Legal Issues

Financial accountability in an organization is quite important for ensuring its long term existence in the business world. This is because accuracy of financial reports of an organization serves in enabling investors to make informed decisions thus substantially reducing investment risks. Such also protects the reputation of an organization, a critical factor in realizing a competitive market share advantage.

However, this is not always the case for many organizations. Available statistical evidence clearly shows an eminent existence of corporate and accounting scandals in these organizations. Such practices mainly involve the publication of corrupted financial statements by corporations for the purposes of attacking investors.

The Sarbanes Oxley Act of 2002 was enacted in response to eminent financial scandals which saw the collapsing of major corporations between 2000 and 2002 in America, leading to loss of billions of dollars of investors money in the securities markets. Such corporations include Enron, Tyco International and WorldCom among others. The Sarbanes Oxley Act seeks to enhance accountability standards for public corporation boards and management as well as public auditing and accounting firms.

This paper gives a discussion on the origin, enactment, and implementation of the Sarbanes Oxley Act of 2002. The author takes a look at the main events which led to the Sarbanes Oxley Act. A summary on the core provisions of the law is also given.

The introduction of the Sarbanes Oxley Act
The Sarbanes Oxley Act was enacted on July 25, 2002 after it received an overwhelming victory both in The House of Representative, Congress, and the Senate. The act was then signed into law on by the then president, George W. Bush citing it as a milestone in the realization of business practices reforms in the American republic. However, prior to the enactment of the Sarbanes Oxley Act, the two legislative houses had passed two different bills.

On April 24, 2002, the congress enormously passed the Corporate and Auditing Accountability, Responsibility, and Transparency Act and referred it to the Senate Banking Committee. Nevertheless, the then chairman of the committee was working on the Senate Bill 2673 proposal which was successfully approved without objection by the Senate Banking Committee later on June 18, 2002. Due to such divisions between the House of Representatives and the Senate a committee was formed to reconcile both bills.

According to available evidence, the conference committee mainly relied on the provisions of Sarbanes bill, making changes to strengthen its provisions while adding new prescriptions. The committee presented the reconciled final bill by the name Sarbanes-Oxley. The final bill was passed without amendments by both the House of Representatives and the Senate.

The events that led to enactment and implementation of the Sarbanes Oxley Act
The period between 2000 and 2002 saw the collapsing of major public corporations in the United States of America. Such corporations included Enron, WorldCom, Tyco International, Peregrine Systems and Adelphia. Being listed in the nations stock markets, these corporations had previously attracted a large pool of investors. Therefore, upon their fall billions of dollars were lost by investors. Still, banks had fallen victims of the downfall due to the large amount of loans they had lend to this firms. This meant that they had to compromise their customer service in the quest of compensating these loans.

The passing and signing into law of the Sarbanes Oxley Act of 2002 was heavily triggered by the Enron financial accounting fraudulence scandal. The much publicity of fraud activities involving corporation like Enron, WorldCom, and Tyco led to investigations and a number of hearings by the Senate Banking Committee in a bid to uncover the source of the scandal. By 2002, most of the collapsing corporations likes WorldCom publicly claimed having corrupted their financial statements, a concern which expressed conflict of interest compensation practices in the stock exchange market. According to Senator Sarbanes the Senate Banking Committees identified a number of complex causes of the scandals. Some of these contentious roots issues include

First, there existed an auditor conflict of interest. This was because traditionally auditors were self-regulated in their duties. Due to lack of an independent regulating agency, auditing firms constantly engaged with the companies on consultancy agreements. Still established is that such consultancy contracts were more profitable to the firms than their core auditing business (Romano, 2005). Based on this, auditing firm could not question much on erroneous financial reports of the corporations due to fear of their loosing consultancy contracts.

Another event is that the board of directors of these corporations had failed to provide reliable oversight of the financial processing and reporting by the organizations (Romano, 2005). According to the corporate act of the United States, audit committee, which forms part of the board of directors, acts to ensure accuracy and reliability of financial reports on behalf of investors. This report claimed that some members of the board either did not have the right qualifications for the post or failed to exercise their responsibilities. This was still attributed to possible lack of independence between the audit committee and the corporation management.

The banking sector and its large loaning to the companies without analyzing the implication is also cited as a reason behind the passing of the Sarbanes Oxley Act. Loan borrowing symbolizes the potential down fall if an investment. However, despite this fact, banks decided to give large loans to corporations like Enron, an act which greatly cost account holders after the collapsing of the company.  The executive compensation practices which provides stock options and bonus to corporations upon meeting set targets was also a reason to the enactment of the Sarbanes Oxley Act. This is because traditional stock exchange award practices tempted corporate managers to engage in meeting set targets despite the associated stock-based bonus risks.

Still, lack of sufficient funding to they Securities Exchange Commission was seen to compromise its efficiency. There also existed a conflict of interest among the securities analysts. Securities analysts, just like auditors, traditionally involved in many contradictory contracts with corporations. However, most of the non-core contracts earned them than the core activities an act which greatly compromised their reliable provision of corrections and advise to the corporations. Ill advice by some mutual fund managers on stock buying and selling was a major cause to great investment loss by investors. Just to be stated here is the fact that investor are mainly guided by investment advices of mutual fund managers. Therefore, failure by these managers to give accurate and reliable information is a major risk to investors.

