridicule. Students with special needs have the right to enjoy the freedom from discriminatory and malicious statements of their fellow pupils in school. The court systems may also redefine the qualified privilege of the school personnel (Emens, 2012). Teachers and parents who are found guilty of making harmful statements that do not reflect the truth about students with disabilities will be liable to pay for damages.
Gang activities in schools
The challenge of gang groups in learning institutions has been a major problem in the United States. Most educational initiatives that have been designed do not address this issue adequately (Osborne & Russo, 2014). Gangs dominate and control given territories in schools and they are often engaged in trafficking of drugs and weapons and other violent activities that instill fear and anxiety in the students. Due to the delicate conditions of students with special needs, they are highly likely to suffer from gang harassment (Bryant et al., 2016).
Gang activities have some attributed legal implications in the future. The school administration has the duty of care to all students. The school staff members have the obligation to foresee the ill motives of gang activities, and thus secure the students (Emens, 2012). Instances of negligence emanating from failure to exercise reasonable profession care by the school personnel would demand compensation for violence victims. Special legal actions may also be instituted by the gang groups that harass the students with special needs (Turnbull et al., 2013).
Mental distress in schools
Mental distress is one of the key challenges that students with disabilities face in their education process. The existing initiatives have done little to address this issue because mental anguish bears no elements of physical injury (Osborne & Russo, 2014). Psychological distress among the students is a pressing issue due to its affiliation to the performance of the learners. Psychological distress contributes adverse effects on the students self-esteem thus contradicting the role of the school in improving the worth of the pupils.
The court systems ought to establish measures to charge the teachers whose conduct causes emotional distress to the students. The use of unorthodox means of punishing students with the aim of embarrassing and humiliating them should be answerable in the court of law (Emens, 2012). Teachers liable for ridiculing students with disabilities ought to pay higher penalties because emotional distress is more detrimental as compared to physical harm.
Conclusion
Education policies and initiatives must focus the inclusion of all students without discrimination. Potential legal issues arise especially when dealing with federal acts that focus on the education of pupils with disability. Some of the issues concerning the students with disabilities that bear potential legal implications include bullying, safety measures, freedom of expression, and emotional distress. Various actions by the school personnel, fellow students, or parents are detrimental to the rights and freedoms of the students with disabilities. Different legal actions can be instituted in the future to ensure justice and equality for all students in public schools in the United States.
References
Bagenstos, S. R. (2014). Law and the contradictions of the disability rights movement. New Haven, CT: Yale University Press.
Bryant, D. P., Bryant, B. R., & Smith, D. D. (2016). Teaching students with special needs in inclusive classrooms. Upper Saddle River, CA: SAGE Publications.
Emens, E. F. (2012). Disabling Attitudes: US Disability Law and the ADA Amendments Act. American Journal of Comparative Law, 60(1), 205-08.
Osborne A. G., & Russo, C. J. (2014). Special education and the law: A guide for practitioners. Newbury, CA: Corwin Press.
Turnbull, A., Turnbull, H. R., Wehmeyer, M. L., & Shogren, K. A. (2013). Exceptional lives: Special education in todays schools. Columbus, OH: Pearson.
Legal issues are important factors to be considered when organizing commercial events. Negligence could lead to charges and legal suits that are detrimental to the growth of organizations. It is always important to understand the environmental factors that influence businesses. In this paper, Hillsborough Stadium disaster event will be described and a brief discussion of the political and social-cultural environments will be included. Hillsborough disaster was responsible for the death of 96 Liverpool fans that were crushed as they tried to get into the stadium to watch a match between Liverpool and Nottingham forest.
The main cause of the disaster was lack of control proper by police officers manning the ground. Moreover, legal issues pertaining to health and safety as well as duty to care are explained. Health and safety issues refer to appropriate measures to ensure that the safety and health of all the people at the event is not at risk. Another important issue is the duty of care. Employers and event organizers are expected to take all the measures necessary to ensure that employees, customers and the general public health and safety are not threatened by the organizations undertakings. Failure to do so may be interpreted as negligence. However, employers are only liable it was their duty to care for the aggrieved party and if they did not exercise reasonable actions to control damage. The Hillsborough disaster would have been controlled if health and safety measures were taken.
