Cuadernillo Nivel III 300609[1]

Facultad de DerechoFacultad de DerechoFacultad de DerechoFacultad de Derecho Universidad de Buenos AiresUniversidad de Buenos AiresUniversidad de Buenos AiresUniversidad de Buenos Aires

Programa de

Lecto-comprensión

InglésInglésInglésInglés Nivel III

2009

Programa de Lecto-comprensión: Inglés Nivel III 2

Índice Página

Texto 1 : “The Australian Jurisdictions”.............................................................................. 3

Texto 2 : Lectura A: “Abortion” ............................................................................................. Lectura B: “The Abortion Act 1967” ..................................................................

7 8

Texto 3 : “The Law of Succession” ......................................................................................... 12

Texto 4 : Lectura A: “Three Wise Men to Curtail President” ....................................... Lectura B: “The Governor-general” ....................................................................

17 20

Texto 5 : “Succession on Intestacy” ...................................................................................... 22

Texto 6 : “Legislative Powers” ................................................................................................ 27

Texto 7 : “The Law of Torts” ................................................................................................... 32

Texto 8 : “Insolvency and Bankrupcy” ................................................................................. 38

Texto 9 : “U.S. Constitution: Second Amendment” ........................................................ 42

Texto 10 : “Miscellaneous Torts” ............................................................................................. 46

Texto 11 : Lectura A: “Dolphin Telecom Files for Creditor Protection” ...................... Lectura B: “Egghead.com to File for Bankruptcy ” ........................................

50 51

Texto 12: “The Starting-point” ................................................................................................ 57

Texto 13 : “Equal Protection” .................................................................................................... 61

Texto 14 : “Criminal Law and Cyber Crimes” ..................................................................... 66

Texto 15: “Knife Crime is Epidemic, Top Judge Claims” ................................................ 70

Texto 16 : “Can 'Cannon' be confused with 'Canon'?” ................................................... 73

Texto 17 : “Juristic Persons” ...................................................................................................... 77

Texto 18: Lectura A: “How to cope with an evil twin: resolving enterprise name disputes” ...................................................................................................................... Lectura B: “Cybersquatter Targets MP Keith Ashfield” .............................

82 87

Texto 19: “Learned Hand. Jurisprudence” ........................................................................... 88

Texto 20 : “Doe V. Mann” ......................................................................................................... 96

Texto 21 : Lectura A: “Air Canada Fined $1M in Disclosure Case” ............................ Lectura B: “Securities Fraud” ..............................................................................

101 102

Texto 22: Lectura A: “Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.” ........................................................................ Lectura B: “Bulk Cash Smuggling into or out of the United States” ......

108 114

Texto 23: “Mopping up mobbing-legislate or negotiate?” .............................................. 117

Texto 1 : “The Australian Jurisdictions” Fuente: Gillies, Peter: Business Law, 7th Edition, The Federation Press, Sydney: 1995.


The Australian Jurisdictions

1 INTRODUCTION 1.6 The Australian Jurisdictions

A “jurisdiction” is said to exist in the law when a discrete territorial area is governed either generally or at one governmental level, by a legislature, which legislature creates laws for it. As part and parcel of this law creation, the 5

legislature will create a hierarchy of courts to apply this law.

In the case of a unitary state, such as Britain, the whole country represents a single jurisdiction although given the tradition of an independent court hierarchy in each sub-unit, or “country” of Great Britain, along with certain distinctive statutes, on one view England and Wales represent a jurisdiction, Scotland another one and 10

Northern Ireland the third. Scotland indeed has gone one step further and has its own common law different in marginal ways to the English. It should be noted that the House of Lords, through its Judicial Committee –the ultimate court of appeal in Great Britain- represents a unifying influence in relation to the common law in Britain. New Zealand, a pure example of a unitary state, is one jurisdiction. 15

In Australia (as in other federations like the United States and Canada), there are a number of jurisdictions. The basic jurisdictions are the States and Territories (the Australian Capital Territory and the Northern Territory are the major territories). The States and Territories have their own legislature and it makes State or Territorial law. The common law is also applied at State and Territorial level. Each 20

jurisdiction has its own court hierarchy, one culminating in the High Court as the ultimate (and unifying) court of appeal in Australia. At the State and Territorial level, then, there are eight jurisdictions.

The ninth jurisdiction is of course the Commonwealth, whose territorial area draws in all of the areas occupied by the States and Territories. The 25

Commonwealth Parliament is a parliament of relatively limited powers, namely, those allocated to it under the Australian Constitution. These powers are, however, in the aggregate broad and the Commonwealth Parliament has created a vast collection of statutes. Collectively these make up federal law. To administer this federal law the Commonwealth has (through legislation) set up a federal court 30

hierarchy. To some extent these courts are State and Territorial courts exercising federal jurisdiction under the authority of a federal statute, that is, they are in the physical sense State or Territorial courts, but when hearing the case under federal law they function as a federal court – they wear a federal hat. The Commonwealth has also in recent times created some exclusively federal courts, such as the 35

Federal Court itself and the Family Court. The ultimate court in the federal hierarchy is (again) the High Court, being the ultimate appellate court in Australia.



The courts are further discussed in chapter 3. A simple illustration of concurrent jurisdiction of the State/Territorial and federal 40

hierarchies may be noted. Mr and Mrs X live in a State. Mr X steals from a phone box. He will be prosecuted under a federal law and tried in a court exercising federal jurisdiction (a State or Territorial local court exercising federal jurisdiction). Mrs X wants a divorce. She institutes proceedings under the Family Law Act 1975 (Cth), a federal statute, in the Family Court, a federal court. Quite 45

independently, Mrs X enters into a contract to buy a car and hands over a large deposit to a dealer. The dealer refuses to supply the car and refuses to remit the deposit. Mrs X can sue in contract – a common law action instituted in the appropriate State court. Mr X gets into a brawl at work. He sues his workmate for the tort of battery – again a common law remedy in a State court. 50

��Actividades

1) Responder:

(a) ¿Cuál es el alcance del término “jurisdiction” en el primer párrafo?

(b) ¿Cuál es su alcance para el caso de Gran Bretaña?

(c) ¿Cuál es el tribunal que en Gran Bretaña decide sobre una apelación en última instancia?



(d) ¿Cuáles son las unidades que en Australia se denominan “jurisdiction”? ¿Cuántas hay en total?

(e) ¿Cuál es el tribunal que en Australia decide sobre una apelación en última instancia?

2) Marcar para cada tipo de caso el sistema judicial por el que tramita en Australia, según los ejemplos del texto.

Tipo de proceso Justicia del estado/territorio Justicia federal

Causa penal

Divorcio

Incumplimiento de contrato

Acción civil por lesiones

3) ¿Cuál es la referencia de las siguientes palabras en el texto?

Palabra Renglón Referencia

“it”

“broad”

“these”

“they”



4) Indicar la opción correcta.

(a) La palabra “discrete” se entiende como:

1- sutil 2- independiente 3- discreto

(b) El término “court hierarchy” hace referencia a:

1- organización de la justicia 2- organización jerárquica 3- nivel judicial

(c) La palabra “ultimate” se entiende como:

1- fundamental 2- de mayor importancia 3- de última instancia

(d) El término “Commonwealth”, en por lo menos una de sus acepciones en el texto, significa:

1- el poder británico 2- el estado independiente 3- el gobierno federal

Texto 2: Lectura A: “Abortion” Fuente: Leonard, Robin & Elias, Stephen: Nolo's Pocket Guide to Family and Divorce Law. 4ª Edición. Nolo Press. Berkeley, Ca.:1996. Lectura B: “The Abortion Act 1967” Fuente: Curzon, L. B.: Criminal Law. 7ª edición. The M+E Handbook Series. Pitman Publishing, Londres: 1994


Lectura A

Abortion

Abortion is the medical termination of pregnancy, either elective (by choice) or therapeutic (to save the mother's life). Since the 1973 landmark U.S. Supreme Court case, Roe v. Wade (410 U.S. 113), every woman has had the legal right to an elective abortion during the first three months of pregnancy (called the first trimester). But the U.S. Supreme Court decision of Webster v. Reproductive Services (492 U.S. 490) 5

has permitted the states to erode that right in many ways.

States may now pass laws prohibiting public facilities or employees from performing elective abortion, even if paid for by private funds. States may also ban the use of public funds for family planning programs that include abortion counseling and referral. Since the early 1980s, neither the federal government nor 10

the states have had to fund non-therapeutic abortions for indigent women, though some states, such as California, have chosen to do so.

States may also ban or limit abortion at any time after viability (when the fetus may survive outside the mother's womb), and may require testing as early as 20 weeks into pregnancy to determine viability. Viability is the point at which the law 15

begins to protect a fetus as a potential human life. As medical technology advances, the moment of viability is occurring earlier and earlier.

In response to Webster v. Reproductive Services, many state legislatures are now battling over abortion. Some states impose obstacles to obtaining elective abortions, such as delays in scheduling the procedure and requiring anti-abortion 20

counseling.

In 1990, the U.S. Supreme Court in Ohio v. Akron Center for Reproductive Health (110 S.Ct. 2972) declared that women under the age of majority can be required to notify one of their parents before obtaining an abortion. The Court held that these laws do not infringe on the U.S. Constitution's right to privacy, as long as the state has 25

set up an alternative procedure where a court can waive parental notification. If a state has adopted a privacy right greater than the federal one, the parental notification law still may be declared invalid. In states with parental notification laws, many are not enforced while the state constitutional challenges make their way through the courts. 30

In 1992, the U.S. Supreme Court reaffirmed its decision allowing a woman the right to choose to have an abortion before the fetus is viable without undue interference from the state in Planned Parenthood of Southeastern Pennsylvania v. Casey (112 S.Ct. 2791). The court did hold, however, that a state's requirements of a 24-hour waiting period and parental consent to a minor's decision to have an abortion were 35

constitutional.



Lectura B

The Abortion Act 1967

Medical termination of pregnancy

The situation is governed by the Abortion Act 1967, as amended by Human Fertilisation and Embryology Act 1990. Under s. 1(1): 'Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion where a pregnancy is terminated by a registered medical practitioner if 5

two registered medical practitioners are of the opinion formed in good faith -

(a) that the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or 10

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from 15

such physical or mental abnormalities as to be seriously handicapped.'

Other relevant matters

The following points are of importance.

(a) Treatment for termination of the pregnancy must be carried out in a hospital vested in the Minister of Health or the Secretary of State under the NHS Acts: s. 20

1(3)(b).

(b) In the case of an emergency in which termination is immediately necessary so as to save the life or to prevent grave and permanent injury to the physical health of the pregnant woman, subsection (3) and that part of subsection (1), relating to the opinion of two medical practitioners, shall not apply: s. 1(4). 25

(c) In the case of a woman carrying more than one foetus, anything done with the intent to procure her miscarriage of any foetus is authorised by s. 1 if the ground for termination of the pregnancy specified in subsection 1(d) applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of the foetus, or any of the other grounds for termination of the pregnancy specified 30

in s. 1 applies: s. 5(2).

(d) The question of whether a medical practitioner has acted 'in good faith' in deciding to terminate a pregnancy is for the jury to decide on the totality of the evidence: R.v. Smith (1973).



(e) Under the 1967 Act, s. 4, no person shall be under a duty to participate in any 35

treatment under the Act to which he has a conscientious objection, but this must not affect his duty to participate in any treatment considered necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman.

(f) In Royal College of Nursing v. DHSS (1981), the House of Lords held that a 40

pregnancy is 'terminated by a registered medical practitioner' within s. 1(1) when the termination is prescribed and initiated by him and he remains in charge while qualified nursing staff carry out his instructions as a team effort.

(g) It should be noted that there is now a fixed time limit for abortions under the 1967 Act, s. 1(1)(a) of 24 weeks. In the case of abortions under s. 1(b), (c), (d), there is 45

no time limit.

��Actividades

1) Responder las siguientes preguntas.

(a) ¿Desde qué óptica tratan los textos el tema del aborto?

(b) ¿De dónde surge la posibilidad de que a una mujer se le practique un aborto en cada país?

(c) ¿Qué tipo de aborto trata cada texto en particular?



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de ser falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) En los Estados Unidos, para que una mujer pueda optar por un aborto existe un límite de doce semanas de embarazo.

Verdadero Falso

Sería verdadera de la siguiente manera:

(b) En Inglaterra, la ley impone ciertas condiciones para que la práctica de abortos por parte de médicos matriculados no encuadre como delito.

Verdadero Falso


(c) En los Estados Unidos, el máximo tribunal, a partir del fallo en Ohio v. Akron

Center for Reproductive Health, dictaminó que las mujeres están obligadas a dar aviso a uno de sus padres antes de que se les practique un aborto.

Verdadero Falso




(d) En Inglaterra, no existe límite de tiempo para practicar un aborto si es que la

continuidad del embarazo importare un riesgo mayor para la salud física y mental de la mujer que la interrupción del embarazo.

Verdadero Falso


Texto 3: “The Law of Succession” Fuente: Harpwood, Vivienne; Alldridge, Peter: GCSE Law. 4ª Edición. Blackstone Press Limited: Londres, 1995. Págs. 256-7.


The Law of Succession

The law has developed rules to govern the disposition of a person's property on his or her death. Every person who dies will either die 'testate' (that is, having validly executed a document called a will), or 'intestate? (that is, not having executed such a document). By making a will the deceased exercises the maximum possible control over who is to inherit from him or her. It also serves to prevent argument 5

between survivors and in large estates to minimise liability to tax. The rules of intestate succession represent a guess by the legislature as to whom the deceased would have wished to have his or her property.

Valid Wills

Subject to the provisions of the Inheritance (Provision for Family and Dependants) 10

Act 1975, a person may dispose of any property which remains after the lawful debts of his or her estate have been paid, in any way at all. But in order to do this the person must execute a valid will.

Eighteen is the minimum age at which anyone can make a valid will, except for 'a soldier being in actual military service, or any mariner or seaman being at sea', 15

who may make them under age 18. Soldiers and seamen may also execute oral wills, but otherwise a will must be (Administration of Justice Act 1982 s. 17):

(a) a document in writing; and

(b) 'signed' by the testator (the person making the will); and

(c) signed by two witnesses. 20

'Signing' can include making a mark where the testator cannot read or write, but in the case where the testator cannot read there must be evidence that he or she had been properly informed of the contents of the will. The will must be signed by the testator or by someone acting under his or her direction. Someone else may sign where, for example, the testator is too weak physically to do it but is nonetheless 25

compos mentis (in one's right mind).

The function of the witnesses is to witness the signature only, not to attest to anything concerned with the contents of the will. So it is not necessary that a witness should read (or even see) the body of the will, nor know that it is a will which is being witnessed. 30

If a 'will' is not executed in this form then it will not be validly executed, and on the testator's death his or her property will pass according to the rules for intestacy. If one of the witnesses is also a beneficiary (i.e., a person receiving a gift under the will), then the gift to that beneficiary will fail and the property concerned will pass as though the deceased had died intestate in respect of that property. 35

Once a will has been validly executed, it is said to be 'ambulatory'. That is to say, it does not have an immediate effect, and is only 'activated' by the death of the testator. In between the time of the execution of the will and the death of the testator, the will may be (a) 'revoked' (cancelled), or (b) altered, by the testator.



Revocation 40

This may come about in three ways:

(a) By executing a document in the same form as he or she would have to employ to make a valid will: thus if the testator could validly make a will orally, the revocation may be made orally (Wills Act 1837 s. 20). This revoking document is often itself a new will. It is sensible (though not formally necessary) to begin a will 45

with a clause revoking any former wills.

(b) By marriage: by s. 18 of the Wills Act 1837 any will which is made before the testator's marriage is automatically revoked by that marriage (save where the will is made specifically and explicitly with that marriage in mind). However, divorce does not revoke a will made in favour of the spouse. 50

(c) By destruction: under s. 20 of the Wills Act 1837 a will may be revoked 'by burning, tearing or otherwise destroying [the will] by the testator, or by some person in his presence and by his direction, with the intention of revoking [it].' It is not enough that the will actually is destroyed. It must be shown to have been done with the intention of revoking the will. If the document is destroyed without the 55

required intention, then a copy is admissible in evidence of its contents.

Alteration

Wills may be altered before or after execution.

(a) Before execution: it is perfectly possible to alter a will before execution (i.e., before signature, etc.). Such a will is valid in the form it took when it was actually 60

executed.

(b) After execution: a will may be altered by the execution in the correct form (i.e., properly signed and witnessed) of an additional part called a codicil. If a codicil is inconsistent with the terms of the original will, the codicil, representing the later expression of the wishes of the testator, will prevail. Likewise, a later codicil will 65

prevail over an earlier one.

A will can also be altered upon its own face (for example, in a bequest of money, by crossing out one figure and inserting another). However, the amendment must have the requisite formalities (signature by or on behalf of the testator and witnesses), and is only effective if the position prior to the alteration is completely 70

obliterated (Wills Act 1838 s. 21).

Declaration Of Intent

A will is a declaration of intent only; the execution of a will does not interfere at all with the general power of an owner of property to dispose of the property during his or her own lifetime. If there is a specific bequest of property in a will and that 75

piece of property has been given away or sold by the testator during his or her life, then the gift fails.



��Actividades

1) Responder:

(a) ¿Qué requisitos debe reunirse para redactar un testamento válido?

(b) ¿Qué se entiende por el carácter modificable de los testamentos?