A summary of the key provisions of the Sarbanes Oxley Act
In the quest by the federal government to ensure accountability of financial report processing in corporations, the Sarbanes Oxley Act of 2002 was passed into law. In summary, the law dictates for the creation of a public company accounting oversight board which will ensure independence of public accounting firms. The board is also responsible for registering and supervising auditors as well as formulating compliance audit procedures. In a move to realize auditor independence, the law dictates for rotational auditing by firms. Auditing firms are prohibited from engaging in non-auditing practices with corporations. This will reduces chances of inside dealings between management and auditors.

Other provisions include mandatory individual responsibility by senior executives for the accuracy financial reports. Securities analysts are bound by a new code of conduct which provides for reporting of any conflict of interest. The securities exchange commission authority is given the mandate to bar securities analysts from practicing under set conditions. Since fraud is a crime in the American nation, the new law enhances white collar crime and fraud accountability penalties. All these provisions of the Sarbanes Oxley Act laws seek to ensure more accountability in the financial reporting by corporations and public auditing firms.

Conclusion
The ultimate success of an investor is dependent on the reliability of the financial statements they get from organization. This is because these statements influence the investor decision making process. Therefore, failure to have in place a reliable public auditing policy greatly compromises investments and the nations condom in general.

This is the reason why the Sarbanes Oxley Act is seen to be of great importance in reforming Americans business practices. The law improves on accuracy and authenticity of published financial reports. It also gives auditors independence while giving individual responsibility of financial statement accuracy to senior corporation executives.

Felonies are considered to be serious crimes in any criminal justice process. A felony may be defined as a crime that is punishable by more than a year in jail or by death sentence. The criminal justice process involves different types of participants with specific roles to play in criminal justice system. The participants involve the victim who is an individual or a business entity that may have suffered a loss, law enforcing body which is charged with the responsibility of identifying witness and collecting relevant information and evidence which eventually refers the gathered information to the attorneys office, judge who is a an individual who presides over the case and comes up with decisions pertaining legal matters, defense attorney is a representative of the person charged with a crime, among other participants (Miller, et al, 1991). The criminal justice system ensures that due process of law is followed.

Court stages
Arrest of the accused is the first step in a state court where the accused is taken in custody to answer felony charges against him or her. It is worth to note that it is the defense attorney who owns the responsibility of determining the kind of charges to be filed against the accused. There are a number of methods that can be used to bring the defendant to court, for instance issuing a warrant by the court to arrest the defendant. A written document may be sent to the defendant requesting him or her to report to the jail. The defendant can be put in custody and be taken to court or some other mechanism may be put in place to ensure that the defendant appears in court voluntarily. The consideration for the method to be used depends on the chances of defendant to flee, seriousness of the crime, and other dangers to the public. The above stage is very tricky incase a written document is written to the defendant requiring him or her to avail himself or herself in court to answer the charges. It is possible that the accused may flee if proper mechanisms are not put in place to track him or her, which may cause great insecurity in the area since the suspect may decide to become more hostile especially to the witnesses if they are the ones who led to the arrest. The powers vested in the attorney such as determining the charges to be filed against the accused may make the attorney to come up with well defined charges (Aiken, 2010).

The constitution process requires that during investigation process of a crime committed by a felony, the investigators should review all facts, interview the witnesses as well as gathering vital evidence against the suspect after which they may request the judge to issue an arrest warrant if they have sufficient evidence. It can be recommended that this is a proper channel for arresting a suspect and the constitution should aim at protecting the suspect until proved guilty.

After the arrest, the defendant is informed of all charges filed against him or her. At this stage, the defendant may be accepted to plead that he or she is not guilty and then the judge may decide if the accused can request a bail or be released on his own recognizance, where the judge may order terms of release such as drug testing. The bail offered depends on the seriousness of the case and possibility of the accused to flee. However this varies from state to state. For example, the city of Fulton court in New York does not accept plea for felony. Under some circumstances, offering a bail to defendants who are known for committing severe crimes with detailed criminal history may give them an opportunity to continue committing crimes. This may still pose a great danger to the society. There is need for the constitution to put into place well defined circumstances under which the defendant may be issued a bail because many defendants have used bail application to get an avenue of fleeing, thereby affecting and delaying the court proceedings.

After arraignment in court, a preliminary hearing for felony is then presented to the judge to decide if there is a genuine cause to believe that the accused stand a trial. At this stage, enough evidence is given to make the judge convinced that the defendant should be put on trial. If the judge realizes that there is enough evidence, he or she issues a holding order and plans are put in place for testifying by witnesses in the presence of the defendant. After preliminary hearing, the judge files the information and plans are put into place to arraign the defendant for the second round. The city of Fulton court also follows the same procedure where it holds preliminary hearings basing on testimony and all evidences presented and eventually the judge decides if a felony has been committed or not. Evidences provided by witnesses give a clear direction to be followed by the judge. The evidence helps in determining the verdict of the accused based on its validity to the case. The main challenge under this stage arises when the witnesses fail to provide sufficient information. It gives the judge hard time to come up with clear basis of proving the defendant guilty and this may see the defendant released by the judge.

