The court was incorrect in dismissing the attempted murder charge. While each state has a different statute, the basic tenet of each attempted murder statute is that the defendant intended the death of his or her target. This forms the culpability level of the statute. This level of culpability is imperative in the United States as well. The fact that the gun malfunctioned has no bearing because of Jacks intent to kill Bert. The fact that the gun had already been used to kill Pratt, shows the intent of a crime being committed. The elements of a criminal act require the actus reus, which means the act itself (or lack thereof sometimes) and the mes rea, which means the requisite intent of a crime. Here, Jack attempted to murder Bert by approaching the car, pointing the gun, and firing it at Bert. The approach, point and fire constitute the act. The mens rea is found in the acts that Jack committed. Clearly, it was the intention of Jack to kill Bert as soon as he fired the gun. His premeditation is demonstrated by the acts he did (walking and aiming) prior to firing the gun. Here, there was a complete attempt to claim a life. Impossibility is not an availing defense because a gun jamming is does not render the shot itself impossible. Indeed, one could argue that the gun jamming was the accident. Here, the prosecution should appeal the ruling of the court and the appellate division should reinstate the indictment. Clearly, all of the elements of attempted murder have been met even in this scant fact pattern and the lower court erred in its ruling.
Illegal Searches and Seizures.
Search and seizures as a constitutional right is provided for in the Bill of Rights and guards individuals from what is considered as unreasonable searches and seizures by the authorities. This provision was ratified due to the abuse of writ of assistance which was a search warrant during the American Revolution. The Fourth Amendment of the United States constitution puts limitations to the police power when making arrests, searching individuals and their property, and when capturing objects and contrabands. Illegal searches usually occur when the police fail to get a warrant to conduct searches and seizures when the law requires that they should be having one (eJustice, 2009).
The Fourth Amendment
The Fourth Amendment to the federal constitution observes the rights of the people to feel secure and preserve their private life. The Fourth Amendment protects the individuals against the state for unwanted searches and seizures that might infringe on their rights as provided for in the constitution. However, the Amendment allows for searches and seizures when such practices are considered as being for a purpose. This implies that the law enforcement agents may have to go out of their way and ignore an individuals privacy. This can only happen when the police have gained a search warranty issued by the judge, andor based on the situation, the search is justifiable (Bergman, 2009). The warrant is used to legalize searches in a specific location, time, and in order to obtain specific evidence. The Fourth Amendment however, does not provide protection when there are no private issues of concern. There should be legitimate expectation of privacy in order for the Fourth Amendment to be effective. In 1961, the Supreme Court established the exclusionary law in which any evidence coming from an illegal search could not be used in a criminal prosecution. Another doctrine also states that, when evidence from an illegal search generates new evidence, then the generated evidence too cannot be accepted in a criminal prosecution (Collins, 2009).
Abuse of the Fourth amendment
Unreasonable searches and seizures are on the increase in the United States of America. An inspection or examination of private property without a legal authority can be termed as an unreasonable search. These searches are mainly based on suspicions with the hope of finding drugs, illegal property, and evidence to be used against an individual in a criminal suit. The Fourth Amendment is supposed to cushion private citizens against such invasion of privacy but this is not usually the case. In 2005, the Supreme Court infamously ruled that cities could take homes from individual owners in order to put up strip malls. State governments have been notorious on confiscating automobiles disregarding the constitutional property rights. The cities have adopted a new technology to identify cars that had avoided paying the parking fees. The Automatic Number Plate Recognition (ANPR) technology has been implemented in many towns across the United States without a second thought on the margin of error that may occur. Many victims of the error have found their cars held for ransom by the city authorities. The amount due on many occasions does not even warrant the confiscation of ones car when you give it a value comparison (Diamond, 2005).
The war on illicit drugs has posed a great challenge to the Fourth Amendment. A breach of the Fourth Amendment generally occur when the police conducting searches and seizures of individuals and their property on suspicion to catch drugs. These searches usually takes place on the streets or any other place, based on the suspicion of the police. Constitutional protections are slowly being eroded by the drug war considering that the tools of modern war on drugs do not pay attention to what the Fourth Amendment was meant to preserve. The habit of targeted searches inclined towards members of a particular race, nationality or ethnic group amounting to racial profiling are on the increase. It is a fact that drug use is not defined by race and yet in most instances the minority groups are the main target for the police seizures and searches. To add salt to the wound, the justice system appears to be racially inclined for the reason that the minority groups are punished with much harsher sentences compared to the majority whites (James Valladares, 1997).
The civil asset forfeiture as a law enforcement practice also serves to violate the Fourth Amendment. This law allows for the seizures of money and property suspected of having been generated from illegal sources. Such property is usually retained by the authorities who might sell the assets and use the proceeds to finance other law enforcement efforts. The civil asset forfeiture is usually implemented without verifications of the alleged origins of such properties and neither is the suspected individual arraigned in court for trials. The civil asset forfeiture provides for a dangerous ground whereby enforcing this aspect of the law trashes the individual liberties as it allows for the seizure of private property.
The Fourth Amendment
The Fourth Amendment to the federal constitution observes the rights of the people to feel secure and preserve their private life. The Fourth Amendment protects the individuals against the state for unwanted searches and seizures that might infringe on their rights as provided for in the constitution. However, the Amendment allows for searches and seizures when such practices are considered as being for a purpose. This implies that the law enforcement agents may have to go out of their way and ignore an individuals privacy. This can only happen when the police have gained a search warranty issued by the judge, andor based on the situation, the search is justifiable (Bergman, 2009). The warrant is used to legalize searches in a specific location, time, and in order to obtain specific evidence. The Fourth Amendment however, does not provide protection when there are no private issues of concern. There should be legitimate expectation of privacy in order for the Fourth Amendment to be effective. In 1961, the Supreme Court established the exclusionary law in which any evidence coming from an illegal search could not be used in a criminal prosecution. Another doctrine also states that, when evidence from an illegal search generates new evidence, then the generated evidence too cannot be accepted in a criminal prosecution (Collins, 2009).
Abuse of the Fourth amendment
Unreasonable searches and seizures are on the increase in the United States of America. An inspection or examination of private property without a legal authority can be termed as an unreasonable search. These searches are mainly based on suspicions with the hope of finding drugs, illegal property, and evidence to be used against an individual in a criminal suit. The Fourth Amendment is supposed to cushion private citizens against such invasion of privacy but this is not usually the case. In 2005, the Supreme Court infamously ruled that cities could take homes from individual owners in order to put up strip malls. State governments have been notorious on confiscating automobiles disregarding the constitutional property rights. The cities have adopted a new technology to identify cars that had avoided paying the parking fees. The Automatic Number Plate Recognition (ANPR) technology has been implemented in many towns across the United States without a second thought on the margin of error that may occur. Many victims of the error have found their cars held for ransom by the city authorities. The amount due on many occasions does not even warrant the confiscation of ones car when you give it a value comparison (Diamond, 2005).
The war on illicit drugs has posed a great challenge to the Fourth Amendment. A breach of the Fourth Amendment generally occur when the police conducting searches and seizures of individuals and their property on suspicion to catch drugs. These searches usually takes place on the streets or any other place, based on the suspicion of the police. Constitutional protections are slowly being eroded by the drug war considering that the tools of modern war on drugs do not pay attention to what the Fourth Amendment was meant to preserve. The habit of targeted searches inclined towards members of a particular race, nationality or ethnic group amounting to racial profiling are on the increase. It is a fact that drug use is not defined by race and yet in most instances the minority groups are the main target for the police seizures and searches. To add salt to the wound, the justice system appears to be racially inclined for the reason that the minority groups are punished with much harsher sentences compared to the majority whites (James Valladares, 1997).
The civil asset forfeiture as a law enforcement practice also serves to violate the Fourth Amendment. This law allows for the seizures of money and property suspected of having been generated from illegal sources. Such property is usually retained by the authorities who might sell the assets and use the proceeds to finance other law enforcement efforts. The civil asset forfeiture is usually implemented without verifications of the alleged origins of such properties and neither is the suspected individual arraigned in court for trials. The civil asset forfeiture provides for a dangerous ground whereby enforcing this aspect of the law trashes the individual liberties as it allows for the seizure of private property.
Contractual Liabilities under the instruments of CISG, UNIDROIT and PECL
The rising volumes of international trade and the globalisation trends contributing to it have made it necessary for increased regulations in international sales. The UN Convention of Contracts for the International sale of Goods (CISG) was put into effect as early as 1980. CISG was the culmination of efforts originating from the 1964 Hague Conventions of Uniform Law on the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) involving twenty eights states. The regulation of international trade was further facilitated when in 1994, the International Institute for the Unification of Private Law (UNIDROIT) put forth its Principles of International Commercial Contracts or the UNIDROIT Principles. In the same year the European Contract Law Commission brought out its first part of the Principles of European Contract Law (PECL), followed by its complete version in 1998. Many people who participated in the creation of the CISG were also instrumental in drafting the UNIDROIT and the PECL.
The internationally drafted instruments CISG, UNIDROIT and the PECL have in them elements from civil and common law. The CISG reflected the interests and ideas prevailing in the legal systems of both, the developing and the developed economies. When parties are based at different contracting states, which come under the jurisdiction of the CISG, their contract is automatically subject to the provisions of the CISG unless stated otherwise. While the UNIDROIT Principles do not apply for domestic contracts, they are more detailed and specific with a broader application scope with regard to international contracts. UNIDROIT Principles are directed at providing an elaborate governing system applicable universally. In fact, the purpose or preamble to UNIDROIT emphasizes that it may be used to supplement or interpret international law instruments. The relevance of UNIDROIT on CISG is evident to a larger extent, where UNIDROIT covers issues also covered by the CISG its solutions are similar to that of CISG. UNIDROIT Principles literally borrow or at least pick the substance of CISG provisions, while addressing similar issues 1. The PECL also has its objectives similar to the UNIDROIT Principles, except that the scope of application is different. The PECL articles are directed at providing contract laws in the EU, applicable when the parties agree to be governed by them. The UNIDROIT and PECL are in many ways Restatements of the provisions of the CISG, deriving their insights from the CISG texts and scholarly views of CISG. Also with regards to identical provisions with CISG, PECL sub-classification texts go deeper to make the implicit more explicit 2. However it needs to be emphasized here that it is not easy to identify and indicate precisely in which way the regimes converge or diverge. It is also impossible to point out through direct article-to-article comparison because regimes may have a single article to cover a particular issue or several articles to cover the same issue. Vice Versa, regimes may also have a single article to address several issues or several articles to cover them.