2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de ser falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) Las normas que rigen la sucesión intestada resultan ser una interpretación de la voluntad de los causantes que no dejan testamento.

Verdadero Falso




(b) Las normas que rigen la sucesión intestada resultan ser una interpretación de la voluntad de los causantes que no dejan testamento.

Verdadero Falso


(c) Un beneficiario que a su vez sea testigo queda anulado como testigo.

Verdadero Falso


(d) Si una persona cree que firma un contrato en calidad de testigo, cuando en realidad se trata de un testamento, entonces el testamento no es válido.

Verdadero Falso




(e) La existencia de un testamento no paraliza la libre disposición de los bienes en vida de quien lo hubiere suscripto.

Verdadero Falso


3) Completar con información del texto sobre:

(a) Revocación

(b) Modificación

Texto 4 : Lectura A: “Three Wise Men to Curtail President” Fuente: internet: http://www.theaustralian.news.com.au. Lectura B: “The Governor-general” Fuente: internet: http://en.wikipedia.org/wiki/Governor-General_of_Australia del 07/04/08.


Lectura A

Three Wise Men to Curtail President By Benjamin Haslem, High Court correspondent 19 Jul 01

Former High Court chief justice Gerard Brennan has dropped his opposition to a popularly elected head of state, proposing a council of three wise men to curtail the power of a president to sack the prime minister.

Delivering a lecture at the Australian National University last night, Sir Gerard said that under his proposed republican model, the president – popularly elected or 5

otherwise – would have to convince a constitutional council it was necessary to exercise the reserve powers and sack the government.

Sir Gerard’s proposal marks a big shift in his thinking – in the lead-up to the 1999 republic referendum he warned that a popularly elected president would destroy the Westminster system of responsible government. 10

The shift comes as the Australian Republican Movement has dropped its opposition to a popularly elected president.

Sir Gerard said the main problem with an elected president was that they would have an electoral mandate and would be free to use the reserve powers held at present by the governor-general. 15

“The president, armed with the authority of a popular mandate, might exercise or impair the powers of the prime minister and government”, Sir Gerard said in his lecture. “There would be two hands on the tiller of national interest.”

The constitutional council could consist of three former governors-general or presidents, or three former High Court chief justices or justices. 20

If the president ignored the council’s decision, the sacked prime minister could go to the High Court.

The reserve power, used as a check against unlawful conduct by a government, could be retained with a constitutional council.

Some republican advocates pushing for an elected president have suggested 25

spelling out the reserve powers in the constitution.

But Sir Gerard said it was “difficult to spell out conventions prescribing the occasions for exercise of reserve powers”.

His comments were welcomed by ARM chairman Greg Barns.

“Like the ARM, Sir Gerard is recognising there’s a number of Australians who want 30

to see a popularly elected president”, Mr Barns said.

But Australians for a Constitutional Monarchy national convenor David Flint said Sir Gerard’s model would never be adopted.

“In a referendum, people won’t put up with it because if we’re to become a republic – and I stress if – they want to choose the president, and any proposition that the 35

president would have even less powers than the governor-general won’t wash”, Professor Flint said.

Popular election advocate Ted Mack agreed, labelling Sir Gerard’s model “a Clayton’s president” with less power over executive government.

George Winterton, law professor at UNSW and a republican, said the constitutional 40

council was “not a bad idea” but questioned whether Australians would support its make-up.



��Actividades

1) Responder:

(a) ¿Qué postura tiene actualmente Gerard Brennan?

(b) ¿Qué postura sostenía anteriormente?

(c) ¿Por qué cambió de opinión?

(d) ¿Por qué cree que es necesario que se controle al presidente?

(e) ¿Quiénes podrían, en su modelo, controlar al presidente?



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar las respuestas indicando el renglón de referencia.

(a) Esta es la primera vez que se discute un modelo republicano en Australia.

Verdadero Falso

Justificación:

Renglón de referencia:

(b) La propuesta de Gerard Brennan es que el presidente provenga del voto popular.

Verdadero Falso

Justificación:


(c) Quines están a favor de un modelo republicano y un presidente electo

proponen que la constitución haga expresa referencia a los poderes reservados.

Verdadero Falso

Justificación:


3) Identificar personas u organizaciones y sus posturas frente a la propuesta de Gerard Brennan y de un presidente electo:



Lectura B

The Governor-general

The Governor-General of the Commonwealth of Australia is the representative in Australia of the monarch of Australia (currently Elizabeth II, Queen of Australia). He or she exercises the supreme executive power of the Commonwealth. The functions and roles of the Governor-General include appointing ambassadors, ministers and judges, giving Royal Assent to legislation, issuing writs for elections 5

and bestowing honours. The Governor-General is President of the Federal Executive Council and Commander-in-Chief of the Australian Defence Force. All these things are done and all these posts are held under the authority of the Australian Constitution. Further, the Governor-General acts as vice-regal representative to the Australian Capital Territory. 10

The Constitution provides that a "Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth ..." The Constitution grants the Governor-General a wide range of powers, but in practice he or she follows the conventions of the Westminster system and (with rare exceptions) acts only on the advice of the Prime Minister of Australia or other ministers. Even in the 15

appointment of the prime minister, the Governor-General rarely exercises any discretion, usually appointing the leader of the largest party or coalition of parties in the House of Representatives.

Method of appointment

In practice, the selection of a governor-general is a matter for the Prime Minister of 20

Australia, who may consult privately with staff or colleagues, or with the monarch. The person would also be approached privately to see if they are willing to accept the appointment.

The Prime Minister then provides the nomination to the monarch.

Tenure 25

The constitution does not set a term of office, so a Governor-General may continue to hold office for any agreed length of time, however a typical term of office is five years. At the end of this period, a commission is occasionally extended by a short period.

A Governor-General may be recalled or dismissed by the Queen before their term 30

is complete. By convention, this may only be advised by the Prime Minister. The Prime Minister has the option of naming an immediate replacement or letting the vacancy provisions take effect.

As no Australian Governor-General has ever been dismissed, it is unclear how quickly the Queen would act on such advice. The constitutional crisis of 1975 35

prominently raised the possibility of the Prime Minister and the Governor-General attempting to dismiss each other at the same time.



Reserve powers

In the United Kingdom, the reserve powers of the Crown are not explicitly stated in constitutional enactments and are the province of convention, but in Australia, 40

the powers are explicitly given to the Governor-General in the Constitution but it is their use that is the subject of convention.

The reserve powers are:

• The power to dissolve (or refuse to dissolve) the House of Representatives. • The power to dissolve Parliament on the occasion of a deadlock. 45

• The power to withhold assent to Bills. • The power to appoint (or dismiss) Ministers.

These powers are generally and routinely exercised on Ministerial advice, but the Governor-Generall retains the ability to act independently in certain circumstances, as governed by convention. 50

��Actividades

1) Responder:

(a) ¿Cuáles son los poderes reservados que existen en Australia?

(b) ¿Cómo se designa al “Governor-general”?

(c) ¿Cómo se designa al primer ministro?

(d) ¿A cuál de los poderes reservados se hace referencia en la Lectura A?

Texto 5: “Succession on Intestacy” Fuente: Forsyth, T. A.: A Brief Outline to the law relating to Trusts, Wills, Executors and Administrators. 3ª Edición. The Dunmore Press Limited: Palmerston North, Nueva Zelanda: 1994..


Succession on Intestacy Chapter 8

When a person dies without leaving a valid will, she is said to die ‘intestate’. An ‘intestacy’ will also result when the deceased has left a will but all the gifts fail as, for example, when the beneficiaries have all predeceased the testator.

There will be a partial intestacy when the deceased has left a will, but has failed to dispose effectively of the whole of the estate. This will occur when the testator has 5

left specific gifts, but has not included a residuary clause to cover those assets not specifically bequeathed and gifts that fail, or when the residuary disposition itself fails. In such cases, the deceased will be deemed to have died intestate for that part of his estate not effectively disposed of under the will.

When a person has died intestate, either wholly or partially, her assets must still be 10

disposed of. The law at present in force in New Zealand governing succession on intestacy is contained in the Administration Act 1969 which, in Part III, sets out the rules of intestate succession.1

For the purposes of these rules:

A. In similar manner to what we saw in subsection 6.1.1 (General administration) 15

in connection with grants of Letters of Administration, a ‘spouse’ does not qualify as such when a separation order is in force.2

B. ‘Personal chattels’ do not correspond exactly with ‘personal property’. Not only do ‘personal chattels’ exclude leaseholds, but they also exclude any chattels (including cars) used principally for business purposes, and money and securities 20

for money (for example, mortgages and company shares).

C. ‘Issue’ means children of the intestate, plus the children of any child who has predeceased the intestate, such grandchildren (or great grandchildren, as the case may be) taking per stirpes the share that their parent would have received.

The main rules of intestate succession are: 25

1. The spouse of the intestate gets the personal chattels,3 plus $90,000.

2. The spouse of the intestate also gets one-third of the balance of the estate. The other two-thirds goes to the issue of the intestate.

3. If the intestate left no issue, the spouse gets two-thirds of the balance of the estate. The other one-third goes to the parents (or surviving parent) of the intestate. 30

1 Where a Maori has died intestate, and the estate includes a beneficial interest in Maori freehold land, see s 109

of the Maori Land Act 1993. 2 Even though such a ‘spouse’ is not entitled to succeed under the rules of intestate succession, he or she can still

bring a claim under the Family Protection Act 1955 (see subsection 1.5.2). 3 Remember that, if personal chattels are subject to a hire purchase agreement, the spouse will (as between

successors) take them free of liability for instalments due or to become due.



4. If the intestate left no issue and no parents, the balance of the estate goes to the spouse.

5. If the intestate left no spouse, the whole of the estate goes to the issue.

6. If the intestate left no spouse and no issue, the whole of the estate goes to the intestate’s parents (or surviving parent). 35

7. If the intestate left no spouse, no issue and no parents, the whole of the estate goes to the brothers and sisters of the intestate or, if a brother or sister has predeceased the intestate, to his or her issue. (You can see that the words in italics4 are significant because, if their parent has predeceased the intestate, it brings in nephews and nieces. The corresponding thing applies in 8.(c) and (d) below to 40

bring in cousins).

8. If the intestate left no spouse, no issue, no parents, no brothers or sisters, and no nephews and nieces, the estate is divided into two halves to cater for the mother’s and father’s sides of the family, respectively:

(a) The first half of the estate goes to the maternal grandparents (or surviving one), 45

while

(b) The second half of the estate goes to the paternal grandparents (or surviving one).

(c) However, if the intestate did not leave a maternal grandparent, the first half of the estate goes to the maternal uncles and aunts or, if a maternal uncle or aunt has 50

predeceased the intestate, the share goes to his or her issue and, likewise

(d) If the intestate did not leave a paternal grandparent, the second half of the estate goes to the paternal uncles or aunts or, if a paternal uncle or aunt has predeceased the intestate, the share goes to his or her issue.

9. (a) If, in addition to the foregoing defaults, the intestate left no maternal 55

grandparents, no maternal uncles or aunts, and no cousins on that side of the family, the first half of the estate goes to the other side of the family and is distributed, along with the second half, in accordance with 8.(b) and (d) above and, likewise

(b) Vice versa, in the case of the second half of the estate, if the intestate left no 60

paternal grandparents, no paternal uncles or aunts, and no cousins.

10. If nobody qualifies under 1.-9. above, the estate goes to the Crown as bona vacantia (literally, ‘goods without any apparent owner’). The Act provides that the Crown may, out of the whole or any part of the property, provide for any dependants of the intestate (whether kindred or not) and other persons for whom 65

he might reasonably have been expected to make provisions (such as a de facto spouse5).

4 Which have their foundation in s 78(3) Administration Act 1969. 5 The Courts have not yet recognised the right of a de facto spouse to bring a claim under the Family Protection Act 1955.



��Actividades

1) Responder:

(a) ¿En qué circunstancias se afirma que una persona falleció intestada?

(b) ¿En qué casos se afirma que dicha situación es parcial?

(c) ¿Cómo define la “Administration Act 1969” la palabra descendencia?

(d) ¿Por qué hay dos referencias a la “Family Protection Act 1955”?




(a) Cuando el causante no deja descendencia ni padres que lo sobrevivan, el cónyuge excluye a todo otro familiar.

Verdadero Falso

Justificación:


(b) Cuando el causante no tiene cónyuge supérstite, los padres excluyen a todo otro familiar.

Verdadero Falso

Justificación:


(c) Los sobrinos del causante lo suceden cuando éste no tiene cónyuge, descendencia ni padres que lo sobrevivan.

Verdadero Falso

Justificación:




(d) Los primos maternos del causante tienen derecho a sucederlo en los bienes

siempre que no exista cónyuge, descendencia, padres, hermanos, sobrinos, abuelos maternos ni tíos maternos que lo sobrevivan.

Verdadero Falso

Justificación:


(e) La Corona tiene derecho a los bienes del causante cuando nadie lo sucede.

Verdadero Falso

Justificación:


Texto 6 : “Legislative Powers” Fuente: http://law.jrank.org/pages/12516/Legislative-Powers.html.


Legislative Powers

GOVERNMENTAL STRUCTURE

During the short period of governance under the Articles of Confederation the United States learned a valuable lesson. In order for a democratic government to function there must be a central governing body and that body must be granted a minimum amount of authority. After the Revolutionary War there was justifiable 5

concern regarding the structure of government and, in particular, how much power would be allocated to the central government. Under the Articles the founders satisfied their fear of tyrannical government by denying the central government rudimentary authorities such as the power to raise or collect taxes, the power to coin money, and the power to provide for the common peace and defense 10

of the nation. The weakness of the federal government became manifest in Shay's Rebellion in which the federal government proved incapable of quelling a small uprising of farmers seeking compensation for war debts.

CONGRESSIONAL POWERS

One of the intentions of the founders in designing a new constitution was to ensure 15

that the federal government had sufficient power to run the country. The delicate task they faced was that of striking a compromise between federal power and individual and states' rights. One of the strategies the founders employed to maintain this balance was to use ambiguous wording in the various provisions of the document. They realized that they could not possibly anticipate every conflict 20

that would arise over the issue of power. The founders therefore structured government in such a way that competing forces would work against each other to resolve conflicts over power. Although the founders realized that many of the specific conflicts over power would be resolved as they arose, they were forced to define the basic powers of government. The Constitution enumerates, or explicitly 25

defines, the legislative powers granted to the legislative branch in Article I, Section 8. Here Congress is granted the power to tax, regulate commerce, provide a common currency, and raise and support an army and navy. The Constitution also grants Congress the power to enact laws "necessary and proper" to execute its constitutional authority. This is known as the "elastic" or "necessary and proper" 30

clause. It is perhaps the most controversial of the enumerated powers granted to Congress as it renders a subjective range to legislative power.

Apart from the Constitution, the powers of the legislative branch have been defined, in large part, by the Supreme Court. Though it is often presumed that the Constitution granted the Supreme Court the power to review legislative statutes 35

for their constitutionality, the power of "judicial review" was in fact claimed by the Court in Marbury v. Madison (1803). It was here that Chief Justice John Marshall held that it is the power of the Supreme Court to determine whether acts passed by Congress and the president were consistent with the Constitution. The issues that the Supreme Court has been called upon to resolve concerning the parameters of 40

legislative power center around the relationship between Congress and the states, and the relationship between Congress and the president.



LEGISLATIVE POWERS AND THE STATES

The landmark case which essentially determined whether Congress would have 45

constitutional authority to govern the various states of the union was McCulloch v. Maryland (1819). On the surface the Court was to determine whether Maryland had the power to tax a national bank. However, Chief Justice Marshall, who is to the Supreme Court what George Washington is to the presidency, chose to address the broader issue of legislative versus state power in historic opinion. Marshall's 50

opinion would set the precedent for defining the range of the "necessary and proper" clause of Article I, Section 8 of the Constitution. In effect, Marshall ruled that when state and federal laws conflicted, states must defer to the federal statute. "The government of the United States, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law 55

of the land" (McCulloch). This ruling served to clarify what had been presumed to be the implied range of legislative power vis-a-vis the states outlined in the Constitution.

The Court has elsewhere upheld congressional rule over state law in South Carolina v. Katzenbach (1966). Here Southern states headed by South Carolina challenged the 60

power of Congress to enforce provisions of the Voting Rights Act of 1965 which was designed to eliminate discrimination against black voters. In the Civil War, amendments to the Constitution authorized Congress to enforce the amendments "by appropriate legislation." In this case the Voting Rights Act was an "appropriate" means of enforcing the prohibition of discrimination against voting 65

qualifications on the basis of race provided by the Fifteenth Amendment. South Carolina requested that Nicholas Katzenbach, the United States Attorney General at the time, be prohibited from enforcing sections of the Voting Rights Act on the grounds that it violated the Tenth Amendment. The Tenth Amendment states that the powers not delegated to the federal government "are reserved to the states." 70

South Carolina claimed that Congress had legislated in an area, election laws, that had been reserved to the states. The Supreme Court ruled that the Voting Rights Act was an "appropriate" means of enforcing the provisions of the Fifteenth Amendment. This decision made it clear that the legislature's power to enforce Constitutional Amendments would take precedent over state's rights. 75

The balance of power between the federal and state governments has also been affected by policies made "outside" the Constitution. The arrangements that Congress makes with other countries through treaties can significantly impose upon state power. The question of whether this is constitutionally justified has been a subject of legal controversy. Congressional authority over arrangements 80

made with foreign nations through treaties with regards to state authority was addressed by the Court in Missouri v. Holland (1920). In 1916the United States had entered into a treaty with Great Britain designed to save certain species of birds from extinction.



