Lesson I March 3, 2015
The slogan of our class: TEAM
Together
Everyone
Achieves
More
To be on the same page?
Framework=base
Civil society and the law
keeps us bound together
learners vs users
goal is confluency….
R&D= RESEARCH AND DEVELOPMENT
IP= INTELLECTUAL PROPERTY
ADR = ALTERNATIVE DISPUTE
RESOLUTION
reluctance
dress rehearsal
IS LITIGATION IN ITALY A LENGTHLY
PROCESS?
Language is the key…
Language is the link
language binds us..Al Gore, Former VP of the USA,
Newt Gingrich, former Speaker of the House during the
Clinton and Bush administrations
Civil society, rules, religions, family, protocol
Legal terminology…
ADR and Mediation (alternatives to LITIGATION)
Youtube video…www.youtube.com
David Crystal, English is Power
A language is powerful because of the people who speak it.
English is not an easy language, nor is it user friendly.
Money is power…..
English was at the right place at the right time,.
March 5, 2015 Lesson II
Rescind = to cancel
Lawyers
Barristers
Attorneys
Counsel= legal counsel
Counselor
Solicitor
Money markets “sewn up”
Plaintiff
To Advise vs advice
A piece of advice vs some advice
Lesson III March 10 2015
PROCEDURAL FRAMEWORK
TO BE BONDED
READ ARTICLE I..TO YOURSELVES
THERE IS A LOT AT STAKE= AT RISK
WE ABIDE BY THE RULES=
WE ADHERE TO THE RULES=
WE STICK TO THE RULES
VAST= BROAD RANGE
COPE WITH CHANGES = DEAL WITH CHANGES= AFFRONT CHANGE
Lesson IV March 12, 2015
Waive …..waiver vs to wave
Lawyers must have a 6th sense
2nd guessing
360° degree control of what might happen
Is evolving = is turning into
1000
11,000
The data maps details
The data mapping=NO
Is focused on= to pay attention to
Nine vs 10
Ground-breaking research
“
“
policy
Homework lesson 3 to begin pages Exercise 1 -3
Lesson V March 17, 2015
Hereto=adhering to this document
Accountability
Veto power
To veto a bill
Lesson VI March 19, 2015
Defendant vs plaintiff
If= whether
Burgled
Extortion
Adultery
Lesson VII March 24, 2015
Homework end of Lesson 4
Paragraphs with crimes due using past and past participles in class
Discussion of approach to collecting thoughts: central is main idea then outside that we have our
supporting arguments or ideas and then we prioritize them….
Unit 5 quote…
UK High Court of Justice with the Chancery and Family division is governed by Civil Procedure
Rules. They have jurisdiction over matters concerning:
A. CONTRACT LAW
B. PERSONAL INJURY
C. GENERAL NEGLIGENCE CASES
D. SUPERVISORY COURT
1. Damages WHAT ARE DAMAGES? Personal injury, negligence, breach of contract and
slander= defamation = libel= false accusation
How does the court quantify these?
2. Debt (non-payment) defaulting on debts or what is owed
3. Possession of land or property
Chancery Division oversees: business and property disputes, competition, general chancery
claims, IP claims, insolvency claims, trust claims, probate claims, appeals from lower court
to the higher court…
Family Division of the High Court of Justice oversees: matrimonial affairs (defined as
personal human matters) such as, divorce probate, children, medical and pre-nup agreements.
They also treat matters regarding wardship…definition…..
Exclusive jurisdiction…what does it mean
Criminal Court under the Crown Court> serious crimes like murder, rape and robbery
Judge and a 12 member jury
3 tiers or levels page 47
= PHA (Protection from Harassment Act of 1997)
CPA = for treating serious offences like, murder, manslaughter, assault with bodily harm,
kidnapping, false imprisonment, rape….
Probate….when does it occur?
What is an executor?
How can we save money?
Who needs to probate an estate or a will?
Lesson VIII March 26, 2015
Talked about the forms filled out …page 10 of the Handbook
Many want to be lawyers: environmental protection, anti-mafia, etc.
LAWYER spelling correct
LAYER is a brick layer or a mason
One wrote about being happy
Some want to be judges
Superlative use of adjectives: great, successful, important
Many more women than men
Talked about the crime stories Ss wrote and the genre …..Great imagination….
Family matters, kidnapping, theft, burglaries, assinations, robberies, one malpractice
What is MEDICAL MALPRACTICE????