The next stage is the grand jury indictment. The grand jury is a body consisting of community members who are given mandate to investigate felony allegations. The process provides the accused a chance to present his or her complaints as well as conducting preliminary examination. However, it is not commonly used. Indictment is information in the felony case listing charges alleged against a defendant. The process of indictment necessitates voting by grand jurors after the judge has presented all allegations in order to ascertain if the accused committed a crime or not depending on the majority votes. Indictment process by jury for a felony leaves a lot to be desired because their decision to accuse the defendant relies on votes of the majority. If the majorities are in favor of jailing the defendant, then there are high chances that he or she will be arrested and vice-versa. It should also be noted that some of the community members given the mandate to investigate allegations laid against the defendant may not be fully equipped with laws regarding felony cases. An individual convicted of a felony often have more restrictions on his or her rights. For instance, they may not be allowed to own a gun or work in military service. The constitution further states that if an individual is accused of a felony charges for three consecutive times he or she can be sentenced to life imprisonment. The constitution need to change this clause by indicating that such criminal should be hanged since they are notorious offenders.

After presentations have been made to the grand jury, the defendant is arraigned on the indictment in superior court where the attorney is given the responsibility to prove whether the defendant is guilty beyond reasonable doubts. This is common in California where cases involving felony or misdemeanor charges are put in the control of felony trial program. After indictment process, pre- trial hearings are conducted where the judge makes decisions on evidence that will be accepted and find out whether the available evidence is enough to enable him or her move to the next step. Jury trial in California for a criminal charged with felony charges is tried within sixty days of filling indictment unless the defendant waives the right. The California law provides an opportunity for the witness to testify for second time if there is need. Proceedings of a felony case may be determined by the attorneys position in the case. It requires a lot of professionalism so as to give the correct information. Incase the attorney intention is to arrest the defendant without giving accurate information, it may raise an alarm in the court as the defendant and his or her defense attorney may disagree with  state attorneys information thereby calling upon the judge to listen to them. Mixed information makes the court proceedings to be postponed by the judge in search for more evidence.

In the process of continuing with the case motions or requests by the defense, prosecution may be made at anytime so that the judge may make a decision on disputed issues and come up with definite evidence that will be forwarded to a jury. However, significant requests are made before a case moves to trial stage. In pre- trial process information from police reports and statements made by witness are provided to defense to indicate if the accused is innocent or guilty. This stage is known as discovery stage which may be followed by issuing a document called a subpoena representing an order by the court requiring a witness to avail themselves in court at the specified time and place when there is need. Absence of witnesses may make the case to be delayed and therefore it is necessary for witnesses to avail themselves in court after receiving information from state attorney. Trying of the accused heavily relies on the available evidence. It is important that the judge deeply looks into all information provided by all participants in order to reach a conclusion that will not be biased to any side. However, absence of key witnesses may make the judge to use the limited information to make a verdict.

The reading of the verdict is yet another vital stage in a felony case. The stage involves the judge making a decision pertaining to the guiltiness or innocence of the accused. In circumstances where the defendant is proved guilty, he or she will be sentenced to punishment determined by the judge, and if he or she is not found guilty, he or she may be set free. In situations where a verdict is not reached, fresh trials may be done.

Before sentencing is done, the judge will carry out pre-sentence investigation and put into considerations various information such as circumstances of the offense, recommendations made by probation department, preparedness of the defendant and his or her background, defendants statement, and other evidences presented by the attorney in order to come up with an appropriate punishment for the defendant. A victim is allowed to communicate to the judge about the punishment he prefers. However in most felony charges, the judge may sentence the defendant to a term in state prison or put the defendant on a grant of probation of up to five years and given period of time on local county jail. The idea of the defendant requesting for the type of punishment to be passed on him or her makes the court system ineffective in dealing with major felony because. It is important that all major offenders are punished accordingly. Similarly, the constitution permits the defendant to plea so that the prosecutor could reduce the charges. For effective protection of the victims interests there is need for appropriate legal representation because effective method of disposing any case depends on the competency of the counsel.

If the defendant has been sentenced to state prison, he or she may be granted a parole before serving full sentence on defined terms which when violated he or she may be arrested and be returned to prison. Granting parole to defendant is important especially after putting into considerations a number of issues like health of the victim, his or her contribution to the economy, among others. At time, this may in turn be risky if the person granted a parole goes out and continues committing more offences privately because this will cause more instability in the society.

The final stage involves appealing by the defendant if he or she feels that the verdict passed was not fair. Appealing is common in both state and federal systems because it enable the Court of Appeal to follow another legal procedure to review the decision reached by an inferior court in a legal matter. The appeal may be done by the defense attorney or defendant. It is essential because it can lead to reversing, affirming or modifying court decisions. Appealing at times may lead to freeing a defendant who is very dangerous to the community. Since the process involves re-listening to the defendant possibly because to him the verdict made was not fair in his conscious, the defendant may use this opportunity to prove him or herself innocent for the second time even if he or she knows very well that he is guilty thus delaying other court proceedings.