Features of the instruments
Unlike the governmental bargaining and compromises associated with the formation of the CISG, the UNIDROIT Principles and the PECL emerged from the need for uniform laws in contracts. Divergent legal perspectives and doctrines were considered in the formation of the CISG leading to the adoption of consensus and solutions, bearing ambiguous terms and gaps in its interpretation. On the contrary the PECL and UNIDROIT were not obliged to consider all local regimes or laws of all countries3. Conflicting rules were incorporated by modifying them based on the effectiveness of the rule in the entire regime. These Principles can therefore be considered as better organised, unified and more consistent than the CISG. The magnitude of similarities between the PECL and UNIDROIT regimes, indicate the role as representing the main intentions of the international contract law.
However PECL has a broader scope of application compare to UNIDROIT, as it encompasses contracts involving domestic dealings, consumers and merchants. Although PECL has a smaller geographic focus compared to UNIDROIT Principles, it presents a wider coverage of law. Yet the two principles are similar substantially since both strive towards being the general principles of contract governance. The growth in international transactions governed by the regulations of CISG, UNIDROIT and PECL, establish the need for fairness and harmony in international trade. These three instruments may be rightly said to supplement and leverage each other as in becoming more common than compete with each other. The two principles broadly support and promote the crux of CISG, while filling the gaps in it. Therefore the principles can be said to interpret the CISG while answering and resolving issues not addressed by CISG 4.
Though PECL and UNIDROIT have a more common approach, there are divergences between the two instruments. Provisions of UNIDROIT and that of PECL have differing content. Certain issues that are addressed in one are not considered in the other or vice versa. While some divergencies may appear technical in nature, some others have policy implications. Notable among the technical divergencies are the receipt rule in the UNIDROIT relating to all types of notices exchanged by the parties as specified by Art. 1.9(2) while the PECL dispatch rule Art. 1.303(4) relates to notices arising from non-compliance by a party. Similarly Art. 3.18 of UNIDROIT provide reliance damages when a party avoids contract, not considering whether the party has avoided the contract or not. But the PECL Art. 4.17 grants recovery of damages only when the contract has actually been avoided. Among divergencies not having relevance to policy considerations are that while in the UNIDROIT Art. 5.7, when a third person cannot or would not fix the price, the price need to be reasonable, while the PECL Art. 6.106 (1) assume the parties have agreed to have the court appoint someone to determine the price. With regard to permanent impediments, Art. 71.7 (4) associates terminations to the actions and initiations of the parties while the PECL Art. 9.303 (4) provides for automatic termination in such cases.
When CISG is briefly compared to the UNIDROIT, it would be observed that many rules under CISG Part II concerning sales contract formation are similar to Chapter 2 of the UNIDROIT. Part III of the CISG pertaining to performance and non-performance or breach are considered in Chapter 5, 6 and 7 in UNIDROIT. It must be noted here that most of the provisions of UNIDROIT, which are not dealt with in the CISG, may still be applicable to it, without disturbing any of its other rules. CISG Art. 11 emphasizes that a contract for sale need not be concluded in writing nor do it have any other requirement pertaining to its form 5. Contracts can even be proved with witnesses and other means. Similarly Art. 1.2 of UNIDROIT too provides for the same. With regard to irrevocable offer, CISG Art. 16 and the UNIDROIT Art. 2.4 indicate that offers cannot be revoked unless indicated that it is revocable.
Perceiving deviations
While remedies are made available to a party when it is affected by the performance or non-performance of the other party, it is obviously an area where diverse legal systems focus on 6. In recent years there is a growing demand for increased inclusion of specific performance in contracts. This fact is well reflected in UNIDROIT and PECL, which have introduced a more organised and coherent structure with regard to specific performances. While establishing the right to specific performances through UNIDROIT Articles 7.2.1 through 7.2.5 and PECL Articles 9.101 to 9.103, these ensure that remedial specific performances are beyond the discretion of the court.
The term breach of contract in CISG is similar in functionality to the term non-performance used in PECL and UNIDROIT. Article 7.1.1 of UNIDROIT perceives non-performance by a party as a failure to perform its contractual obligations including late or defective performance. PECL similarly sees non-performance as a failure to perform at the intended due time, be it early, late or never. Its article 1.301(4) describes non-performance holistically as a failure to cooperate to provide full effect to the contract. The CISG concept of breach of contract encompasses all failures by a party in fulfilling any of its obligations. Article 25 of CISG even sees breach of contract being fundamental, under certain conditions 7. The breach of contract doesnt take into consideration the grounds for exemption. The term failure to perform provided in article 79 and 80 related to exemption, also relate to any breach of contract. The harmonisation process in contract laws has taken a step ahead by defining non-performance in terms of performance failures and defects, along with exclusions.
Remedial approach in CISG
The remedial clauses of CISG largely correspond with all major legal regimes. The remedial clauses here are directed at providing remedies against specific performance, damages and contract avoidance. The remedies are provided under Part III for both, the buyer and seller under Arts. 45 and 61. The remedies available to the buyer are different from that available to the seller in two aspects. The seller cannot claim a reduction in price as a remedy and also there can be no substitute performance requiring the buyer to cure defective performance. Specific performance is made available to both the buyer (Art. 62) and the seller (Art. 46). Breaches by seller may give rise to buyers delivery, repair and substitute delivery. A breeching buyer may give rise to sellers right requiring the buyer to pay the price or take delivery or other obligations.
Apart from specific performance remedies, the right to claim damages is an important aspect of the CISG. Damages may at times be the only remedy to an affected party when providing relief for specific performance or avoiding of contract is not relevant. Damages or monetary compensation to an aggrieved party puts the party to a comfortable position as if the contract had been performed as agreed. The affected or aggrieved party therefore always has the right to seek damages apart from claiming specific performance or contract avoidance. These damages are directed not only at providing for the expenses but also compensating the loss of profit. The damages to be provided are regulated by Art. 74, which stipulates that the damages cannot exceed the loss as foresaw or should have by the breaching party 8. Article 77 requires the aggrieved to ensure mitigation of loss, while Art. 78 emphasize the right to receive interest in addition to damages.
Avoidance of contract can be claimed under Articles 49 and 64 of the CISG. Contract avoidance brings an end to the performance obligations of the parties to each other. However, apart from the remedy of damages, avoidance can only be available when the breach is a fundamental one. The CISG has taken into consideration the environment of international goods sale, involving long distances, transportation costs and contract duration. The CISG intends to preserve contracts despite breaches. Thus the Articles 47 and 63 relevant to the popular Nachfrist Principle, provides options to the aggrieved party to give additional time for the breaching party to fulfil his commitments.
Remedial approach in UNIDROIT
The remedial measures provided by UNIDROIT Principles can be said to be the major feature of the entire UNIDROIT Principles. The content of Chapter 7 reflects how the Principles works and their role in the emerging context of harmony in international trade law. Chapter 7 is closely associated with the decisions of the arbitral tribunals, court rulings and those of different legal institutions, emphasizing the fact that harmonisation of relevant international laws can contribute to implementation of improved laws. Like the Part III of the CISG, Chapter 7 is also systematically structured to facilitate performance and continuance of contract 9. The Section I is directed at contract continuance and termination continuance. Article 7.1.4 ensures cure by the non-performing party while Art. 7.1.5 provides for additional time for performing. These two articles are very instrumental to bring performance when the contract is faced with difficulties and headed to failure and termination. The Section 2 of Chapter 7 deals with the right to performance, commonly called as specific performance, which is a preferred remedy of many legal systems. For instance the articles 7.2.1 and 7.2.2 directed at monetary obligation performance and non-monetary obligation performance respectively seek to ensure performance, although Art. 7.2.2 has exceptions. Here specific performance is excluded when a party having a right to performance could obtain the performance from another source, comparatively. The party can now terminate the contract and finalize a replacement transaction. Defective performances are dealt with Art. 7.2.3, which provides for repair and replacement.
The last resort or the right to termination is provided by Section 3 of Chapter 7, which is similar to the avoidance provisions of CISG. These provisions facilitate the aggrieved party to terminate the contract when the delivered performance is either too defective or too late that the aggrieved party cannot continue to use it to achieve its results.
Remedial approach in PECL
The remedial measures of PECL revolve around Chapters 8 and 9 and are available for non-performance depending on whether the non- performance is excused under Art. 8.108. This article excuses non-performance if it is proved to be due to reasons or impediments beyond its control, which was not anticipated at the time of contract. If the impediment is temporary, the excuse is provided only until such time. The non-performing party is bound to intimate the other party, the anticipated impediment and consequences at the earliest possible, it itself comes to know. The other party can claim damages for loss arising from non-receipt of such notice. When the non-performance is not excused under Art.8.108, the affected party may seek remedies as set out in Chapter 9. The aggrieved party can seek recovery of money due, claim specific performance, claim damages or even seek to suspend its own performance, through various provisions of Chapter Nine 10. It must be noted here that although Art. 8.108 provides exemptions, the aggrieved party may still seek remedies under Chapter 9, except claim performance or damages. However a party cannot avail remedies if it is responsible for the non-performance by the other party. Also remedies for non-performance is perceived to be excluded or restricted, unless doing do is unfair and against justice. A party is entitled to a termination of contract under Art. 9.301 when non-performance by the other party is fundamental. The aggrieved party may also terminate the contract due to delay under Art. 8.106.
Nachfrist
While the concept of Nachfrist providing for automatic time extension for fulfilling the obligations, reflects the CISG approach, it should be noted here that neither CISG Art. 47 or 63 provide for mandatory extension. Similarly UNIDROIT Principles Art. 71.5 and PECL Art. 8.106 too dont provide for automatic application of Nachfrist, which is evident from the use of the term may within the articles. Two important policy aspects with relevance to Nachfrist procedure as approached by CISG, PECL and UNIDROIT are
While the aggrieved party can claim specific performance, it is not obliged to provide additional time to the non-performing party to perform.
Termination is considered an act of the aggrieved party and not that of the court or mediator. When there is a fundamental non-performance, the aggrieved party is entitled to terminate the contract by giving a termination notice. Here too the aggrieved party is not obliged to grant additional time for performance
Nachfrist Principles as contemplated by the three regimes recognizes late performance as being very different from defective performance 11. Although late performance cannot be set right as lapsed time cannot be recalled, sometimes late performance may be preferred to non performance. Articles 47 (1) of CISG, Art. 7.1.5 (1) of UNIDROIT and PECL Art. 8.106(1) enables the aggrieved party to provide additional time to the non-performing party to perform. Within this additional time, the aggrieved party may not seek any other remedy for non-performance as ruled by CISG Art. 47(2) and 63(2), Art. 7.1.5 (2) of UNIDROIT and PECL Art. 8.106 (2). Upon expiry of the permitted time and if performance has not been rendered, UNIDROIT Art. 7.1.5(2) specifies that the aggrieved party may seek any remedy available. Similarly PECL Art. 8.106 (2) makes available any remedy under Chapter 9 when the extended period has expired.