English was ok, writing + calligraphy was difficult to understand
Most had a happy ending, thief was arrested or caught, property returned, criminal
was sentenced to prison…..few criminals “at large”
Appeals court
a. 3 high courts: chancery Queens Bench and Family
b. County courts of England and Wales
c. Employment appeals trib
Immigration trib
Lands Trib
Social Security Trib
Supreme Court …(House of Commons and House of Lords)
Deals with Parliamental Affairs
a. Make laws
b. Check gov’t work and scrutinize debates on current issues
c. Tax bills (check and balance system) see diagram on page 29!
House of commons …publically elected officials
MEMBERS OF THE COMMONS= Called MPs the majority forms the government
Prime Minister and Chancellor are principal figures and decide financial bills and new taxes
Lords can consider but not block or amend as they have no veto power
ONLY THE MONARCH CAN DO THIS…!
House of Lords = 2nd chamber that compliments the House of Commons
Makes laws and hold gov’t to account…what does this mean? Page 52
The House of Lords are a group of appointed (not elected) group of experts from many fields.
A bill….proposed new law or change (amendment)
If both Houses agree- it becomes and Act of Parliament (see diagram on page 29)
Future forms and exercises in class
Explanation of Probate page 54 and 55. Answered questions on page 56 in class.
ESTRANGED FROM A LEGAL SPOUSE = not legally separated
Lesson IX April 31, 2015
Quote by Robert Kennedy
Barrister vs solicitor…compare mandate or functions of the two
What is “right of audience”? Is it unchallenged?
What is a “brief”?
Legal profession in the US
Labor contract for legal firm internship for training
Homework Exercises page 60-63
Lesson X….April 2, 2015
Review Unit 6 THE LEGAL PROFESSION<EXERCISES 61 + 62…HOMEWORK
Remember 1st lesson where language was the link to the legal system?
Here we see criminal law is central link to the relationship between law and society.
3 stages: PRE-TRIAL, TRIAL AND POST-TRIAL
Questions page 68……Legal English vocabulary
Steps are: a. report case to authorities or agency
b. investigative stage
c. trial stage
Police or agency will act when a crime has been reported. The have: (1) the power to stop the
search; (2) the power to arrest; (3) the power to detain; (4) the power to question; and, (5) the power
to enter and search premises.
UK CPS= firm, fair = use fairness (no bias), effective and efficient, transparent,
Values = ideals, ethics, beliefs, etc., respect, honest, independency, strive for
excellence, honesty openness…..TRANSPARENCY…FAIRNESS
Public interest and prospects for a conviction…..
Video of Alison Saunders director of CPS ..the principal prosecuting authority of UK
Used many adjectives to describe the CPS and its duties, which are to
advise police, review cases, determine charges, prepare cases x court, and
present cases in court
4 classes of criminal procedures: summary, either way, indictable or both…these determine how a
case is tried and proceeds through the court’s criminal justice system
CPS had 2 criteria to prosecute…. Sufficient evidence for a realistic prospect of a conviction and
public interest to prosecute the case
Restorative justice system…describe it…
(1) the power to stop the search; (2) the power to arrest; (3) the power to detain; (4) the power to
question; and, (5) the power to enter and search premises.
EXERCISE FOR HOMEWORK:
Describe the appointment and training of lawyers and judges in Italy’s
legal system. Use a diagram to show the different levels.
Also look at Units 7,8 +9
Lesson 11 ….. April, 9, 2015
Restorative Justice System
A. Victims of Adult offenders
B. Juvenile offenders
How does Italy cope with juvenile offenders? Page 79
Units 7, 8 and 9 Discussion of Knox-Sollecito Case
Did the verdict become tainted by the media hype surrounding the case?
Was the case provoked, decision polarized, because of international or anti-American feeling?
International fame of the case….extradition? Italy, Ivory Coast, UK and USA.
Media used phrases like: KAFKA-esque Italian court system and proceedings..not among the most
distinguished and Fellini DNA testing and courtroom behavior….
Video with Carlo Della Vedova after sentencing before Italian supreme court’s acquittal
https://www.youtube.com/watch?v=8GLFcGVeLdU
Press and media articles that comment on the case
Amanda Knox verdict Economist Article “INNOCENTE”
http://www.economist.com/node/21647486/print
http://www.theglobeandmail.com/news/news-video/video-lawyer-calls-amanda-knox-a-shedevil/article607749/
http://www.bu.edu/law/central/jd/organizations/journals/international/volume30n1/documents/note_mi
rabella.pdf
Page 95 modal verb explanation…and exercises page 96 in class
Page 97+ 98 exercises in class
LESSON 12, April 14, 2015
Alice in Wonderland Courtroom scene video
https://www.youtube.com/watch?v=t1tJ5bzq2DM
SHOWS THE ABSURDITIES OF HER EXAGERATED “DREAM -STATE”
EXPERIENCES.