Introduction
There are several legal issues that underpin the staging of commercial events. Event organizers are therefore advised to ensure that such issues are addressed when organizing the event and prior to the events kick-off. Failure to address such issues may result into disasters and accidents that may also lead to legal suits and irrecoverable losses. Health and safety act 1974 outlines some of the major legal issues that may arise in organizations and also gives guidelines on how to prevent such things from happening.
Employers also have duty of care towards their employees, customers as well as the general public. This paper will give an overview of a disaster that happened in 1989 (Hillsborough disaster), discuss duty to care, health and safety legal issues that underpin the staging of commercial events and finally give recommendations on how the disaster could have been controlled.
Political and social-cultural environment
The event chosen in this case is a football match that led to a disaster in 1989. In a football match, two football teams play the game with each team hoping that it will win. Other than the players, fans attend to cheer their favorite teams hoping that they will win. Football fans are comprised of both genders whether young, old or youths. When a major football game is scheduled to take place such as the English Premier League or world Cup, it goes without saying that many fans attend to watch the match live.
However this is not always the case due to various limitations. Football matches are associated with politics just like any other commercial event. Politics associated with football include compensation for players. Football clubs argue out that they should be compensated anytime their key players are taken to play outside or when they have accidents or suffer injuries (The Political Economy of Football).
Hooliganism is one of the political ties associated with football. The term hooliganism in football refers to violent and disorderly behaviors exhibited by fans during a football match (football hooliganism). It is common to find football fans from a specific team fighting the fans from the teams they oppose or even beating the players. It normally happens when fans from a winning team behaves in a manner to suggest that they are mocking or insulting the fans from the losing team. However, this is not the sole cause and such behaviors could arise even without good cause.
Football matches influence the social and cultural ways of people. Such events act as a bridge that brings people together to watch the match either live or on screen. During football matches, some people go to clubs to watch the match as they drink while others take it as an opportunity to take their friends and families for a treat by way of paying their tickets. It is at such events that people manage to meet others from different nationalities, races as well as ethnic backgrounds.
Popular football matches such as the English premier league may lead to adoption of new cultures and ways of living as people interact with others from different cultures. Football fans engage in other social activities such as gambling and wagering based on the outcome of the game. Such activities are detrimental to the society since some people spend all their money and savings on such activities instead of investing in more productive ventures.
Hillsborough disaster
It was on 15th April 1989 when the Hillsborough disaster happened. Two English football teams (Liverpool and Nottingham forest) were scheduled to have a match at Sheffield Wednesday’s, Hillsborough stadium at 3 pm. However, the match was not played to the end as the event is to blame for the death of 96 Liverpool fans on the Leppings Lane Terrace. On the material day, it happened that there was traffic congestion emanating from roadwork’s that were in progress on the m62 motorway and this was partially to blame for the late arrival of the funs(Fact-Sheet Two). Funs from either side were to take their positions in different sides of the ground as allocated.
Nottingham Forest fans were to seat on Spion Kop end of the ground that had a capacity of 21000 as opposed to the liver pool’s Leppings end that had a capacity of 14600. This initial arrangement was also questionable since Liverpool was believed to have more fans than the Nottingham Forest. At around 2.30 pm, a sizeable crowd had started to pile up outside the Leppings lane but the police did not take any measure or precaution to manage the crowd (Fact-Sheet Two).
The crowd continued to grow bigger and bigger resulting to congestion at the front. The number of funs that arrived on the material day was larger than expected since even those without tickets had come and some were at the forefront. The situation became more complex since those without tickets were denied entry and could not exit due to congestion resulting to crushing at the front. The match kicked off at exactly 3pm and the excitement of the fans already inside cheering the teams caused additional pressure to those who were still outside trying to get in. The crowd continued to build up and there was excess congestion as each fan tried to get in.
Police officers noted that the congestion was becoming unbearable and requested the match commander (Duckinfield) to have gate C opened. Though there were some delays, the gate was eventually opened and allowed about 2000 fans to get inside. Fans got into the tunnel that led to pens three and four that were most preferred by majority. This worsened the situation since the pens were already carrying beyond capacity before the kickoff. The more fans streamed in, the more the congestion got worse causing crushing at the front near the steel perimeter fence. No action was taken and fans at the back continued to push their way forward while fans crushing at the perimeter fence started to show signs of asphyxiation (Fact-Sheet Two).
