cuadernillo lecto - nivel ii - 08-03-2011 corregido

Índice

Págin

a

Texto 1 : “Cohabitation: The Law of Living Together in Canada” 2

Texto 2 : “The Rule of Law” 6

Texto 3 : “Copyright Law in the United States” 9

Texto 4 : “Judicial Conference of the United States” 14

Texto 5: “Claims of Copyright Infringement” 18

Texto 6 : “Classifications of Municipal Law” 22

Texto 7 : “False Accusations of Child Abuse” 27

Texto 8: “Sealed without a KISS” 30

Texto 9: “Court to Hear Key Case on Discrimination” 35

Texto 10 : “Civil Procedure” 39

Texto 11 : “Calm Needed in Abortion Clinic Debate” 42

Texto 12 : “Saddam’s Jailer Court-martialled for Treason” 45

Texto 13 : “The Court and Constitutional Interpretation” 49

Texto 14 : “Mortgage Loan” 53

Texto 15 : “Liberty of the Subject” 59

Texto 16 : “The Factortame Case" 63

Texto 17 : “Supreme Court Allows Lethal Injection for Execution” 67

Texto 18 : “The Institutions of the European Union” 70

Texto 19 : “Case: Wohl v. Spectrum Manufacturing, Inc.” 77

Texto 20 : “Case:Ohio v. Lessin” 84

Programa de Lecto-comprensión: Nivel II 1

5

Cohabitation: The Law of Living Together in Canada

Cohabitation has been around for much longer than the institution of marriage.

In fact, but not in law, the only difference was that marriage was a formal event and status, whereas cohabitation does not have nice, fancy legal goal-posts.

It wasn't always that way. The early common law did recognize, as marriage no less, a consensual relationship between husband and wife, without any formal ceremony, provided the relationship had been consummated. Hence the term common law marriage. But now, almost every jurisdiction tightly controls marriage, and the many advantages that go with it, by imposing formal conditions: age limits, ceremony, oath etc.

When does cohabitation start?

There is no set number of occurrences of sex that constitute cohabitation.

What about moving in with one another but with abstinence of sex?

With so much uncertainty, the common law’s most recent position on cohabitation has been to ignore it entirely. Once statute law began regulating the conditions of marriage, and unless the parties married, the common law took them as separate persons, no matter how many bacon and egg breakfasts, toothpaste or dirty laundry has been shared together.Ironically, relationships based not on marriage but on cohabitation, have been given the vernacular moniker of "common law relationships" or even common law marriage.Legal marriage, on the other hand, requires a license, an official, two persons and a few choice words et voila! A nice clean start date and as for the end, well the law has that all covered.Statutes have addressed the common law's "omission" such that a long cohabitation can create legal rights no less entangling than a long marriage. For example, when entitlement to a pension is at stake, the date of cohabitation suddenly looms large. So why cohabitate anyway?

You do not need to meet the legal requirements of marriage, such as being of age or being divorced from a previous marriage;

Many are spooked by the financial and emotional cost of a divorce and swear off marriage for the next go-around;

Some, agnostically, "don't believe" in marriage or find it too riddled with religious overlays of traditional roles, usually resulting in the

5

10

15

20

25

30

35

40

http://www.duhaime.org/LegalDictionary/D/Divorce.aspx

http://www.duhaime.org/LegalDictionary/D/Divorce.aspx

http://www.duhaime.org/LegalDictionary/P/Pension.aspx

http://www.duhaime.org/LegalDictionary/S/Statutes.aspx

http://www.duhaime.org/LegalDictionary/C/CommonLawMarriage.aspx

http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx

http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx

http://www.duhaime.org/LegalDictionary/C/CommonLawMarriage.aspx

http://www.duhaime.org/LegalDictionary/M/Marriage.aspx

http://www.duhaime.org/LegalDictionary/M/Marriage.aspx

woman doing all the housework and the man thus enabled to empower his career; and others use cohabitation as a trial for marriage - "let's see if we get along before we get married". Statistics Canada reports that 4 out of ten persons living together in the 80s, were married by the 90s.

For all the grief cohabitants throw at marriage, they owe the fulcrum of their rights to marriage in spite of early attempts to invoke equitable remedies.

Even today, most common law relationships or "intimate cohabitants" will not let ownership to real property or vehicles be thrown to lawyers and judges. Instead, they will address ownership on title when the asset is purchased. Or they will retain receipts so the Picasso doesn't end up an ex-boyfriend's constructive trust claim attached.