SHE IS THINKING THAT SINCE SHE HAS ENTERED A COURTROOM
ALL WILL BE JUST, FAIR AND, WELL SOMEWHAT NORMAL AGAIN….
BUT HAVOC PREVAILS AND THE COURTROOM IS ANYTHING BUT A SERIOUS
“ MATTER” WHERE SHE IS THE ACCUSED PARTY
Summary Text* Alice arrives in the courtroom and finds the King and Queen of Hearts on
their thrones, surrounded by a large crowd of animals and the whole deck of cards. The Knave lies
chained before them. Alice surveys the room and takes great pleasure in identifying the various
features of a court of law that she has read about. Alice notices that all of the jurors are writing
down their own names, which the Gryphon explains that they all must do lest they forget their
names before the trial’s end. Alice calls the jurors “stupid things,” and the jurors immediately write
this down. She snatches a squeaking pencil out of the hand of the juror Bill, last seen as the servant
of the White Rabbit, and he promptly begins writing with his finger.
The White Rabbit, serving the court as a herald, reads the accusation that the Knave of Hearts has
stolen the Queen’s tarts. The Mad Hatter comes forth as the first witness, bearing a teacup and a
piece of bread and butter. The King bids the Hatter remove his hat, but the Hatter refuses,
explaining that he does not own the hats, he merely sells them. As Alice watches, she finds that she
has started to grow again. The Dormouse becomes upset by Alice’s growth and storms off to the
other side of the court to avoid being crushed by Alice. The Hatter delivers a bungled testimony,
nervously suggesting that the March Hare said something. Before he can relate what the March
Hare said, the Hare denies that he said something. The Hatter tries to explain that the Dormouse
said something, but the Dormouse doesn’t reply because he has fallen fast asleep.
A juror asks the Hatter what it was the Dormouse said, but the Hatter cannot remember. The King
insults the Hatter’s stupidity, which prompts a guinea pig to start cheering. The guinea pig is
immediately “suppressed” by being tied up in a bag and sat on. Once the guinea pig has been
suppressed, the King commands the Hatter to stand down. The Hatter replies that he can stand no
lower, so the King bids him sit down. Another guinea pig begins cheering and is similarly
suppressed. Finally, the King permits the Hatter to leave, and he sneaks off before the Queen has
time to order one of the officers to chop off his head.
The King calls the Cook as the next witness. The King asks her what the tarts are made of, and the
Cook replies “Pepper.” The Dormouse sleepily calls out the word “treacle,” and the courtroom flies
into chaos. Amidst the frenzy, the Cook disappears. The King demands that the next witness be
called, and the White Rabbit calls Alice to the stand.
Analysis
Alice has failed to find meaning in Wonderland but hopes that she will find logic and order in the
trial. She sees the Wonderland court as a true court of justice, viewing the institution of law as a
refuge of sanity in which an objective and undeniable truth will prevail. She excitedly identifies the
various components of a court of law, such as the jury box and the jurors. The similarities of the
Wonderland court to an aboveground court reinforce Alice’s faith in the sanctity of law. Alice takes
great pleasure in recognizing the elements of a courtroom given the degree to which her
expectations and perceptions have been confounded throughout her travels. Alice desires meaning
and order and the trial becomes to the last opportunity to realize her need for coherence and sanity.
Alice quickly realizes that in a world without meaning, the search for truth and order can only be a
sham. The King repeatedly demands a verdict but one never materializes. The trial mocks the legal
process. The importance of trivial points supersedes core issues of right and wrong, innocence and
guilt. The absurdity of the legal trial recalls the ridiculous Caucus Race, in which pointless activity
serves as a means to arrive at conclusions that have nothing to do with the intended purposes of the
institutions. Just as the Caucus Race has no clear winner, the trial fails to determine the culpability
of the Knave. Several critics have pointed out that the concept of law itself, rather than the Knave,
is on trial in this scene. As with the Caucus Race, Carroll indicts the legal system in Wonderland as
a way of critiquing the legal system in our own world.
*SOURCE: WWW.SPARKNOTES.COM/LIT/ALICE/SECTION11.RHTML
LESSON 10 FROM OUR HANDBOOK…..