The Nachfrist concept as reflected by the three instruments is that basically a contract cannot be avoided just because a performance is not delivered on time. Nachfrist is not projected as a remedy or a standalone cure in the three instruments but designed to fit well with the other remedies.
Force Majeure
Force majeure is generally considered an excuse for non-performance in contracts based on situations and circumstances. Force majeure can render a contract suspended partially or even completely. CISG, UNIDROIT and PECL define force majeure in terms of impediment although they may be categorised differently. The three instruments exonerates a party when its failure to perform its obligations, is due to conditions beyond its control. The CISG Art. 79, PECL Art. 8.108 and UNIDROIT Art. 7.1.7 is similar in reflecting flexibility in that it requires only relative impossibility to make it applicable. However it should be noted here that neither PECL nor UNIDROIT contain provisions on third persons like that provided by CISG Art. 79(2), although the term impediment is used similarly in PECL and UNIDROIT 12. The term impediment encompasses every event like natural occurrences, third party acts etc. PECL and CISG provide excuse for non-performance only for as long as the performance is impossible, while the UNIDROIT Principles makes available the excuse for a reasonable period. Notification of the force majeure is to be done to the aggrieved party in accordance with PECL Art. 8.108(3), CISG Art. 79(4) and UNIDROIT Art. 7.1.7(3) and all three fix the risk of late receipt or non-receipt of this communication on the sender. The non-performing party becomes responsible for damages arising from non-receipt of force majeure communication.
Although the UNIDROIT principles in general permit excuse, its Art. 7.1.7 (4) make important exceptions in evaluating claims associated with force majeure. The right to terminate contracts, requesting interest on money or withholding delivery are exempted. In comparison the CISG and PECL allow the aggrieved party any remedy during force majeure except to claim damages as specified by CISG Art. 79(5) or claim performance and damages under PECL Art. 8.102(2). A notable feature of the international commercial contracts is that they contain more specific and elaborate rulings with regard to force majeure, though they are not mandatory. The regulations associated with force majeure are mostly general, facilitating the parties to provide specificities as per their requirements.
Responsibility for third party
A major difficulty sought to be addressed by the legal instruments is determining the responsibility of a party for failure of a third person. . The third party is defined, as party that is legally independent of the party to the contract, not necessarily be economically independent. Most contracts have parties using third person or parties in fulfilling their contractual obligations. On most occasions the non-performance of a party may be attributed to the non-performance by a third party. A similar stand is taken by CISG Art. 79(2) and PECL Art. 8.107 in that the party to the contract is responsible for the performance of the third party, ruling the relationship of the contract party and its third party as being irrelevant. However the CISG Art. 79(2) has conditions, although strict, for the exemption of the party which according to Art. 79(1) requires to be fulfilled even with respect to the third person. Therefore the clauses 1 and 2 of Art. 79 may seem misleading, but these are directed at addressing different situations. CISG may therefore be considered as being lenient with regard to third party non-performance. Nonetheless, being very comprehensive on third parties, the scope of establishing an impediment to seek exceptions is very restricted in CISG 13
Termination
Preventing termination of contract is a main intention of the GISG, achieved by preserving the validity of the contract, as long as it is feasible and can avoid economic waste. Offering the aggrieved party a reduction in price appropriate to its loss, delivering goods or providing additional times for performance are among the methods sought by CISG to preserve contracts. This principle is closely followed by both the PECL and UNIDROIT. However the right to termination is provided even when impediments faced by non-performing party are excusable. CISG Art. 79 (5) provides for a party to exercise any right except seeking damages. UNIDROIT extends the right to terminate contract to an aggrieved party when non-performance is excused or when the party is liable for non-performance. PECL too has similar provisions requiring the aggrieved party to provide a termination notice to the other party. The three instruments do not provide for automatic termination of contract. However PECL has a provision through Art. 8.106(4), which provides for automatic termination without notice. This is effective when the party is excused due to a complete and permanent impediment under Art. 8.108. Broadly speaking CISG rules that a party can terminate a contract when there is a fundamental non-performance, which is also reflected in UNIDROIT and PECL through their respective articles 7.3.1 (1) and 9.301(1). The major grounds for terminating a contract as per CISG, UNIDROIT and PECL are:
The internationally drafted instruments CISG, UNIDROIT and the PECL have in them elements from civil and common law. The CISG reflected the interests and ideas prevailing in the legal systems of both, the developing and the developed economies. When parties are based at different contracting states, which come under the jurisdiction of the CISG, their contract is automatically subject to the provisions of the CISG unless stated otherwise. While the UNIDROIT Principles do not apply for domestic contracts, they are more detailed and specific with a broader application scope with regard to international contracts. UNIDROIT Principles are directed at providing an elaborate governing system applicable universally. In fact, the purpose or preamble to UNIDROIT emphasizes that it may be used to supplement or interpret international law instruments. The relevance of UNIDROIT on CISG is evident to a larger extent, where UNIDROIT covers issues also covered by the CISG its solutions are similar to that of CISG. UNIDROIT Principles literally borrow or at least pick the substance of CISG provisions, while addressing similar issues 1. The PECL also has its objectives similar to the UNIDROIT Principles, except that the scope of application is different. The PECL articles are directed at providing contract laws in the EU, applicable when the parties agree to be governed by them. The UNIDROIT and PECL are in many ways Restatements of the provisions of the CISG, deriving their insights from the CISG texts and scholarly views of CISG. Also with regards to identical provisions with CISG, PECL sub-classification texts go deeper to make the implicit more explicit 2. However it needs to be emphasized here that it is not easy to identify and indicate precisely in which way the regimes converge or diverge. It is also impossible to point out through direct article-to-article comparison because regimes may have a single article to cover a particular issue or several articles to cover the same issue. Vice Versa, regimes may also have a single article to address several issues or several articles to cover them.
Features of the instruments
Unlike the governmental bargaining and compromises associated with the formation of the CISG, the UNIDROIT Principles and the PECL emerged from the need for uniform laws in contracts. Divergent legal perspectives and doctrines were considered in the formation of the CISG leading to the adoption of consensus and solutions, bearing ambiguous terms and gaps in its interpretation. On the contrary the PECL and UNIDROIT were not obliged to consider all local regimes or laws of all countries3. Conflicting rules were incorporated by modifying them based on the effectiveness of the rule in the entire regime. These Principles can therefore be considered as better organised, unified and more consistent than the CISG. The magnitude of similarities between the PECL and UNIDROIT regimes, indicate the role as representing the main intentions of the international contract law.
However PECL has a broader scope of application compare to UNIDROIT, as it encompasses contracts involving domestic dealings, consumers and merchants. Although PECL has a smaller geographic focus compared to UNIDROIT Principles, it presents a wider coverage of law. Yet the two principles are similar substantially since both strive towards being the general principles of contract governance. The growth in international transactions governed by the regulations of CISG, UNIDROIT and PECL, establish the need for fairness and harmony in international trade. These three instruments may be rightly said to supplement and leverage each other as in becoming more common than compete with each other. The two principles broadly support and promote the crux of CISG, while filling the gaps in it. Therefore the principles can be said to interpret the CISG while answering and resolving issues not addressed by CISG 4.
Though PECL and UNIDROIT have a more common approach, there are divergences between the two instruments. Provisions of UNIDROIT and that of PECL have differing content. Certain issues that are addressed in one are not considered in the other or vice versa. While some divergencies may appear technical in nature, some others have policy implications. Notable among the technical divergencies are the receipt rule in the UNIDROIT relating to all types of notices exchanged by the parties as specified by Art. 1.9(2) while the PECL dispatch rule Art. 1.303(4) relates to notices arising from non-compliance by a party. Similarly Art. 3.18 of UNIDROIT provide reliance damages when a party avoids contract, not considering whether the party has avoided the contract or not. But the PECL Art. 4.17 grants recovery of damages only when the contract has actually been avoided. Among divergencies not having relevance to policy considerations are that while in the UNIDROIT Art. 5.7, when a third person cannot or would not fix the price, the price need to be reasonable, while the PECL Art. 6.106 (1) assume the parties have agreed to have the court appoint someone to determine the price. With regard to permanent impediments, Art. 71.7 (4) associates terminations to the actions and initiations of the parties while the PECL Art. 9.303 (4) provides for automatic termination in such cases.
When CISG is briefly compared to the UNIDROIT, it would be observed that many rules under CISG Part II concerning sales contract formation are similar to Chapter 2 of the UNIDROIT. Part III of the CISG pertaining to performance and non-performance or breach are considered in Chapter 5, 6 and 7 in UNIDROIT. It must be noted here that most of the provisions of UNIDROIT, which are not dealt with in the CISG, may still be applicable to it, without disturbing any of its other rules. CISG Art. 11 emphasizes that a contract for sale need not be concluded in writing nor do it have any other requirement pertaining to its form 5. Contracts can even be proved with witnesses and other means. Similarly Art. 1.2 of UNIDROIT too provides for the same. With regard to irrevocable offer, CISG Art. 16 and the UNIDROIT Art. 2.4 indicate that offers cannot be revoked unless indicated that it is revocable.
Perceiving deviations
While remedies are made available to a party when it is affected by the performance or non-performance of the other party, it is obviously an area where diverse legal systems focus on 6. In recent years there is a growing demand for increased inclusion of specific performance in contracts. This fact is well reflected in UNIDROIT and PECL, which have introduced a more organised and coherent structure with regard to specific performances. While establishing the right to specific performances through UNIDROIT Articles 7.2.1 through 7.2.5 and PECL Articles 9.101 to 9.103, these ensure that remedial specific performances are beyond the discretion of the court.
The term breach of contract in CISG is similar in functionality to the term non-performance used in PECL and UNIDROIT. Article 7.1.1 of UNIDROIT perceives non-performance by a party as a failure to perform its contractual obligations including late or defective performance. PECL similarly sees non-performance as a failure to perform at the intended due time, be it early, late or never. Its article 1.301(4) describes non-performance holistically as a failure to cooperate to provide full effect to the contract. The CISG concept of breach of contract encompasses all failures by a party in fulfilling any of its obligations. Article 25 of CISG even sees breach of contract being fundamental, under certain conditions 7. The breach of contract doesnt take into consideration the grounds for exemption. The term failure to perform provided in article 79 and 80 related to exemption, also relate to any breach of contract. The harmonisation process in contract laws has taken a step ahead by defining non-performance in terms of performance failures and defects, along with exclusions.