Initially, as late as 1965, a Canadian Court, in Prokop v Kohut found that cohabitation outside wedlock, being immoral, it did not deserve or merit the overseeing of the Court to address break-up inequities:

"... the Court can give her no relief. I take it that this claim is for compensation to the plaintiff for the money she gave the defendant, and for the services she rendered by way of housework and farm work, while they lived together. But the foundation of the relationship between these parties was their illegitimate cohabitation."

In 1978, Canada's Supreme Court finally breathed life into the equity-based approach in order to recognize property rights of a wife where, at common law, they did not exist.

In Rathwell v Rathwell, the respondent wife contributed directly and indirectly to a real property asset but at separation, found herself off title and orphaned by the common law. The Supreme Court:

"It seems to me that Mrs. Rathwell must succeed whether one applies classical doctrine or construc tive trust . Each is available to sustain her claim. The presumption of common intention from her contribution in money and money's worth entitles her to succeed in resulting trust."

And then, in 1980, eureka!

Becker v Pettkus was published by the Supreme Court (summarized in Important Family Law Cases) followed by Peter v Beblow in 1993, together inspiring an impetus of statute law that has not abated to this day, gradually extending to cohabitants, subject to legal strict thresholds, support and property rights including the all-important pensions.

But it is not straight-forward and can be subject to considerable judicial discretion.

5

45

50

55

60

65

70

75

80

http://www.duhaime.org/LegalDictionary/P/Pension.aspx

http://www.duhaime.org/LegalResources/FamilyLaw/LawArticle-32/Important-Canadian-Family-Law-Cases.aspx

http://www.duhaime.org/LegalDictionary/C/ConstructiveTrust.aspx

http://www.duhaime.org/LegalDictionary/W/Wedlock.aspx

Actividades

1) Completar el siguiente mapa de contenido:

Matrimonio (concepto)

Antiguo Common

Law

En la Actualida

d

Cohabitación (sentencias)

1965

1978

1980

2) Establecer si las siguientes afirmaciones son verdaderas o falsas. Fundamentar oralmente la elección en cada caso.

Verdadera

Falsa

85

(a)

La única diferencia de derecho entre el matrimonio y la cohabitación es la formalidad.

(b)

En el presente, el sistema de common law ignora la “cohabitación” en Canadá.

(c)

La ley no suple la falencia del common law con respecto a la cohabitación.

(d)

En la actualidad, en las relaciones de cohabitación, la titularidad de los bienes inmuebles depende del criterio de los jueces.

10

Texto 2 : “The Rule of Law”Fuente: internet: http://www.historylearningsite.co.uk/rule_of_law.htm

The Rule of LawThe Rule of Law is an aspect of the British Constitution that has been emphasised by A V Dicey and it, therefore, can be considered an important part of British Politics. It involves:

The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities.

There can be no punishment unless a court decides there has been a breach of law.

Everyone, regardless of your position in society, is subject to the law.

The critical feature to the Rule of Law is that individual liberties depend on it. Its success depends on the role of trial by jury and the impartiality of judges. It also depends on Prerogative Orders.

There are three Prerogative Orders:

1. Certiorari calls a case up from an inferior court to a superior one to ensure justice is done.

2. Prohibition prevents an inferior court from hearing a case it does not have the power to listen to.

3. Mandamus orders an inferior court to carry out its duties.

How relevant to 21st British Politics and Society is the Rule of Law?

Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey’s code with an increase in things such as:

The Official Secrets Act, the attempt to remove an individual’s right to trial by jury the activities of the Secret Service (especially after September11th)

removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997)

The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War .

However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britain’s secret services (though they may not know if they are being investigated or not!) It is agreed, with some justification, that a modern society needs bodies like MI5 and MI6* simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations.

90

95

100

105

110

115

120

125

130


Also there are bodies that theoretically oversee the activities of government agencies and their work – such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.

* MI5.gov.uk: MI5, known as the Security Service, is the UK's security intelligence agency. Although “MI" stands for "Military Intelligence", MI5 is a civilian agency without formal executive powers. It is concerned with countering threats to domestic security. MI6 is concerned with external security. Historically, MI5's focus has been counter-espionage directed against foreign subversión. Today, it is focused on counter-terrorism work and fighting organised and serious crime.