��Actividades

1) Responder:

(a) ¿A qué aprendizaje refiere el primer párrafo?

(b) ¿Dónde se centró la atención con posterioridad?

(c) ¿Cómo se evitó la posibilidad de un poder tiránico?

(d) ¿Qué meta se proponía la nueva constitución y qué acciones presuponía la propuesta?

(e) ¿Cómo se evitó el conflicto de los derechos individuales con los demás derechos?



(f) ¿Qué se comprendió con claridad al momento de redactar el documento?

(g) ¿Qué estructura propusieron los padres fundadores para el gobierno?

(h) ¿Qué alcance queda establecido en la Constitución respecto de las facultades del Legislativo?

(i) ¿Qué hito marcó la decisión judicial en el caso Marbury v. Madison?

(j) ¿Quién fue John Marshall y por qué se incluye su nombre en el artículo?

(k) ¿Cuáles fueron los fundamentos utilizados por Marshall?



2) Resumir el contenido de los tres párrafos sobre "LEGISLATIVE POWERS AND THE STATES" y asignarle un título a cada uno.

Párrafo 1

(renglones 45 - 58)

Título:

Contenido:

Párrafo 2

(renglones 59 - 75)

Título:

Contenido:

Párrafo 3

(renglones 76 - 84)

Título:

Contenido:

Texto 7: “The Law of Torts” Fuente: Willes, John A.: Contemporary Canadian Business Law: Principles and Cases, 4ta Edición, McGraw-Hill Ryerson Limited: Toronto, 1994.


Part II

The Law of Torts

Tort Law defined

The term tort is a legal term derived from the Latin word tortus meaning a “wrong.” Its use in law is to describe a great many activities that result in damage to others with the exception of breach of trust, a breach of duty that is entirely contractual in nature, or a breach of a merely equitable obligation.1 The term has 5

been used in English law for many hundreds of years to characterize a wrong committed by one person against another, or against the person’s property or reputation, either intentionally or unintentionally. It also generally covers cases where a person causing an injury has no lawful right to do so. Unfortunately, the term is not capable of precise definition, because the area of the law that it 10

encompasses is so broad that to determine its limits with any degree of precision would be an impossible task. We can, however, identify many of the more important areas of tort law and examine those which have a direct bearing on ordinary personal and business activities.

The Development of Tort Law 15

Some of the earliest laws made by the community or the early judges pertained to actions that are now the subject of tort law. Indeed, most of our more familiar criminal law was once tort law, and many criminal actions today still have a concurrent tort liability attached to them. Assault causing bodily harm, for example, is an act covered by the Criminal Code, where the Crown would proceed 20

against the person who committed the assault. Under tort law, the victim of the assault would also have the right to seek redress from the accused for the injury by way of civil proceedings for assault and battery.

In the past, no distinction was made between acts that were criminal, and acts that were civil in nature. Both were treated as torts in the sense that compensation 25

would be due to the victim or the victim’s family. This is not so today. Because so many torts in the past have now become crimes, modern legal writers, particularly those in the United States, distinguish the two classes by referring to crimes as “public wrongs” or “wrongs against society,” and the remainder of tort law as “private wrongs” or “wrongs against the individual.” 30

The earliest tort cases tended to reflect the injuries that a plaintiff of that era might suffer: violent assault and battery, the seizure of one’s goods, or the slander of one’s name. Today, the scope of the law of torts has broadened to the point where it encompasses a great many areas of human endeavour. Yet, for all of its applications, to modern-day activity, many of the principles and concepts date 35

back to much simpler earlier times when the courts first saw the need to remedy a wrong.

1 Osborn, P. G., The Concise Law Dictionary, 4th ed. (London: Sweet & Maxwell, 1954), p. 334.



Tort law, by and large, is an attempt by the courts to cope with the changes that take place in society, and to balance as best they can individual freedom of action with the protection or compensation for the inevitable injury to others that the 40

exercise of such freedom occasionally produces. The development of the law of torts is essentially the development of the principles and legal fictions used by the courts to effectively maintain some sort of equilibrium between these two individual desires in an ever-increasingly complex society.

Tort situations might arise in the course of a number of business activities. It 45

would, for example, arise where a business person negligently produces a product that injures the user or consumer. It would also occur where a surgeon carelessly performs an operation on a patient, causing the patient further unnecessary pain and suffering or permanent injury.

While many areas of the law affect business, the law of torts and the law of 50

contract are the two major areas of importance in terms of rights of the parties arising out of business transactions or business activity. As a very general rule, contract law applies to business activities where the parties have voluntarily agreed to their rights and responsibilities which the courts will enforce through civil action. In the case of tort law, a party affected by a business activity which 55

causes injury need not necessarily be associated in the business transaction or activity, and in many cases may be a complete stranger to the transaction, but, nevertheless, injured by it. In this instance, tort law may provide a remedy, and in a sense, has a much broader application than contract law.

Many common business torts relate to carelessness resulting in injury or loss to a 60

client or customer, but some torts may arise out of deliberate acts. For example, for a person to deliberately enter on the private property of a landowner is the tort of trespass, and to deliberately threaten and then strike someone a blow with your fist would be an assault and battery. Because business persons are often responsible for the actions of their employees in the course of carrying out their 65

duties, liability for any tort committed by an employee in the course of business may fall on the employer as well. In the chapters in this part of the text, the law of torts and its impact on business activity is explored under the general headings of intentional and unintentional torts.

��Actividades

1) Responder:

(a) ¿Cuál es el uso jurídico del término “tort”?



(b) ¿Qué uso se le dio durante siglos en el Derecho Inglés?

(c) ¿Qué clasificaciones distingue la doctrina actual?

(d) ¿Qué finalidad persigue la justicia al entender en causas vinculadas a la materia?

(e) ¿Qué situaciones pueden dar lugar a responsabilidad en materia civil?



(f) ¿Qué se dice respecto de los empleadores en el último párrafo?

2) Decidir si las siguientes afirmaciones son verdaderas (V) o falsas (F). En caso de ser falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) Según el Código Penal, las amenazas de daño físico que finalmente se materializan dan a la víctima la posibilidad de iniciar la causa penal.

Verdadero Falso


(b) Siempre existió una diferenciación entre actos de naturaleza penal y aquellos de naturaleza civil.

Verdadero Falso




(c) Un ejemplo de responsabilidad en el área “tort law” estaría dado por el empresario que fabrica un producto que provoca un daño al consumidor.

Verdadero Falso


(d) En líneas generales, el derecho contractual rige las actividades comerciales

por medio de las cuales las partes han pactado de conformidad derechos y obligaciones para los que en caso de incumplimiento la rama “tort law” prevé algún tipo de resarcimiento.

Verdadero Falso


(e) Los actos típicos que generan responsabilidad en esta materia son exclusivamente de carácter voluntario.

Verdadero Falso




(f) En el ámbito comercial, las personas que sufren un daño, muchas veces no tienen vínculo alguno con quienes lo provocan.

Verdadero Falso


Texto 8 : “Insolvency and Bankrupcy”

Fuente: Mulholland, R. D., Business Law Today. 4ª Edición, The Dunmore Press, Palmerston North, Nueva Zelanda: 1995. Págs. 405-7.


Insolvency and Bankruptcy

Objects of the law

In former times the non-payment of one's legitimate debts was regarded, not only as immoral, but as criminal. It was thus regarded as proper that appropriate action be taken against such persons and, until the eighteenth century physical punishments, such as being placed in the pillory and having one's ear cut off, were 5

frequently carried out against debtors. Even well into the nineteenth century, as the readers of Dickens will be well aware, the debtors' prison was a feature of English life.

Not only was the physical person of the debtor at the mercy of his creditors, but the property was at the disposal of the moneylenders to deal with as they pleased. 10

This meant that there was no thought of equity between the various creditors. The claims of the most rapacious among the creditors were likely to be satisfied at the expense of those who were more hesitant in their conduct. The creditors acted individually to satisfy their debts, and there was no thought of collective action on behalf of all creditors so that the assets of the debtor could be equitably divided 15

among them.

It was not until the United Kingdom Bankruptcy Act 1883 that the contemporary law evolved. The New Zealand Bankruptcy Act 1908 was based upon the English legislation, and that was superseded by the Insolvency Act 1967, which is now in force. The 1967 Act is substantially a code of the contemporary law. 20

The broad objects of the law may be set out as follows:

(a) To provide justice to the debtor by allowing this person to be extricated from a state of indebtedness, but at the same time permitting the retention of such minimum by way of property as to enable restart in life.

(b) To provide justice for all the different creditors so that the property of the 25

bankrupt which is available for distribution is equitably divided with no creditor being favoured, without good reason, at the expense of the others.

(c) To eliminate the element of criminality from bankruptcy proceedings.

(d) To provide a machinery whereby an insolvent party can satisfy debts without having to go through the procedure of bankruptcy. This machinery was novel to 30

the 1967 Act.

(e) To provide a way out of an impasse which arises when creditors are pressing for payment and the debtor, even if he or she is a model of honesty and has the best will in the world, is quite unable to pay the debts.

The law relating to insolvency and bankruptcy serves an important function in the 35

commercial community by providing an ultimate guarantee for every debt. The advancement of credit is a vital feature of our business life, and without the existence of a rational system to underpin the repayment of debts the propensity to advance credit would be substantially reduced. This is despite the fact that no




creditor, when making a loan, relishes the thought of having to sue to recover the 40

money.

The law provides for an Official of the court, known as the Official Assignee to administer the estate of the bankrupt. This absolves individual creditors of the need to take personal direct action to enforce their claims, and provides for the impartial administration of the estate of the bankrupt by an official vested in the 45

law and practice of the particular situation. Both the debtor, creditors, and those likely to do business with the debtor, now have a clear set of rules which they know will be strictly adhered to. The result is that all parties know precisely where they stand.

Bankruptcy and insolvency 50

There is a clear division between bankruptcy and insolvency. Bankruptcy is a legal state which develops upon a debtor once a particular procedure, set out in the Insolvency Act 1967, has been executed. Bankruptcy is thus a legal status. A party who is adjudged a bankrupt in accordance with the provisions of the Insolvency Act is under a legal disability, especially with regard to his contractual capacity. 55

The bankrupt remains in that state until formally discharged from it, again in accordance with the requirements of the Act.

Insolvency is the state of being unable to pay one's debts. Legally, it is quite different from bankruptcy. It does not derive from any statutory fiat but is a phenomenon of commercial life. There is no legal disability attaching to 60

insolvency. Although it may be imprudent from a financial point of view to do business with a person in difficulty with debt, no specific legal consequence is likely to flow from such dealings.

Debt itself has become a highly structured and institutionalised practice and will normally result from a contract between the debtor and the creditor. The contract 65

will usually provide for the contingency of the debtor defaulting. The creditor may be able to pursue a private remedy against the debtor in accordance with the contract. However, should that creditor or some other creditor have the debtor adjudged bankrupt, all private contracts between creditor and debtor will be set aside and the provisions of the Insolvency Act will apply. 70

Merely being in debt is not, of itself, sufficient to have a party declared bankrupt. For bankruptcy proceedings to be commenced, it is necessary that not only should there be a debt owing but there should be a manifest indication that it will not be paid. The law has provided for this by stipulating a number of 'available acts of bankruptcy'. Although these are set out in the Act the expression 'act of 75

bankruptcy' is not itself defined in the Act. An 'act of bankruptcy' may be defined as an act done by the debtor, or permitted to be done by the debtor which indicates that the debt is unlikely to be paid. The existence of one or more of these acts of bankruptcy is a fundamental condition for the commencement of bankruptcy. No person can be declared a bankrupt unless one of these acts has taken place. 80




��Actividades

1) Responder:

(a) ¿De qué manera respondían antiguamente los deudores por las deudas impagas?

(b) ¿Qué beneficios trajo la ley actual para los deudores?

(c) ¿Cómo se benefician los acreedores?

(d) ¿Qué otras ventajas tiene la ley actual?




2) Completar el cuadro con información del texto comparando los conceptos de:

Bankrupcy Insolvency

(a) Naturaleza del

concepto

(b) Efecto(s) sobre el

deudor

(c) Facultad(es) de los acreedores

Si No Si No

(d) ¿Incluye al otro

término? (Justificar)

Justificación:

Justificación:

Texto 9: “U.S. Constitution: Second Amendment” Fuente: http://caselaw.lp.findlaw.com/data/constitution/amendment02/.


U.S. Constitution: Second Amendment Second Amendment - Bearing Arms

Amendment Text - Annotations A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Annotations

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The 5

opposing theories, perhaps oversimplified, are an ''individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.1 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state2 10

or private3 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force. 15

In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ''[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second 20

Amendment were made. It must be interpreted with that end in view.''5 The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States

1 A sampling of the diverse literature in which the same historical, linguistic, and case law background is the

basis for strikingly different conclusions is: Staff of Subcom. on the Constitution, Senate Committee on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).

2 Presser v. Illinois, 116 U.S. 252, 265 (1886). See also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897). The non-application of the Second Amendment to the States is good law today. Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

3 United States v. Cruikshank, 92 U.S. 542 (1875).

4 307 U.S. 174 (1939). The defendants had been released on the basis of the trial court determination that prosecution would violate the Second Amendment and no briefs or other appearances were filed on their behalf; the Court acted on the basis of the Government's representations.

5 Id. at 178.



could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when 25

called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.''6 Therefore, ''[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the 30

Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''7

Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,8 and proposals for national registration 35

or prohibition of firearms altogether have been made.9 At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer.

6 Id. at 179.

7 Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the Federal Firearms Act, said: ''Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia.'' See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the ''Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia'''). See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states, not by private citizens), cert. denied 117 S. Ct. 276 (1996); United States v. Gomez, 92 F.3d 770, 775 n.7 (9th Cir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justification defense ''ensures that [the provision] does not collide with the Second Amendment'').

8 Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The Supreme Court's dealings with these laws have all arisen in the context of prosecutions of persons purchasing or obtaining firearms in violation of a provisions against such conduct by convicted felons. Lewis v. United States, 445 U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); United States v. Bass, 404 U.S. 336 (1971).

9 E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031-1058 (1970), and Final Report 246-247 (1971).

��Actividades

1) Predicción: observe el texto, ¿a qué cree que se refiere?



2) Comprensión de texto: indicar con una "X" la opción que mejor refleja lo expresado en el texto.

(a) Las teorías opuestas establecen:

(1) que sólo los particulares pueden poseer armas y transportarlas contra la posibilidad de que sólo las fuerzas armadas puedan hacerlo,

(2) que la tesis de los derechos de las personas se contrapone a la tesis de los derechos de los Estados.

(3) la regulación de la compra, posesión y transporte de armas de fuego contra la no regulación.

(b) De acuerdo con el fallo en el caso “US vs Miller”, el significado de las fuerzas armadas es:

(1) únicamente civiles

(2) todos los hombres capaces

(3) únicamente militares

(c) No hay pruebas suficientes para determinar que la posesión o uso de un arma con un cañón de 18 pulgadas de largo

(1) tenga relación con la preservación de las Fuerzas Armadas

(2) tenga relación con el derecho de los individuos a portar armas

(3) no sea parte del equipo militar tradicional

(d) En virtud del fallo “US vs Miller”, el Congreso ha

(1) reducido los límites a la recepción, posesión y portación de armas de fuego.

(2) aumentado la cantidad de armas de fuego permitidas

(3) aumentando los límites a la recepción, posesión y portación de armas de fuego.



(e) De acuerdo a la nota 4 el acusado fue liberado

(1) en virtud de que la determinación del tribunal violaría la Segunda Enmienda

(2) en virtud de que la Segunda Enmienda es contradictoria

(3) en virtud de que no violaría la segunda enmienda

Texto 10 : “Miscellaneous Torts” Fuente: Business and Commercial Law. Abdul Kadar, Ken Hoyle & Geoffrey Whitehead Butterworth-Heinemann Ltd. 1993.


26

Miscellaneous Torts

26.1 Introduction Besides the torts already dealt with there are one or two other torts which may be important to businessmen. They may be described as economic torts, in that their effect is to harm the plaintiff economically. They may be listed as:

(a) Conspiracy. 5

(b) Deceit, or fraud.

(c) Malicious or injurious falsehood.

26.2 Conspiracy

This tort is committed when two or more persons intentionally and without lawful justification combine together to injure the plaintiff, or do unlawful acts that result 10

in injury to the plaintiff. To succeed in an action the plaintiff must prove that the predominant purpose of the defendants was to combine together unlawfully to cause him economic damage. If, however, the defendants had combined together to further their own interests, e.g. to defend the interests of union members, and economic damage was a consequence, no action for conspiracy will succeed. In 15

Crofter Hand-Woven Harris Tweed Co. Ltd v. Veitch (1942) it was held that the action of the members of a union to refuse to load cheaper tweed made from mainland yam in order to protect the members' interests was not a conspiracy to inflict damage on the plaintiffs. If the overall objective of a combination is to put forward or defend the trade of those who enter into it then no wrong results 20

despite damage to the plaintiff (Sorrell v. Smith (1925)).

26.3 Deceit or Fraud (for Contractual Misrepresentation see page 141)

This tort is committed when a person acts to his detriment relying on a fraudulent misrepresentation of another. The essential requirements of deceit are as follows:

(i) A false representation is made. This must be a statement of fact. 25

(ii) The person making the representation knows it to be false or does not believe it to be true or is reckless about it, not caring whether it is true or false.