There are other changes being made in the criminal justice process most especially in corporate counsel. Recently, contracts are offered to lawyers requiring them to keep records of services handled and the number of proceedings ever handled. However, the lawyers who contract with county corporate counsel has been related these push of change as a push for political ideology rather than providing appropriate criminal defense for defendants. Lawyers are also required to follow all court proceedings and making meetings with his or her client after arraignment so as to explain charges against him or her. The court has set a maximum of thirty felony cases for each defense lawyer so as to solve huge case load problems.

Conclusion
In conclusion, the criminal justice process is complex procedurally, so there is need to ensure that fairness is maintained in courts irregardless of variation in rules that governs criminal procedures in different court systems. The constitutions for different countries require observing due law process in all proceedings against defendants. The criminal justice process for a felony in both state and federal system entails observing all due process under the guidance of the constitutional laws. It is therefore important that all participants abide by the set standards in order to enhance confidence in the court process. For effective protection of the defendant in the entire criminal justice process there is need to consult with competent defense attorney to ensure that the defendant is protected.

Based on the appellate court opinion for Tri-Valley Cares et al. v Department of Energy, 2006 U.S. App LEXIS 25724, the DOE failed to assess the damage a potential terrorist threat could pose to the residents and environment where the biological weapons research laboratory is proposed to be built. The Court held that since the DOE did not consider the effects of a terrorist attack, the EA is inadequate. The court cited a prior ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), which also stated that an analysis of a potential terrorist attack is necessary for the EA. The Court remanded this portion of the lower courts ruling and held that the DOE needed to assess whether a potential terrorist threat would evoke the preparation of an Environmental Impact Statement.

The courts decision to defer to the DOE on the issue of earthquake safety was a reflection of the court giving a lot of weight and credibility to the decisions of the agency, as stipulated in statute 5 U.S.C.  706(2). Based on the opinion, it appears the DOE performed an assessment of the potential threat an earthquake could have to the environment, but no analysis was done with regards to a terrorist threat. Since it appears the DOE actually analyzed the threat an earthquake could pose, the court decided to show deference to that particular aspect of the agencys decision.

The plaintiffs claimed that the DOE failed to provide the documents requested within a timely manner, as required under 5 U.S.C.  552. The Court held that since DOA eventually provided all of the documents requested, the FOIA claim is moot. The Court also cited Papa v. United States, 281 F.3d 1004 because that Court held that as long as the party receives the documents, the timeless of the receipt of the documents will not be litigated. There did not appear to be any acts of bad faith or FOIA violations by the DOE. Therefore, the appellate court affirmed the lower courts decision that the DOEs compliance with FOIA was adequate.

A facility like this is not a good idea for a highly populated, earthquake-prone area near San Francisco. A biological weapons research laboratory is an extremely dangerous facility. Biological weapons can pose great harm to the population and inflict irreparable damage in a fairly short period of time if the necessary safety and security precautions are not followed. The possibility of the facility being a target of a terrorist threat should be a major concern. If terrorists were able to penetrate that facility, they would be able to inflict a lot of damage considering the concentration of people in the area. The fact that the DOE did not perform an analysis of the effects a potential terrorist threat could have on the area raises the question of whether the facility was going to be built with the necessary safety precautions in place to handle that type of threat.

The court may not think it is a good idea to place the facility in that location, but the role of the court is to only assess whether the DOE performed an adequate EA. The court is required to be highly deferential of the decisions made by the DOE. The court does not have the authority to just say no to the plans of the DOE. The court took into consideration the type of facility being built and the demographic and geological factors of the area when determining that the DOE should assess the potential threat of a terrorist attack. The court was able to utilize its authority to require the DOE to perform a more comprehensive assessment of a terrorist threat, but the court would be exceeding its authority and its limited standard of review if it completely deterred the DOEs plans.

Assignment 8-2
Boone County, Campbell County, and Kenton County in Kentucky are nonattainment areas with ozone (8-hour) pollutants. Boone County, Boyd County, Bullitt County, Campbell County, Jefferson County, Kenton County and Lawrence County in Kentucky are nonattainment areas with particulate pollutants greater than 2.5 micrometers.

The Kentucky Division for Air Quality monitors air quality in the state. The director of the division is John S. Lyons. John Lyonss email address is  HYPERLINK mailtojohn.lyonsky.gov john.lyonsky.gov. The office is located at 200 Fair Oaks Lane, 1st Floor, Frankfort, KY 40601 and the telephone number is (502) 564-3999.

Based on the information provided on the Environmental Protection Agency website at, the state implementation plan for Kentucky was last updated on January 10, 2006.

The Kingsford Manufacturing Company located in Metcalfe County in Kentucky has a water discharge permit.

Assignment 8-6
In Massachusetts v. Environmental Protection Agency, 549 U.S. 497, the EPA claimed they did not have the authority under CAA to regulate greenhouse gas emissions. Even though the CAA does not explicitly state that the EPA is authorized to regulate greenhouse gas emissions,  the Supreme Court held that based on the language in the statute, the EPA can regulate emissions of any air pollutant that could present a danger to the population and the environment. According to the Supreme Courts interpretation of legislative intent, there was no indication that Congress wanted to limit the EPAs ability to regulate greenhouse gas emissions.