CIVIL LAW (1)
Lesson 13
April 16, 2015
Comments on the comparisons of the legal profession assignments you handed in
LAWYER SPELLING ….REMEMBER THE “w”
Italy’s legal system
Italian legal system
To be a lawyer vs to become a lawyer
Steps to become a lawyer in Italy….vs steps to qualify for the profession vs to become a practicing
lawyer
Requisites vs pre-requisites to prepare for vs to be prepared for ……
Apply to a university vs study law vs get a degree in law vs get a degree in…… vs graduate from
law school vs graduate with a degree in law
Study for five years vs a five-year degree program
Italian state exam…written and oral parts to the exam
Sit for an exam vs sit for the state exam
Pass an exam vs fail an exam
Do an apprenticeship/internship/practicum/ train in or do training in a legal firm
Certification or documentation of proof from the law firm
Enablement/to swear/ to attend a swearing in ceremony/ to take an oath
To become a member of the official Lawyer’s register vs to practice law/ to enrol in the
professional order of lawyers
To work for a law firm vs to work for an international law firm vs to have a legal practice
Types of law:
Civil
Penal
Fiscal/tax/financial
Administrative
Labour
Criminal
Contract
Military
Commercial
IT (Information Technology)
Internet Fraud
Copywrite
Correct verb use in academic, legal, business and other uses:
Generally we use 'do' for activities like academics, chores or daily tasks, ex. do housework, do the
shopping, do research, etc. and we use make for processes like make shoes, make a bed, make a
cake…etc.
Unfortunately, there are many exceptions…..AND THEY JUST GET LEARNED THROUGH
PRACTICE.
SOME EXAMPLES ARE:
Academics:
Do an exam
Do homework
Do research
Do an exercise
Do an exam
Do a job
Do harm
Do business
Do a favour (do someone a favour)
do the dishes
do housework
do good
do harm
do your best
do a favor
do 50 mph
do business
do your duty
do your hair
do a deed
do right / wrong
do enough
do Berlin, do Singapore, do St. Petersburg, (for travel experiences)
Do time (in prison)
Do everything, do nothing, do something, etc.
make plans
make an exception
make arrangements
make an appointment
make a point
make a telephone call
Make a speech
Make an effort
make an offer
make an exception
make peace / war
make love
make money / a profit
make a phone call
make an effort / attempt
Make a profit
Make a mistake
Make a commitment
To make a disposition
make a suggestion
make use of
make a decision
make an excuse
make a noise
make progress
make arrangements
To book
To post bond vs to set bail
To commute a sentence vs absolve a criminal
To prosecute vs to defend
To serve time vs to serve a summons
To bear witness vs to testify
To award legal custody
To plea
To press charges (against)
Give a sentence
Get good grades
Get a degree vs have a degree
Graduate from law school vs achieve a level of expertise in civil/criminal/contractual law
To be sued vs to sue someone
To be accused vs to accuse someone
REVIEW OF HOMEWORK PAGE 102 OF HANDBOOK = MATCH TERMS TO
DEFINITIONS
NUMBER 9 ….CLAIMANT (A PERSON) WHEREAS A GROUP IS A
CLASS ACTION SUIT = A GROUP OF PEOPLE SUE A COMPANY OR AN ENTITY
FOR NEGLIGENCE
CIVIL LAW SUMMARY IS FULL OF KEY VOCABULARY ON PAGE 103 IS
IMPORTANT FOR YOUR “ORAL” EXAM DESCRIPTIONS OF YOUR CASES….
PRACTICE OF CASE CITATIONS OUTLOUD IN CLASS
“R” MEANS REX OR REGINA…..(WHETHER THERE IS A KING OR A QUEEN)
JUMP TO PAGE 130 LESSON 14 CIVIL LAW (2)
MATRIMONIAL MATTERS….PRE-NUPTIAL AGREEMENTS
READ QUOTE AND WHO SAID IT….
BIBLE HAS ANOTHER….”WHAT GOD HAS JOINED, MAN SHALL NOT PUT
ASUNDER.” WHAT DOES ASUNDER MEAN? TO SEPARATE
WHAT ABOUT DIVORCE IN ITALY?
DO PRE-NUPS EXIST?
WHY DO A PRE-NUP?
WHAT ABOUT WEALTH?
WHAT ABOUT PROPERTY?
WHAT ABOUT CHILD AND CUSTODY?
WHAT ABOUT WHEN WE FALL IN LOVE?
WHAT ABOUT WHEN WE FALL OUT OF LOVE?