(iii) The misrepresentation is intended to be acted upon.

(iv) The person to whom the misrepresentation is made has acted upon it.

This tort has reduced in importance since recognition by the House of Lords of a 30

duty of care for negligent misstatements in Hedley Byrne & Co. Ltd v. Heller and Partners Ltd (1963) - see page 339. In addition to recovering for financial loss, a plaintiff may recover for physical injury (Burrows v. Rhodes (1899)). As regards what constitutes false misrepresentation, Lord Herschell's definition of fraud in Derry v. Peek (1889) is important: 'Fraud is proved when it is shown that a false 35

representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.' Hence it is not fraud if the person making the representation honestly believes it to be true.



The tort of deceit has sometimes been used to evade S.4 of the Statute of Frauds (which requires guarantees to be evidenced in writing). By alleging that an oral 40

representation about credit was made fraudulently, and suing in tort for deceit, the requirement about written evidence was evaded. S.6 of Lord Tenterden's Act, the Statute of Frauds Amendment Act, 1828, prevents an action for deceit over a character reference designed to secure credit unless the fraudulent misrepresentation is in writing, signed by the person concerned. 45

26.4 Injurious Falsehood

Whereas in deceit and defamation damage is done to a plaintiff's reputation, in injurious falsehood a tort is committed against the plaintiff's business interests. An injurious falsehood is a false statement, made maliciously about a plaintiff's business interests whereby other persons are deceived, thereby causing damage to 50

the plaintiff. The word 'maliciously' means 'from an improper motive'. Types of injurious falsehoods are as follows:

(a) Slander of title and goods. This arises when doubts are cast through the action of the defendant on the plaintiff's title to real or personal property, patents and copyrights, the quality of his goods or products (Wren v. Weild (1869)). According 55

to S.3 of the Defamation Act, 1952, no special damage need be proved by a plaintiff in an action for malicious falsehood. Puffs and mere sales talk in general terms, although untrue, may not be injurious falsehood, i.e. to say that your products are of a superior quality to those of your competitors. The test is that if a reasonable man takes a statement seriously it is slanderous (De Beers Abrasive 60

Products Ltd v. International Electric Co. of New York Ltd (1975)).

(b) Slander of plaintiff's trade or business. It is actionable to imply in a newspaper or other published material that a plaintiff has gone out of business with the result that the plaintiff's trade suffers (Ratcliffe v. Evans (1892)).

(c) Passing off. This consists of a deliberate act of the defendant to mislead others 65

into believing that the defendant's goods are those of the plaintiff. In doing so the defendant takes on unfair advantage of the plaintiff's trade or business. The tort may take the form of:

(i) A statement that the business or merchandise of the plaintiff is the defendant's.

(ii) Marketing under the plaintiff's trade name (Reddaway v. Banham (1896)). 70

(iii) Using the plaintiff's trade mark - especially unregistered trade marks, since statutory protection is given to registered trade marks under the Trade Marks Act, 1938 and the Trade Marks (Amendment) Act, 1984.

(iv) Imitating the presentation or appearance of the plaintiff's goods (J. Bollinger v. Costa Brava Wine Co. Ltd (1960)). 75

The remedies for torts of this kind are injunctions to restrain the falsehood or unfair practice and/or damages. Damages will reflect not only the economic loss (if any) suffered, but also compensation for loss of reputation and ill-will caused by the behaviour of the defendant in misleading potential customers.



��Actividades

1) Responder:

(a) ¿Qué concepto se desarrolla en 26.2?

(b) ¿Cómo se prueba?

(c) ¿Por qué se cita el caso Crofter Hand-Woven Harris Tweed Co. Ltd v. Veitch (1942)?

(d) ¿Qué requisitos son necesarios para que exista lo que en inglés se denomina “fraud”?

(e) ¿Qué es “injurious falsehood"?



(f) ¿Cuáles son los principales tipos de “injurious falsehood"? Explicarlos.

(g) ¿Qué contraste se expresa en la primera oración del punto 26.4?

(h) ¿Qué idea expresa “whereby”?

2) Efectuar un mapa conceptual con la información contenida en el punto 26.4.

Texto 11 : Lectura A: “Dolphin Telecom Files for Creditor Protection” Fuente: internet: http://thestar.com/NASApp/cs/Content.../Article... del 27/07/01. Lectura B: “Egghead.com to File for Bankruptcy ” Fuente: internet: http://www.nytimes.com/aponline/techno.../AP-Egghead-Bankruptcy.html? searchpv=aponline&pagewanted... del 15/08/01.


Lectura A

Dolphin Telecom Files for Creditor Protection

MONTREAL (CP) – A British court has given Dolphin Telecom, a subsidiary of Quebec-based Telesystem International Wireless Inc., bankruptcy protection from creditors while it attempts to restructure.

The creditor protection order was approved in court Friday for Dolphin, a cellular phone and messaging service that has been trying to build digital 5

networks in Europe.

In a statement Friday, Dolphin said it will continue to operate its network and business normally and that there will be no impact on the service it provides to its customers.

The company added that some of its operating subsidiaries in other European 10

countries are reviewing their options, including seeking court protection, or are in discussions with their main creditors.

“The company remains positive about the opportunity which exists to develop a European mobile service focused on the business customer,” Dolphin said in its statement. 15

“The company believes that with restructured liabilities, it would be in a good position to seize the opportunity.”

In May, Charles Sirois – president of parent company, Telesystem – warned at a Montreal meeting with shareholders that Dolphin Telecom could be sold if new funding wasn’t found. 20

“If we can find a way to save Dolphin, we’ll do it,” Charles Sirois told shareholders at the May 15 meeting.

Telesystem, also known as TIW (TSE:TIW), is a global mobile communications operator with over 4.2 million subscribers worldwide.

Dolphin’s cellular-phone and messaging service, now with just 61,900 25

subscribers, was conceived to cover seven Western European nations. Its top management was replaced last year following a series of technical snafus.

The company shifted its service focus to Britain and France, shelving indefinitely its expansion plans in Germany, Belgium, Portugal and Spain.

Sirois said discussions were held with an unidentified international company to 30

try to pull together as much as $400 million of new financing into the company. Speculation suggested Germany’s Deutsche Telekom was considering a partnership.



Lectura B

Egghead.com to File for Bankruptcy by The Associated Press

San Francisco (AP)- Online technology merchant Egghead.com Inc. on Wednesday joined the procession of unprofitable Internet business limping into bankruptcy court.

As part of its plan to file for Chapter 11 bankruptcy protection, Menlo Park-based Egghead said it would sell its Web site and other related assets to Fry's Electronics, 5

a popular chain that has grown from a single store in Silicon Valley 16 years ago to 18 stores spread through California, Texas, Arizona, and Oregon.

The Egghead assets that aren't bought by San Jose-based Fry's will be sold under the bankruptcy court's supervision, the company said.

With the decision to wind down its operations, Egghead laid off 185 employees in 10

Menlo Park and Vancouver, Wash. The 59 percent cutback left Egghead with 10 employees, down from more than 500 five months ago.

The company had been taking other extreme measures to survive.

Besides laying off workers, Egghead pared its operating expenses in the first quarter, down 49 percent from the same time last year, and in April subleased half 15

its 50,000-square-foot headquarters for an annual take of $1.4 million.

But it wasn't enough to save a company that has lost more than $345 million since its inception in 1994 as a technology products auction site called Onsale.com. The company changed its name and entered the retail business in 1999 when it bought Egghead. 20

Egghead is just the latest high-profile Internet business to land in bankruptcy court in the last four months.

Since April, prominent Web sites Quokka Sports and Webvan have taken the bankruptcy route, along with wireless Internet provider Metricom Inc. and high-speed Internet access providers Covad Communications Inc. and Rhythms 25

NetConnections Inc.

Like many failed Internet companies, Egghead's potential once enchanted Wall Street.

The stock once traded above $100 per share. On Wednesday it fell 1 cent to close at 30 cents on the Nasdaq Stock Market. The shares have been in a funk so long that 30

Nasdaq warned Egghead in April that it might be delisted.

Egghead had built one of the Internet's biggest commerce sites by retailing and auctioning more than 75,000 items – mostly computers, technology gadgets and office supplies – to 3.8 million registered customers. The company's annual revenues peaked at $541 million in 1999 before falling to $479 million last year. The 35

sales erosion continued through the first half of this year, as revenue plunged 48 percent to $136 million, leading an $12.8 million loss that left Egghead with $4.6 million in cash as of June 30.



��Actividades


Lectura A:

(a) ¿A qué país refiere la lectura A?

(b) ¿Qué medida se dictó a favor de la empresa Dolphin Telecom?

(c) ¿Cuál es el impacto de esta medida en el servicio que presta a sus clientes?

(d) ¿Cuál es la situación de las subsidiarias?

(e) ¿Qué planes tiene la empresa para el mercado europeo?



(f) ¿Cuál es la hipótesis de la empresa para concretar los proyectos para el mercado europeo?

(g) ¿Qué planes decidió descartar la empresa?

(h) ¿Qué opción se plantea en el último párrafo?

Lectura B:

(i) ¿A qué país refiere la lectura B?

(j) ¿Qué actividad desarrolla Egghead?

(k) ¿Qué decisión tomó la empresa el día miércoles?



(l) ¿Qué medidas de salvataje adoptó Egghead?

(m) ¿Qué advertencia recibió por parte de Nasdaq?

2) Indicar la opción correcta:

(a) La empresa Dolphin Telecom opera en:

1- Quebec, Canadá 2- Gran Bretaña 3- Alemania, Bélgica, Portugal y España

(b) Es posible que:

1- Dolphin se venda aunque se consiga financiamiento. 2- Dolphin decida vender Telesystem si no se consigue financiamiento. 3- Telesystem decida vender Dolphin si no se consigue financiamiento.

(c) Dolphin nació de la visión de:

1- brindar un servicio de telefonía celular y mensajes para el mercado europeo. 2- Telesystem en conseguir un socio Alemán. 3- tender redes de telefonía por toda Europa.



(d) Egghead.com:

1- había comprado hace unos años a la empresa Onsale.com. 2- vendió ya sus acciones a Fry Electronics. 3- había sido comprada por Onsale.com.

(e) Las acciones de Egghead.com:

1- llegaron a cotizar a 30 centavos cada una. 2- llegaron a caer hasta cotizar a 1 centavo. 3- llegaron a cotizar como máximo a 100 dólares.


(a) Como parte de su plan concursal, el sitio web y otros activos de Egghead pasarían a manos de Fry's Electronics.

Verdadero Falso

Justificación:


(b) El plan de Egghead incluye la continuidad de la empresa.

Verdadero Falso

Justificación:




(c) Las pérdidas acumuladas de Egghead llegan a US$136 millones.

Verdadero Falso

Justificación:


(d) El proceso al que se sometión Egghead tiene la misma finalidad que aquel al que se sometió Dolphin Telecom.

Verdadero Falso

Justificación:


Texto 12: “The Starting-point” Fuente: OLIVER M. S, MARSHALL E.A., Company Law, ME Handbooks Series UK, 1995, pages 113-115.


7 The Starting-point

Every subject should have a starting-point which a beginner with no previous knowledge can understand. Here it is suggested that the easiest way of beginning to study company law is to imagine that you yourself are about to 'go into business', i.e. that you have a little money saved or lent to you and are about to start a small business. 5

The first legal question which arises is: in which legal form shall the business operate? In order to decide this question it is necessary to examine the legal forms of a business and understand the differences between them. There are three:

(a) You may be a sole trader. (b) You may form a partnership with one or more other persons. 10

(c) You may form a limited company by registration under the Companies Act. Each of these must now be considered in turn.

8. As a sole trader

A sole trader is so called because he alone bears the responsibility for running the business, and he alone takes the profits. 15

He may of course be helped by his wife and family, or he may employ other people to work for him, but this does not alter the fact that the management is entirely in his hands. A person in this position has not formed any kind of “association” in law.

9. A partnership 20

In a partnership the members “associate”, i.e. they form collectively an association in which they all participate, as a rule, in management and in sharing the profits. The basic rules governing such an association are to be found in the Partnership Act 1890.

(a) Number of partners. Obviously there must be at least two members in a 25

partnership, but there may be more. There is, however, in most cases a maximum number. Section 716 Companies Act 1985, as amended by s. 145 and Schedule 19 Companies Act1989, states that this maximum is 20, but exempts from this provision partnerships of solicitors, accountants, members of a recognised stock exchange and other partnerships prescribed by regulations made by the Secretary 30

of State for Trade and Industry. If a partnership not covered by any of the exemptions has a membership of more than 20, the members must incorporate themselves by registering as a company under the Companies Act.

(b) Liability of partners. In a partnership the legal position of the members is not very different from that of a sole trader. If the firm gets into financial difficulties, 35

all the partners may find that their creditors are seeking to make them bankrupt, and since all the partners are liable for the debts of the firm, they are not protected against the possibility of total bankruptcy. At the same time, just because they are liable for the firm's debts, they may find that tradesmen are willing to give them credit on the grounds, for example, that one of the partners is known to be a very 40

wealthy person.



(c) Legal position of partners. The members of a partnership may sue and be sued collectively by using the name of the firm, but this is a matter of legal procedure only, and does not alter the fact that the action is being brought by or against the partners. [In Scotland, a partnership is a legal person distinct from the individuals 45

of whom it is composed and the action is brought by or against the partnership.] All the partners are agents for each other, i.e. each one can bind the others when he makes contracts on behalf of the firm. It follows that each partner is a principal. They are therefore all in a fiduciary relation with each other, i.e. they must not only tell each other the truth in conducting the business, but they must disclose the 50

whole truth. For instance, no partner may make a secret profit. The word “fiduciary” comes from the Latin fides, meaning trust or confidence.

(d) Rights of partners. Usually the rights of the partners are regulated by a contract drawn up between them and put in writing called the “articles” of partnership or the “partnership deed” [in Scotland, the deed of co-partnery]. The partners may 55

make what arrangements they like in this contract, but when they have not made any provision at all the position is regulated by the Partnership Act 1890. A partnership need not be created formally, however, and may arise through an oral agreement or even by conduct.

10. A limited partnership 60

There is a special type of partnership which is very rare but should be mentioned. It is called a limited partnership and is regulated by the Limited Partnerships Act 1907. Here it is possible for all the partners except one to be “limited partners”. A limited partner puts into the firm a certain amount of money, e.g. £500, and then he is not responsible for the debts of the firm above that figure. This means that he 65

can lose his £500, but cannot be made bankrupt or made to pay more than this sum. The £500 is the “limit” of his liability. He cannot, however, take part in the management of the firm.

There must always be at least one partner whose liability for the firm's debts is not limited in this way, and he is called a “general partner”. He manages the business, 70

bears the risk, but normally gets the bulk of the profits. Limited partnerships are very rare because in the same year in which they were introduced the Companies Act 1907 made it possible to form a private company, which is a much more convenient way of running a small business. The ordinary type of partnership described in 9 above, however, is very common and will be referred to later when 75

a comparison will be drawn between it and the limited company (see 4: 7).

��Actividades

1) Responder:

(a) ¿Qué se afirma en la primera oración?



(b) ¿Qué sugerencia presenta la segunda?

(c) ¿Qué situación personal podría imaginarse según el texto?

(d) ¿Qué planteos surgen en primer término?

(e) ¿Qué modos de operar comercialmente se mencionan?

2) Completar el siguiente cuadro de contenido colocando el título y el contenido que corresponde a la sección del texto según el número con que figura.

Sección 8 (renglones 14 - 19)

Título:

Contenido:




Título:

Contenido:


Título:

Contenido:

Texto 13 : “Equal Protection” Fuente: internet: www.harvardlawreview.org/issues/122/nov08/leadingcases/snyder_v_louisiana.pdf.


C.

Equal Protection

1. Jury Selection — Batson Challenges. — Batson v. Kentucky provides a three-step test designed to ferret out racially motivated peremptory strikes. The test’s third step asks a trial judge to determine whether she believes a strike is racially motivated, or whether she is convinced by a litigant’s asserted race-neutral explanation. In this scheme, trial judges receive special deference, particularly when they base their 5

rulings on the demeanor of particular attorneys or potential jurors. But how reviewing courts should treat a Batson ruling where the trial judge considered multiple explanations, some pretextual and others based on demeanor, is an open question. Indeed, some of the biggest questions surrounding Batson are unsettled, including precisely what constitutional interests Batson protects, and how courts 10

should confront mixed and unconscious motivations. Last Term, in Snyder v. Louisiana, the Supreme Court had an opportunity to clarify these and other questions. Instead, the Court presumed that a trial judge was impermissibly convinced by pretext rather than by demeanor, holding that the strike of a potential juror was racially motivated. 15

Consistent with the Chief Justice’s goal of narrow decisions for greater consensus, the presumption in Snyder allowed the Court to avoid the most difficult questions implicated by the case. In practice, the presumption will encourage trial judges to produce a clearer record for appellate review, where demeanor-based strikes will continue to enjoy an almost talismanic immunity. 20

Allen Snyder killed his estranged wife’s date in 1995. At voir dire for his capital murder trial, eighty-five potential jurors were questioned in panels of thirteen. Challenges for cause reduced the pool to thirty-six, and each side had the opportunity to use twelve peremptory strikes. The prosecutor, who would become famous for telling the jury that Snyder — an African-American — should not “[get] 25

away with” murder as O.J. Simpson had, used his peremptory strikes to remove all five black potential jurors from the venire. Snyder’s trial counsel argued that three of the strikes were based on race in violation of Batson, but the court accepted the prosecutor’s race-neutral explanations.