The crushing took a fatal turn forcing some fans to climb up the fence as they tried to escape and some of them received assistance from other spectators. The game kicked off as scheduled and by that time, nothing had been done to arrest the situation. Fans shouted to the police officers requesting them to have the gates opened since the situation was becoming unbearable but their shouting landed onto deaf years as the police officers did not do anything. Five minutes after the match kick-off, some fans managed to draw the attention of Liverpool goal keeper who in turn notified the referee. The match stopped at exactly 3.06 pm and urgent and desperate measures were taken to arrest the situation.
Advertising hoardings were taken off to act as stretchers as the situation was already out of hand. The incident resulted to 96 deaths of Liverpool fans both young and old and from all genders. Others got severe injuries that they had to live with while others got traumatized to an extent that they committed suicide after some years since they could not live with such trauma. Police officers made allegations that the fans drank excessively and forced the gate open by force and therefore they were to blame for the disaster (Fact-Sheet Two). However, after thorough investigations, it was clear that the police were to blame since they did not proper control as required.
Police offers barred the way when Liverpool fans tried to penetrate through Nottingham in an attempt to get the injured fans to the ambulances. Forty four ambulances arrived at the scene but police officers barred all of them but one from entering. As a result, most of the causalities never got to the hospital and therefore ended up dying before reaching the hospital. According to the report by Taylor, the disaster was mainly caused by lack of control by the police and partially by the design of the poorly maintained stadium (Fact-Sheet Two).
Legal issues
There are various legal issues that underpin the staging of commercial events. In this case, two legal issues will be discussed: healthy and safety act 1974 as well as duty of care. The two issues will be discussed in an interlinked manner since they are almost related. Health and safety measures are the measures that should be taken to ensure that people’s health and safety are not threatened. Policies to see the same is adhered should have the following features: planning, organization, control, monitoring and review (watt, 2003). Duty of care requires employers or event organizers to take necessary and reasonable precaution to ensure that their employees and even non employees health and safety are not threatened. Failure to comply by this requirement may be interpreted as negligence and can be sued in a court of law (Stott & Felix, 1997).
However, it is important to note that a case filed against negligence does not mean that the defendant will always be guilty even if he was negligent. Negligence only applies if the defendant had a duty to care i.e. it was his or her responsibility to use all reasonable precautions to ensure that an accident or injury did not happen. Negligence must also come from one party who is the defendant otherwise if both the plaintiff and the defendant were negligent, it is implied that none of them has a reason to sue each other in a court of law (Stott & Felix, 1997). Donoghue V. Stevenson is a legal case that was ruled based on the English Tort law.
Donoghue happened to be bought for a drink by her friend in a restaurant. There were remains of a decomposing snail at the bottom of the bottle and when Donoghue saw it, he later complained of stomachache. Doctor’s diagnosis showed that he suffered from shock and gastroenteritis. However, Stevenson (manufacturer) was not held liable by the court since there was no contractual relationship between him and the plaintiff. Stevenson had a contractual relationship with Donoghue’s friend who bought the drink and since she did not get hurt, the court ruled out that Stevenson was not liable
Organizations should ensure that their staff whether permanent, temporary or casuals are fully competent and competently carry out duties assigned to them. They should be able to follow the health and safety measures applicable to the organizations. It’s the organizers duty to ensure that the staff is equipped with the necessary resources in terms of skills, equipments and time. Organizations should ensure that employees have the right qualifications and their performance is not questionable. This can be done by keeping records of performance appraisals that can reasonably prove that employees have the capacity to carry out undersigned jobs (Kessler 2009).
Employees should be in good health and of good mental capacity such that negligence by employees can not be blamed on mental disorders or weak employees resulting from illness. It is the employer’s duty to make sure that employees are not overworked since this may be detrimental to their health and hence have adverse implications on their performance. According to regulation 7 of MHSWR as cited in Collins (2007), employees should receive ample training and be advised on how to manage risk and reduce hazards. When dealing with electronic devices or other equipments that need expertise to operate, user manuals provided by the manufacturers should be used. It the problem is complicated, assistance should always be sought from experts in the industry.