LESSON 14 APRIL 21, 2015
TO PULL YOUR OWN WEIGHT
“TO BE A LIGHT WEIGHT”
QUARREL
STEPPING ON THE OTHER’S TOES
COME TO A HEAD







Watch video www.youtube.com/ Prenuptial Agreements-How They Work 6’50”
Or https://www.youtube.com/watch?v=F6ntnND22YY
Or https://www.youtube.com/watch?v=qjXVFklV8-Q (for why to have a pre-nup)
OSBORNES SOLICITORS VIDEO WHY TO HAVE A PRE-NUP
https://www.youtube.com/watch?v=RgmYG_FjmkQ
Link to article of Samuel in Daily Telegraph:
http://www.telegraph.co.uk/news/worldnews/europe/france/9572187/Couples-who-share-thehousework-are-more-likely-to-divorce-study-finds.html
REVIEW HOMEWORK PAGES 131-134
KATRIN RADMACHER PRE-NUP SETTLEMENT VIDEO:
www.youtube.com/watch?v=t5SBVYIDvqQ
HEIRESS VS HEIR
FORMER
PRENUP
IRONCLAD
GENEROUS PAYOUTS
CHOOSE
COSTLY AND DRAWN OUT =LENTHLY PROCESSES
DISADVANTAGE
2.5 MIL MARRY AND 1 MIL DIVORCE
13% ARE INTERNATIONAL
10 OF 27 EU COUNTRIES
HIGHEST IS UK AND FINLAND
LOWEST SPAIN
25% OF ALL CHILDREN IN THE EU LIVE IN SINGLE PARENT HOMES
NOTABLY
VENUE
EXPENSIVE
REIN IN
PRICEY AFFAIR = EXPENSIVE
WWW.YOUTUBE.COM/WATCH?V=8VWMAPKPU9W
DISCUSSION OF QUESTIONS ON PAGE 138 ABOUT PRE-NUPS
REMEMBER THIS CASE DECLARED THAT PRE-NUPS ARE NOT SEEN AS
CONTRACTS…BUT THEY ARE BINDING AS LONG AS THEY PROVIDE FOR THE
CHILDREN AND THE SPOUSES….
LESSON 15….APRIL 23, 2015
COMPARISON OF CIVIL LAW WITH COMMON LAW
SIMILIARITIES:
INNOCENCE UNTIL GUILT IS PROVEN
TRAIL BY A JURY OF PEERS
DEEPLY INGRAINED DIFFERENCES:
CIVIL LAW
ORIGINS ARE BASED ON ROMAN LAW
MORE STABLE
MORE FAIR REPRESENTATION
EXISTS IN ITALY, FRANCE, SPAIN, GERMANY
BASED ON STATE’S AUTHORITY
CODE BOOK BY GOVERNMENTAL
DECREE
INQUISITORIAL PROCESS + PROCEEDINGS
JUDGE CANNOT “MAKE LAW”
GOES THROUGH LEGISLATION
NO PLEA BARGAINING
COMMON LAW
ORIGINS BASED ON DUEL/SWORD FIGHTING TO END DISPUTES
EXISTS IN USA AND UK
BASED ON CUSTOM WHICH BECOMES POLICY
PROCESS IS THE BASIC TENET TIED TO CUSTOM
ADVERSARIAL SYSTEM +
ADVERSARIAL PROCESS
JUDGE INTERPRETS AND “WRITES” THE LAW
PLEA BARGAINING EXISTS
DOCUMENT BELOW SUPPORTS THE LIST ABOVE COMPARING CIVIL + COMMON
LAW
Similarities between civil law and common law?
In common and civil laws, a person is assumed innocent until proven guilty. Both laws can be tried
before a jury of the peers. In the common law system, law is interpreted and, thus, "written" by
judges hearing the cases. Their decisions become the 'rule of law' for all future cases that are
factually similar. The civil or codified law is law that is written into statute or code books and are
strictly interpreted by the courts of that country.
In a country which uses civil law, the legal system is based upon legal principles and codes usually
rooted from the laws and legal system of the Roman Empire. Any updates to the legal code must be
made through legislation or other lengthy processes. Therefore, judges must make rulings based
only on these codes and statutes, only analyzing past judicial interpretations of the law for advice.
This process allows for a more and more representative legal system. France, Germany, and Spain
are modern examples of countries who use civil law.
On the other hand, a country which uses common law has a legal system based primarily upon past
judicial opinions. These judicial opinions are interpretations of legislation, which are considered
more as a guide than as literal requirements such as under civil law. Thus, common law systems
acquire their laws over time and may have their laws altered by single rulings. This practice allows
for a more flexible and expeditious legal system bypassing the often reluctant and slow-moving
legislative system. Because it was developed in England, modern examples of countries which use
common law are typically former English colonies such as Australia, India, Canada, and the United
States
Comparing common law and civil law traditions in legal systems
The US and English legal systems are based on a common law tradition which places adversarial
interaction at the heart of the process. Mainland Europe, on the other hand, observes a civil law
tradition which values inquisitorial proceedings.
