Strict Liability

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.

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.

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.

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.

Appealed From SJC for Suffolk County, Justice Robert J. Cordy on September 5, 2007

Grand Cayman Island

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!

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.

Personal Jurisdiction

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.

The most important thing to understand is that it is legal process, and with any legal process there are protections built in. This is a worldwide phenomenon, legal systems which protect both spouses from abuse of any kind, be it financial, professional or personal.

Many countries have courts in place that specialize in divorce. Judges who preside over these courts are experts in helping spouses and families sort out complicated arrangements. They can help sort out issues such a child support and spousal support as well as issues involving the separation of all assets that work to both parties advantage.

There are also lawyers who specialize in divorce. They know the ins and outs of the current laws and can help represent a spouse’s interests.

There are new methods available to those who need to legally separate. Legal options like arbitration, which are cheaper and less time consuming, have become popular with couples.

It is important to keep a cool head while plowing through a divorce and to have some small amount of faith in the government systems in place to help you through the difficult process.