Commercial environments should meet certain requirements that give an assurance that the environment is safe and does not pose danger to health and safety of the occupants. Such places should be clean, have adequate ventilation and illumination, free from bad odour and poisonous gases. Entry and exit routes should be clearly defined and always ensure that there are emergency doors. Organizations should ascertain that such buildings are constructed by qualified and experienced contractors. Leaking pipes and sewer systems should be addressed as soon as they are discovered. Incase of open holes, they should be field or covered to and have signs to show that it is a dangerous ground.
Facilities such as swimming pools should be fenced, manned at all times and have posters or signs to alert new comers that there is a swimming pool. According to OHS Act as cited in Davis & Cumberlege, (2007) employer owes duty of care to inform his employees and other people about the necessary precautions to avoid accidents and disasters. They should have hazard control measures and ensure that equipments likely to cause hazards are operated in the presence of an expert.
Health and safety representatives and committees can be put in place to carry put regular inspection in the organization and address matters relating to health and safety. Such committees should attend regular trainings to refresh on the safety measures and learn new techniques. All organizations should ensure that they have a first aid tool kit and if the nature of business dealings is very risky, an ambulance would be recommended. Accidents resulting from employer’s negligence commands compensation by the employer and call for legal suits in which the employer is liable.
Health and safety act requires organizations to have safety policy statements and make sure that all employees are made aware of their existence (Collins, 2007). Safety policy statements such as evacuation procedure in case of fire should be printed and pinned at a place where they are visible. They should be written in big font and easy to understand language to ensure that any reasonable and prudent person can read and see them. Event organizers should also have fire extinguishers place at strategic points and giving directions of how to use them. Event organizers should keep records that can reasonably proof that they had taken all the precaution safety measures incase of a fire accident otherwise they would be liable in a court of law for negligence (Collins, 2007).
If a commercial event involves food handling whether prepared by the organizers or from outside catering, the organizers ought to ensure that food health and safety measures are adhered to. If food is prepared within, the right ingredients, procedures and hygiene should be observed. Organizers can eliminate litigation possibilities by labeling the food and caution where necessary (Cross & Miller 2011). For example, if various types of meat are to be served inform of a buffet, organizers should ensure that the bowls containing the meat are labeled. This would ensure that people just eat what is good for them and avoid reactions. Outside catering should only be sought from qualified and legally approved caterers.
Organizers should ensure that they have documents or evidence that can reasonably proof that the caterers chosen are competent. However, despite all these food safety measures, cases of food poisoning may arise. Event organizers should not admit liability until the plaintiff proofs that the food was contaminated and as a result, he or she fell sick. According to statute law states (McGuire), if a person can reasonably proof that the food sold to him was not fit for consumption, then he can sue for breach of implied warrant merchantability. Liebeck v. Mc Donald restaurant: the defendant was held liable by the court for serving coffee with extreme temperatures thus burning the plaintiff. The defendant was sued for breach of warranty with regard to goods being fit for the intended purpose and also for being defective.
Conclusion
Hillsborough disaster led to the death of many while other suffered severe injuries and trauma. Two football teams (Liverpool and Nottingham forest) were having a match at the Hillsborough stadium. Due to overcrowding and congestion, many liver pool fans were crushed at lapping lane terrace as they tried to find their way in. The police officers failed to perform their duty of manning the whole event hence the reason the event ended up being a fatal one.
Police officers owed the fans duty of care which they neglected and should have been charged in a court of law. Safety and health measures were not adequately utilized since some exits remained closed even after the police were notified of the situation. Health and safety legal issues that underpin staging of commercial events include but are not limited to; workplace health and safety requirements such as first aid kits, staff competency, food healthy and safety issues as well as written policy statements on health and safety measures.
Recommendations
Hillsborough disaster could have been avoided or at least controlled if some health and safety measures had been put into consideration when organizing the event. The main cause of the disaster was police control although there were additional factors that led to the disaster. Organizers should have made sure that police hired to man the ground were competent enough and had the capacity to man the ground. More often than not, footfall fans are difficult to control and manage due to their hooliganism behavior. After realizing that there was traffic congestion emanating from the roadwork’s that were in progress, the match kick off should have been delayed to first of all ease the crowd that was already piling up outside.