It might be most appropriate, in a paper such as this, to begin in the abstract. There are several
different legal traditions represented in the 20th century world. Among these are the common law
tradition and the civil law tradition. The common law tradition is the one upon which the judicial
system of the United States and Great Britain are founded on. The civil law tradition, on the other
hand, operates in most of the rest of Western Europe, and specifically as it concerns this paper,
Italy. The different legal traditions recognize different sources of law and thus prescribe different
theories and methods for the administration of justice. It is therefore important to recognize these
deeply ingrained differences between the legal traditions observed by the United States and Italy if
any meaningful comparison is to be made between their criminal justice systems.
The justice system of the United States is based on the common law tradition which grew
out of the European feudal era, and which it inherited from Great Britain during its colonial period.
The tradition of common law recognizes two principle elements, those of custom and equity. That
which a society or culture considers as its custom dictates that nature of the law in a common law
system. An action that the society deems wrong can be considered a crime without its necessarily
having been written down or codified. Custom makes precedents which in turn become policies. It
is from this logic that the principle of stare decisis comes. The other principle, equity, reflects the
common legal tradition’s sense of fairness in the sense that decisions that are obviously wrong
should not be reached just so that customs can be preserved (Reichel, 1999, 88-90).
The civil legal tradition, which is the one observed in Italy, has its roots in the laws of
Ancient Rome. The Romans codified their laws into statutes, issued edicts dictating policy, and had
jurists whose function it was to apply the existing laws on particular cases. This tradition was
strengthened by the advent and longevity of the Canon Law of the Catholic Church which
functioned in much the same way as did the laws of Ancient Rome. The basic principle of civil law
is that of codification. Around the time of Napoleon, it became a goal of the countries in Western
Europe to develop comprehensive codes of law. While each time a new code of laws was enacted it
voided those that existed before it, the new codes did not gain their legitimacy through their
resemblance to earlier codes, but from their integration and assimilation into the most recent code.
This is different from in common law where the a new code does not nullify those that came before
it but rather enhances and improves it. Where in common law, law is tied to custom and thus exists
by fact, in civil law, law exists because the authority that is the government has decreed it so
(Reichel, 1999, 90-93).
The designations of common and civil law are artificial conventions as opposed to natural
divisions. They are a means to separate and compare the different systems by grouping together
common traits and contrasting them to others. In any justice system, there are to main components;
substantive law and procedural law. Substantive law, as it relates to criminal justice, dictates what
constitutes a crime. As previously explored, the common law basis for this designation is custom
whereas the civil law one is a written code (Reichel, 1999, 109).
Procedural law deals with the manner or method in which the substantive law is
administered. In common law, the principle of stare decisis ties the process to the basic tenet of
custom. Judges are supposed to make their decisions based on how those decision have been made
in the past. To balance custom with equity, the common law tradition abides by the principle of
particularization in procedural law. Particularization allows a judge the flexibility to distinguish a
specific case by its particular facts from those previous cases similar to it. In such a way, the judge
frees himself to decide a question based on fairness as opposed to strictly based on custom. This
allows for a judge to avoid being forced to come to an unjust conclusion on a question so as to
preserve the inviolability of custom (Reichel, 1999, 117).
Under the civil law tradition, a judge is supposed to be able to glean from the law the proper
decision through logical deduction. If this is not possible, theoretically, it is the fault of the judge
for not understanding the law properly of the legislature for not providing the judge with a sufficient
legal code. In truth, the civil law judge cannot always find a specific statute that addresses the
particular facts of the case. This is to be expected seeing as the legislature cannot be expected to
anticipate every possible scenario. While it is the intent of the civil law tradition to deny judges any
ability to “make law,” what happens in practice is that a judge takes the most applicable statute and
then demonstrates in writing how he logically went from that statute to the facts of the particular
case and then arrived at his decision (Merryman, 1985, 39-45).
From these descriptions of the basic principles of procedural law in the two traditions comes
the more specific adjudicatory processes utilized by each. The common law tradition employs an
adversarial process while the civil law tradition uses an inquisitorial process. The adversarial
process is the one used in the United States. Its origins are in actual physical battles between two
contenders where the thought used to be that the winner had truth on their side while the loser must
have been guilty. Over time, these battles became highly regulated with procedural rules and
eventually evolved into the process that exists today. The basis of the adversarial system is that the
truth will be exposed through a kind of competition. Procedure often takes precedence over
substance, and so to preserve the purpose of the endeavour, cross-examination and multiple actors
are pillars of the process. Cross-examination is reminiscent of the sword fighting of old in that it is
a hostile process meant to discredit the opposition. The multiple actors are the prosecuting attorney
who asserts the defendant’s guilt, the defense attorney who asserts the client’s innocence, and the
judge who acts as a referee (Reichel, 1999, 142).