Remedial approach in CISG
The remedial clauses of CISG largely correspond with all major legal regimes. The remedial clauses here are directed at providing remedies against specific performance, damages and contract avoidance. The remedies are provided under Part III for both, the buyer and seller under Arts. 45 and 61. The remedies available to the buyer are different from that available to the seller in two aspects. The seller cannot claim a reduction in price as a remedy and also there can be no substitute performance requiring the buyer to cure defective performance. Specific performance is made available to both the buyer (Art. 62) and the seller (Art. 46). Breaches by seller may give rise to buyers delivery, repair and substitute delivery. A breeching buyer may give rise to sellers right requiring the buyer to pay the price or take delivery or other obligations.
Apart from specific performance remedies, the right to claim damages is an important aspect of the CISG. Damages may at times be the only remedy to an affected party when providing relief for specific performance or avoiding of contract is not relevant. Damages or monetary compensation to an aggrieved party puts the party to a comfortable position as if the contract had been performed as agreed. The affected or aggrieved party therefore always has the right to seek damages apart from claiming specific performance or contract avoidance. These damages are directed not only at providing for the expenses but also compensating the loss of profit. The damages to be provided are regulated by Art. 74, which stipulates that the damages cannot exceed the loss as foresaw or should have by the breaching party 8. Article 77 requires the aggrieved to ensure mitigation of loss, while Art. 78 emphasize the right to receive interest in addition to damages.
Avoidance of contract can be claimed under Articles 49 and 64 of the CISG. Contract avoidance brings an end to the performance obligations of the parties to each other. However, apart from the remedy of damages, avoidance can only be available when the breach is a fundamental one. The CISG has taken into consideration the environment of international goods sale, involving long distances, transportation costs and contract duration. The CISG intends to preserve contracts despite breaches. Thus the Articles 47 and 63 relevant to the popular Nachfrist Principle, provides options to the aggrieved party to give additional time for the breaching party to fulfil his commitments.
Remedial approach in UNIDROIT
The remedial measures provided by UNIDROIT Principles can be said to be the major feature of the entire UNIDROIT Principles. The content of Chapter 7 reflects how the Principles works and their role in the emerging context of harmony in international trade law. Chapter 7 is closely associated with the decisions of the arbitral tribunals, court rulings and those of different legal institutions, emphasizing the fact that harmonisation of relevant international laws can contribute to implementation of improved laws. Like the Part III of the CISG, Chapter 7 is also systematically structured to facilitate performance and continuance of contract 9. The Section I is directed at contract continuance and termination continuance. Article 7.1.4 ensures cure by the non-performing party while Art. 7.1.5 provides for additional time for performing. These two articles are very instrumental to bring performance when the contract is faced with difficulties and headed to failure and termination. The Section 2 of Chapter 7 deals with the right to performance, commonly called as specific performance, which is a preferred remedy of many legal systems. For instance the articles 7.2.1 and 7.2.2 directed at monetary obligation performance and non-monetary obligation performance respectively seek to ensure performance, although Art. 7.2.2 has exceptions. Here specific performance is excluded when a party having a right to performance could obtain the performance from another source, comparatively. The party can now terminate the contract and finalize a replacement transaction. Defective performances are dealt with Art. 7.2.3, which provides for repair and replacement.
The last resort or the right to termination is provided by Section 3 of Chapter 7, which is similar to the avoidance provisions of CISG. These provisions facilitate the aggrieved party to terminate the contract when the delivered performance is either too defective or too late that the aggrieved party cannot continue to use it to achieve its results.
Remedial approach in PECL
The remedial measures of PECL revolve around Chapters 8 and 9 and are available for non-performance depending on whether the non- performance is excused under Art. 8.108. This article excuses non-performance if it is proved to be due to reasons or impediments beyond its control, which was not anticipated at the time of contract. If the impediment is temporary, the excuse is provided only until such time. The non-performing party is bound to intimate the other party, the anticipated impediment and consequences at the earliest possible, it itself comes to know. The other party can claim damages for loss arising from non-receipt of such notice. When the non-performance is not excused under Art.8.108, the affected party may seek remedies as set out in Chapter 9. The aggrieved party can seek recovery of money due, claim specific performance, claim damages or even seek to suspend its own performance, through various provisions of Chapter Nine 10. It must be noted here that although Art. 8.108 provides exemptions, the aggrieved party may still seek remedies under Chapter 9, except claim performance or damages. However a party cannot avail remedies if it is responsible for the non-performance by the other party. Also remedies for non-performance is perceived to be excluded or restricted, unless doing do is unfair and against justice. A party is entitled to a termination of contract under Art. 9.301 when non-performance by the other party is fundamental. The aggrieved party may also terminate the contract due to delay under Art. 8.106.
Nachfrist
While the concept of Nachfrist providing for automatic time extension for fulfilling the obligations, reflects the CISG approach, it should be noted here that neither CISG Art. 47 or 63 provide for mandatory extension. Similarly UNIDROIT Principles Art. 71.5 and PECL Art. 8.106 too dont provide for automatic application of Nachfrist, which is evident from the use of the term may within the articles. Two important policy aspects with relevance to Nachfrist procedure as approached by CISG, PECL and UNIDROIT are
While the aggrieved party can claim specific performance, it is not obliged to provide additional time to the non-performing party to perform.
Termination is considered an act of the aggrieved party and not that of the court or mediator. When there is a fundamental non-performance, the aggrieved party is entitled to terminate the contract by giving a termination notice. Here too the aggrieved party is not obliged to grant additional time for performance
Nachfrist Principles as contemplated by the three regimes recognizes late performance as being very different from defective performance 11. Although late performance cannot be set right as lapsed time cannot be recalled, sometimes late performance may be preferred to non performance. Articles 47 (1) of CISG, Art. 7.1.5 (1) of UNIDROIT and PECL Art. 8.106(1) enables the aggrieved party to provide additional time to the non-performing party to perform. Within this additional time, the aggrieved party may not seek any other remedy for non-performance as ruled by CISG Art. 47(2) and 63(2), Art. 7.1.5 (2) of UNIDROIT and PECL Art. 8.106 (2). Upon expiry of the permitted time and if performance has not been rendered, UNIDROIT Art. 7.1.5(2) specifies that the aggrieved party may seek any remedy available. Similarly PECL Art. 8.106 (2) makes available any remedy under Chapter 9 when the extended period has expired.
The Nachfrist concept as reflected by the three instruments is that basically a contract cannot be avoided just because a performance is not delivered on time. Nachfrist is not projected as a remedy or a standalone cure in the three instruments but designed to fit well with the other remedies.
Force Majeure
Force majeure is generally considered an excuse for non-performance in contracts based on situations and circumstances. Force majeure can render a contract suspended partially or even completely. CISG, UNIDROIT and PECL define force majeure in terms of impediment although they may be categorised differently. The three instruments exonerates a party when its failure to perform its obligations, is due to conditions beyond its control. The CISG Art. 79, PECL Art. 8.108 and UNIDROIT Art. 7.1.7 is similar in reflecting flexibility in that it requires only relative impossibility to make it applicable. However it should be noted here that neither PECL nor UNIDROIT contain provisions on third persons like that provided by CISG Art. 79(2), although the term impediment is used similarly in PECL and UNIDROIT 12. The term impediment encompasses every event like natural occurrences, third party acts etc. PECL and CISG provide excuse for non-performance only for as long as the performance is impossible, while the UNIDROIT Principles makes available the excuse for a reasonable period. Notification of the force majeure is to be done to the aggrieved party in accordance with PECL Art. 8.108(3), CISG Art. 79(4) and UNIDROIT Art. 7.1.7(3) and all three fix the risk of late receipt or non-receipt of this communication on the sender. The non-performing party becomes responsible for damages arising from non-receipt of force majeure communication.
Although the UNIDROIT principles in general permit excuse, its Art. 7.1.7 (4) make important exceptions in evaluating claims associated with force majeure. The right to terminate contracts, requesting interest on money or withholding delivery are exempted. In comparison the CISG and PECL allow the aggrieved party any remedy during force majeure except to claim damages as specified by CISG Art. 79(5) or claim performance and damages under PECL Art. 8.102(2). A notable feature of the international commercial contracts is that they contain more specific and elaborate rulings with regard to force majeure, though they are not mandatory. The regulations associated with force majeure are mostly general, facilitating the parties to provide specificities as per their requirements.
Responsibility for third party
A major difficulty sought to be addressed by the legal instruments is determining the responsibility of a party for failure of a third person. . The third party is defined, as party that is legally independent of the party to the contract, not necessarily be economically independent. Most contracts have parties using third person or parties in fulfilling their contractual obligations. On most occasions the non-performance of a party may be attributed to the non-performance by a third party. A similar stand is taken by CISG Art. 79(2) and PECL Art. 8.107 in that the party to the contract is responsible for the performance of the third party, ruling the relationship of the contract party and its third party as being irrelevant. However the CISG Art. 79(2) has conditions, although strict, for the exemption of the party which according to Art. 79(1) requires to be fulfilled even with respect to the third person. Therefore the clauses 1 and 2 of Art. 79 may seem misleading, but these are directed at addressing different situations. CISG may therefore be considered as being lenient with regard to third party non-performance. Nonetheless, being very comprehensive on third parties, the scope of establishing an impediment to seek exceptions is very restricted in CISG 13
Termination
Preventing termination of contract is a main intention of the GISG, achieved by preserving the validity of the contract, as long as it is feasible and can avoid economic waste. Offering the aggrieved party a reduction in price appropriate to its loss, delivering goods or providing additional times for performance are among the methods sought by CISG to preserve contracts. This principle is closely followed by both the PECL and UNIDROIT. However the right to termination is provided even when impediments faced by non-performing party are excusable. CISG Art. 79 (5) provides for a party to exercise any right except seeking damages. UNIDROIT extends the right to terminate contract to an aggrieved party when non-performance is excused or when the party is liable for non-performance. PECL too has similar provisions requiring the aggrieved party to provide a termination notice to the other party. The three instruments do not provide for automatic termination of contract. However PECL has a provision through Art. 8.106(4), which provides for automatic termination without notice. This is effective when the party is excused due to a complete and permanent impediment under Art. 8.108. Broadly speaking CISG rules that a party can terminate a contract when there is a fundamental non-performance, which is also reflected in UNIDROIT and PECL through their respective articles 7.3.1 (1) and 9.301(1). The major grounds for terminating a contract as per CISG, UNIDROIT and PECL are:
- Fundamental non-performance
- Anticipatory non-performance
- Fundamental non-performance with regard to partial shipment or a particular instalment.