An all-white jury found Snyder guilty of first-degree murder and recommended 30

the death penalty.

Snyder appealed directly to the Supreme Court of Louisiana, arguing that the trial court improperly permitted the prosecutor’s race based peremptory challenges. The court evaluated the prosecutor’s race-neutral explanations for striking three of the black venire persons — Jeffrey Brooks, Elaine Scott, and Loretta Walker. The 35

prosecutor had explained that Brooks expressed concern about missing teaching time as a student teacher and appeared nervous; that Scott seemed “very weak” on the death penalty; and that Walker could not consider the death penalty in this case. Citing the principles that the prosecutor’s reasons need not be “persuasive, or even plausible,” and that a trial judge’s credibility determinations in evaluating 40

purposeful discrimination enjoy “great deference,” the Supreme Court of Louisiana affirmed the trial court’s Batson rulings.



The U.S. Supreme Court granted Snyder’s petition for certiorari, vacating the Louisiana Supreme Court’s judgment and remanding the case for further consideration in light of Miller-El v. Dretke. In Miller-El, the Court had stressed the 45

need to consider a Batson challenge “in light of all evidence with a bearing on it” and engaged in side-by-side comparisons of prospective jurors. On remand, the Louisiana court focused on “the most recent admonition by the Supreme Court” — Rice v. Collins,26 not Miller-El — which emphasized “the leeway a reviewing court must grant a trial court in its evaluation of the credibility of the prosecutor.” The 50

court reaffirmed its prior analysis, supplemented with side-by-side comparisons, and reinstated its judgment affirming Snyder’s conviction. The Supreme Court reversed and remanded. Writing for the Court, Justice Alito emphasized the trial court’s “pivotal role in evaluating Batson claims” but concluded that the court committed clear error in allowing the prosecution to strike Brooks. The prosecutor 55

had offered two explanations for the strike: first, that Brooks appeared nervous, and second, that Brooks might return with a lesser verdict so he could more quickly get back to serving as a student teacher. But the trial judge ruled for the prosecution without explanation. Had the judge credited the prosecution’s nervousness explanation, the Court would have given that determination special 60

deference, since “nervousness cannot be shown from a cold transcript.”

…..

Considering all the circumstances, the Court found that the prosecution’s explanation for striking Brooks was pretext and held that the strike was motivated by discriminatory intent in violation of Batson. Justice Thomas dissented. Arguing 65

that the Court merely “[paid] lipservice to the pivotal role of the trial court,” he questioned why the Court could not “presume that the trial court credited the prosecutor’s assertion that Mr. Brooks was nervous,” but could presume that the trial court impermissibly relied on the prosecution’s pretextual explanation. Justice Thomas believed that the record suggested, if anything, that the trial court 70

relied on Brooks’s nervousness. Consistent with his Miller-El dissent, Justice Thomas also chastised the majority for basing its decision on comparisons to other jurors that were not made at trial or in any of three trips to the Louisiana Supreme Court.

��Actividades

1) Responder:

(a) ¿Cuál es el tema del escrito?



(b) ¿Qué sugerencia presenta la segunda?

(c) ¿Qué ocurre en el tercer paso?

(d) ¿Cuál es la pregunta que aún no tiene respuesta?

(e) ¿Qué ocurrió en Snyder v. Louisiana?

(f) ¿Qué hizo famoso al fiscal del caso Snyder v. Louisiana?

(g) ¿Cuál fue la conclusión de la Corte para la recusación de Books?



2) Resumir los hechos en el caso Snyder v. Louisiana.

3) Decidir si las siguientes afirmaciones son verdaderas o falsas. Indicar el renglón de referencia.

(a) La Corte Suprema de los Estados Unidos no hizo lugar al pedido de apelación de Snyder.

Verdadero Falso


(b) La Corte Suprema de Louisiana no hizo lugar al pedido de apelación de Snyder.

Verdadero Falso


(c) El tribunal de Louisiana se basó en el precedente de Millar-El v. Dretke.

Verdadero Falso




(d) El juez de la Corte Suprema, Alito, afirmó que el tribunal se equivocó al permitir que el fiscal recuse a Brooks.

Verdadero Falso


(e) El juez dio lugar a lo pedido por el fiscal basándose en Batson.

Verdadero Falso


(f) El Juez Alison afirmó que la segunda causa usada por el fiscal para recusar a Brooks está comprendida por los “standards of review” de Batson.

Verdadero Falso


Texto 14: “Criminal Law and Cyber Crimes” Fuente: Clarkson, et al., “West’s Business Law”, West Publishig Group: St. Paul: 2006 págs.: 178-180.


Chapter 9

Criminal Law and Cyber Crimes

The law imposes various sanctions in attempting to ensure that individuals engaging in business in our society can compete and flourish. These sanctions include those imposed by civil law, such as damages for various types of tortious conduct (discussed in Chapters 6 and 7); damages for breach of contract (to be discussed in Chapter 18); and the equitable remedies discussed in Chapters 1 and 5

18. Additional sanctions are imposed under criminal law. Indeed, many statutes regulating business provide for criminal as well as civil penalties. Therefore, criminal law joins civil law as an important element in the legal environment of business.

In this chapter, after examining some essential differences between criminal law 10

and civil law, we look at how crimes are classified, the basic requirements that must be met for criminal liability to be established, the various types of crimes that exist, and the defenses that can be raised to avoid criminal liability. We conclude the chapter with a discussion of crimes that occur in cyberspace, which are often referred to as cyber crime. Generally, cyber crime refers more to the way in which 15

particular crimes are committed than to a new category of crimes.

Section 1 – Civil Law and Criminal Law

Recall from Chapter 1 that civil law pertains to the duties that exist between persons or between persons and their governments. Criminal law, in contrast, has to do with crime. A crime can be defined as a wrong against society proclaimed in 20

a statute and punishable by a fine and/or imprisonment – or, in some cases, death. As mentioned in Chapter 1, because crimes are offenses against society as a whole, they are prosecuted by a public official, such as a district attorney (D.A.) or an attorney general (A.G.), not by victims.

Major differences between Civil Law and Criminal Law 25

Because the state has extensive resources at its disposal when prosecuting criminal cases, there are numerous procedural safeguards to protect the rights of defendants. We look here at one of these safeguards – the higher standard of proof that applies in a criminal case – as well as the harsher sanctions for criminal acts compared with civil wrongs. 30

BURDEN OF PROOF In a civil case, the plaintiff usually must prove his or her case by a preponderance of the evidence. Under this standard, the plaintiff must convince the court that based on the evidence presented by both parties, it is more likely than not that the plaintiff’s allegation is true.

In a criminal case, in contrast, the state must prove its case beyond a reasonable 35

doubt. If the jury views the evidence in the case as reasonably permitting either a guilty or a not guilty verdict, then the jury’s verdict must be not guilty. In other words, the government (prosecutor) must prove that the defendant has committed every essential element of the offense with which she or he is charged beyond a



reasonable doubt. If the jury is not convinced of the defendant’s guilt beyond a 40

reasonable doubt, the defendant is not guilty. Note also that in a criminal case, the jury’s verdict normally must be unanimous – agreed to by all members of the jury – to convict the defendant. (In a civil trial by jury, in contrast, typically only three-fourths of the jurors need to agree.)

The higher burden of proof in criminal cases reflects a fundamental social value – 45

the belief that it is worse to convict an innocent individual than to let a guilty person go free. We will look at other safeguards later in the chapter, in the context of criminal procedure.

CRIMINAL SANCTIONS The sanctions imposed on criminal wrongdoers are also harsher than those that are applied in civil cases. Remember from Chapters 6 and 50

7 that the purpose of tort law is to allow persons harmed by the wrongful acts of others to obtain compensation, or money damages, from the wrongdoer or to enjoin (prevent) a wrongdoer from undertaking or continuing a wrongful action. Tortfeasors are rarely subject to punitive damages – damages awarded simply to punish the wrongdoer. In contrast, criminal sanctions are designed to punish those 55

who commit crimes in order to deter others from committing similar acts in the future. Criminal sanctions include fines as well as the much harsher penalty of the loss of one’s liberty by incarceration in a jail or prison. The harshest criminal sanction is, of course, the death penalty.

Civil Liability for Criminal Acts 60

Some torts, such as assault and battery, provide a basis for a criminal prosecution as well as a civil action in tort. For example, Jonas is walking down the street, minding his own business, when a person attacks him. In the ensuing struggle, the attacker stabs Jonas several times, seriously injuring him. A police officer restrains and arrests the wrongdoer. In this situation, the attacker may be subject both to 65

criminal prosecution by the state and to a tort lawsuit brought by Jonas to obtain compensation for his injuries.

��Actividades

1) Responder:

(a) ¿Cuáles son las sanciones que prevé el derecho civil?



(b) ¿Cuáles las que prevé el derecho penal?

(c) ¿Qué significado le da el texto al término delitos cibernéticos?

(d) ¿Cómo se define la palabra delito?

(e) ¿Cómo se evalúa la prueba en una causa civil?

(f) ¿Cómo se evalúa en una causa penal?



(g) ¿En qué circunstancias debe el jurado pronunciar un veredicto de absolución?

(h) ¿Qué es lo que justifica la utilización del parámetro de evaluación de la prueba por parte del jurado en una causa penal?

2) Completar el cuadro con información del texto (en inglés):

Causa según ... Derecho civil Derecho penal

Quien impulsa la causa es ...

La conducta obrada afecta a ...

Evaluación de la prueba

Veredicto

Tipo de resarcimiento o sanción

Finalidad de la sanción

Texto 15: “Knife Crime is Epidemic, Top Judge Claims” Fuente: http://www.telegraph.co.uk, by Richard Alleyne, Last Updated: 5:12PM BST 21/05/2008.


Knife Crime is Epidemic, Top Judge Claims

Knife crime has escalated to “epidemic proportions” and has to be “confronted and stopped”, said Sir Igor Judge, the President of the High Court Queen’s Bench Division.

Sir Igor, speaking as he was dealing with four unconnected cases at the Court of Appeal, said courts should be imposing the “most severe” sentences appropriate. 5

The judge, sitting with Mr Justice Griffith Williams and Mr Justice Saunders, dismissed three challenges to knife crime sentences, but allowed a fourth by a man caught with an axe during a Royal parade.

The judge’s stern remarks, mirroring public concern over rising knife crime on the nation’s streets, are likely to result in stronger sentences being passed in cases of 10

knife-related crime in the future.

Carrying a knife or offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people,” he said.

“Every weapon carried about the streets, even if concealed from sight, even if not likely to be used or intended to be used, represents a threat to public safety and 15

public order.

“That is because, even if carried only for bravado or carried for some misguided sense that it would be used in possible self-defense, it takes only a moment of irritation, drunkenness, anger, perceived insult, or something utterly trivial like a 'look’, for the weapon to be produced. 20

“Then you have mayhem, and offences of the greatest possible seriousness follow, including murder, manslaughter, GBH, wounding and assault.

“Offences of this kind have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and, therefore, in the public interest, this crime must be confronted and stopped. 25

“The courts will do what they can to reduce and, so far as it is practicable, eradicate it. In our view, it is important for public confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted. 30

“Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence, courts should bear in mind the harm which the weapon might foreseeably have caused.

“So, the message is stark: this is a serious offence and it should be treated with the 35

seriousness it deserves.”

The judges dismissed three appeals for sentences to be cut but reduced the six year term of Daniel Bleazard, 34, of Adelphi Road, Huddersfield, to five for carrying an axe as he pushed through crowds to get to the front as the Queen passed by St George’s Square in Bradford on May 24 of last year. 40



��Actividades

1) Indicar los antónimos de las siguientes palabras del texto:

(a) Unconnected

(b) Practicable

(c) Reasonable

(d) Appropriate

2) Indicar con una "X" según corresponda.

(a) ¿A qué se refiere el término “escalated” dentro del texto?

(1) subir una montaña

(2) aumentar o intensificar

(3) escala de medición

(b) ¿A qué se refiere el término “epidemic” dentro del contexto?

(1) a una enfermedad contagiosa

(2) a una cantidad importante

(3) a una oleada

(c) ¿A qué se refiere la expresión “in our view”?

(1) al alcance de nuestra vista

(2) según nuestra opinión

(3) previniendo una intención futura



(d) A Daniel Bleazard:

(1) se lo condenó a 34 años de prisión

(2) se le redujo la pena

3) Resumir en unas pocas líneas a qué se refiere el texto, y que determinaron los jueces.

Texto 16: “Can 'Cannon' be confused with 'Canon'?” Fuente: The Times: Law Report.


Brand names

European Law Report Luxembourg

Can “Cannon” be confused with “Canon”?Canon Kabushiki Kaisha vs Metro-Goldwyn-Meyer Inc Case C-39/97 Before the Court of Justice of the European Communities in Luxembourg

[Judgment 29 September 1998]

The distinctive character of a trademark, in particular its reputation, had to be 5

taken into account in determining whether there was sufficient similarity between the goods and services covered by that and another proposed mark to give rise to the likelihood of confusion.

The Court of Justice of the European Communities so held, inter alia1, on a reference by the German Federal Court of Justice for a preliminary ruling under 10

Article 177 of the EC Treaty re: Article 4(1)b of the Directive of 21 December 1988 relating to trademarks.

MGM applied in Germany for registration of the word trademark “Cannon” to be used for video film cassettes and film production distribution and projection for cinemas and television. 15

Canon Kabushiki Kaisha opposed the application on the ground that it infringed its earlier world trademark “Canon” registered in Germany in respect of, inter alia, still and motion picture cameras, and projectors, and television filming, recording, transmission, receiving and reproduction devices, including tape and disc devices.

In the course of the proceedings, it was held, inter alia, that the mark “Canon” had 20

a reputation, but no importance was to be attached to that fact in deciding whether the marks were relevantly similar.

Article 4(1) of Directive 89/104 provides:

“A trademark shall not be registered or, if registered, shall be liable to be declared invalid, if because of its identity with or similarity to, the earlier trademark and the 25

identity or similarity of the goods or services covered by the trademarks, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trademark.”

In its judgment the Court of Justice held:

The first question was whether the distinctive character of the earlier mark, and in 30

particular its reputation, were to be taken into account in determining the issue of similarity.

Furthermore, according to the case law of the Court, the more distinctive the earlier mark, the greater the risk of confusion: since protection of a trademark depended, in accordance with Article 4(1)b of the Directive, on there being a 35

likelihood of confusion; marks with a highly distinctive character, either per se2 or

1 among other things (Latin) 2 in itself (Latin)



because of the reputation they possessed on the market, enjoyed broader protection than marks with a less distinctive character.

It followed that, for the purposes of Article 4(1)b registration of a trademark might have to be refused, despite a lesser degree of similarity between the goods and 40

services covered, where the marks were very similar and the earlier mark, in particular its reputation, was highly distinctive.

The second question was whether there could be a likelihood of confusion within the meaning of Article 4(1)b where the public perception was that the goods or services have different places of origin. There was such likelihood of confusion 45

where the public could be mistaken as to the origin of the goods or services.

The essential function of the trademark was to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which had another origin. 50

For the trademark to be able to fulfill its essential rule in the system of undistorted competition which the Treaty sought to establish, it had to offer a guarantee that all the goods or services bearing it had originated under the control of a single undertaking which was responsible for their quality.

Accordingly, the risk that the public might believe that the goods or services in 55

question came from the same undertaking or economically linked undertakings constituted a likelihood of confusion within the meaning of Article 4(1)b.

Consequently, in order to demonstrate that there was no likelihood of confusion, it was not sufficient to show simply that there was no likelihood of the public being confused as to the place of production of the goods or services. 60

On those grounds the Court of Justice ruled:

There could be likelihood of confusion within the meaning of Article 4(1)b even where the public perception was that the goods or services had different places of production. By contrast, there could be no such likelihood where it did not appear that the public could believe that goods or services came from the same 65

undertaking or from economically linked undertakings.

��Actividades

1) Asignar un título a cada uno de los primeros 6 párrafos.

Párrafo 1 (renglones 5-8):








2) Responder, explicar o describir según corresponda.

(a) ¿Qué sostuvo el Tribunal de Justicia de las Comunidades Europeas?

(b) Describir el producto para el cual MGM solicita el otorgamiento de una patente.

(c) Describir el producto patentado por Canon Kabushiki Kaisha.

(d) ¿Qué oposición presentó CKK?

(e) Explicar el Artículo 4(1) de la Directiva 89/104.



(f) Explicar las dos cuestiones a resolver que mencionó la Corte en su sentencia.

(g) ¿Cuál fue la sentencia final de la Corte?

3) Explicar en castellano

(a) "The more distinctive the earlier mark, the greater the risk of confusion." (renglones 33-34).

(b) "Registration of a trademark might have to be refused, despite the lesser degree of similarity between the goods and services covered, where the marks were very similar

and the earlier mark, in particular its reputation, was highly distinctive." (renglones 39-42).

Texto 17: “Juristic Persons” Fuente: Keenan, Denis: Smith & Keenan's English Law. 11ª Edición. Pitman Publishing. Londres: 1995.