The civil law tradition prefers and inquisitorial process that stands in stark contrast to the
adversarial one. In an inquisitorial proceeding, the judge is not a mere referee but rather the
principle actor. The judge endeavours through his personal examination of both witnesses and
evidence to determine the truth in a case. The trial itself is much more like a public investigation
than the adversarial process’ battle of the attorneys. Trials are meant to be communal efforts at
uncovering the truth, and so, in theory, the defendant is supposed to be cooperative. Guilty pleas do
not prevent a trial but are rather used as additional evidence. Plea bargaining is not a practice in the
civil law tradition because the idea of pleading guilty to a lesser offense is adverse to the concept of
applying the law as it was written; a central aim in this tradition. A judge allowing plea bargaining
would be considered in the same light as the judge interpreting law as opposed to simply following
and applying it. Attorneys in this tradition do not argue the fact of the case. They exist to argue
before the judge what interpretation of the statute these facts lend themselves to best (Reichel, 1999,
141, 143).
Read more: http://www.bukisa.com/articles/33027_comparing-common-law-and-civil-lawtraditions-in-legal-systems#ixzz3WkaRPNoG
Bound to the terms…
Breach of contract = violate the terms of the contract
To officialise the contract….the agreement
= sets out (creates the framework of rights and liabilities)
Insurance is obligatory
Sealed contract
Exclusive agreement
Bear the risk (who) WHAT IS AT STAKE….
THE FINE PRINT
DISPUTES ARISE
RESOLVE THE DISPUTE THROUGH ADR OR LITIGATION
INTERPRET AND MOVE ON TO EVENTUAL LITIGATION
ENFORCE THE CONTRACT
FORSEEABLE LIABILITIES OF THE CONTRACT = SANCTIONS
AT A BARGAIN = AT A DISCOUNT
ADHERE TO = ABIDE BY
TO DRAW UP = TO WRITE UP
Rental agreement page 112
Penalties for an insolvent loan payment are repossession of goods…..
those you put up as collateral
Lesson April 30.4.15
Subsidiary of a company (branch office) vs
Headquarters
New type of business today rather than the traditional non-profit or for profit companies
Social business model
Muhammed Yunus
Creator of Grameen Bank
Social business to create self-sufficient people and families
Lesson 18 May 5, 2015
Fair play vs unfair play
Play by the rules
Merits of the case can influence and the lawyer can influence the judge
A decision can be swayed in one direction or another
Non-interfering role in civil law
to throw the book at someone or have the book thrown at you
Lesson 19 EU Units 16 and 17
Winston Churchill Speech at Zurich University, Sept. 19, 1946
Video link: https://www.youtube.com/watch?v=Ln4SRnt4VE0
Going glocal as opposed to going global…
The ECJ or the Court of Justice of the European Union (CJEU; French: Cour de justice de
l'Union européenne) is the institution of the European Union (EU) that encompasses the whole
judiciary. Seated in Luxembourg, it consists of two major courts and a specialized court
which include: 1. The Court of Justice, informally known as European Court of Justice
(created in in 1952 as the Court of Justice of the European Coal and Steel Communities, later
named Court of Justice of the European Communities), the highest court in the EU legal
system; 2. The General Court (created in 1988; formerly the Court of First Instance); 3. The
Civil Service Tribunal, a specialized court created in 2004.
The institution was originally established in 1952 as a single court called the Court of Justice
of the European Coal and Steel Communities (as of 1958 the Court of Justice of the European
Communities (CJEC)). With the entry into force of the Treaty of Lisbon in 2009, the court
system obtained its current name (Court of Justice of the European Union), while the court
itself was renamed "Court of Justice".
Its mission is to ensure that "the law is observed" "in the interpretation and application" of
the Treaties. The Court reviews the legality of the acts of the institutions of the European
Union; ensures that the Member States comply with obligations under the Treaties; and
interprets European Union law at the request of the national courts and tribunals. They
make their decisions based on EU obligation.
The Court constitutes the judicial authority of the European Union and, in cooperation with
the courts and tribunals of the Member States, it ensures the uniform application and
interpretation of European Union law. Each member state has one member assigned to the
court.
The Court of Justice is composed of twenty-seven judges and eight General Advocates. Judges
and Advocates General are appointed by common agreement of the governments of the
Member States, after consultation with a committee which advises on the suitability of
candidates proposed for the duties involved. Their appointment is made for six years,
renewable. They are chosen from persons whose independence is beyond doubt and who
possess the qualifications required for appointment in their respective countries or who have
recognized competence.