- Inability to perform within a reasonably provided Nachfrist.
Reframing Non-informational Materials
For there to be good governance in any system, there is need for the parties that are involved talk. This should apply to all the leaders be it a leader in an organization or a leader in a state. There is need for dialogues among these people who are involved as this is the only way that good decisions will be made. In addition, with different views from different people, it will be possible to come up with a better solution to the problem that needs to be solved. A good leader is one who is always ready to listen to what other people have to say on the plan that needs to be implemented. (Benjamin, 2009)
In this case therefore, it would be a great idea that the governor makes a number of consultations to different people before implementing her ideas. Even though they may be great ideas, it is advisable that she gets the real situation as it is in the field. It is necessary that she consults all those people that are in the fields that are involved.
Among the major persons that she should consult are the persons who are the head of the criminal justice systems and all the other departments that will be involved. The reason is that these people are the ones who are actually involved in the correctional activities and this is the field that she wants to make some changes. This means that these are the people who actually know the real activities that take place on the ground. This means that they are the ones who actually know whether the project or the developments will have positive of negative effect to the entire criminal justice system. (Paul, 1999)
In addition, because she plans to change some of the policies in the criminal justice system such as reducing some sentences, it would also be advisable that she seeks some advice from the policy makers. These are the people who make policies depending on the intensity of the criminal activities that needs to be implemented. They are therefore the ones who are sure of the effect that reducing these sentences will have to the society. They are also at a better place in offering the governor advice on her developments. (Benjamin, 2009)
Among the people that should be appointed in her task force are the head of all those areas that will be affected by her development. This is because they are the ones who are well informed of the problems or challenges that might arise due to these developments. They also have the back ground information concerning what needs to be done so that better results can be realize. In the same task force, the governor should include some of those cabinet ministers who were supporting her and those from the other parties. This is because, these are the same people that she would use in her next campaign and therefore, being in the task force makes them have a good base for the governors next elections. (Shafritz, 2008)
To these individuals that the governor wants to serve in the task force, she should use a soft and encouraging language. She should use statements such as It is time for change in our systems or Let us embrace change in this era. Such types of statements would make these individuals believe that indeed the governor just wants to have some change in the system and that it has nothing to do with her re-election. In addition, they will give their best in the task force and they will not feel as if they are being used by the governor. However, the governor should use a very friendly and formal language and where possible, she should personally request each and every one of these individuals for their participation in the task force. However, the governor should summon each one of them to her office as this would be more official and eliminate any doubts that the governor has some personal plans in it. (Paul, 1999)
However, she should approach these people differently. For the members of cabinet who happen to support her in the elections, she should give them information in full. She should tell them that apart from the change being better for the society, this is their strategy of the next election. She should tell them about it in a partys private meeting as this would be more convenient. However, to the rest of the groups which are involved, she should only tell them about the need for change. This should be strictly on official meetings which have not extra businesses.
The governor should deliver this message to the public through a press conference using the media. However the wording should be informal where the media personality may be allowed to ask questions. The governor should have a metaphor or rhetoric questions with the theme of the development such as Recession Eviction time is now where she should talk about increasing the revenues without having to increase taxes. She can also use other rhetoric such as How do we eliminate criminal activities and reduce long sentences Or she may use rhetoric such as How do we become number one crime free state in the world (Paul, 1999)
The governor may expect some tough questions from the media personalities such as whether this has something to do with the next elections strategies. She should maintain that the main aim for this is to ensure that there is good leadership and that every person lives in peace and have a better life. Using the comments that the governor gets from the media and the reaction from the public, she should be able to assess whether it is necessary to go ahead and have the task force. In case there is sharp negative reaction from the public, she should try to come up with some other strategies and forget about this one.
There may be some barriers to communication that may arise from the different people who are selected in the task force. One of the barriers will arise from the rank. There may be a problem with the relationship between the cabinet members and those heads of different groups. Sometimes they will have different views and it may be very difficult for them to communicate especially where some members feels shortchanged. For instance, the cabinet members may not easily take advice from the criminal justice official and this may create a big problem in implementation of ideas. This can be solved by the head of the task force by making all the members of the task force to have equal rights and spelling out clearly the main reason for the task force so that they can base their arguments on that. (Shafritz, 2008)
If the task force happens to create a plan, these principles should be presented to the operational staff in form of a report which should have all the details together with the recommendations. These operational staff should be given about two years to put the recommendations into practice. Some of the barriers to communication that may arise between the task force members and the levels of the policy makers revolve around the methods that would be used to implement the principles. The task force may have difficult time trying to convince the policy makers to implement the principles their way. (Benjamin, 2009)
In conclusion, due to this, lack of enough information on implementation of this principle may be termed as the major barriers to communication. Administrative issues will also pose as the general barriers to communication as most of the departments would like to act on their own while the task force will require them to follow a certain schedule. There is need for the governor to be well prepared as this process or these developments may face a lot of challenges. She should be ready to face and deal with the problems as they arise.
In this case therefore, it would be a great idea that the governor makes a number of consultations to different people before implementing her ideas. Even though they may be great ideas, it is advisable that she gets the real situation as it is in the field. It is necessary that she consults all those people that are in the fields that are involved.
Among the major persons that she should consult are the persons who are the head of the criminal justice systems and all the other departments that will be involved. The reason is that these people are the ones who are actually involved in the correctional activities and this is the field that she wants to make some changes. This means that these are the people who actually know the real activities that take place on the ground. This means that they are the ones who actually know whether the project or the developments will have positive of negative effect to the entire criminal justice system. (Paul, 1999)
In addition, because she plans to change some of the policies in the criminal justice system such as reducing some sentences, it would also be advisable that she seeks some advice from the policy makers. These are the people who make policies depending on the intensity of the criminal activities that needs to be implemented. They are therefore the ones who are sure of the effect that reducing these sentences will have to the society. They are also at a better place in offering the governor advice on her developments. (Benjamin, 2009)
Among the people that should be appointed in her task force are the head of all those areas that will be affected by her development. This is because they are the ones who are well informed of the problems or challenges that might arise due to these developments. They also have the back ground information concerning what needs to be done so that better results can be realize. In the same task force, the governor should include some of those cabinet ministers who were supporting her and those from the other parties. This is because, these are the same people that she would use in her next campaign and therefore, being in the task force makes them have a good base for the governors next elections. (Shafritz, 2008)
To these individuals that the governor wants to serve in the task force, she should use a soft and encouraging language. She should use statements such as It is time for change in our systems or Let us embrace change in this era. Such types of statements would make these individuals believe that indeed the governor just wants to have some change in the system and that it has nothing to do with her re-election. In addition, they will give their best in the task force and they will not feel as if they are being used by the governor. However, the governor should use a very friendly and formal language and where possible, she should personally request each and every one of these individuals for their participation in the task force. However, the governor should summon each one of them to her office as this would be more official and eliminate any doubts that the governor has some personal plans in it. (Paul, 1999)
However, she should approach these people differently. For the members of cabinet who happen to support her in the elections, she should give them information in full. She should tell them that apart from the change being better for the society, this is their strategy of the next election. She should tell them about it in a partys private meeting as this would be more convenient. However, to the rest of the groups which are involved, she should only tell them about the need for change. This should be strictly on official meetings which have not extra businesses.
The governor should deliver this message to the public through a press conference using the media. However the wording should be informal where the media personality may be allowed to ask questions. The governor should have a metaphor or rhetoric questions with the theme of the development such as Recession Eviction time is now where she should talk about increasing the revenues without having to increase taxes. She can also use other rhetoric such as How do we eliminate criminal activities and reduce long sentences Or she may use rhetoric such as How do we become number one crime free state in the world (Paul, 1999)
The governor may expect some tough questions from the media personalities such as whether this has something to do with the next elections strategies. She should maintain that the main aim for this is to ensure that there is good leadership and that every person lives in peace and have a better life. Using the comments that the governor gets from the media and the reaction from the public, she should be able to assess whether it is necessary to go ahead and have the task force. In case there is sharp negative reaction from the public, she should try to come up with some other strategies and forget about this one.
There may be some barriers to communication that may arise from the different people who are selected in the task force. One of the barriers will arise from the rank. There may be a problem with the relationship between the cabinet members and those heads of different groups. Sometimes they will have different views and it may be very difficult for them to communicate especially where some members feels shortchanged. For instance, the cabinet members may not easily take advice from the criminal justice official and this may create a big problem in implementation of ideas. This can be solved by the head of the task force by making all the members of the task force to have equal rights and spelling out clearly the main reason for the task force so that they can base their arguments on that. (Shafritz, 2008)
If the task force happens to create a plan, these principles should be presented to the operational staff in form of a report which should have all the details together with the recommendations. These operational staff should be given about two years to put the recommendations into practice. Some of the barriers to communication that may arise between the task force members and the levels of the policy makers revolve around the methods that would be used to implement the principles. The task force may have difficult time trying to convince the policy makers to implement the principles their way. (Benjamin, 2009)
In conclusion, due to this, lack of enough information on implementation of this principle may be termed as the major barriers to communication. Administrative issues will also pose as the general barriers to communication as most of the departments would like to act on their own while the task force will require them to follow a certain schedule. There is need for the governor to be well prepared as this process or these developments may face a lot of challenges. She should be ready to face and deal with the problems as they arise.
The Khalid Sheikh Mohammed Case raises a number of issues with respect to criminal procedure. The case involves the purported mastermind of a number of terrorist acts including the September 11th, 2001 attacks on the World Trade Center. If one were to treat the case as a normal criminal procedure in Federal Court, ignoring the enemy combatant or terrorist designation issues, a number of evidentiary issues would arise.
The basis of the case against Mohammed lies in his alleged confession, and a volume of documentary evidence that was taken when his hideout was raided and he was apprehended. According to the verbatim transcript of Combatant Status Review Tribunal Hearing for Mohammed, a preponderance of the evidence against Mohammed is circumstantial. His apprehension was accompanied by the seizure of a number of items, including computer hard drives. The hard drives contained, among other items, information about the four flights used in the September 11th attacks including codes, airline names, flight numbers, pilot names and background information, and the names of the hijackers. The drive also contained pictures of the nineteen hijackers. The drive also contained a document that had the pilots license fees for Muhammad Atta (a known September 11th highjacker) and a number of other hijackers. The drive also contained transcripts of a chat session with at least one of the hijackers. While compelling, this evidence is not direct evidence of Mohammeds actual conspiracy with the hijackers. Such direct evidence would feature video or audio recordings of conversations that directly furthered the conspiracy, or, in the alternative a statement by other conspirators implicating Mohammed. Despite popular conceptions, however, circumstantial evidence is as valid in court as direct evidence. Short of confession, there is often little direct evidence connecting an individual to a particular crime, and absent direct evidence, prosecutors often rely on circumstantial evidence. The nature of the evidence in this case may not individually offer proof beyond a reasonable doubt of Mohammads involvement, taken collectively, they offer more than a sufficiency of proof. The caveat in this case is that the evidence located on the hard disk drive would have to be connected directly to the defendant. The only information we have about how it was obtained is that it was seized when the suspect was apprehended. The suspect offered a witness who would make an offer of proof that the residence entered and computers seized did not belong to the defendant. In this hearing, this evidence was disallowed as irrelevant, but in a criminal proceeding, it would be admissible as exculpatory.
