06 Nov 11 When is Strict Liability applied in US Criminal Law?
Strict Liability is usually not something you hear of when referring to criminal law matters. However, that is because most people are more familiar with strict liability as it pertains to lawsuits filed in regards to defective products. Strict liability in criminal law actually adheres to the same doctrine—a person is responsible for any damages or harm their actions may have caused regardless of any intention to do harm or cause damage.
To understand strict liability as it pertains to criminal law, we must first recognize that “intent” is the degree by which the law measures culpability in most criminal acts.
Intention to commit a criminal act
Every criminal act involves some level of mens rea (the mental state of the person committing the act). Justice Holmes’s statement, “Even a dog distinguishes between being stumbled over and being kicked,” applies a very easy form of reference when thinking about mens rea. The intent of the offender is the most important element in criminal law. Did the offender intend to kick the dog, or did he just happen to trip right where the dog lay? The answer can only be determined if we know or believe to know the thought process of the individual—and therein often lies the difficulty in establishing guilt.
However, strict liability in criminal law nullifies having to know intent, and makes certain acts criminal regardless of whether there was intent on the part of the offender. Such laws where strict liability exists are as simple as a parking ticket. The prosecutor does not need to prove that he intended to park in the wrong place, it only matters that he did. Another law whereby strict liability is adopted is selling liquor to an underage person (minor). Whether she intended to sell liquor to an underage person or knew the person was a minor does not matter. Only that she, in fact, did sell liquor to a person not of legal age. Therefore, it is not an adequate defense for someone to say, “I didn’t know”—whether one knows or did not is irrelevant. In more serious criminal offenses such as statutory rape — strict liability is the norm. The perpetrator’s intent does not come into question— only that the child was of a certain age and because the offender not had knowledge of the child’s age is not justification for committing such an offense.
12 Jul 10 The Green Portfolio Project
The Green Portfolio Program was created in 2008 to try and reduce waste of products and energy by the company Kohlberg Kravis Robers & Co. (KKR). Ken Mehlman began this project and it had early success leading to breakthroughs into markets outside of the United States. Currently two companies are participating in the program outside the U.S. which makes it a Global portfolio.
This program has only been running for two years but has already saved approximately 16 million dollars. The first companies to be involved with Ken Mehlman and KKR were Sealy, U.S. Foodservice, and Primedia. These trailblazing companies accumulated the over 16 million in savings which sparked the interest of many more companies.
To join the program this year will be companies such as: Dollar General, SunGard Data Systems, Biomet Inc., and Accelent Inc. The way the businesses are saving money is by eliminating unnecessary chemical use, paper use, energy use, and water consumption. These areas not only decrease the amount of waste the impact of the environment but also save the companies a great deal of money on their bottom lines. The financial incentives alone were enough to get more companies on board with the Green Portfolio Project. These companies can now market themselves as environmentally friendly businesses with a strong interest is conserving resources and eliminating waste.
Ken Mehlman is the spokesperson for the organization KKR and is a strong leader when it comes to good business and what is good for the environment. He believes there is a connection between how the environment is doing and how the business is doing. One cannot truly succeed while the other is directly failing as a result. This philosophy appears to be gaining popularity and support as new metrics of measurement are being made and results are being published.
The news of how the company performed in 2009 should be coming out fairly soon. With the addition of the several other companies this year the savings figure is rumored to be even greater than in 2008. It is unfathomable to think that a company that spends 20% of its portfolio on the green portfolio project is seeing such a high return on their investment. It truly pays to factor the environment into business decisions. What’s good for mother earth seems to be good for business ventures.
19 May 10 Criminal defenses: insanity of mental disorder
The idea of using a plea of insanity as a legal defense in a criminal case is not new. The penal code written in France more than 200 years ago said,in part,”There has been no offense is the accused person was insane or was compelled by a force they could not resist”. So,what do they mean by “a force they could not resist”? It could be interpreted as meaning drug addiction. Suppose a man is addicted to drugs,so he robs a bank to get money so he can buy more drugs. His addiction compelled him to rob the bank. This concept laid the foundation for methadone treatment programs because it implied that drug addicts were not really guilty of a crime,they were compelled to commit criminal acts by the drugs they took. So,today a judge may order a drug addict to participate in a methadone treatment program,instead of sending him to prison.
Although a drug addict may be compelled by his addiction,the legal concept of insanity does not require the attorney to prove that mental illness compelled the insane person to do anything. The idea that mental illness compels you to do something is not a valid legal concept. It’s like saying a rapist was compelled by his own sexual desires,so he had to rape a woman. Rape is not legally justified even if you claim your sexual desired were overwhelming. It could be demonstrated that millions of men experience sexual desires,but they don’t go out and rape women. What we’re really talking about here is diminished capacity. The court has to consider the mental capacity of the accused person. Did he have enough metal capacity to form the intent to commit a criminal act?