Juristic Persons

The registered joint stock company

The enormous increase in industrial activity during the industrial revolution of the last century made necessary and inevitable the emergence of the registered joint stock company and the concept of limited liability. For the first time it was possible for the small investor to contribute to the capital of a business enterprise with the assurance that, in the event of its failure, he could lose no more than the amount he 5

had contributed or agreed to contribute. The principles of 'legal entity' and 'perpetual succession' apply, whereby the joint stock company is deemed to be a distinct legal person, able to hold property and carry on business in its own name, irrespective of the particular persons who may happen to be the owners of its shares from time to time. 10

The concept of corporate personality is capable of abuse and where, for example, the concept has been used to evade legal obligations, the courts have been prepared to investigate sharp practice by individuals who are trying to hide behind a corporate mask or front.

Joint stock companies are formed by registration under the Companies Act 1985 or 15

previous Acts. The main current controlling statute is the Companies Act 1985. It provides for two types of registered companies: the Public Limited Company and the Private Company. A registered company is fully liable for its debts but the liability of the members may be limited either to the amount unpaid on their shares, i.e. a company limited by shares, or to the amount they have agreed to pay if 20

the company is brought to an end (wound up), i.e. a company limited by guarantee. Some companies are unlimited and the members are fully liable for the unpaid debts of the company if, and only if, the company goes into liquidation.

The allotted capital of a public limited company, which must before it can trade or borrow money be at least £50,000 with 25% of the nominal value and the whole of 25

any premium paid up, is usually raised by the public subscribing for its shares, which are issued with varying rights as to dividends, voting powers, and degrees of risk. Shares are freely transferable and are almost invariably listed on a recognised investment exchange such as the London Stock Exchange. When making a public issue of shares, the company is under a statutory obligation to 30

publish full particulars of the history, capital structure, loans, profit record, directors, and many other matters calculated to assist the intending shareholder to assess the possibilities of the company. Such a document is called Listing Particulars or a Prospectus, and the directors are liable to penalties for fraud, misrepresentation or failure to disclose the material information as required by the 35

Financial Services Act 1986 (for listed securities) and the Companies Act 1985 (for unlisted securities on the Unlisted Securities Market maintained by the Stock Exchange), together with the rules of a recognised investment exchange such as the London Stock Exchange.

The minimum number of members is usually two but there is no upper limit. 40

Incorporation is achieved by lodging with the Registrar of Companies certain documents of which the following are the most important:



(a) The memorandum of association is a document which defines the constitution of the company, and sets out in the Objects Clause the powers of the company. Since the passing of the Companies Act 1989 this clause no longer entirely governs the 45

activities into which the company can legally enter. In the memorandum one also finds the company's name, together with a statement that the liability of the members is limited (where this is the case); the situation of its Registered Office, i.e. England or Wales or Scotland (this governs the company's nationality and domicile); the amount of its Authorised Capital; and an Association Clause in 50

which the subscribers ask for incorporation and agree to take at least one share. Under s. 1 of the Companies Act 1985 the memorandum of a public limited company has a clause stating that that is what it is.

(b) The articles of association contain the regulations governing the relationship between the company and its members, and thus cover the internal or domestic 55

affairs of the company. Such matters as alteration of shareholders' rights, powers of directors, conduct of meetings, and resolutions, are contained in the Articles.

The directors of a company stand in the fiduciary position of agents towards the company whose money they control, and many of the provisions of the Companies Act 1985 are framed to ensure the maximum possible degree of disclosure by the 60

directors of information calculated to keep the members acquainted with the affairs of the company.

The Memorandum and Articles of Association are public documents which must be deposited with the Registrar of Companies at Companies House in Cardiff and are open to public inspection along with other records relating to charges on the 65

company's property, and copies of important resolutions. (…) Any person may inspect the Register of Members at the Registered Office of the company.

The private company, for which the usual minimum number is two members and no maximum number, is now a firmly established feature of the business world. The private company is barred by s. 170 of the Financial Services Act 1986 from going 70

to the general public for subscriptions for its securities. Since the implementation of an EC Directive by SI 1992/1699, a private company limited by shares or guarantee may be formed with only one member or allow its membership to fall to one.

Dissolution of a registered company usually takes place by the company being put 75

into liquidation, as a result of the process of winding up.

��Actividades

1) Responder:

(a) ¿Por qué se menciona el concepto de responsabilidad limitada en el primer párrafo?



(b) ¿Qué distinción se hace entre la responsabilidad de las sociedades y la de los socios en el tercer párrafo?

(c) ¿Qué se dice del capital en el cuarto párrafo?

(d) ¿De dónde emana la obligación a la que se hace referencia al mencionar la oferta pública de acciones?

(e) ¿En qué consiste dicha obligación?

(f) ¿Qué información se encuentra en el documento denominado “memorandum of association”?



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de ser falsas, reescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) La única ley que rige la materia es la "Companies Act 1985".

Verdadero Falso

(b) Las “public limited companies” no cotizan sus acciones en bolsa aunque éstas pueden transferirse libremente.

Verdadero Falso

(c) Las “private companies” se forman con un mínimo de dos miembros sin máximo estipulado.

Verdadero Falso



3) Indicar la opción correcta.

(a) El término “articles of association” se entiende como:

1- los artículos del memo constitutivo 2- los artículos del instrumento constitutivo 3- el estatuto 4- el instrumento constitutivo

(b) El término “registered office” se entiende como:

1- oficina del registro 2- domicilio social 3- oficina de inscripción 4- sede registrada

Texto 18: Lectura A: “How to cope with an evil twin: resolving enterprise name disputes” Fuente: internet: http://www.chinalawandpractice.com/Article/2125210/Channel/7576/How-to-cope-with-an-evil-twin-resolving-enterprise-name-disputes.html Lectura B: “Cybersquatter Targets MP Keith Ashfield” Fuente: internet: http://www.trademarkblog.ca/cybersquatter-targets-mp-keith-ashfield/


Lectura A

How to cope with an evil twin: resolving enterprise name disputes

Issue: March 2009

At the end of 2008 the Beijing Haidian District Court ruled in a case between Beijing Guge Technology Company’s registration of its enterprise name, GUGE (which is pronounced similar to Google in Chinese) and Google, the well-known internet search engine provider. The court found that Beijing Guge had infringed Google’s rights to the Chinese translation of the GOOGLE trademark and its rights 5

to a previously reserved enterprise name. The court ruled that Beijing Guge’s actions had constituted unfair competition against Guge Information Technology (Google’s subsidiary in China) and ordered it to change its enterprise name.

Recent civil cases such as Sotheby’s vs Sichuan Sufubi1 and Swarovski vs Beijing Shihualuo2, suggest there is a growing trend of IP infringement of trademarks or 10

trade names with an enterprise name registration.

Enterprise name disputes involve differences between the concepts of the enterprise name and the trade name. Both are distinct identifiers that serve different purposes in trading. These rights are markedly different as to the concept and registrability. 15

• An enterprise name is ascribed to a corporate entity in China, and it should be registered within the competent Administration for Commerce and Industry (AIC) at different levels and in different regions. It must consist of the following: Enterprise name = Administrative Region + Business Name / Shop Name + Industry + Organization Type. 20

• A trade name is a relatively complex conception. The Paris Convention said a trade name shall be protected; however it does not provide a clear definition. Though academic disputes have risen on the connotation and denotation of a trade name, in practice it is mostly referred to as a Business Name / Shop Name that forms the identifiable part of an enterprise name. This is the definition used 25

in this article. Generally, a trade name can be registered as a trademark and enjoys the protection of Chinese trademark law.

Often when ABC business enters or expands in China with XYZ brand, it can be frustrated in finding another company with the ABC name in a neighbouring province or selling XYZ products where XYZ refers to a trade name. This will not 30

only block the registration in that region, but also causes problems with customers. This problem has endured mainly because:

1 Swarovski Aktiengesellschaft vs Beijing Shihualuo Wedding Photography Company Limited, Beijing No. 2

Intermediate Court: in this case the Court found Beijing Shihualuo’s trade name is confusingly similar to Swarovski’s trademark and trade name and constituted unfair competition.

2 The Sotheby’s Auction House vs. Sichuan Sufubi Auction Company Limited, Beijing No. 2 Intermediate

Court: here, the Court found that Sichuan Sufubi’s trade name is confusingly similar to the Sotheby’s trade name and constituted unfair competition.



• the enterprise names are registered within various local AICs, and such registration does not have a centralised system for cross-checking; and

• from a legislative point of view, the enterprise names, trade names and 35

trademarks are regulated and protected under different laws.

This leads to the question of how to cope with an evil twin that has a confusingly similar enterprise name.

First of all, one must possess prior rights to a trade name or trademark. Generally a registered trademark is afforded the strongest protection against a latter-registered 40

enterprise name under Chinese law. Without the registration of a trademark, an enterprise name or trade name is not well protected, unless the use of a same or similar enterprise name by someone else amounts to misleading or deceptive conduct under the PRC Anti-unfair Competition Law. Establishing this involves considerable legal cost and management time. In other words, having registered an 45

enterprise name, a business should not forgo seeking trademark registration for its trade name.

With prior rights secured, a business may challenge a registration with the AIC. It needs to prove that the registration would deceive or confuse the public3. However, AIC officials are often reluctant to take action based solely on prior IP 50

rights including a conflicted trademark. This is particularly relevant where the local AIC in fact approved a target enterprise name. In China, lobbying and education is particularly important in approaching local AICs.

Alternatively, one may also challenge the registration in court. A recently issued judicial interpretation by the Supreme Court clarified a cause of action for 55

enterprise name conflicts. It recommended Courts accept these cases and apply the Anti-unfair Competition Law4. This shows evidence of improved judicial protection for the enterprise name. Nevertheless, it is still a challenging task to establish customer confusion and for the court to find unfair competition. Enforcement of a judgment that orders the change of enterprise name is still 60

questionable.

In a nutshell, it has been increasingly important for companies with marketing operations in China to familiarise themselves with enterprise name issues. Companies can act against a confusingly similar enterprise name, and should always be cautious with due diligence in a case of infringing another trade name or 65

trademark. It is always advisable to set up and maintain a good portfolio of registered IP rights by securing Chinese trademark registrations in advance, and involving local counsel from the beginning.

3 See Article 41 and 42, Implementation Measures on the Administration of the Registration of Enterprise

Names, issued by the State Administration of Industry and Commerce and effective from July 1 2004. 4 See Article 2, Supreme Court Interpretations on handling Disputes between Registered Trademarks,

Enterprise Name and Prior Civil Rights, effective from March 1 2008.



��Actividades


Lectura A:

(a) ¿Qué información se anticipa del título? (actividad de predicción)

(b) Describir la situación planteada en el primer párrafo.

(c) ¿Para qué se mencionan dos fallos recientes y cuáles son?



(d) Describir el proceso de registro de un "enterprise name". Detallar como se conforma la denominación social.

(e) ¿Para qué se cita la Convención de Paris?

(f) ¿Qué debe hacerse cuando se encuentra una empresa cuyo nombre es similar al propio?

(g) ¿Que criterio se aplica para otorgar protección a una marca en China?



(h) ¿Qué factores son importantes en China para contactarse con las AIC? ¿Por qué?

(i) Describir la situación planteada en el primer párrafo.

(j) ¿Qué tipo de protección otorgan los tribunales de justicia chinos?

2) Completar el siguiente cuadro con los casos que se mencionan en el texto:

Nombre del Caso Decisión del Tribunal

(a) Swarovski Aktiengesellschaft vs Beijing

Shihualuo Wedding Photography Company Limited.

(b) The Sotheby’s Auction House vs.

Sichuan Sufubi Auction Company Limited.

(c) Beijing Guge Technology Company’s vs

Google.



Lectura B

Cybersquatter Targets MP Keith AshfieldCanadian Trademark Blog

February 23, 2009

CBC News reported recently that Conservative MP Keith Ashfield registered the domain name keithashfield.ca during the 2008 election. When Mr. Ashfield failed 5

to renew the registration, it was quickly scooped up by an apparent cybersquatter. Cybersquatters (as they are commonly known), often register famous names or trade-marks in order to benefit from the associated goodwill to drive traffic to their websites. Often these websites are “pay-per-click” sites which generate revenue for the cybersquatter. 10

The website now resolves to a site offering details on how to get prescription drugs without a prescription. Exactly who holds the domain name is unclear, as this information has been privacy protected by the registrar, Namespro Solutions Inc., at the request of the owner. Under the current CIRA privacy policy, personal information of owners who are individuals is permitted to be cloaked, even if the 15

domain name links to a commercial site.

Mr. Ashfield could potentially try to regain ownership and control of the domain name under the Canadian Internet Registration Authority (CIRA) Dispute Resolution Policy (CDRP) One issue, however, may be his ability to prove rights in his name as a “Mark” as defined by the CDRP policy. A CDRP proceeding 20

allows for the transfer of a domain name from a registrant to a complainant if the complainant can prove that (1) the domain name is confusingly similar to a Mark in which the complainant has rights, (2) the registrant does not have a legitimate interest in the domain name, and (3) the registrant has registered the domain name in bad faith (as defined under the policy). 25

Cases such as this highlight that public personalities, including politicians, as well as trade-mark owners are encouraged to pre-emptively register their names or trade-marks as domain names with multiple top level domains (such as .ca and .com). As Mr. Ashfield has no doubt discovered, an ounce of prevention is worth a pound of cure. 30

Texto 19 : “Learned Hand. Jurisprudence” Fuente: internet: Wikipedia, http://en.wikipedia.org/wiki/Learned_Hand#Jurisprudence.


Learned Hand. Jurisprudence

Hand has been called one of the United States' most significant judicial philosophers. A leading advocate of judicial restraint, he took seriously Alexander Hamilton's formulation that "the judiciary ... may truly be said to have neither force nor will, but merely judgement.” Any judicial ruling that had the effect of legislating from the bench troubled Hand. In 1908, in his article "Due Process of 5

Law and the Eight-Hour Day", he attacked the 1905 Supreme Court ruling in Lochner v. New York, which had struck down a law prohibiting bakery staff from working more than ten hours a day. The Supreme Court went on to strike down a series of similar worker-protective laws on the grounds that they restricted freedom of contract. Hand regarded this principle as undemocratic." For the state 10

to intervene", he argued, "to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior force." 15

The issue concerned Hand again during the New Deal period, when the Supreme Court repeatedly overturned or blocked Franklin D. Roosevelt's legislation. As an instinctive democrat, Hand was appalled that an elected government should have its laws struck down in this way. He viewed it as a judicial "usurpation" for the Supreme Court to assume the role of a third chamber in these cases. As far as he 20

was concerned, the Constitution already provided a full set of checks and balances on legislation. Nevertheless, Hand did not hesitate to condemn Roosevelt's frustrated attempt to pack the Supreme Court in 1937, which led commentators to warn of totalitarianism. The answer, for Hand, lay in the separation of powers: courts should be independent and act on the legislation of elected governments. 25

Hand's democratic respect for legislation meant that he hardly ever struck down a law. Whenever his decisions went against the government, he based them only on the boundaries of law in particular cases. He adhered to the doctrine of presumptive validity, which assumes that legislators know what they are doing when they pass a law. Even when a law was uncongenial to him, or when it 30

seemed contradictory, Hand set himself to interpret the legislative intent. Sometimes, however, he was obliged to draw the line between federal and state laws, as in United States v. Schechter Poultry. In this important case, he ruled that a New Deal law on working conditions did not apply to a New York poultry firm that conducted its business only within the state. Hand wrote in his opinion: "It is 35

always a serious thing to declare any act of Congress unconstitutional, and especially in a case where it is part of a comprehensive plan for the rehabilitation of the nation as a whole. With the wisdom of that plan we have nothing whatever to do ..."

Hand also occasionally went against the government in the area of free speech. He 40

believed that courts should protect the right to free speech even against the majority will. In Hand's view, judges must remain detached at times when public opinion is hostile to minorities and governments issue laws to repress those minorities. Hand was the first judge to rule on a case arising from the Espionage Act of 1917, which sought to silence opposition to the war effort. In his decision on 45



Masses Publishing Co. v. Patten, he defined his position on political incitement:

Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with 50

direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard for free government. The distinction is not scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.

In the case of United States v. Dennis in 1950, Hand made a ruling that appeared to 55

contradict his Masses decision. By then, a series of precedents had intervened, often based on Oliver Wendell Holmes's "clear and present danger" test, leaving him less room for maneuver. Hand felt he had "no choice" but to agree that threats against the government by a group of Communists were illegal under the repressive Smith Act of 1940. In order to do so, he interpreted the "clear and present danger" in a 60

new way. "In each case," he wrote, "[courts] must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." This formula allowed more scope for curbing free speech in cases where, as the government believed with Communism, the danger was grave, whether it was immediate or not. Critics and disappointed liberals 65

accused Hand of placing his concern for judicial restraint ahead of freedom of speech. Hand confided to a friend that, if it had been up to him, he would "never have prosecuted those birds".

In the opinion of Kathryn Griffith, "The importance of Learned Hand's philosophy in terms of practical application to the courts lies generally in his view of the 70

pragmatic origin of all law, but most specifically in his unique interpretation of the Bill of Rights." Hand proposed that the Bill of Rights was not law at all but a set of "admonitory" principles to ensure the fair exercise of constitutional powers. He therefore opposed the use of its "due process of law" clauses as a pretext for national intervention in state legislation. 75

��Actividades

1) Responder:

(a) ¿Qué justifica la referencia a Alexander Hamilton (renglones 2 y 3)?



(b) ¿Qué artículo publicó Hand en 1908 y cuál fue el objetivo de dicha publicación?