Actividades

1) Responder:

(a) ¿Por qué se menciona a A. V. Dicey en la primera oración?

(b) ¿A qué tres conceptos remite esta mención?

135

140

145


(c) ¿A qué conceptos se hace referencia en el renglón 12? Enumérelos.

(d) ¿Qué se afirma en los renglones 19 a 23?

(e) ¿A qué ejemplo de violaciones de los principios doctrinarios de Dicey se hace referencia?

(f) ¿Qué se afirma respecto de los organismos MI5 y MI6 y de otros con funciones similares?

15

Texto 3 : “Copyright Law in the United States”Fuente: internet: www.bitlaw.com

Copyright Law in the United StatesCopyright law in the U.S. is governed by federal statute, namely the Copyright Act of 1976. The Copyright Act prevents the unauthorized copying of a work of authorship. However, only the copying of the work is prohibited -anyone may copy the ideas contained within a work. For example, a copyright could cover a written description of a machine, but the actual machine itself is not covered. Thus, no one could copy the written description, while anyone could use the description to build the described machine.

Copyrights can be registered in the Copyright Office, but newly created works do not need to be registered. In fact, it is no longer necessary to even place a copyright notice on a work for it to be protected by copyright law. However, the Copyright Act provides additional benefits to those who register with the Copyright Office. Consequently, copyright registration and the use of a copyright notice is recommended.

Some types of material are ineligible for copyright protection. Generally, these materials are either protected by some other intellectual property, or have been considered inappropriate for protection. The following unprotected works are discussed in greater detail below: Unfixed works, titles and short phrases, ideas and useful articles.

Unfixed works:

Works that have not been fixed in a tangible form of expression are not protected under the Copyright Act, since fixation is one of the prerequisites for copyright protection For example: choreographic works that have not been recorded, or improvisational speeches or performances that have not been written or recorded are both ineligible for copyright protection. For many years, unrecorded music concerts were also unprotected by copyright law because they were not fixed.

In December, 1994, Congress changed the law of unrecorded music performances when it passed The Uruguay Round Agreements Act. This act included a new provision, which prohibited the recording of live musical performances (that is, bootleg copies) even when there was no other "fixation" of the work. This provision includes separate prohibitions against the distribution and transmission of bootleg copies.* In fact, the prohibition against transmission does not even require that a physical copy of the performance ever be made. While this act appears to create an exception to the fixation requirement for copyright, it is probably best understood as an independent right that is similar to copyright, but is not copyright.

Titles, names, short phrases, slogans:

Titles, names, short phrases, and slogans are not protected by copyright law. Similarly, it is clear that copyright law does not protect simple product lettering or coloring. The exclusion of these types of materials is not an exception to copyright law, but merely an application of the requirements for copyright protection. To be protected by copyright, a

5

10

15

20

25

30

35

40

45


work must contain at least a minimum amount of authorship in the form of original expression. Names, titles, and other short phrases are simply too minimal to meet these requirements. Of course, brand names, slogans and phrases which are used in connection with a product or service may be protectable under trademark law. In fact, a series of books all under the same title may even create trademark protection for that title.

Ideas:

Ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection. As stated in the Copyright Act: in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

This specific exclusion helps maintain the distinction between copyright protection and patent law. Ideas and inventions are the subject matter for patents, while the expression of ideas is governed by copyright law. If copyright were extended to protect ideas, principles and devices, then it would be possible to elude the rigorous prerequisites of patent law and secure protection for an invention merely by describing the invention in a copyrightable work.

An example is the best way to explain this idea/expression distinction. Suppose that an inventor discovers a process for cold fusion--an invention that would revolutionize society as we know it. If the inventor wrote down on paper a description of the process, that description would be protected against copyright infringement from the moment the work is fixed. If she were to publish her paper, no one would be able to make additional copies of the paper without her permission. However, anyone reading her paper could implement her process without fear of copyright infringement, since the process itself--the idea--is not protected under copyright law. In fact, it would even be allowable for someone to write a competing paper describing her invention, as long as the competing paper described the invention in its own words and did not take any "expression" from the original paper. However, only the inventor could apply for patent protection for her process. After applying for the patent, and going through a rigorous examination of the patentability of her patent, the U.S. Patent and Trademark Office might grant her a patent. At that point, she could prevent all others from using her idea.