The particular source of greenhouse gases at issue in this case is the emissions from new motor vehicles. The petitioners were concerned about the danger these types of emissions can inflict on the environment if they are not regulated.

There could be a conflict between the Department of Transportations mileage regulations and the ability of the EPA to regulate emissions, if each department sets different standards for mileage and emission limits for vehicles. Since the goal of the regulations for both agencies is to reduce the gas emissions from vehicles, any potential conflicts could be mitigated if a uniform standard of mileage and emission limits are set. If the two agencies worked together, they could address and deal with any anticipated conflicts. It would also make it easier for manufacturers in the auto industry to create vehicles that will abide by the new guidelines, if the agencies worked together to create a uniform standard.

Assignment 9-1
A permit for a point source may be required to conduct aerial pesticide spraying over a large area. In League of Wilderness DefendersBlue Mountains Biodiversity Project v. Forsgren, 309 F.39 1181 (9th Cir. 2002), the U.S. Forest Service sprayed an aerial pesticide over a national forest to keep moths from killing the trees. The pesticide spread over the trees and also polluted the streams. Clean Water Act 33 U.S.C.  1311(a) defines the discharge of a pollutant as adding pollutants to the water from any point source other than a vessel or floating craft. Under 33 U.S.C.  1362(14), a point source is defined as any discernable conveyance from which pollutants are discharged. Even though the EPA defines activities in a forest as nonpoint sources that do not require a permit, the court held that the EPAs definition was not applicable to this situation. Since the Forest Service polluted the water by discharging the pesticide from an aircraft, the activity constituted a point source and a permit would be needed.

The state of Kentucky does not have one set definition for protected waters but it has definitions for different types of water sources, and the various protection plans utilized to prevent and control water pollution, under Title 401 of the Kentucky Administrative Regulations.

According to 40 CFR  125.58(u), publicly owned treatment works (POTW) means a treatment works owned by a State, municipality, or intermunicipal or interstate agency. 40 CFR  125.58(j) defines industrial discharger as any source of non-domestic pollutants regulated under section 307(b) or (c) of the Clean Water Act which discharges into a POTW. Under 40 CFR  125.58(q), pretreatment means the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW.

Examinership refers to an Irish law process which entails obtaining a court protection in order to help or assist a companys survival. This process allows a company to undergo restructuring after being approved by the countrys high court. Examinership or the protection granted by the Irish court to companies against their creditors makes it possible for a company to continue operating its businesses or carrying out trade as well as attract investment for a specified period of time. To attract the investors, a company is required to make its terms of investment more favourable or attractive.

Examinership process is managed by an examiner appointed by the court although the companys directors still assume its control. The end results of this process usually included a reduction of creditor balances with the companys intangible assets being protected (CRO n. d). During the examinership period, investments are usually in form of short-term investments. Examination or examinership option is only available to insolvent company and its aim is to help the company explore possible opportunities that may guarantee its survival. Examinership or examination was first introduced in the year 1990 by company amendment act during the gulf war which led to the collapse of Goodman group of companies. From its inception or introduction, this act has undergone formal changes in its legislation in the year 1999. Examinership practise has evolved very rapidly owing to its judicial interpretation of provisions in the original legislative and the development of case law.

Examinership
Examinership can be said to be a better alternative to liquidation and receivership. It is however different from liquidation and receivership in a number of ways. Under the law of Ireland, liquidation also known as the winding up of a business refers to the legal death of a company. There are two forms of liquidation it can occur after an order is issued by the court, referred to as official liquidation or liquidation can be voluntary which occurs after shareholders of a company voluntarily winds-up a business or when there is voluntary winding up of a company by the creditors. The most common type of liquidation procedure referred to by the Irish law, while dealing with matters of companys insolvency is the creditors voluntary liquidation. This type of liquidation occurs when the insolvent company initiates the liquidation procedures via its board. The liquidators main interest in this case is of the companys creditors. Members voluntary liquidation on the other hand refers to a mechanism by which the insolvent company via its members and directors makes a decision to liquidate or wind-up a company. While using this approach, members and directors simply sell off all the assets of the company and the surplus is distributed to the shareholders. Court liquidation occurs when a court declares a company insolvent. In this case, the court appoints a liquidator who values and liquidates all the assets of the company. Proceeds are used to pay off debts or the creditors with any surplus being distributed to the shareholders.

Unlike liquidation, receivership is not an initiative of the company but an initiative of its creditors. Receivership usually occurs after a company defaults loan repayment contracts or when a company defaults paying loans and debts. A receiver in such cases is appointed to run the company with his duty being to recover debts or money owned by the company to the creditor. During receivership, a company can resume its trading normally. However, a receiver may sell off some of the companys assets in order to recover the debts owed to the creditors. In such cases, a company may cease operating and may finally liquidate.

Examinership is actually a process or law that protects an entity from liquidation and receivership. Its aim is to ensure that creditors demand do not lead to the winding up of a business with potential for growth when faced with financial difficulties.