(c) ¿Qué precedente fijaba la decisión que se cita?

(d) ¿Por qué consideró Hand que el principio era antidemocrático?

(e) ¿Por qué se hace referencia al Presidente Roosevelt y cuál era la postura de Hand al respecto?

2) Resumir el contenido del párrafo 3 (renglones 26 al 54).



3) Transcribir el contenido de la fórmula a la que refiere el párrafo 4. Citar los beneficios que le reconocía el autor y las desventajas que vislumbraban los liberales.

4) Resumir la opinión de Kathryn Griffith sobre la visión filosófica de Hand (renglones 69 a 75).



5) Según la información dada, incluir en cada caso datos breves sobre las referencias del texto.

(a) Judicial restraint is a theory of judicial interpretation that encourages judges

to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional.[1] It is sometimes regarded as the opposite of judicial activism.

(b) Alexander Hamilton (January 11, 1755 or 1757 – July 12, 1804) was the first United States Secretary of the Treasury, a Founding Father, economist, and political philosopher. He led calls for the Philadelphia Convention, was one of America's first Constitutional lawyers, and cowrote the Federalist Papers, a primary source for Constitutional interpretation.

(c) Lochner v. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held the "right to free contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours a baker could work each week. By a 5-4 margin, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract."



(d) Freedom of contract or contractualism is the freedom of individuals to bargain among themselves the terms of their own contracts, without government interference.

In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law (see judicial interpretation). The judiciary may attempt to assess legislative intent where legislation is ambiguous, or does not appear to directly or adequately address a particular issue.

(e) The New Deal was the name that United States President Franklin D. Roosevelt gave to a sequence of central economic planning and economic stimulus programs he initiated between 1933 and 1938 with the goal of giving work (relief) to the unemployed, reform of business and financial practices, and recovery of the economy during The Great Depression. The enactment of New Deal policies lasted from 1933 through 1939.[1][2]

(f) The Espionage Act of 1917 was a United States federal law passed shortly after entering World War I, on June 15, 1917, which made it a crime for a person:to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. This was punishable by death or by imprisonment for not more than 30 years to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum $USD 10,000 fine (almost $170,000 in today's dollars) and 20 years in prison.



(g) Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), was a decision

by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.

(h) Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme

Court case involving Eugene Dennis, general secretary of the Communist Party USA and dealing with citizens' rights under the First Amendment to the Constitution of the United States

(i) Oliver Wendell Holmes was the name of two prominent men, father and son:

Oliver Wendell Holmes, Sr. (1809–1894), poet, physician, and essayist

Oliver Wendell Holmes, Jr. (1841–1935), justice of the Supreme Court of the United States.

(j) Clear and present danger is a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States,[1] concerning the ability of the government to regulate speech against the draft during World War I: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”



(k) The Alien Registration Act or Smith Act (18 U.S.C. § 2385) of 1940 is a United States federal statute that makes it a criminal offense for anyone to “knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association”

(l) The Bill of Rights is the name by which the first ten amendments to the United States Constitution are known.[

(m) Kathryn P. Griffith: author of Judge Learned Hand and the Role of the Federal Judiciary

Texto 20: “Doe V. Mann” Fuente: Doe V. Mann 8417


Doe v. Mann

FOR PUBLICATION UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT MARY DOE, Plaintiff-Appellant,

v.

ARTHUR MANN, in his official capacity;

ROBERT L. CRONE, JR., in his official capacity; LAKE COUNTY SUPERIOR COURT; DEPARTMENT OF SOCIAL SERVICES, LAKE COUNTY; D., Mrs.; D., Mr., Defendants-Appellees.

No. 04-15477 D.C. No. CV-02-03448-MHP OPINION

Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, District Judge, Presiding Argued and Submitted October 6, 2004—San Francisco, California Filed July 19, 2005 Before: Stephen S. Trott, M. Margaret cKeown, Circuit Judges, and Milton I. Shadur, Senior District Judge.*

Opinion by Judge McKeown 5

* The Honorable Milton I. Shadur, United States Senior District Judge for the Northern District of Illinois, sitting by designation.

OPINION

McKEOWN, Circuit Judge:

Mary Doe1 challenges the State of California’s jurisdiction to terminate her parental 10

rights over her Indian child, Jane Doe, who was domiciled on the Elem Indian Colony reservation at the time she was removed from Mary Doe’s custody by the Lake County Department of Social Services. The case arises under the Indian Child Welfare Act (“ICWA”), which was passed in 1978 to ensure the tribes a role in adjudicating child custody proceedings involving Indian children. P.L. 95- 608, 15

codified at 25 U.S.C. §§ 1901-1963. 2ICWA provides that tribes will have exclusive jurisdiction over child custody proceedings involving Indian children domiciled or residing on the reservation “except where such jurisdiction is otherwise vested in the State by existing Federal law.” 25 U.S.C. § 1911(a) (emphasis added). Under one such federal law, 18 U.S.C. § 1162(a) and 28 U.S.C. § 1360(a), commonly known as 20

1 Pseudonyms are used to identify the mother, child, and adoptive parents. 2 All references to the U.S. Code are to Title 25 unless otherwise indicated.



“Public Law 280,” California is vested with broad criminal and certain civil jurisdiction over Indians.

This case presents an issue of first impression for the federal courts, requiring us to reconcile Public Law 280’s grant of certain jurisdiction to the state of California over Indians with the exclusive jurisdiction granted to tribes by ICWA over child 25

custody proceedings involving Indian children domiciled on Indian reservations.

As a threshold matter, we conclude that the federal court has jurisdiction under 28 U.S.C. § 1331 and, in conjunction with ICWA, may use that jurisdiction to review the state court judgment terminating Mary Doe’s parental rights; the Rooker-Feldman doctrine did not bar the district court from exercising jurisdiction. On the 30

merits, we conclude that ICWA does not provide the Elem Indian Colony with exclusive jurisdiction over this child dependency proceeding involving Jane Doe, an Indian child. Consequently, we affirm the district court’s entry of judgment in favor of the State of California.

I. FACTUAL AND PROCEDURAL BACKGROUND 35

Mary Doe is a member of the federally recognized Elem Indian Colony in Lake County, California.3 In 1999, Jane told her mother that a minor male cousin had sexually assaulted her. Mary Doe called the Department of Social Services, and the agency responded by removing Jane from her great-aunt’s home on the Elem Indian Colony’s reservation, where Jane was residing at the time. 40

The Department of Social Services initiated child dependency proceedings in Lake County Superior Court under California’s Welfare and Institutions Code (“Cal. Welf. & Inst. Code”) §§ 300(b) and (d) based on Mary Doe’s failure to protect her daughter. Jane was placed in a licensed foster home while the state dependency proceedings were pending in state superior court. In the fall of 2000, the Elem 45

Indian Colony intervened in the superior court proceedings. At the same time, the Tribal Council passed a resolution declaring that Jane should be placed for adoption with Mary Doe’s brother and her sister-in-law.

The superior court terminated Mary Doe’s parental rights in 2001. Jane’s foster parents, Mr. and Mrs. D, petitioned to adopt her. Mrs. D is an Indian but not a 50

member of the Elem Indian Colony. Despite the Elem Indian Colony’s resolution, the superior court approved the adoption by Mr. and Mrs. D.

The petition for adoption stated that Jane was an Indian child under ICWA and was affiliated with the Elem Indian Colony. A year and a half after her parental rights were terminated, Mary Doe filed a complaint in federal court for declaratory 55

and injunctive relief. Among other claims, Mary Doe challenged the superior court’s jurisdiction to terminate her parental rights and to approve Jane’s adoption by Mr. and Mrs. D.

3 Mary Doe submitted a motion to strike portions of the Supplemental Excerpts of Record because

most of the documents were state court records that were not included in the district court record. The motion to strike is granted. See Fed. R. App. P. 10(a)(1); 9th Cir. R. 10-2(b). We do, however, take judicial notice of the following records from the state court proceedings: 1) Orders Under Section 366.26 of the Welfare and Institutions Code, which establish that Mary Doe’s parental rights were terminated on February 16, 2001; 2) Petition for Adoption; 3) Attachment to Petition for Adoption — Adoption of an Indian Child; 4) Order of Adoption; and 5) Juvenile Dependency Petition.



Mary Doe named as defendants two Superior Court Judges and the Superior Court (collectively “Court-Appellees”), Mr. and Mrs. D, and the Department of Social 60

Services.

The district court held that the Rooker-Feldman doctrine did not bar it from exercising subject matter jurisdiction over Mary Doe’s complaint because § 1914 provides a cause of action in federal court to invalidate certain state court child custody proceedings. Doe v. Mann, 285 F. Supp. 2d 1229, 1233-34 (N.D. Cal. 2003). 65

Applying its jurisdiction, the district court held that, because the Elem Indian Colony did not have exclusive jurisdiction over child dependency proceedings under § 1911(a), the superior court had jurisdiction to terminate Mary Doe’s parental rights and approve Jane’s adoption. Id. at 1238-39. The district court entered a final judgment against Mary Doe, thus leaving intact the state court 70

parental termination and adoption orders.

��Actividades

1) Responder:

(a) ¿Qué tribunal interviene en la causa?

(b) ¿Quiénes son las partes?

(c) ¿En qué instancia se encuentra?



(d) ¿Quién es el a quo?

(e) ¿Cómo se identifica a las partes en el voto de la Jueza M. Margaret cKeown?

(f) ¿Cómo se inicia la causa?

(g) ¿Cuál es la ley que da origen a la causa?

(h) ¿Cuál es la cuestión a resolver en este caso?



(i) ¿Qué hechos se consignan en el primer párrafo “Factual and Procedural Background"?

(j) ¿Qué curso de acción siguió el departamento de Servicios Sociales?

2) Enumerar las instancias de la causa y las partes o autoridades judiciales que intervienen en cada una de ellas

Texto 21: Lectura A: “Air Canada Fined $1M in Disclosure Case” Fuente: internet:: http//:thestar.com/NASApp/cs/Content.../ del 27/07/01 Lectura B: “Securities Fraud” Fuente: Podgor, Ellen; Israel Jerold H., White Collar Crime in a Nutshell, 2ª Edición. West Group, St. Paul, Minn., 1997. Págs. 76-7, 82-3.


Lectura A

Air Canada Fined $1M in Disclosure Case Securities regulators penalize airline over profit warnings

From Canadian Press

Air Canada has been fined more than $1 million in settling a corporate disclosure case with securities regulators in Ontario and Quebec, which accused the airline of giving analysts an early warning of lower company profits last year. 5

In a decision Friday, the Ontario Securities Commission and the Quebec Securities Commission announced they had approved a settlement reached earlier this week with Canada's dominant airline.

Air Canada, which is based in Montreal, will pay $500,000 to each commission. In Ontario, the money will go towards investor education, while in Quebec, the cash 10

will help finance the regulator's operations. Another $80,000 was added to the sum to cover the Ontario Securities Commission's investigation costs.

The decisions of the provincial regulators also force Air Canada's auditors to report quarterly on its disclosure compliance. The report has to be made public and available to members of the commission, according to the settlement. 15

Frank Switzer, spokesman for the Ontario commission, called the penalties “significant and appropriate under the circumstances.”

“I think it sends a clear message to public companies that they should not be able to favour institutional investors. I think it was made very clear by the panel that this is meant to serve as a warning.” 20

Regulators had accused Canada's dominant airline of passing material information to a select group of analysts last October, breaking provincial securities laws, Toronto Stock Exchange rules and the airline's own internal guidelines.

Securities regulators wrangled over what to do about the accusations for months, saying there was no precedent for the selective-disclosure case. 25

The commissions alleged that on Oct. 5, 2000, Air Canada left a telephone message with 13 analysts, telling them its earnings for the second half of that year would be $140 million less than expected because of higher fuel and other expenses and lower-than-projected revenue.

The messages were recorded after trading hours. When trading resumed the next 30

day on the Toronto Stock Exchange, Air Canada stock opened $1 lower at $14.

The shares fell as low as $12.85 and finished at 13.25, dropping 12 per cent on the day.

Air Canada didn't release any public statements until three minutes before the market closed on Oct.6. The staff of the two commissions then accused Air Canada 35

of acting against the public interest by using selective disclosure.

In trading Friday, Air Canada shares slipped 28 cents to $7.62 on the Toronto Stock Exchange.



Lectura B

Securities Fraud

Introduction

An overlap between civil and criminal law is apparent in examining cases involving securities fraud. An individual violating securities statutes can be subject to civil and administrative proceedings, criminal prosecution, or dual civil and criminal actions. (...) 5

Securities violations are typically investigated by the Securities and Exchange Commission (SEC). Most often criminal prosecutions arise when the SEC refers the matter to the Department of Justice for criminal prosecution. (15 U.S.C. § 78 u(d)). Selective enforcement of violations occurs both in the referring of matters to the Department of Justice and in their decision of whether to prosecute. 10

Although securities violations may arise under an array of federal acts, most often prosecutions under securities law emanate from the Securities Act of 1933 and the Securities Exchange Act of 1934. These acts are found in Title 15 of the United States Code.

Section 24 of the Securities Act of 1933 (15 U.S.C. § 77x) provides criminality to 15

willful violations of provisions under the Act or rules and regulations of the Commission. It also prohibits, in a registration statement filed under the Act, the making of any untrue statement of material fact or omitting to state any material fact required to be stated or necessary so as to keep a statement from being misleading. This felony offense authorizes a fine and imprisonment up to five 20

years.

The Securities Exchange Act of 1934, likewise, provides criminality to willful violations of the civil provisions of the Act. Amendments to the Securities and Exchange Act of 1934 authorize stiffer penalties than its predecessor, permitting fines up to one million dollars and imprisonment up to ten years. In the case of 25

persons other than natural persons, the fine may be increased to two million five hundred dollars. (...)

Legislative response to insider trading is seen in the passage of two congressional acts. The Insider Trading Sanctions Act (ITSA) and the Insider Trading and Securities Fraud Enforcement Act (ITSFEA) include provisions that increase the 30

penalties to individuals engaged in improper insider trading.

Insider Trading

There is an “expectation of the securities market-place that all investors trading on impersonal exchanges have relatively equal access to material information.” Securities and Exchange Commission v. Texas Gulf Sulpher Co. (2d Cir. 1968). Insider 35

trading, although not specifically defined by any statute, arises when an insider, with material nonpublic information, trades in securities without first disclosing the material inside information to the public. Issues arise as who is an insider and



when it is necessary to disclose nonpublic information. Issues can also arise as to whether the information is material. 40

Insider trading prosecutions have been at the forefront of white collar crime cases. Investment bankers, lawyers, arbitragers, and financial executives have been among the many that have been indicted and convicted for violations of securities laws. In many instances the individuals reached plea agreements that required government cooperation in further investigations. Significant publicity has 45

surrounded many insider trading cases.

Insider trading cases are usually prosecuted under section 10(b) of the Securities Exchange Act of 1934 and its accompanying Rule 10b-5. The government has the burden of proving that the accused willfully employed a scheme to defraud, or misrepresented or failed to disclose a material fact, or engaged in a course of 50

business which operated as a fraud, in connection with the purchase or sale of any security. Federal jurisdiction is attained by showing that the accused used a means or instrumentality of interstate commerce, the mails, or any facility of any national securities exchange.

��Actividades


Lectura A:

(a) ¿Qué acusación recayó sobre Air Canada?

(b) ¿Cómo se decidió sancionarla?



(c) ¿Qué acuerdos alcanzó la empresa respecto de la sanción?

(d) ¿Quiénes aplican la sanción?

Lectura B:

(e) ¿En cuál de las conductas prohibidas por las leyes de los Estados Unidos encuadraría la conducta de Air Canada si cotizara sus acciones en alguno de los mercados de valores de dicho país?

(f) ¿Cómo se iniciaría y tramitaría la causa en los Estados Unidos?

(g) ¿Qué sanciones se le podrían aplicar?



(h) ¿Cómo se entiende el término “insider trading”?

2) Lecturas A y B: Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar la respuesta remitiéndose a las partes pertinentes en las lecturas.

(a) La forma en que se sancionó a Air Canada se considera que es un llamado de atención.

Verdadero Falso

Justificación:

Lectura: Renglón/renglones de referencia:

(b) Esta no es la primera vez que se da un caso de estas características.

Verdadero Falso

Justificación:




(c) En su proceder en Canadá, la empresa quebrantó leyes provinciales, normas del mercado de valores y de las aerolíneas.

Verdadero Falso

Justificación:


(d) En los Estados Unidos las causas relacionadas con delitos en los mercados de valores tramitan por la justicia de cada estado.

Verdadero Falso

Justificación:


(e) La justicia decide, en base a las causas que le eleva la Comisión de Valores, la continuidad de los procesos penales.

Verdadero Falso

Justificación:




(f) La carga de la prueba referida a la conducta delictiva recae en la fiscalía.

Verdadero Falso

Justificación:


(g) Sólo se menciona la existencia de dos leyes que rigen la materia en los Estados Unidos.

Verdadero Falso

Justificación:


Texto 22: Lectura A: “Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.” Fuente: internet: http://www.criminaldefenselawyers.com/news/December%2007/19a.htm. Lectura B: “Bulk cash smuggling into or out of the United States” Fuente: United States Code, Title 31, Subtitle Iv, Chapter 53, Subchapter Ii, § 5332.


Lectura A

Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.