Enough police officers should have been deployed to ensure that the fans made proper ques at the entry gate to avoid congestion and overcrowding. Since there was an allegation that the fans were drunk and misbehaving, such fans should have been evacuated by the police officers to ensure peace and order. Other gates should have been opened when it was noted that the crowd was becoming unmanageable. This would have reduced the influx of people outside before the match kick-off.
There were allegations stadium design also contributed to the crushing. it is fact that the stadium lacked adequate turnstiles at the Leppings lane end. Crush barriers erected were also wanting in terms of quality. As much as these were just secondary factors linked to the disaster, such issues should have been addressed before the match.
Additional turnstiles at the Leppings lane end should have been put up. Organizers should have ensured that there were officers inside the lane to direct fans on where to take their positions and reduce overcrowding in the third and fourth pens that were already beyond capacity before the kick-off. Though a minor factor, it was believed that liver pool had more funs than Nottingham forest yet Liverpool fans were allocated lane with less carrying capacity. Proper allocation should have been done based on the estimated number of fans expected since data was available from the number of tickets sold.
References
Cain, K, The McDonald’s Coffee Lawsuit and Now the Rest of the Story.. . Liebeck v. McDonald’s Restaurants. Web.
Collins, D 2007, Health and Safety Strategies, Cambridge, Workplace Law Group.
Cross, B & Miller, R 2011, The Legal Environment of Business: Text and Cases: Ethical, Regulatory, Global, and Corporate Issues, New York, Cengage Learning.
Davis, G & Cumberlege, P 2007, Legal Issues for Entrepreneurs, Dreyer Street, Juta and Company Ltd.
Fact-Sheet Two: Hillsborough and the Taylor Report. Web.
Art employs thousands of professionals in the contemporary world. There are both small and medium-sized as well as big businesses dealing with art today. It is also evident that the art profession is getting into the global financial market. Banks are especially taking a specific interest in the same. With the passing of time, contemporary art continues to grow. Controversy however always keeps pace with this. There have been many professionals since the beginning of art who have contributed to great dimensions in the art world.
The link between contemporary art and fashion has been observable on the fashion market and catwalks. Art inspires fashion designers who try to integrate art into their events to make the events memorable. This also works in turning the fashions into an art in themselves. The law has to come in where the designers use works of art for inspiration. Works of art are often protected by copyright laws. The law therefore provides that designers get into a license agreement with the people owning the works of art. Depending on the law to be followed, the artist’s permission is necessary in connection with the moral privileges on the work of art.
If a designer copies artwork and uses them for business without the consent of the owner, this is considered an act of infringement of the art professional’s copyright. The consequence can therefore be legal punishment.
Legal issues on modern and contemporary art
Depending on the country, any person that engages in the art business whether it is renting, leasing or compromising to a license for the use of any piece of art is said to be exercising a privilege that should be taxed. A percentage is set for the exercise of any such privilege on the person that is involved. In addition, when one is awarded space for the exhibition of a piece of artwork in an exhibition hall that is either private or public, the sponsor is also taxed for the space.
The implication is that the use of any work of art is subject to taxation (Bostron 1984). The exhibition of any work of art is business as new business opportunities are opened for the exhibitors in the show. Exhibitors may be galleries who are acting as agents for the artists and they exchange works of art to open new geographical markets for their artists. The law therefore treats this as business and the legal procedures of business are applicable.
The Visual Artists Rights Act or VARA identifies the moral rights of an artist in his works of art. The approval of VARA was an important exit from the previously existing law on property. The granted rights to artists include the attribution and integrity rights. The former is concerned with the right of the professional to have a claim on the authorship of a piece of art work. He can also deny the making of an art that does not belong to him. The second right deals with the artist’s ability to recover or prevent damages for deliberate alteration, disfigurement or the destruction of a piece of art. The rights are kept by the artist even after the original work has changed ownership (Visual Artists Rights Act).