With respect to his confession, this was allegedly made to the news organization called Al Jazeera in 2002. The statements made by a defendant against his own interest to a third party that is not subject to privilege, is admissible as incriminating evidence. While the defendant himself cannot be forced to testify against his own interest, statements he made outside of court that tend to prove his culpability are an exception to the hearsay rule as they are considered to be admissions against interest. Mohammad made statements claiming that he was tortured by the CIA in 2003. If duress were used to obtain any evidence, such evidence would be inadmissible under the exclusionary rule, and any evidence obtained as a result of that statement would also be excluded as fruit of the poisonous tree. There is no offer of proof that the suspects incriminated himself during the alleged torture, or that the statements that he made during the Combatants Hearing were in any way coerced. In most criminal proceedings, even the implications of such impropriety would compel a trial judge to exclude the defendants own statements, but given the nature and volume of corroborating evidence, such exclusion would be unlikely in this case.
Another issue with this case, were it treated as a regular criminal trial, is venue. Holding such a trial in the venue in which the attack occurred would lead to enormous difficulties in obtaining a jury of unbiased observers. However, a change of venue within the United States would also be problematic, since the incident had profound emotional impact upon many potential jurors across the nation. Given that the nature of the jury pool is unlikely to be altered significantly by a change in venue, the case is best adjudicated in the jurisdiction where the incident took place.
Given the circumstances and evidence in this case, and the fact that the suspect seems to take pride in the connection he holds to the events, and would therefore be unlikely to refute the evidence on its merits, the likelihood is that he would be found guilty. Since the charge is the murder of almost three thousand people, it is likely that a guilty verdict would lead to a death sentence. In the case that the prosecutors are unable to link the computer evidence to the defendant, and the incriminating statements of the defendant are somehow repressed by the court, it is marginally possible that a jury may find insufficient evidence to convict Khalid Sheikh Mohammed.
Given that possibility, no matter how slim, relying on a regular criminal court to secure a conviction would not be in the best interest of the government to pursue Khalid Sheikh Mohammed as a normal citizen. Having been classified as an enemy combatant is more likely to be subject to military justice. The rules of evidentiary gathering are much vaguer in these types of investigations. According to provisions laid out by executive order, the treatment of enemy combatants does not hold much of the same limitations for prosecution as do those for a regular civilian defendant. Such persons are not entitled to public indictment, filing of criminal charges, right to counsel or independent review of the evidence against him or her. While subsequent high court decisions reversed many of these elements, including the right to counsel and requirement of habeas corpus, at the time of Khalid Sheikh Mohammeds detention and designation as an enemy combatant, these limitations did not exist, nor are they applied retroactively.
Such specific and defendant-friendly rules of evidence have not been applied to enemy combatants. Historically, the civil rights of citizens have been routinely suspended during times of War. Japanese-Americans were interned with no evidence, and denied habeas corpus during WWII. During the Civil War, Abraham Lincoln detained U.S. citizens without warrant, evidence or charge to protect Federal Troops moving through Maryland.
Given the history of American jurisprudence during Wartime, and the evidentiary pattern of the case against Khalid Sheikh Mohammed, the better safe than sorry approach would likely be best for prosecuting this individual. The acts that Khalid Sheikh Mohammed was responsible for are sufficiently inhumane, brutal, and arbitrary that no sense of justice in the abstract should prevent the United States from exacting a swift and total retribution against him.
Annotated Bibliography
Pereira, C. Chavkin, N. (2008) Habeas Corpus and Enemy Combatants Social Education, Vol. 72 (5) Pg. 236-248.
This article is a review of the legal standing that enemy combatants, or persons so designated between late 2001 and 2005 have been treated in federal court rulings. The article reviews a number of cases addressed by the courts that flowed from complaints filed by various enemy combatants that were denied substantive due process while under incarceration at Guantanamo Bay in Cuba. The article notes that a number of citizens who suffered from similar denials of due process during wars, specifically during WWII and the Civil War were found by the courts two have been treated illegally. In the cases mentioned, however, these rulings came well after the fact. Regarding the current war, thee cases reviewed in this article are Rasul v. Bush , Hamdi v. Rumsfeld, Rumsfeld v. Padilla, Hamdan v. Rumsfeld and Al-Marri v. Pucciarelli. These cases, decided between 2004 and 2008, illustrate the evolution of the Courts opinion regarding the treatment of detainees at Guantanamo Bay. In the earlier cases, the Court tended to side with the government in denying habeas corpus and other procedural rights to enemy combatants who were not U.S. citizens, but continued to uphold those rights for U.S. citizens captured in battle in Afghanistan and Iraq. By 2008, however, the Court had balked at administration attempts to remove all enemy combatants from the jurisdiction of Federalk Courts, and in so doing, opened the door for many of these detainees, some who had spent years in incarceration without explanation, a chance to file petitions of habeas corpus. The article is relevant to the examination of the Mohammed case, since Mohammed was designated as an enemy combatant, and his status as such is the subject of a portion of the work above.
Parrini, M. Williams, C. (2005) Enemy Combatants and the Courts Social Education, Vol. 69,(2) Pg. 103-110.
This article examines similar issues to the one presented in the Pereira, C. Chavkin, N. article. Unlike this other article, this work addresses deficiencies in the Supreme Courts rulings on some procedural issues other than habeas corpus with respect to the rights of enemy combatants. Some questions unaddressed by the courts, according to this article, include the time frame, during which a designated enemy combatant may invoke a sixth amendment right to counsel, how long a detainee may be kept without a trial given the indefinite nature of the war on terror, and which courts, military or civilian, have jurisdiction over the status challenges of enemy combatants.
This article does make mention of evidentiary problems associated with the classification of enemy combatants. In this article it is noted that the courts rejected evidence derived from statements that may have been coerced, and has fallen in favor of the totality of such evidence being reviewed by a neutral party.
The article is relevant to the paper about the Mohammed case because it addresses evidentiary issues specifically with respect to enemy combatants, and offers some insight as to whether certain elements of evidence in the Mohammed case would be admissible given his status as an enemy combatant.
Verbatim Transcript of Combatant Review Tribunal for Khalid Sheikh Mohammed (2007) Retrieved December 7th, 2009 from Cable News Network website
As the title suggests, this document puts forth the evidence that was used to designate Khalid Sheikh Mohammed as an enemy combatant. This evidence also serves as the basis of any criminal case against Mohammed for the murders of the civilians in the September 11th, 2001 attacks on the World Trade Center and other targets in the United States. The document discusses evidence that consists largely of documentation found on a computer in Mohammeds possession at the time of his apprehension. The computer included such details as the flight information of the targeted flights, the names of persons known to be hijackers, photographs of each of the hijackers, documentation of the fees invoked for the pilots licenses for the hijackers, and transcripts of conversations between hijackers. Additionally, the board commented that Mohammed had confessed to the Al-Jazeera news agency in 2002, telling of his masterminding of the 911 plot. The document also notes the panels rejection of certain exculpatory evide3nce, most compelling of which is a wit ness who claimed that the computer containing the vast majority of the evidence obtained, did not in fact belong to Mohammed. This document is relevant to the discussion of the evidence in the Khalid Sheikh Mohammed case as it enumerates most of the evidence that might be heard by a jury in a criminal proceeding.
Weisenberger, Glen (1999) Evidence Myopia The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law William and Mary Law Review, Vol. 40, (5) pg. 1539-1567
This article, while primarily a discussion of the status of the f4ederal rules of evidence as a statutory construction, enumerates and evaluates many components of the rules of evidence. Included in this discussion is the use and application of the exclusionary rule, and hearsay. Hearsay and its exceptions are an area of particular emphasis. The article discusses admission against interest, dying declaration and other circumstantial exceptions to the hearsay rule. It also lays out the guidelines denoted in the federal rules of evidence for the exclusion of evidence obtained in violation of due process. These discussions are relevant to the topic of the paper because they can be applied to the fact pattern of the Khalid Sheikh Mohammed case in order to judge the admissibility of the evidence at hand against Mohammed.
The basis of the case against Mohammed lies in his alleged confession, and a volume of documentary evidence that was taken when his hideout was raided and he was apprehended. According to the verbatim transcript of Combatant Status Review Tribunal Hearing for Mohammed, a preponderance of the evidence against Mohammed is circumstantial. His apprehension was accompanied by the seizure of a number of items, including computer hard drives. The hard drives contained, among other items, information about the four flights used in the September 11th attacks including codes, airline names, flight numbers, pilot names and background information, and the names of the hijackers. The drive also contained pictures of the nineteen hijackers. The drive also contained a document that had the pilots license fees for Muhammad Atta (a known September 11th highjacker) and a number of other hijackers. The drive also contained transcripts of a chat session with at least one of the hijackers. While compelling, this evidence is not direct evidence of Mohammeds actual conspiracy with the hijackers. Such direct evidence would feature video or audio recordings of conversations that directly furthered the conspiracy, or, in the alternative a statement by other conspirators implicating Mohammed. Despite popular conceptions, however, circumstantial evidence is as valid in court as direct evidence. Short of confession, there is often little direct evidence connecting an individual to a particular crime, and absent direct evidence, prosecutors often rely on circumstantial evidence. The nature of the evidence in this case may not individually offer proof beyond a reasonable doubt of Mohammads involvement, taken collectively, they offer more than a sufficiency of proof. The caveat in this case is that the evidence located on the hard disk drive would have to be connected directly to the defendant. The only information we have about how it was obtained is that it was seized when the suspect was apprehended. The suspect offered a witness who would make an offer of proof that the residence entered and computers seized did not belong to the defendant. In this hearing, this evidence was disallowed as irrelevant, but in a criminal proceeding, it would be admissible as exculpatory.