Examinership process
As mentioned earlier, examinership process aims at protecting companies from liquidation or receivership and to enable a company restructure its operations to ensure growth. Examinership being a process has several stages. Before a business can be granted examinership, it must be eligible for the same as per the provisions of the company amendment act of the year 1990. Examinership process begins by submission of a petition. The petition (for examiners appointment) may be submitted by the company itself, its directors, a creditor of the company (including a prospective or contingent, inclusive of an employee), or shareholders with over 110th of shares that have voting power. Following the receipt of a petition at the high courts central office, the company automatically becomes under court protection. An examiner for appointment is nominated by the petition and this petition must have a report from a independent accountant. In case this report is not present, the petitioner is required to apply to court for the companys protection. For this purpose, the company amendment act defines an independent accountant is a person who is the companys auditor or who is who has qualifications of being the companys examiner (Stafford  Murray, n. d).

In the independent accountants report, the company officers names and addresses must be given as well as the shadow directors, names of other corporate bodies headed by the companys directors, the companys state of affairs including its liabilities and assets, the accountants opinion on whether asset-liabilities deficiency is satisfactorily accounted for or not including any a statement on whether there is evidence of disappearance of substantial properties not accounted for, his opinion on the survival feasibility prospect of the company and a statement of vital conditions for ensuring survival, his opinion on whether examinership offers a reasonable survival prospect for the company, recommendations on what the strategies he thinks needs to be undertaken for the company to survive including draft proposals, details pertaining to funding requirements during the period of protection and sources of such funds, recommendations on pre-petition liabilities that need to be paid, his opinion pertaining to whether an examiner needs to be assisted by court direction in regard to creditor committee and other matters he may deem relevant. The accounts by the independent accountant must be prepared according to the insolvency statement known as Appointment as Examiner under the Companies (Amendment) Act, 1990 issued in the year 2008 by the The Consultative Committee of the Accountancy Bodies of Ireland (Murphy, n. d). Under this statement, an accountant is constrained if he gives the petition three days following the appointment of a receiver as was the case of Liam Carroll company or (Beauchamps Solicitors, 2009), his reports lacks satisfactory evidence or information in support of the belief that an examiners appointment would save the company, or the impact of significant cumulative caveats andor uncertainties contained in the report expresses an opinion that examiners appointment would be advantageous than liquidation.

Independent accountants report is essential during a petitions presentation although the act does not specifically require it. This report must be signed by the accountant using his name as well as the firm he or she works for. An auditor may cease being independent in cases where a company owes him fees. This situation requires hiring an independent accountant. Also required by the petition include the petitioners name and address, his or her capacity, companys incorporation date, companys registered office, companys paid-up and nominal share capital, and the companys objects. The petition is also required to show that company in question has a likelihood of not paying its debts, the company has no existing resolution for its closure, and no winding-up order has been made for the company (Cotter, Mooney Law Society of Ireland  Cahir, 2003).

The act contains five notification obligations which states that petition notice must be presented to registrar of companies by the petition not later than 3 days after it is presented, an examiner must publish his appointment in 2 daily newspapers within a span of 3days following his appointment, the examiner must publish a notice of his appointment in Iris Oifigiuil within a span of 21days following the appointment, an examiner must furnish the registrar of companies with a copy of the court order 3 days after his appointment and lastly the in cases where a company is put under courts protection, all invoices, business letters issued and order of goods for the company must contain the words In Examination (under the Companies (Amendment) Act 1990 after the companys name (Stafford  Murray, n. d).

Following the presentation of a petition to the high court, the act states that, 70 days from the petitions presentation date, the company in question will be protected. This period can be extended for another 30 days. During this period, creditors are not allowed to take action against the protected company. During this period, closure proceedings are not allowed, a receiver cannot be appointed and the creditors cannot enforce any judgment. Other provisions contained in the company amendment act relates to the examiners powers, the power of the directors, pre-petition debts repayment restrictions and meetings of members and creditors. After protection is granted, a company is expected to resume its normal period before or by the end of the protection period. In case examinership turns out to be unsuccessful, the said company undergoes liquidation.

Several companies have undergone examinership. Modern Timber Homes Company is one of the companies that underwent through this process. Modern Timber Homes Company was established in the year 2004 by an entrepreneur Shaun McColgan. Its businesses revolved around building roof trusses, door systems and timber frames. In the year 2006, the company was awarded for being the best enterprise by the national enterprise awards. However, in June year 2008, the company began experiencing financial constrains after which it sough for protection via examinership. Unfortunately, the company did not recover during the examinership period leading to its liquidation on November 2008.

Conclusion
Examinership is a process that is largely accepted and employed in Ireland. Only a few countries have such protection laws for protecting solvent companies and giving them a chance to recover to avoid liquidation or receivership. Examinership can be beneficial to a company in helping it recover during times of financial constraint. It protects a company from the creditors. However, this process must be initiated on time to avoid denial or constraint like in the case of Liam Carroll Company. However, the period granted for recovery by this law is quite small which makes most examinership to be unsuccessful.

Law is defined as a collection of rules imposed by authority or a body of rules of conduct inherent in human nature and important to the human society. Laws are enforced by the police, supported by courts and prison systems. In addition laws are usually written by legislators like senators or congressmen The legal system of the United States is actually very complex and it breaks down law into several types which include the following constitution, statutes, common law, administrative regulations and decisions, treaties, ordinances and executive orders (Annissimoy, 2009).Law plays a very significant role in society and without it, the society would not be able to function effectively.