The judges of the Court of Justice appoint one of them as the President and one Vice
President for a renewable period of three years. The President directs the work of the Court
and presides at hearings and deliberations. The Vice-President assists the President in the
exercise of his duties and replaces him in case of absence.
The General Advocates assist the Court. They are responsible for submitting complete
impartiality and independence legal opinion.
The Clerk is the secretary general of the institution to which he directs services under the
authority of the President of the Court.
The Court may sit in plenary session, as a Grand Chamber (fifteen judges) or in room with
three or five judges.
Since 2003, the ECJ’S President is Skouris, from Greece.
Catch 22 situation = no-win situation
CAPIP.EU
is a unique coalition founded in 2008 against piracy with 24 law firms and
offices in 35 jurisdictions. Having seen the need for harmonious IP law due to the creation of the
biggest single market in the world, CAPIP realized there is a need to combat the threats. They
offer legal services to rights holders in their fight against counterfeiting and piracy in the European
Union, Norway, Switzerland and the Balkan countries. CAPIP member firms understand the
necessity for working side by side with customs authorities. A field in which harmony of IP
law is pre-eminent, is customs surveillance on counterfeiting.
Each decision gives the answers to specific questions related to a dispute before a national
court in a particular Member State, the relevant national jurisdiction is needed to best
summarize and analyze the decisions through knowledge of the respective legal systems, the
history of the national case and knowledge of the original language in which the dispute has
arisen. Thus, many essential issues relating to Intellectual Property law have been resolved
by important decisions of the European Court of Justice with respect to copyright,
trademarks, databases and design rights setting precedent in IP law.
In Italy Perani & Partners with offices in Milan and Rome, is listed as
a member of CAPIP. Their website is: www.perani.com
Perani & Partners S.p.A.
Piazza San Babila, 5
20122 Milano Italia
Tel.: +39.02.7631.6161
Fax: +39.02.7631.7619
mail@perani.com
Perani & Partners S.p.A.
Via XX Settembre, 89
00187 Roma Italia
Tel.: +39.06.4890.1188
Fax: +39.06.4891.3662
roma@perani.com
As well as IP, other legal financial services regulation and supervision, labor disputes,
privacy issues,
And many landmark rulings….on “associative discriminarion
Court of Justice of the European Union
PRESS RELEASE No 32/10 Luxembourg
,
23 March 2010
Press and Information
Judgment in Joined Cases C-236/08 to C-238/08
Google France and Google Inc. et al. v Louis Vuitton Malletier
et al.
Google has not infringed trade mark law
by allowing advertisers to purchase key
words corresponding to
their competitors’ trademarks
Court of Justice of the European Union
PRESS RELEASE No
70
/14
Luxembourg, 13 May 2014
Judgment in Case C-131/12
Google Spain SL, Google Inc. v Agencia Española de Protección de
Datos,
Mario Costeja González
An internet search engine operator
is responsible for the processing that
it carries
out of personal data which appear on
web pages published by third parties
Thus, if , following a search made on
the basis of a person’s name, the list
of results displays a link
Court of Justice of the European Union PRESS RELEASE
No 70/14
Luxembourg, 13 May 2014
Judgment in Case C-131/12
Google Spain SL, Google Inc. v Agencia Española de Protección de
Datos,
Mario Costeja González
An internet search engine operator is responsible for the
processing that it carries out of personal data which appear on web
pages published by third parties Thus, if , following a search made on
the basis of a person’s name, the list of results displays a link…
FIVE KEY QUESTIONS ABOUT THE GOOGLE DECISION BY THE EUROPEAN
COURT OF JUSTICE… By Henry Farrell May, 2014
Henry Farrell is associate professor of political science and international affairs at George Washington
University. He works on a variety of topics, including trust, the politics of the Internet and international
and comparative political economy.professor of Political Science
On Tuesday, the European Court of Justice (the highest court in the European Union) ruled
that Google had to delete search results linking to information suggesting that a Spanish
citizen’s property had been attached to recover debts. Commentators have read this ruling as
asserting European citizens’ “right to be forgotten,” that is, their right to have embarrassing
and currently misleading information deleted from the Internet. This decision isn’t as far
reaching as some suggest, but it will potentially have a serious impact on EU-U.S. relations. A
lot of U.S.-based social media and search companies are likely to be very, very upset.
1. Does this ruling really create a “right to be forgotten”
for EU citizens?
2. So what consequences does this ruling have?
3. Is this retaliation for Snowden?
4. How will the ruling affect EU-U.S. relations?
5. How will firms like Google respond?
Supreme Court quiz link…..
http://www.constitutionfacts.com/?page=supremeCourtQuiz.cfm