*bootleg copies: copies sold or distributed illegally

Actividades

1) Responder:

50

55

60

65

70

75

80

85

90

20


(a) En el rengón 1, ¿cuál es la diferencia entre ‘Copyright law’ y ‘Copyright Act’?

(b) ¿Dónde está regulado el ‘Copyright’?

(c) ¿Qué obras no resultan amparadas por dicho derecho?

(d) ¿Qué modificación se introdujo en diciembre de 1994?

(e) Según el texto, ¿cuál es la diferencia entre el ámbito de protección de las patentes y del derecho de autor?

(f) ¿El ‘Copyright’ protege ideas? Subrayar en el texto las posibles consecuencias derivadas de la respuesta anterior.


(g) ¿Qué sucede si alguien descubre un proceso y lo describe por escrito? ¿Qué queda protegido por el ‘Copyright’?


2) Extraer del texto ejemplos de las materias u obras que quedan amparadas por :

‘Patent Law’

‘Copyright Law ’

‘Trademark Law ’

3) ¿Qué significan los términos en negrita en los siguientes contextos?

(a) However, only the copying of the work is prohibited -anyone may copy the ideas contained within a work.

Significado de “anyone”:

(b) Thus, no one could copy the written description, while anyone could use the description to build the described machine.

Significado de “no one”:Significado de “anyone”:

25


4) Hallar en el texto los opuestos de las palabras detalladas a continuación. ¿Cómo se formaron?

Palabra Opuesto Formación del opuesto

Renglón

Authorized

Appropriate

Protected

Eligible

Recorded

Dependent

Legally

Judicial Conference of the United States

Organization and Operating Procedures

The Conference operates through a network of committees created to address and advise on a wide variety of subjects such as information technology, personnel, probation and pretrial services, space and facilities, security, judicial salaries and benefits, budget, defender services, court administration, and rules of practice and procedure. The Chief Justice has sole authority to make committee appointments. The Executive Committee of the Judicial Conference serves as the senior executive arm of the Conference, acting on its behalf between sessions on matters requiring emergency action as authorized by the Chief Justice; the Executive Committee is not otherwise a policy-making committee of the Judicial Conference. Among its responsibilities, the Executive Committee reviews the jurisdiction of Conference committees, prepares proposed consent and discussion calendars for meetings of the Conference, and establishes and publishes procedures for assembling agendas and schedules of events in preparation for Conference sessions.

The Director of the Administrative Office of the United States Courts serves as Secretary to the Judicial Conference and also is an ex-officio member of the Executive Committee, coordinates administrative support to the Conference itself and its Executive Committee, and also coordinates the activities of senior Administrative Office professional staff who dedicate all or a substantial portion of their time to the work of the Judicial Conference and its committees.

Committees of the Judicial Conference

Judicial Conference committees review issues within their established jurisdictions and make policy recommendations to the Conference. The committees are policy-advisory entities and are not involved in making day-to-day management decisions for the United States courts or for the Administrative Office. Judicial Conference committees derive their jurisdiction and legal basis for existence from the Conference itself and the Chief Justice as presiding officer. The committees and their chairs have no independent authority or charge apart from those conferred upon them by the Conference or its Executive Committee.

Matters before Committees

All matters to go before the Judicial Conference are ordinarily considered by a committee prior to Conference consideration. Sources for matters to be studied and considered by Conference committees include, among others, the Chief Justice of the United States, the Executive Committee, the jurisdictional statements of Conference committees, the Conference Secretary (Director of the Administrative Office), Congress, statutory requirements, federal judges, circuit judicial councils, and other Conference committees.

95

100

105

110

115

120

125

130

135

30

http://www.uscourts.gov/judconf_jurisdictions.htm

Requests for consideration of items by the Judicial Conference of the United States or one of its committees should be directed to the Director of the Administrative Office of the United States Courts.140

Committee Appointments

The Chief Justice has sole authority to make committee appointments. The Director of the Administrative Office and the Assistant Director, Judicial Conference Executive Secretariat, collate the expressed interests of judges and their recommendations of others who may be considered for appointments, and the Director forwards the suggestions to the Chief Justice.

Committee appointments rotate on the first of October each year. As a general rule, committee appointments are for a term of three years, subject to one reappointment. Terms are staggered to minimize turnover each year.

Judges who desire committee service or wish to recommend others for assignments may make their interests or recommendations known at any time, in writing, to the Director of the Administrative Office (Attention: Judicial Conference Executive Secretariat). A permanent file is maintained for reference.