December 19, 2007

Four Defendants Sentenced In Operation Funk 49

United States Attorney Karen P. Hewitt announced that four defendants prosecuted federally in “Operation Funk 49 ” were sentenced today in San Diego before United States District Court Judge Larry A. Burns in connection with their 5

guilty pleas to conspiracy to distribute methamphetamine, distribution of cocaine, and money laundering.

According to Assistant U.S. Attorney Laura E. Duffy, who prosecuted the case, the charges arose as a result of a three-year local, state, and federal law enforcement investigation into an international drug and money laundering organization based 10

in Guadalajara, Mexico. Operation Funk 49 began as a federal investigation in April 2004 when a methamphetamine user living on the streets of San Diego led to the identification of a local multi-pound methamphetamine distributor. Through the hard work and determination of agents of the Drug Enforcement Administration (DEA), Internal Revenue Service, Criminal Investigations (IRS) and 15

Immigration and Customs Enforcement (ICE), the investigation grew into a nation-wide investigation involving federal law enforcement officials in more than 10 judicial districts (including the Central District of California, Eastern District of New York, Northern District of Illinois, and Northern District of Georgia), and officials in Mexico and South America. 20

The federal portion of Funk 49 resulted in a total of 31 arrests and the seizure of 596 pounds of cocaine, 193 pounds of methamphetamine, $2,859,000 in currency, and two single-family residences valued at approximately $1,000,000 each. The New York and Atlanta parts of the federal investigation involved the prosecution of an October 2006 double homicide committed in Atlanta. 25

The defendants who were sentenced today before Judge Burns include:

Gustavo Espinoza -A United States citizen who was identified during the investigation as a multi-pound methamphetamine distributor and money collector working under the direction of one of the organization’s primary distributors in the San Diego area, Felipe Ballesteros. On August 2, 2007, Espinoza pled guilty to 30

conspiracy to distribute methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 846; and bulk cash smuggling, in violation of Title18, United States Code, Section 5332(a).

Robert Galindo - A United States citizen who was involved in storing methamphetamine and drug proceeds for Felipe Ballesteros. On August 2, 2007, 35

Galindo pled guilty to two counts of using a communication device to facilitate the distribution of methamphetamine, in violation of Title 21, United States Code,



Section 843(b). Galindo’s plea agreement called for his forfeiture of a single-family residence he owned in Chula Vista, CA.

Samuel Galindo - A United States citizen identified during the investigation as the 40

“straw purchaser” of a residence actually owned by Ballesteros. Galindo made monthly mortgage payments on the residence, purchased other assets, and paid monthly bills for Ballesteros using drug proceeds. On August 7, 2007, Galindo pled guilty to conspiracy to launder drug proceeds, in violation of Title 18, United States Code, Section 1956(h). Galindo’s plea agreement called for the forfeiture of 45

$102,000.

Francisco Fuentes - A United States citizen identified during the investigation as methamphetamine and cocaine transporter working under the direction of Mexico-based sources of supply. After crossing drugs into the United States, Fuentes delivered them to storage locations and collected drug proceeds to transport back 50

to Mexico. On November 28, 2007, Fuentes pled guilty to possession with intent to distribute 67.3 kilograms of cocaine, in violation of Title 21, United States Code, Section Section 841(a)(1).

Felipe Ballesteros is scheduled to be sentenced on December 17, 2007 before Judge Burns. 55

United States Attorney Hewitt said, “Funk 49 is truly a model showing how to work a case from the ground up. It demonstrates how everyday law enforcement actions as small as identifying a drug user on our streets can eventually lead to the dismantling of large drug trafficking networks.” U.S. Attorney Hewitt praised all of the federal, state, and local law enforcement officials across the country who 60

were involved in the Organized Crime Drug Enforcement Task Force (OCDETF) investigation. The OCDETF program was created to consolidate and utilize all law enforcement resources in this country’s battle against major drug trafficking.

DEA Special Agent in Charge Ralph Partridge commented, “Today’s sentencing is the result of law enforcement agencies’ tireless efforts as they pursued this drug 65

ring across the country. DEA and its law enforcement partners will continue to employ our combined resources in the fight against these ruthless drug trafficking organizations not only San Diego but cities across the country.”

IRS

“ICE is committed to working with it's federal, state, and local law enforcement 70

partners to secure the nation’s borders and dismantle the drug smuggling organizations that seek to bring dangerous drugs into our communities,” said Michael Carney, Acting Special Agent in Charge for ICE investigations in San Diego.

DEFENDANTS Case Number: 05cr2078-LAB 75

Gustavo Espinoza Robert Galindo Samuel Galindo Francisco Fuentes

SUMMARY OF CHARGES Title 21, United States Code, Sections 841(a)(1) and 846 Title18, United States Code, Section 5332(a) Title 21, United States Code, Section 843(b) 80

Title 18, United States Code, Section 1956(h)



SENTENCES RECEIVED Gustavo Espinoza - 150 months in custody, five years of supervised release and a $200 special assessment.

Francisco Fuentes - 108 months in custody, five years of supervised release, a 85

$10,000 fine, and a $100 special assessment.

Robert Galindo - 96 months in custody, five years of supervised release, $200 special assessment and forfeiture of the single family residence located in Chula Vista, California.

Samuel Galindo - 37 months in custody, three years of supervised release, $100 90

special assessment and the forfeiture of $102,000.

FEDERAL INVESTIGATING AGENCIES U.S. Drug Enforcement Administration U.S. Internal Revenue Service, Criminal Investigation U.S. Immigration and Customs Enforcement95

��Actividades


(a) ¿Qué anunció Karen P. Hewitt?

(b) ¿Qué cargo ocupa?

(c) ¿Qué cargo ocupa Laura E. Duffy, cuál fue su rol en esta causa y qué explicación da sobre el origen de dicha causa?



(d) ¿Qué nombre recibió la investigación y qué organismos intervinieron? ¿Por qué?

(e) ¿Qué información contiene el tercer párrafo?

(f) ¿Cuál es la situación de Felipe Vallesteros?

(g) ¿Qué se entiende por “Straw purchaser”? (renglón 41)

(h) ¿Cuál es la opinión de Hewitt respecto de la operación Funk 49?



(i) ¿Qué artículos se violaron?

(j) ¿Por qué son competentes los tribunales Federales?

(k) ¿Cuál es la opinión de Ralph Partidge y qué tareas desarrolla?

(l) ¿Quién es Michael Carney y qué comentarios hizo respecto de la causa?

(m) ¿Qué información proporciona el renglón 75 ("DEFENDANTS Case Number: 05cr2078-LAB")?



2) Completar el cuadro con la información contenida en el texto.

El juez Burns condenó a:

Fundamentos y hechos Condena aplicada

(a) Gustavo Espinosa

(b) Robert

Galindo

(c) Samuel Galindo

(d) Francisco Fuentes



Lectura B

Bulk Cash Smuggling into or out of the United States

(a) Criminal Offense.

(1) In general. Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or 5

attempts to transport or transfer such currency or monetary instruments from a place within the United States to a place outside of the United States, or from a place outside the United States to a place within the United States, shall be guilty of a currency smuggling offense and subject to punishment pursuant to subsection (b). 10

(2) Concealment on person. For purposes of this section, the concealment of currency on the person of any individual includes concealment in any article of clothing worn by the individual or in any luggage, backpack, or other container worn or carried by such individual.

(b) Penalty. 15

(1) Term of imprisonment. A person convicted of a currency smuggling offense under subsection (a), or a conspiracy to commit such offense, shall be imprisoned for not more than 5 years.

(2) Forfeiture. In addition, the court, in imposing sentence under paragraph (1), shall order that the defendant forfeit to the United States, any property, real or 20

personal, involved in the offense, and any property traceable to such property.

(3) Procedure. The seizure, restraint, and forfeiture of property under this section shall be governed by section 413 of the Controlled Substances Act.

(4) Personal money judgment. If the property subject to forfeiture under paragraph (2) is unavailable, and the defendant has insufficient substitute property 25

that may be forfeited pursuant to section 413(p) of the Controlled Substances Act, the court shall enter a personal money judgment against the defendant for the amount that would be subject to forfeiture.

(c) Civil Forfeiture.

(1) In general. Any property involved in a violation of subsection (a), or a 30

conspiracy to commit such violation, and any property traceable to such violation or conspiracy, may be seized and forfeited to the United States.

(2) Procedure. The seizure and forfeiture shall be governed by the procedures governing civil forfeitures in money laundering cases pursuant to section 981 (a)(1)(A) of title 18, United States Code. 35

(3) Treatment of certain property as involved in the offense. For purposes of this subsection and subsection (b), any currency or other monetary instrument that is concealed or intended to be concealed in violation of subsection (a) or a conspiracy to commit such violation, any article, container, or conveyance used, or intended to be used, to conceal or transport the currency or other monetary instrument, and 40

any other property used, or intended to be used, to facilitate the offense, shall be considered property involved in the offense.



��Actividades


(a) ¿A qué tipo de delito hace referencia el artículo 5332 del Código de los Estados Unidos de América?

(b) ¿Qué penas se contemplan para el delito al que se refiere el artículo?

(c) ¿Cómo se configura el delito de acuerdo con el artículo 5332 (a) (2)?

(d) Explicar que establece el punto (b) (3).

(e) ¿Qué ocurre cuando la pena contemplada en (b) (2) se aplica y no hay bienes disponibles?



(f) ¿Qué establece el artículo 5332 en (c) (1)?

(g) ¿Cuál es el alcance respectivo del artículo 413, "Controlled Substances Act" y del artículo 981(a)(1)(A), "title 18 USC" en lo referente al procedimiento aplicable?

(h) ¿Qué tipo de bienes se incluyen en el artículo para la configuración del delito en cuestión?

Texto 23: “Mopping up mobbing-legislate or negotiate?” Fuente: internet: www.ilo.org/public/english/dialogue/actrav/publ/133/11.pdf.


Mopping up mobbing-legislate or negotiate?How can we counter violence and mobbing at work? An overview of the main regulatory approaches- and a closer look at Swedish laws and German collective agreements

Ian Graham Journalist

Mobbing, harassment, workplace violence. Call it what you will, it is a growing threat to the health of workers and productivity alike. So how is it to be tackled? The long arm of the law? The strong arm of collective agreement? Codes of conduct?

The answer may depend on the country, but also on the type of offence. At least 5

three different hostile acts may be involved, singly or in combination- moral harassment, discrimination (for example on grounds of age, sex, race or migrant status) and physical violence. There are also three rather different types of harasser – bosses ( managers, supervisors, owners); co-workers; and outsiders (usually “customers” in the broadest sense). 10

Efforts to counter workplace harassment and violence centre on three main approaches:

Legislation

Four kinds of law may be involved:

� Specific laws. Legal remedies against employment discrimination and sexual 15

harassment are becoming more common, but laws against other workplace mobbing and violence are still rare. Sweden has had such legislation since 1993 – see below. In Canada, the provinces of British Columbia and Saskatchewan have specific regulations for the prevention of workplace violence. In the United States, California passed a special law to combat violence in hospitals. Washington and 20

Florida have laws to protect retail workers against certain types of violence.

- Other industrial legislation that includes references to this problem. These are often new or updated occupational health and safety laws. Recent examples are found in Austria, Belgium, Brazil (covering public service workers in the states of Sao Paulo and Rio de Janeiro), Finland, France, Norway and Uruguay. 25

- Other industrial law. Employers may, for instance, have a “duty of care” or “general duty” towards their employees. This may be interpreted to include a legal duty to protect employees against harassment and violence.

- Other general law (criminal or civil). For example, some countries have outlawed deliberate harassment wherever it takes place. And, of course, a 30

serious assault or a murder at work will involve the wider criminal law.

Collective agreements A number of anti-mobbing agreements are already in place in German workplace – see below.

In 2001, the Danish Government announced plans to extend the powers of the 35

Working Environment Authority, permitting it to intervene in case of serious



psychological problems at the workplace, including sexual harassment and bullying. The government move was opposed by the employers, who feared interference in their managerial prerogatives, but also by some trade unions. They saw it as a threat to the Danish model of tackling labour issues primarily through 40

negotiation rather than legislation. In the end, unions and employers in Danish industry concluded their own collective agreement to deal with “psychological working environment” issued through existing procedures for dispute resolution, and the government plan was shelved.

Signing against mobbing 45

What should go into a collective agreement against workplace harassment? Here, we translate the main points of a model text from the German Trade Union Federation (DGB). Passages in square brackets are summaries.

2. Prohibition of harassment

Management and the works council/staff council agree that in (name of 50

workplace/ company/ branch), no person may suffer disadvantage because of their descent, religion, nationality, origin, age, gender, sexual orientation, personal characteristics, political or trade union activity or views. (...)

All members of the enterprise are therefore urged to desist from measures that could hinder the free development of individuals’ personalities or could be 55

perceived as harassing and insulting.

In particular, it should be ensured that:

* nobody’s ability to express themselves or to speak with their colleagues and superiors is restricted.

* nobody’s ability to maintain social relations is impaired 60

* nobody’s social standing is damaged

* nobody is sexually harassed by word, gesture or deed

* nobody is discriminated against or humiliated through the work tasks assigned to them

* nobody is subjected to physical violence or unhealthy working conditions. 65

3. Sanctions

(Violations of paragraph 2 are to be regarded as a serious breach of the workplace peace) Persons who, despite being reprimanded, engage in such conduct must expect to be transferred or dismissed.

4. Measures to improve the workplace climate 70

(Courses for mangers and supervisors every three years. Works council/ staff council has a say in course design and selection of trainers and has the right to take part in the sessions)

5. Right to lodge a complaint

Every member of the enterprise who feels that he/she has been disadvantaged, 75

unjustly treated or otherwise compromised by the employer or by employees of



the enterprise has the right to lodge a complaint . No disadvantage shall accrue to him/ her in consequence of this.

6. Stages of the grievance procedure

(First, a discussion with the other party to the conflict, in the presence of a neutral 80

moderator- and of works councillor/ staff councillor if wished. If no settlement, then mediation by the immediate hierarchical superior. If this fails, referral within two weeks to the workplace complaints committee, whose decisions are binding on both sides.)

7. Composition of the workplace complaints committee 85

The workplace complaints committee is a permanent body. It is composed of three members nominated by management and three members nominated by the staff council/ works council. It is chaired by a neutral person (possibly from outside the enterprise). Its decisions are on the basis of unanimity.

The workplace complaints committee has the right to take measures to resolve the 90

conflict. Management and the staff council/ works council are obliged to implement the committee’s decision.

If no agreement is reached, there shall be recourse to an external mediator whose mediation proposal must be accepted.

8. Workplace contact persons 95

To prevent the escalation of conflicts workplace contact persons shall be appointed who may be called in by complainants if they feel subject to harassment or disadvantage. The contact persons are nominated by the management and the works council, by mutual agreement and in the following numbers, one contact person per 1,000 employees but with a minimum of two per branch/ workplace 100

unit. These contact persons shall receive special training and shall have the following rights:

* to convoke and moderate discussions between two conflicting parties, where no complaint has yet been lodged under paragraph 6.

* where so mandated by a complainant, to conduct negotiations with superiors 105

and the personnel department in order to eliminate an abuse or to find a mutually agreeable solution

* to appear as expert witnesses before the workplace complaints committee and to propose solutions

* to veto decisions of the workplace complaints committee if the contact persons 110

have good grounds for suspecting that the case concerns mobbing.

If a workplace contact person vetoes the decision of the workplace complaints committee, it must hear the views of an external expert concerning mobbing and must accept the expert’s mediation proposal.

The DGB’s model agreement is online in German at 115 Http: www.dgb.de/themen/mobbing/mobbing_07.htm. The IG Metall Guide cited in

footnote 14 will include detailed parameters for collective agreements.



Codes of Conduct

Many guidelines and codes of conduct have been issued on this problem. Often, they are addressed to managers, and they tend to take a “best practice” approach. 120

They may also complement legislation or collective agreements. In countries that opt to tackle mobbing through special interpretations of existing law, it may be useful to publicize those interpretations in guidelines that have received tripartite backing. A clear recent example of this, comes from the Australian state of Victoria, where a guide issued in 2003 points out that “The Occupational Health and Safety 125

Act 1985 (OHS Act) imposes legal responsibilities on both employers and employees. These duties extend to the risks to health and safety from workplace bullying and occupational violence”. It goes on to list the duties. Issued by an official health and safety agency, the guide was endorsed by employers’ organizations and unions. 130

. . .

��Actividades

1) Responder:

(a) ¿Qué otras denominaciones recibe el "mobbing"?

(b) ¿Qué conductas quedan comprendidas?

(c) ¿Quiénes pueden ser los sujetos activos?



(d) ¿Cómo puede abordarse el tema?

(e) ¿Con qué tipo de legislación cuentan las naciones?

(f) ¿Cuál es la segunda opción posible para combatir el "mobbing"?

(g) De acuerdo con esta segunda opción:

(1) ¿Cuáles son las conductas prohibidas?

(2) ¿Qué sucede si se incurre en alguna de ellas?



2) Enumerar los pasos necesarios para efectuar un reclamo:

3) Completar los siguientes cuadros:

COMITÉ DE QUEJAS

Composición:

Competencia:

Decisiones:

PERSONAS DE CONTACTO EN EL LUGAR DE TRABAJO

Designación:

Número:

Derechos:



4) Sintetizar en qué consisten los “codes of conduct”.

Cuadernillo Nivel III 300609[1]

Documents

Transcript of Cuadernillo Nivel III 300609[1]