Generally, the functions of the law can be summarized into eight as follows maintenance of order, ensuring safety to people in society, establishment of equality, protection of citizens, protection of human rights, encouraging ethical behaviour, setting guidelines and settling disputes. In this study, three fundamental functions will be thoroughly discussed with illustrations of how they affect the society that we live in.

Protection of human rights is one of the major roles of the law. Human rights can best be explained as norms that help to protect all people everywhere from severe political, legal and social abuses (Nickel James, 2006).It is known that in the recent decades, international human rights has had an ever-growing impact on domestic legal systems throughout the world and even on the daily work of domestic judges, prosecutors and lawyers. Humanity yearns for respect, tolerance and protection of rights and freedom and its the role of the law in any given country to ensure that every individual is covered to satisfaction. In addition, there should be recognition of the inherent dignity and of the equal rights of all members of the human family as the foundation of freedom, peace and justice in a country and the world at large. The following are examples to illustrate some areas in which the law comes in to protect and keep human rights human beings are born free and equal in dignity and rights hence they are endowed with reason and conscience. As a result people should act towards each other in a spirit of brotherhood without undermining anyone hence violation of this should be punishable.

The law should ensure that everyone has the right to life and in this case, it should come in handy to prosecute people who carry out abortions because they actually go against this law.Moreover, everyone has the freedom of movement and residence within the borders of each state including the right to leave any country (plus ones own country) and to return without infringing. Besides these, everyone has the right to effective remedy by the competent national tribunals for acts that violate fundamental rights granted to them by the law (Kara, 2009).In the society we live today, many people would be so oppressed in their lives if there was no law governing human rights. For example cases of abortion would be so high if there was no one fighting for the rights of the unborn and there would be no respect of life.

In order to eliminate vices in the society and promote norms, the law has been of essential use in the United States and this is where the function of encouraging ethical behavior comes in. As an example, its an American experience that accountability of public officials is deeply ingrained in the constitution framework of the country to combat corruption. Therefore, the political and civic culture of the United States is based on the notion that public officials should perform their duties in public interest. Given this concern of public service, it becomes a great threat to the citizens if any misconduct is carried out by the public officials .To deal with this, the United States federal government has highly developed ethics infrastructure that includes a variety of specialized agencies which carry out preventive, investigative, and prosecutorial functions. The main aim of these functions is to implement a comprehensive framework of laws which are meant to preserve the integrity and equality of government operations and decision making. In doing so the governments uses the law to strengthen the publics confidence that governments business is carried out with impartiality and integrity (Richter, 2007).Based on this example, this function of the law affects the society we live in a way that if it was not in place, then American citizens would be oppressed by those in power or higher position in the government through corruption or by not working for the interest of the public but for their own selfish or personal gains.

Maintenance of law and order is another important function of the law and this one affects peoples everyday life. In the United States, its every ones right to spend time in public places and even move about without being threatened or disturbed by anyone like robbersthieves and pickpockets and its the duty of the police to ensure so. They should maintain general order and security in public places though patrols or by coming in time when called to scenes of illegal acts. Order and security are also required at borders to prevent and investigate unauthorized border crossings. Together with this, checks are carried out on persons, including their means of transport and their possessions because it helps to track down terrorists and people who would want to get their way in the United States illegally (Murphy, 2006).In the society we live today, there are so many crimes taking place each and every day like robbery with violence hence maintenance of law and order is important to keep people at peace and safe.

In conclusion, the law is very important in society because without it, vices and all kinds of evil will prevail, there will be no respect for humanity and the world as a whole would be in chaos and there will be no justice especially for the less privileged in society.

The judge read his opinion in open Court in the presence of both Attorneys and the Appellant and in studious silence. He began by reciting the grounds of the Appellants appeal. He then set out the factual background of the case before giving reasons for his opinion.

Key points of the Opinion
The Appellant had argued that the trial Court violated his right to present a defense and to compulsory process by excluding a defense expert in memory theory. The Court rejected this argument because the basis of the States accident reconstruction experts was based on the witness accounts which were found more reliable and not on memory theory.

Secondly, the Appellant argued that the trial Court erred by precluding him from admitting evidence that he did not bargain with the prosecution over admissibility of evidence. His severed co-defendant had made a deal with the prosecution to give a statement on condition the statement would not be used against him. The appellant argued the Jury had been led to infer that he also bargained with the prosecution along the same lines. This argument was rejected by the Court for three reasons. Firstly, he had the chance to controvert the alleged inference by presenting evidence at the trial which he neglected to do. Secondly, the Court duly instructed the jury to consider only the evidence before it and it is presumed the jury follows the Courts instructions. Lastly, The Court opined it would be too great a leap of logic to say that the jury would infer the Appellant made a bargain with the prosecution just because his severed co-defendant had done so.

Thirdly, the Appellant had contended that the prosecutors closing speech was improper and it was wrongly admitted at the trial. The Appellant had been particularly irked by the Prosecutors comments that the appellant was afraid of the truth. The Court rejected this argument as well since it was meant to admonish the Appellant to consider the whole evidence before the trial Court rather than emphasize on only part of the evidence as he was trying to do. Further the comment on the Appellant being afraid of the truth was meant to answer the Appellants contention that he had been forced  to cross the centre line by another person who was not at the trial.