Mental capacity means intelligence. It’s not a measure of morality. Often,people say that mental capacity means the capacity means tell the difference between right and wrong. That standard implies the capacity to make a moral decision. Is it morally right or morally wrong to rape a woman? Is it morally right or morally wrong to rob a bank? Mental capacity as a legal standard does not require any expression of morality,or any understanding of morality. The standard is based on a person’s capacity to understand whether the act is illegal or not. So,if you understand it’s illegal to rape a woman,or it’s illegal to rob a bank,you are not insane,according to this legal standard.
22 Apr 10 What Liability insurance provides
Liability insurance provides coverage against harm that you have caused to a third party, such as personal injuries, property damage or bad business advice. Find out the different types of liability insurance, including auto liability insurance and business liability insurance, with information from a licensed insurance salesperson in this free video on insurance.
07 Feb 10 How To Obtain a Divorce in the United States
When people get married, they do not typically anticipate their marriage will end in divorce. However, about 50% of marriages end in divorce. Although the specific rules surrounding divorce vary by state, in general there are certain procedures that must be followed in order to obtain a divorce.
First, one party must file a petition for divorce with the proper court, meaning a court having jurisdiction over the matter. Typically, courts having jurisdiction to hear the divorce will include the state in which the marriage took place, the state in which the filing spouse resides and the state in which the non-filing spouse resides. The divorce petition must also be personally served on the non-filing spouse.
From that point the process is mainly in the hands of the divorcing spouses (and their attorneys) to work out a settlement which will involve a complete division of all marital assets, any custody arrangements (should be there children from the marriage) and any child and/or spousal support. Some states require a custody mediation to help determine the best custody arrangement, resulting in a recommendation the mediator will make to the court.
During this process, the parties will attend one or more court hearings so the judge can check in on the parties and find out the status of negotiations and whether or not the matter will likely be resolved through a settlement or if the divorce will proceed to trial.
There are two ways that a divorce is ultimately finalized. The first and most common way is through a settlement agreement, where the parties enter into an agreement that addresses all issues that must be resolved in the divorce (i.e., custody, spousal support, child support, division of all marital assets). When a settlement is reached, a written settlement agreement is drafted and signed by both parties. This agreement is then filed with the court. The judge will approve it and then issue an order decreeing that the parties are officially divorced.
If a settlement is not reached, then the divorce will proceed to trial where a final resolution will be decided by the judge. After hearing testimony and taking in other evidence, the judge will decide what child and spousal support will be paid, determine custody of any children and will make a determination as far as the division of all marital assets. He will then issue a judgement and order which will constitute the official divorce.
It is important to note that most states have a waiting period that must expire before a divorce will be deemed final and official. The purpose is to give the couple time to reconsider and reconcile. The waiting period length varies from state to state. The waiting time begins upon service of the divorce petition. Some divorces are not resolved by the time that period expires, while others are so amicable that the only left to do is wait out that time period so that the divorce is official.
24 Jan 10 Arbitration in the commercial law
What we have here is failure to communicate. Great line from an old Paul Newman movie. In some respects the words still apply today in family and commercial law arbitration. But in case you’ve been stranded on some desert island eating raw fish and coconuts and are not familiar with the word, arbitration is basically a process between two or more parties to help solve a particular problem with a few rules and guidelines tossed in the pot.
Not many relish the thought of spending days – even weeks sitting around a courthouse waiting for the judge to slam his gavel down and make decisions. Hence: Arbitration in the commercial law. Those who opt for the option to have an impartial third party with no axe to grind decide who wins and loses must agree in advance that no matter the conclusion, they will abide by the decision. The arbitrator could be a man, woman or group.
Settling disputes between commercial businesses or partners is now fairly common and hopefully settled out of court. Each party presents his/her side of the story to the arbitrator and, if handled properly, using arbitration not only avoids a court decision and high costs, but is quick and far more private for the commercial parties involved. The downside is the arbitration guidelines can be anomalous from court action, and the outcome less predictable when a decision is made by a judge.
Back in the old days there was no need for a court of law or commercial arbitration process. A older man dressed in a $1,000 doublebreasted dark suit, shiney black $500 dollar pointed shoes with tassels, a black fedora hat and smoking a fat cigar, would appear on the scene, make the decision in 60 seconds, and say: when I want your advice, I’ll give it to you.
Today it’s used in disputes between banks, brokerage firms, real estate companies, and especially professional sports teams to settle disagreements. California real estate contracts contain a clause that requires all disputes be resolved via commercial arbitration. Labor, uninsured motorists, and book/music publications use this form of arbitration where all must agree on a neutral third party, present their case, and await the decision. Although the arbitration process may be acrimonious at times, it still is the paragon of today’s society, and the only real solution to solving the he/she/they said headaches.
22 Nov 09 Massachusetts Supreme Judicial Court: the Family Court Jurisdiction
The famous Mark Cimini, challenges the jurisdiction of the Probate and Family Court over certain family law matters in Massachusetts Supreme Judicial Court.