The European law recognizes moral rights centering on the right of the artist to protect the creative work for the sake of his reputation. VARA however recognizes that moral rights belong to the artist. The artist owns his creative work and the value of the work is based on the object itself and not a duplication. Damage to the original work is discriminatory by the artist in his ability to maintain honor and a good reputation. In addition, VARA also recognizes that the public is interested in encouraging the artist to preserve the work they have created. It is the public therefore that enabled the invocation of a copyright act in the attempt to preserve culture and art.
In the United States of America, the law that protects art professionals was inexistent until 1979. This is when the Californian state first passed the law on artists’ moral rights. Other states followed after this. The VARA was enacted much later in 1990. This new law overlaps the coverage of artist rights. State laws are nevertheless still in application in USA.
In Europe, the copyright law states that the right to resell is not assignable and therefore if a person acquires a piece of art from the owner or the artist, that person is in no way allowed to sell the piece again to another to make profit as it would be against the copyright laws. The right to resell is only given to the person that made the original work of graphic or plastic art. The interest is economic in the sales that follow the first sale of the particular artwork concerned.
The right to sell falls under a right of production which mainly allows the artist to get consideration for the following reassignment of art. The right covers the physical work owned by the artist which is the medium that incorporates the protected work. The right to resell that the artist enjoys has the main aim to make certain that the artist share in the financial benefits of the original works which they have created. This checks that the economic benefits that the artist enjoys for the original work are fair in relation to the benefits which the people who exploit the original piece get. It is an attempt to be fair to the original artist and limits exploitation and copying of original pieces to some degree.
Treaties also have to take into account the cultural aspects involved in particular pieces of modern and contemporary art. The Berne Convention for the Protection of Literary and Artistic Work in Europe grants the right to resell. However this is only on condition that the legislation in the artist’s country allows for the same. This right therefore becomes an option and under the rule of reciprocity. This means that members of other countries can not be denied the right to resell if the nationals are being allowed the same rights on the grounds of the treaty. The relevance of the treaty and by extension the right is therefore non-discriminatory on the grounds of the nationality of a person.
Globalization of trade has seen to the process of internationalizing the market for modern and contemporary art. The impacts of the new economy have seen to the speeding of this process. Not many countries in this case have been very keen on the resale right outside the European Union. The European Union therefore attempts to open negotiations to make the resale right as spelt out by the Berne Convention obligatory for countries requiring to sell art. This ignorance to the right to resell prompts the EU to lay down regulations that will protect the competition present in the art market.
The right to resell is one among the many legal issues that face modern and contemporary art. This is besides the rights which encourage the creation and dissemination of visual art where two major rights are in application. The two are attribution which refers to claiming work as one’s own and denying work that an artist does not own or one he owns but which has been damaged or altered so that it discriminates the artist’s honor and reputation. The other is integrity which is protection or recovering damage for deliberate alteration, mutilation or improvement of a piece of art which also puts at stake the reputation of the original artist.
An example of a case in which the VARA rights applied is that in the works of David Smith in 1960. One of the collectors who had acquired a piece of art by Smith had modified the sculpture by stripping its surface of Red paint. Once he attempted and failed to persuade the owner of the sculpture to restore the original work, Smith disowned the artwork and suggested laws to protect artists from such actions. Artists after that enjoyed the protection offered by VARA from violations of their work like that on Smith’s (Visual Artists Rights Act).
On the sale of any piece of art by the owner, the government is entitled to a percentage of the sale profits which are made in the form of taxes. A system of taxes that suits the countries involved in the sale of any piece is established.
However, the terms of taxation are not enough to guarantee that the art market will function harmoniously. The present differences between laws in various countries ought to be rid of if the laws have a disfiguring effect on the performance of the internal and external art market. To achieve this, there has to be some sort of harmonization of the rights for reselling. The surfacing of such laws with a distorting effect should also be prevented by all means (Art 0 Resale directive 2001).
For a market to function smoothly, there have to be laws in existence. However, these laws should not be distorted. Distortion of laws results in the unequal treatment of artists that depends on the place where the works of art are sold and the nationality of that artist. The issues affecting artists can therefore be solved and harmonized if the member states work together to ensure the same. The issue can nevertheless not be addressed to satisfaction by the members because of the terms of the treaties and the requirement to correct any distortion.