Fourthly, the Appellant had argued the Prosecutor was guilty of reversible misconduct for suggesting to the jury that they should imagine the possible line of defense of the severed co-defendant. This, the Appellant argued, amounted to telling the jury to consider evidence which was not before it. In the same vein the Appellant strongly objected to the Prosecutors act of emphasizing that there was a risk that the death of victim might go unpunished.The Appellant reasoned this amounted to pressurizing the jury to find the Appellant guilty irrespective of the facts. Te Court similarly rejected this line of argument as the Prosecutors comments were geared towards answering the Appellants defense that he was not to blame and that it was the severed co-defendant who led him to cross the center line thereby causing the accident.

Lastly, the Appellant had argued the Court should apply the doctrine of accumulation of errors in his favor and order a reversal. The Court rejected this argument as it could not find a single error on the part of the trial Court.

Having rejected the Appellants grounds of appeal, the Court affirmed the conviction of the trial Court.

Personal comments
This case offers an invaluable lesson especially on the constitutional guarantee of the right to silence and its application in trials. The attempt by the Appellant to stretch its application to such heady heights as in this case opens the mind of a Court room lawyer in a special way as to the possibilities and limitations of the guarantee.

In the last few decades, one of the most vibrant sectors in both developed and developing countries is the drug sector. This has led to swift growth of informal trade in the sector. War on drugs has been a litigious issue since its inauguration by the government of the United States. There has been controversy on the enacted laws and their effectiveness. Several instigators have put forth arguments concerning the authenticity and indiscretion of war on drugs as far as the laws are concerned.

Some factions allege that the war on drugs has been effective on the grounds that it has hoarded the communities and families making them more productive and improving social and moral conditions.
The drug act control policy whose objective is to institute policies to exterminate the use of illegitimate drug use has flunk in its objectives. Hager (2007) in his speech on The drug war and the constitution quoted Alexander Hamilton who had asserted that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. (p. 43)

As far as drugs are concerned there has been disparity in the sense that certain drugs have been declared illegal while others that are equally detrimental are legal. An example of this is the consumption of tobacco and alcohol that have few restrictions despite them being harmful to peoples health and more addictive than other drugs like cocaine. Hager goes on to say that  to render such drugs as alcohol and tobacco illicit then new powers must be granted to the federal government of which they have never been capitulated  by neither the state nor the people. He also bases his argument about marijuana on scientific grounds claiming that there has never been evidence that marijuana leads to disruptive and vicious behavior thus its prohibition is based on defective evidence. There is no enough justification to render heroine and cocaine as illicit if at all the consumption of alcohol and tobacco is justified.

In Gonzales V. Raich, case demonstrated clearly that the anti-drug law was futile and reprehensible. The United States Supreme Court decreed that under the commerce clause of the United States constitution it stipulated that congress had the right to interdict the use of cannabis even where states approve its use for therapeutic rationale. Cannabis is a drug known for increasing appetite and counters nausea among HIV and chemotherapy patients. The federalism argument proves controversy in a similar case impeding with their right to produce and use of medical marijuana arguing that the Act was not constitutional as applied to their demeanor.

Laws against drugs are ineffective on the grounds of racial biasness contiguous to minority. Although drug free zone laws are intended to present a secure haven for youths, this is not the case as the laws contribute to high levels of racial discrepancy in the use of internment and subject people of color to rigid punishment than whites engaged in the same deportment. Drug Policy News showed that since the drug free zone laws were implemented cases of arrests in relation to that have augmented instead of decreasing. A statement by Roseanne Scotti, Director of the drug policy alliance, New Jersey brings out the fact that the laws have not been up to snuff. According to her

Drug-free zone laws across the country fail miserably at their intended goal of protecting youth from drug activity. What the laws have succeeded in doing, however, is to create an intrinsically unfair system with different penalties for the same crime, with the severity of the penalty being based on geography and, ultimately, on race.

There is also a clear incongruity between religion and anti drug law which renders it ineffective. Drugs like peyote and ayahuasca are used by most people with religious motives and are actually permissible in the United States for Native American church. It is absurd beyond reasonable doubt in the sense that, nothing entails that accountable and earnest exercise of freedom of religion, requires official affiliation with an established denomination.

Critics show that though enactment of drug laws is meant to reduce the rate of drug abuse, there are contrary evidence to this as it has infact led to the increase of the same .Andreas Von Bulow, a lawyer and a German writer forfeits that almost every grave crime of terrorism is funded by illicit drugs but he differs that embargo can diminish the phenomena. According to Levine (n.d) stated in his relation to his undercover work that people counted war on drugs to increase market price as they weed out inefficient dealers. They found U.S interdiction effort as laughable and the only thing they feared is effective demand for a reduction program.

Conclusion
Clearly as much as the anti-drugs laws are there and has benefited many, it is also evident that they have failed to convey their intent thus rendering them ineffectual. Certain laws have to be amended to strengthen the anti-drug laws that have been manipulated.