Appealed From SJC for Suffolk County, Justice Robert J. Cordy on September 5, 2007
04 Oct 09 Taxation Law: the Luxury of Paying No Taxes in Grand Cayman Island
Grand Cayman Island is part of the British Overseas Territories, which are in the western Caribbean Sea. There are a variety of islands located in the British Territories. The other islands in the area are Cayman Brac and Little Cayman. These islands are renowned in the world for being a financial fortress for business.
Did you know that the Cayman Islands have more businesses registered in its location than people living there? Here you can get an idea for the popularity of Grand Cayman as a financial haven.
For stocks, there is no capital gains tax, which makes Grand Cayman Island attractive for investors. No matter how much you earn on an investment, you do not owe any taxes to the government. The Cayman Islands Monetary Authority oversees all hedge funds, investments, corporate governance activities, and structured finance activities in the island.
With $1.5 trillion dollars in banking liabilities, Grand Cayman is the fifth-largest place for banking in the world. Over 280 banks are located in the Cayman Islands. 19 of the banks are allowed to conduct banking activities with Cayman based clients, while the other banks are only allowed to conduct business on an international scale with certain transactions.
Hedge funds in particular experience ridiculously large growth rates in the Cayman Islands. In 1993, the Mutual Funds Law was passed which helped position the Cayman Islands as a home to the greatest number of hedge funds in the world. In 2008, over 10,000 hedge fund registrations were passed in the Cayman Islands. That same year, these hedge funds experienced a 12% growth rate.
While the Cayman Islands has come under pressure for its tax practices, they consistently are able to regulate their own financial practices without outside intrusion. In 2005, the International Monetary Fund even released a report commending the Cayman Islands for its strong attention to its tax practices. In 2009, President Barack Obama condemned the Cayman Islands for being a shelter for relaxed tax practices, but the Cayman Islands responded the next day with a letter detailing all of its tax plans.
The government in the Cayman Islands receives its income typically through indirect taxation. There are no taxes on products sold in the island. There is a 20% duty tax on imported products into the island. There is also a 10% tax fee on tourists accommodations and up to a 40% tax on automobiles.
Overall, Grand Cayman is the ultimate place to live for people in the financial industry, since they will always have a job and no taxes!
17 Sep 09 Your Business And The Tax You Pay
A cost of doing business is paying tax. If you own your own small business, you likely hate tax time when it is time to write out a big check to the IRS for what profit you have made over that course of the year. There are many ways that you can enhance your business and often cut the amount of taxes that you do owe if you pay attention to the details and get a professional to help you.
Hire a tax professional to help you to look for ways to cut your tax bill. You may be able to get deductions for repairs, for the various investments that you had to make in the business and even for daily operating expenses. You can often get these deductions no matter if your business is in your home or if it is outside the home. Working with a professional can also help you to pinpoint how to cut taxes all year long by the methods that you report and what you need to report.
There is no doubt that you will have to pay taxes on your business, but paying less may be an option for you. Get started by working with a skilled tax professional today.
28 Aug 09 Subject Matter Jurisdiction versus Personal Jurisdiction
Personal Jurisdiction and Subject Matter Jurisdiction are legal terms-of-art that have tormented law students for hundreds of years. Conceptually, the authority of a court is something that most people don’t think about. For the average citizen, if you get a ticket that says to be at court, you show up. You don’t care whether the court you are going to is the right one for the offense and usually don’t question the authority of the court over you.
Jurisdiction is easier to think about if you put it into a more familiar context. Most people watch movies and televisions shows where the local law enforcement officers (LEO’s) are telling the federal officers from the FBI, CIA, or MIB (Men in Black), that they will not be, “putting up with that juris-my-diction crap.” Jurisdiction is what gives the local police authority over a particular case; and what gives the federal government authority over the LEO’s in some cases.
The legal community (as opposed to the law enforcement community) is much the same. As there are different law enforcement agencies comprising: transit security, city police, county sheriff, Federal agencies; there are different court systems comprising: Administrative hearing boards, Municipal/County District Court, Municipal/County Superior Court, and the Federal Courts.
The determination of which court hears what case is determined by Subject Matter Jurisdiction. Federal courts only have a “limited” subject matter jurisdiction. It can hear only certain kinds of cases, such as those that involve a federal crime or when there is diversity of citizenship. State courts have “general” subject matter jurisdiction and can hear most any case presented in the state. These general jurisdiction courts are further broken down by city/county lines, amount in controversy limits, and subject matter.
Personal jurisdiction is radically different. Personal jurisdiction concerns the circumstances under which a court has authority to make decisions binding on a particular party. It would be like forcing the LEO’s or the Feds to prove they can arrest you! In cop shows, this is easy—the bad-guy commits a crime, therefore jurisdiction exists to arrest said bad-guy. However, a court cannot hear a case unless it has established “personal” or “territorial” jurisdiction over the parties to a suit. A court may only have personal jurisdiction over a Defendant if it can establish a valid connection or nexus between the Defendant and a state; such as domicile, conducting business, or committing a crime.