With respect to his confession, this was allegedly made to the news organization called Al Jazeera in 2002. The statements made by a defendant against his own interest to a third party that is not subject to privilege, is admissible as incriminating evidence. While the defendant himself cannot be forced to testify against his own interest, statements he made outside of court that tend to prove his culpability are an exception to the hearsay rule as they are considered to be admissions against interest. Mohammad made statements claiming that he was tortured by the CIA in 2003. If duress were used to obtain any evidence, such evidence would be inadmissible under the exclusionary rule, and any evidence obtained as a result of that statement would also be excluded as fruit of the poisonous tree. There is no offer of proof that the suspects incriminated himself during the alleged torture, or that the statements that he made during the Combatants Hearing were in any way coerced. In most criminal proceedings, even the implications of such impropriety would compel a trial judge to exclude the defendants own statements, but given the nature and volume of corroborating evidence, such exclusion would be unlikely in this case.
Another issue with this case, were it treated as a regular criminal trial, is venue. Holding such a trial in the venue in which the attack occurred would lead to enormous difficulties in obtaining a jury of unbiased observers. However, a change of venue within the United States would also be problematic, since the incident had profound emotional impact upon many potential jurors across the nation. Given that the nature of the jury pool is unlikely to be altered significantly by a change in venue, the case is best adjudicated in the jurisdiction where the incident took place.
Given the circumstances and evidence in this case, and the fact that the suspect seems to take pride in the connection he holds to the events, and would therefore be unlikely to refute the evidence on its merits, the likelihood is that he would be found guilty. Since the charge is the murder of almost three thousand people, it is likely that a guilty verdict would lead to a death sentence. In the case that the prosecutors are unable to link the computer evidence to the defendant, and the incriminating statements of the defendant are somehow repressed by the court, it is marginally possible that a jury may find insufficient evidence to convict Khalid Sheikh Mohammed.
Given that possibility, no matter how slim, relying on a regular criminal court to secure a conviction would not be in the best interest of the government to pursue Khalid Sheikh Mohammed as a normal citizen. Having been classified as an enemy combatant is more likely to be subject to military justice. The rules of evidentiary gathering are much vaguer in these types of investigations. According to provisions laid out by executive order, the treatment of enemy combatants does not hold much of the same limitations for prosecution as do those for a regular civilian defendant. Such persons are not entitled to public indictment, filing of criminal charges, right to counsel or independent review of the evidence against him or her. While subsequent high court decisions reversed many of these elements, including the right to counsel and requirement of habeas corpus, at the time of Khalid Sheikh Mohammeds detention and designation as an enemy combatant, these limitations did not exist, nor are they applied retroactively.
Such specific and defendant-friendly rules of evidence have not been applied to enemy combatants. Historically, the civil rights of citizens have been routinely suspended during times of War. Japanese-Americans were interned with no evidence, and denied habeas corpus during WWII. During the Civil War, Abraham Lincoln detained U.S. citizens without warrant, evidence or charge to protect Federal Troops moving through Maryland.
Given the history of American jurisprudence during Wartime, and the evidentiary pattern of the case against Khalid Sheikh Mohammed, the better safe than sorry approach would likely be best for prosecuting this individual. The acts that Khalid Sheikh Mohammed was responsible for are sufficiently inhumane, brutal, and arbitrary that no sense of justice in the abstract should prevent the United States from exacting a swift and total retribution against him.
Annotated Bibliography
Pereira, C. Chavkin, N. (2008) Habeas Corpus and Enemy Combatants Social Education, Vol. 72 (5) Pg. 236-248.
This article is a review of the legal standing that enemy combatants, or persons so designated between late 2001 and 2005 have been treated in federal court rulings. The article reviews a number of cases addressed by the courts that flowed from complaints filed by various enemy combatants that were denied substantive due process while under incarceration at Guantanamo Bay in Cuba. The article notes that a number of citizens who suffered from similar denials of due process during wars, specifically during WWII and the Civil War were found by the courts two have been treated illegally. In the cases mentioned, however, these rulings came well after the fact. Regarding the current war, thee cases reviewed in this article are Rasul v. Bush , Hamdi v. Rumsfeld, Rumsfeld v. Padilla, Hamdan v. Rumsfeld and Al-Marri v. Pucciarelli. These cases, decided between 2004 and 2008, illustrate the evolution of the Courts opinion regarding the treatment of detainees at Guantanamo Bay. In the earlier cases, the Court tended to side with the government in denying habeas corpus and other procedural rights to enemy combatants who were not U.S. citizens, but continued to uphold those rights for U.S. citizens captured in battle in Afghanistan and Iraq. By 2008, however, the Court had balked at administration attempts to remove all enemy combatants from the jurisdiction of Federalk Courts, and in so doing, opened the door for many of these detainees, some who had spent years in incarceration without explanation, a chance to file petitions of habeas corpus. The article is relevant to the examination of the Mohammed case, since Mohammed was designated as an enemy combatant, and his status as such is the subject of a portion of the work above.
Parrini, M. Williams, C. (2005) Enemy Combatants and the Courts Social Education, Vol. 69,(2) Pg. 103-110.
This article examines similar issues to the one presented in the Pereira, C. Chavkin, N. article. Unlike this other article, this work addresses deficiencies in the Supreme Courts rulings on some procedural issues other than habeas corpus with respect to the rights of enemy combatants. Some questions unaddressed by the courts, according to this article, include the time frame, during which a designated enemy combatant may invoke a sixth amendment right to counsel, how long a detainee may be kept without a trial given the indefinite nature of the war on terror, and which courts, military or civilian, have jurisdiction over the status challenges of enemy combatants.
This article does make mention of evidentiary problems associated with the classification of enemy combatants. In this article it is noted that the courts rejected evidence derived from statements that may have been coerced, and has fallen in favor of the totality of such evidence being reviewed by a neutral party.
The article is relevant to the paper about the Mohammed case because it addresses evidentiary issues specifically with respect to enemy combatants, and offers some insight as to whether certain elements of evidence in the Mohammed case would be admissible given his status as an enemy combatant.
Verbatim Transcript of Combatant Review Tribunal for Khalid Sheikh Mohammed (2007) Retrieved December 7th, 2009 from Cable News Network website
As the title suggests, this document puts forth the evidence that was used to designate Khalid Sheikh Mohammed as an enemy combatant. This evidence also serves as the basis of any criminal case against Mohammed for the murders of the civilians in the September 11th, 2001 attacks on the World Trade Center and other targets in the United States. The document discusses evidence that consists largely of documentation found on a computer in Mohammeds possession at the time of his apprehension. The computer included such details as the flight information of the targeted flights, the names of persons known to be hijackers, photographs of each of the hijackers, documentation of the fees invoked for the pilots licenses for the hijackers, and transcripts of conversations between hijackers. Additionally, the board commented that Mohammed had confessed to the Al-Jazeera news agency in 2002, telling of his masterminding of the 911 plot. The document also notes the panels rejection of certain exculpatory evide3nce, most compelling of which is a wit ness who claimed that the computer containing the vast majority of the evidence obtained, did not in fact belong to Mohammed. This document is relevant to the discussion of the evidence in the Khalid Sheikh Mohammed case as it enumerates most of the evidence that might be heard by a jury in a criminal proceeding.
Weisenberger, Glen (1999) Evidence Myopia The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law William and Mary Law Review, Vol. 40, (5) pg. 1539-1567
This article, while primarily a discussion of the status of the f4ederal rules of evidence as a statutory construction, enumerates and evaluates many components of the rules of evidence. Included in this discussion is the use and application of the exclusionary rule, and hearsay. Hearsay and its exceptions are an area of particular emphasis. The article discusses admission against interest, dying declaration and other circumstantial exceptions to the hearsay rule. It also lays out the guidelines denoted in the federal rules of evidence for the exclusion of evidence obtained in violation of due process. These discussions are relevant to the topic of the paper because they can be applied to the fact pattern of the Khalid Sheikh Mohammed case in order to judge the admissibility of the evidence at hand against Mohammed.
Research the CourtsA Study of the Court System in the State of Georgia
This brief paper discusses the federal and state court systems in the Commonwealth of Massachusetts, and finally concludes by upholding the need for such a dual court system.
Court Structure In The State of Georgia
This paper discusses the structure of the federal court and the state court systems in the State of Georgia. The capital of Georgia is Atlanta, and that is where most superior courts are situated.
A. Federal Court Structure
There are three federal court districts in the State of Georgia Northern District of Georgia (N.D. Ga.), Middle District of Georgia (M.D. Ga.) and Southern District of Georgia (S.D. Ga.). While the Northern District, headquartered at Atlanta serves forty-six counties, and is divided into four divisions, the Middle District, headquartered at Macon serves sixty-nine counties and is divided into seven divisions. The Southern District is headquartered at Augusta, serves thirty-four counties and is divided into six divisions.
The appeals from these District Courts are heard by the United States Court of Appeals for the Eleventh Circuit (11th Cir.), which is also located in Atlanta. In addition to hearing appeals from the District Courts of Georgia, the Court of Appeals for the Eleventh Circuit is also the federal court of appeals for the federal districts in the states of Alabama and Florida.
Appeals from the United States Court of Appeals for the Eleventh Circuit are heard by the Court of last resort for federal matters the Supreme Court of the United States, located in Washington D.C.
B. State Court Structure
The state Courts in Georgia are arranged circuit-wise. The State is divided into 49 judicial circuits. The Georgia Trial Court system is composed of a number of courts, depending on the pecuniary interest involved in civil matters or the gravity of offence in criminal matters. For example, the Magistrate Courts have original jurisdiction over all civil claims of 15,000 or less and certain minor criminal offences. Superior Courts in Georgia exist circuit-wise and serve as the backbone of the trial court system in Georgia. The Superior Courts have exclusive jurisdiction over certain matters, and general trial court jurisdiction. There is another level between the Superior courts and Magistrate courts called the State Courts which have original jurisdiction over all civil claims, regardless of the amount claimed, unless the Superior Court has jurisdiction over them. The Georgia Trial Court system is therefore the first level in the state court structure in the state of Georgia.
The appeals from these various trial courts are heard by the Court of Appeals, located in Atlanta, which is a court of general appellate jurisdiction. However, this jurisdiction is limited because matters such as constitutionality of statutes, construction of wills, murder, election contests, habeas corpus and land title disputes, have been excluded from the courts appellate jurisdiction.
The Supreme Court of Georgia, located in Atlanta, is the highest Court in the State of Georgia. It is the final court of appeal, as also is bestowed with the function of general superintendence of the judiciary and bar in the State of Georgia. Additionally, the Supreme Court may answer any question of law from any state or federal appellate court and may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.