Copyright laws run a whole generation after the death of the original artist and owner of a piece of art. The same period for which the copyright act runs should also be applicable for the right to resell. For this reason, the only works of contemporary and modern art that can fall within the range of the rights to resell are the original works. With this directive by law though, there are member states that may not have it in application. These countries are allowed to adjust to the right and incorporate it into the state’s legal system so that the economic operators can adapt to the right. It is upon the member states though to choose whether to apply or not to apply the right into their system of law to the advantage of the beneficiaries of the person after his death.
Legal issues on old art and antiquities
In recent examination of antiquities, it was found that looting of antiquities in Africa and Latin America had escalated and this was an issue of concern (Walter 1983). European countries argue though that the African continent deserves looting for the reason that it is not able to protect its antiquities. There have been educational campaigns among local folks to protect the archaeological sites against looters. Mali is one of the examples of countries in Africa which have had missions that were successful in reducing the rate of looting. The efforts are however hampered by lack of enough personnel and other resources.
Questions on how museums can combat the looting of antiquities have also been raised. One of the suggestions was that purchasers of antiquities should take it upon themselves to ensure that the works they buy are legitimate. Walter asserts that they are also obliged to check that the items they plan to acquire have not been stolen or exported or imported illegally from the original country (1983). The law therefore had to come in at this.
On the old art and antiquities, it has been suggested that the law and specifically general treaties should be followed like the Optional Protocol. These treaties treat serious offences against cultural heritage as criminal cases and should therefore enforce the law on the same. The law provides for the regulation of export trade in old art pieces and antiquities. This ensures there is prevention of smuggling of antiques. To some extent, it also prevents the fraudulent dealings in antiques of a particular country. To ensure that these antiques are protected and maintained, the law also provides for the compulsory acquisition of the old antiques and treasures of art which are then preserved in public places where they are accessible by the public and yet protected from theft and general loss.
It would seem that old art and antiquities enjoy more protection than modern art. They are treated as valuable treasures in whichever countries that claim their ownership. In Bosnia, ethnic conflict had destroyed cultural and religious monuments that belonged to certain ethnic groups. To curb this, a law was implemented which spelt the destruction of cultural heritage in a deliberate motive to be a crime against humanity. Museums suggested that the procedure for loans should be altered so that western museums could get long-term loans of antiquities from countries that were rich in them. Illegal traffic would be taken care of by having agreements between the countries that were interested in trading antiquities.
Countries believe that the acquirement of old art and antiquities that meets the ethical and legal requirements is for the benefit of the institutions and private collectors involved. They act as agents of cultural heritage and are beneficial to the education of the public as well as the international cooperation.
They have therefore come up with some resolutions concerning antiquities. The standards of the International Council of Museums should be followed by all museums, collectors and people dealing old art. The procedures of acquiring antiquities should hence not be taken for granted at any one time under any circumstance. This will put in check the illegal acquisition of the material and antiquities by frauds.
The law also points out the deprivation of history by looting of old treasures. Archeological sites are destroyed in the process. It therefore provides that museums that conspire in the acquisition of looted material should not benefit from lending of this art and ancient material. In addition, it is noted that the exchange of cultural material between nations is important to motivate appreciation and honor for foreign culture. It is important too for the academic gains of generations to come.
In this case, the legal issues surrounding this are concerned with encouraging governments of the nations that own antiquities to support long-term loans for cultural material to international museums and institutions as long the standards agreed on internationally are met. There is a need to also revise national acts that limit the period on loans for the sake of exhibitions (Art 0 Resale directive 2001).
International cooperation is important if the word’s cultural patrimony is to be guarded. The law therefore implores the nations to support the agreements that help protect culture. Such agreements include the Hague Convention for the protection of cultural property in the case that there is armed conflict between nations. UNESCO also has a regulation on the importation and exportation of cultural material while the unidroit is concerned about theft and illegal acquisition of old art and cultural antiquities.
The law that protects old art and antiquities therefore provides for regulation of export and import trade in the materials and treasures so that smuggling is prevented. It also prevents counterfeit dealings in antiquities while at the same time granting the compulsory acquisition of antiquities to be preserved in public places besides providing for other issues.