C. Need for a Dual Court Structure
The United States Constitution is a federal one. Laws made by the Congress are federal laws applicable to all the states of the United States, whereas laws made by the state legislature are applicable to the State of Georgia alone. Therefore, it becomes imperative to try legal disputes and controversies arising out of those two separate sets of laws by two separate sets of courts. The state judicial system is in a better system to examine the specific needs of the state, and it becomes important that the system is decentralized and made State-specific. The system achieves not only greater efficiency, but the federal structure of the United States is maintained.
Court Structure In The State of Georgia
This paper discusses the structure of the federal court and the state court systems in the State of Georgia. The capital of Georgia is Atlanta, and that is where most superior courts are situated.
A. Federal Court Structure
There are three federal court districts in the State of Georgia Northern District of Georgia (N.D. Ga.), Middle District of Georgia (M.D. Ga.) and Southern District of Georgia (S.D. Ga.). While the Northern District, headquartered at Atlanta serves forty-six counties, and is divided into four divisions, the Middle District, headquartered at Macon serves sixty-nine counties and is divided into seven divisions. The Southern District is headquartered at Augusta, serves thirty-four counties and is divided into six divisions.
The appeals from these District Courts are heard by the United States Court of Appeals for the Eleventh Circuit (11th Cir.), which is also located in Atlanta. In addition to hearing appeals from the District Courts of Georgia, the Court of Appeals for the Eleventh Circuit is also the federal court of appeals for the federal districts in the states of Alabama and Florida.
Appeals from the United States Court of Appeals for the Eleventh Circuit are heard by the Court of last resort for federal matters the Supreme Court of the United States, located in Washington D.C.
B. State Court Structure
The state Courts in Georgia are arranged circuit-wise. The State is divided into 49 judicial circuits. The Georgia Trial Court system is composed of a number of courts, depending on the pecuniary interest involved in civil matters or the gravity of offence in criminal matters. For example, the Magistrate Courts have original jurisdiction over all civil claims of 15,000 or less and certain minor criminal offences. Superior Courts in Georgia exist circuit-wise and serve as the backbone of the trial court system in Georgia. The Superior Courts have exclusive jurisdiction over certain matters, and general trial court jurisdiction. There is another level between the Superior courts and Magistrate courts called the State Courts which have original jurisdiction over all civil claims, regardless of the amount claimed, unless the Superior Court has jurisdiction over them. The Georgia Trial Court system is therefore the first level in the state court structure in the state of Georgia.
The appeals from these various trial courts are heard by the Court of Appeals, located in Atlanta, which is a court of general appellate jurisdiction. However, this jurisdiction is limited because matters such as constitutionality of statutes, construction of wills, murder, election contests, habeas corpus and land title disputes, have been excluded from the courts appellate jurisdiction.
The Supreme Court of Georgia, located in Atlanta, is the highest Court in the State of Georgia. It is the final court of appeal, as also is bestowed with the function of general superintendence of the judiciary and bar in the State of Georgia. Additionally, the Supreme Court may answer any question of law from any state or federal appellate court and may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.
C. Need for a Dual Court Structure
The United States Constitution is a federal one. Laws made by the Congress are federal laws applicable to all the states of the United States, whereas laws made by the state legislature are applicable to the State of Georgia alone. Therefore, it becomes imperative to try legal disputes and controversies arising out of those two separate sets of laws by two separate sets of courts. The state judicial system is in a better system to examine the specific needs of the state, and it becomes important that the system is decentralized and made State-specific. The system achieves not only greater efficiency, but the federal structure of the United States is maintained.
GUN CONTROL
I attempt to analyze an article by New York Times columnist Bob Herbert (Kleck) in which he advocates gun control and does so with suitable references and statistical data.
THE ARGUMENTS
Herbert begins his piece with small tit-bits of incidents and news headlines which show how dangerous carrying a gun could be. It is well established that the most prone age towards gun related hazards is childhood and teenage. Apart from that the article doesnt deal much with the adult psychology behind carrying misusing a gun. When he gives the example of Jacob Larson, he makes it clear that it is because of the boys carelessness that the boy dies. Further, all these deathssuicideshomicides happen due to lack of knowledge and lack of guidance. From there he treads on to how America is unconcerned or unperturbed about the horror gun-violence in inflicting on the country. He says that the violence is aggravated due to the widespread availability of guns in the country.
From there, he takes examples of bizarre incidents where mentally unstable people are on a killing spree. He gives example of Phil Spector, who kills actress Lana Clarkson. One needs to understand that he could have killed her through other means as well the non-presence of gun wouldnt have helped much. Of course, Herbert explains this well when he terms guns as easily available.
Again, he takes the example of John Muhammed and Lee Malvo. He makes a strong point here where he says that their least concern was to get a semiautomatic rifle. This makes sense as this is the root of the problem. When we advocate gun-control, what we forget is that there are still places means to get a gun easily.
MOVING FROM HOMICIDES
Herberts gradual progression to the other areas of concern is apt and much needed. The article becomes a bit heavy on homicides and ignorant murders.
His statistical evidence is strong and makes for a gripping point. He says that more than 12,000 people are murdered annually in the U.S.
He interestingly points out that many murders also take place due to shooting by the Police. When such a point is risen, it makes one think about how safe heshe is when the custodian is charged of such a heavy crime. So how does one account to be safe By carrying a gun himself Probably, Herbert wouldnt like the idea at all.
He then takes in stride the issue of medical insurance and expenses. While there are murders happening at one point, there are victims who lead a painful life. This very strongly holds reason for gun-control. But, again one cannot base hisher opinion on such mishaps.
AMBIGUITIES -
He again comes around to advocate for teenagers and childrens death. This seems to me a very microscopic view of the entire issue. Though I agree and understand that children and teenagers are most prone to gunshots and mishaps, there is certain thought which should be given to this area. If it is children or teenagers who are more prone to the evils of the gun, we need to understand the reason why. Clearly the article doesnt delve into the same much. It just moves in roundabout manner to blame how the gun is killing everyone mindlessly. It just becomes a transfer epithet. The people are not blamed much but the steel cold weapon is.
OMMISSIONS -
Undoubtedly, the most important thing to be done is to understand what leads to such incidents and mishaps. One very important issue is the mindset of people. Of course, teenagers and children suffer from great insecurity and problems which lead them to such bizarre step. It is unquestionable that the society has changed, and its due course has made mankind savage and indifferent. This indifference causes major accidents. What Herbert argues for is valid, but owing to his journalism background, he sways too much in favor of facts and figures.
ALTERNATIVES -
Herberts article is something which will raise many eyebrows but then it stops at that. Nothing or nobody will stop these gunfights or mishaps. What is further more interesting is to note that if the widespread availability of guns are restricted, what will happen to civilians If the miscreants know that their victims are helpless, they will continue the killing spree, perhaps more brutally than ever. What is important thus, is to understand that there should be stringent laws, which make a civilian powerful but at the same time more careful. Guns should not be available to everyone. Also the bullets should be licensed and there should be thorough checking system to know where every bullet is going.
Herbert makes a very interesting read, especially when he mentions about the vigilance about shampoos in airports and the carelessness about guns and arms. This article seems a bit heavy on statistics and incidents and a bit weak on reasoning.
THE ARGUMENTS
Herbert begins his piece with small tit-bits of incidents and news headlines which show how dangerous carrying a gun could be. It is well established that the most prone age towards gun related hazards is childhood and teenage. Apart from that the article doesnt deal much with the adult psychology behind carrying misusing a gun. When he gives the example of Jacob Larson, he makes it clear that it is because of the boys carelessness that the boy dies. Further, all these deathssuicideshomicides happen due to lack of knowledge and lack of guidance. From there he treads on to how America is unconcerned or unperturbed about the horror gun-violence in inflicting on the country. He says that the violence is aggravated due to the widespread availability of guns in the country.
From there, he takes examples of bizarre incidents where mentally unstable people are on a killing spree. He gives example of Phil Spector, who kills actress Lana Clarkson. One needs to understand that he could have killed her through other means as well the non-presence of gun wouldnt have helped much. Of course, Herbert explains this well when he terms guns as easily available.
Again, he takes the example of John Muhammed and Lee Malvo. He makes a strong point here where he says that their least concern was to get a semiautomatic rifle. This makes sense as this is the root of the problem. When we advocate gun-control, what we forget is that there are still places means to get a gun easily.
MOVING FROM HOMICIDES
Herberts gradual progression to the other areas of concern is apt and much needed. The article becomes a bit heavy on homicides and ignorant murders.
His statistical evidence is strong and makes for a gripping point. He says that more than 12,000 people are murdered annually in the U.S.
He interestingly points out that many murders also take place due to shooting by the Police. When such a point is risen, it makes one think about how safe heshe is when the custodian is charged of such a heavy crime. So how does one account to be safe By carrying a gun himself Probably, Herbert wouldnt like the idea at all.
He then takes in stride the issue of medical insurance and expenses. While there are murders happening at one point, there are victims who lead a painful life. This very strongly holds reason for gun-control. But, again one cannot base hisher opinion on such mishaps.
AMBIGUITIES -
He again comes around to advocate for teenagers and childrens death. This seems to me a very microscopic view of the entire issue. Though I agree and understand that children and teenagers are most prone to gunshots and mishaps, there is certain thought which should be given to this area. If it is children or teenagers who are more prone to the evils of the gun, we need to understand the reason why. Clearly the article doesnt delve into the same much. It just moves in roundabout manner to blame how the gun is killing everyone mindlessly. It just becomes a transfer epithet. The people are not blamed much but the steel cold weapon is.
OMMISSIONS -
Undoubtedly, the most important thing to be done is to understand what leads to such incidents and mishaps. One very important issue is the mindset of people. Of course, teenagers and children suffer from great insecurity and problems which lead them to such bizarre step. It is unquestionable that the society has changed, and its due course has made mankind savage and indifferent. This indifference causes major accidents. What Herbert argues for is valid, but owing to his journalism background, he sways too much in favor of facts and figures.
ALTERNATIVES -
Herberts article is something which will raise many eyebrows but then it stops at that. Nothing or nobody will stop these gunfights or mishaps. What is further more interesting is to note that if the widespread availability of guns are restricted, what will happen to civilians If the miscreants know that their victims are helpless, they will continue the killing spree, perhaps more brutally than ever. What is important thus, is to understand that there should be stringent laws, which make a civilian powerful but at the same time more careful. Guns should not be available to everyone. Also the bullets should be licensed and there should be thorough checking system to know where every bullet is going.
Herbert makes a very interesting read, especially when he mentions about the vigilance about shampoos in airports and the carelessness about guns and arms. This article seems a bit heavy on statistics and incidents and a bit weak on reasoning.