In the provision by law, there is need to define antiquities and old art treasures. Antiquities are treated as any sculpture, coins, painting or craftsmanship, articles and objects that are got from old buildings and caves and educational material of ancient times or historical interest. The government may also put a label on any material to be considered as an antiquity. On the other hand, art treasures are human works of art or any other material which the government defines as such (Art 0 Resale directive 2001).
Governments may give authority to persons to conduct transactions of antiquities on its behalf. The law should in this case provide for the same and only the designated persons are allowed to perform such business. In addition, when a government intends to export any treasures or pieces of art, that government is bound by the terms and conditions of permit as spelt out by law and issued for the reason of that transaction as approved. The selling of antiquities is also bound by the acts and persons are not allowed to sell or offer to sell any old cultural objects unless it is in accordance with the terms and conditions of the license given for the same (Art 0 Resale directive 2001).
Licensing of a person to sell an antique or treasure is only allowed under certain conditions. On the one hand, that person should have experience with the sale of antiquities. Licenses are therefore not given haphazardly. This measure checks on the maintenance of the value of the piece of work for the sake conservation and preservation. In addition to this, the place where the person intends to sell is put into consideration.
This goes hand in hand with the number of people that might have offered to sell or are already involved in the business of selling antiquities in that particular region, city or otherwise. The distribution of antiquities is minded as well as the competition on the sale of old art. The license may be revoked if the person to whom it has been issued fails to comply with the terms and conditions spelt therein. It may also be amended depending on the terms of issue.
The government might demand that antiquities be registered. This will be based on the necessity to conserve the pieces of art or the need to preserve the objects. The registration of antiquities is often accompanied by photographs of the same. This however depends on the demands of the law. To add to the registration procedure, if the owner of any antiquity intends to transfer ownership, then the same procedure has to be followed with registration. The same rule does not apply to those antiquities or treasures that are stored in offices, museums, archives or educational and cultural institutions.
Whenever a government deems it fit to preserve a piece of old art or treasure, the person in ownership of the piece is given notice for the government’s intention to compulsorily acquire that artwork. The collector appointed by the government can then lawfully collect that piece from the owner. In this case, if it is necessary to use force, the owner is under no obligation to resist. However, the owner of the antiquity is compensated for the loss of the piece under the law.
An agreement has to be reached on the compensation value of the piece and this may require the intervention of a court of law. The government holds the right to appoint a person who has knowledge on valuing of treasures and the nature of the antiquity to help the arbitrator. The person from whom the piece is being acquired may also be allowed to get an assessor of his own to confirm the valuing as it will be done by the government’s valuer.
Conclusion
In the protection of works of art, the legal issues concerned for the modern and contemporary art differ on some grounds while they tend to be similar on some. Some of the similarities involve the right to sell works of art. Old art and antiquities are protected by the government and only licensed sellers are given the right to dispose of these pieces under the applicable terms of sale as agreed upon by the nation involved.
This ensures that the pieces are not smuggled and that the frauds are catered for in terms of limitation on sale. In the same way, the professionals dealing with modern and contemporary art are protected by sale rights in that the works can not be sold unless the owner has permitted the same. However, the modern pieces of art are in the domain of the owners unlike the old pieces and therefore the owner is free to sell their works as they consider appropriate.
In addition, the modern works are taxed according to the terms of rights of sale. This differs with the old art and antiquities in the aspect that sale of the latter is only legal if the transaction is carried out through the concerned governments as explained in the paper. In addition to these facts, there is also a similarity in the copyright laws where both categories of work are protected by the same. The modern artist can sue for the duplication or mutilation and modification of his works or even disown it while in the case of antiquities, duplication or modification is treated like any criminal offence.
The sale of counterfeit goods can in no way be condoned by the government. In addition, the government has the right to compulsory acquisition of antiquities from their owners for the sake of preservation and conservation but it has no such right with modern art. The exhibition of old art is not taxed where a modern artist has to pay or space given in an exhibition hall. Old antiquities are the responsibility of the governments and therefore enjoy more protection from the law than modern art does.
References
Art 0 Resale Directive. Official Journal L 272, 2001, p.32-36.
Bostron, Catherine, “The moral right s of artists: Museums and the law,” Museum News, 1984.
Robinson, Walter, “Art and the Law: Moral rights come to New York.” Art in America, 1983.