Actividades

1) Responder:

(a) ¿Qué información se suministra en la primera oración del primer párrafo?

(b) De acuerdo con la segunda oración del primer párrafo, ¿quién efectúa los nombramientos para los comités?

145

150

155

(c) De acuerdo con la tercera oración del primer párrafo (renglón 11), ¿en qué casos está facultado para actuar el Comité Ejecutivo? ¿Quién lo autoriza?

(d) De acuerdo con el segundo párrafo, ¿qué tareas desarrolla el Director de la Oficina Administrativa de los Tribunales Federales/de la Justicia Federal?

(e) ¿Qué rol cumplen los comités?

(f) ¿Quiénes pueden someter cuestiones para la consideración de los comités?

35

(g) ¿Cómo se efectúan las designaciones del Comité?

(h) ¿Quién efectúa los nombramientos?

2) Elaborar un esquema que contemple la estructura de la “Judicial Conference”. Utilizar los términos en la lengua original.

3) Completar la tabla con la información pertinente.

DEPENDENCIA EQUIVALENTE FUNCIONES

Judicial Conference

Texto 5: “Claims of Copyright Infringement”Fuente: internet: http://www.symantec.com/about/profile/policies/copyright_infringement.jsp

Claims of Copyright InfringementNotice and Procedure for Making Claims of Copyright Infringement

Symantec respects the intellectual property rights of others and expects others to do the same. It is Symantec’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Responses may include disabling a user’s ability to transmit and/or store material claimed to be the subject of infringing activity and/or terminating such user’s ability to use the application at all. If we take such measures, we will make a good-faith attempt to contact the user who stored and/or transmitted the content so that he or she may make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. It is our policy to document all notices of alleged infringement on which we act.

Infringement Notification

If you are a copyright owner or an authorized agent thereof and believe that any user of the Symantec application has infringed upon your copyrights, you may submit a notification pursuant to the DMCA by filing a notice of infringement with our Copyright Agent. To file a notice of infringement with our Copyright Agent, you must provide a written communication (by fax, regular mail or e-mail) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. To expedite our ability to process your request, please use the following format:

1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon.

2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above or which you claim is the subject of infringing activity. You must identify each separate item of infringing material.

3. Provide information reasonably sufficient to permit Symantec to locate the material.

4. Provide information reasonably sufficient to permit Symantec to contact you (email address, telephone number and a mailing address).

5. Provide information, if possible, sufficient to permit Symantec to notify the user that allegedly stored infringing material (email address is preferred).

6. Include the following statement: "I have a good faith belief that use of the copyrighted materials in the manner complained of is not authorized by the copyright owner, its agent, or the law."

5

10

15

20

25

30

35

40

45

40

http://www.symantec.com/about/profile/policies/copyright_infringement.jsp


7. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

8. Sign the paper.

9. Send the written communication to the any of the following:

Symantec Corporation Attn: Copyright Agent 20330 Stevens Creek Boulevard Cupertino, CA 95014 BY FAX: (408) 517-8121, Attn: Copyright Agent BY EMAIL: [email protected] with the words "DMCA Complaint" in the subject line.

If you fail to comply with all of the requirements set forth above, your DMCA notice may not be valid.

Counter Notification

Pursuant to sections 512(g)(2) and (3) of the Act, the subscriber may make a counter notification. To file a counter notification with us, you must provide a written communication (by fax, regular mail or email) that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. To expedite our ability to process your counter notification, please use the following format (including section numbers):

1. Identify the name of the file with respect to which Symantec has blocked access.

2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Cupertino, CA, USA if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) of the DMCA or an agent of such person.

3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that transmission of each file identified above was blocked as a result of a mistake or misidentification of the material to be blocked."

4. Sign the paper.

5. Send the written communication to any of the following:

Symantec Corporation Attn: Copyright Agent 20330 Stevens Creek Boulevard Cupertino, CA 95014

50

55

60

65

70

75

80

85

90


mailto:[email protected]


BY FAX: (408) 517-8121, Attn: Copyright Agent BY EMAIL: [email protected] with the words "DMCA Complaint" in the subject line

Actividades

1) Responder

1. ¿Qué dice el artículo sobre “DMCA” en la segunda oración?

2. ¿Qué cursos de acción puede seguir Symantec?

3. ¿Con qué objetivo Symantec realizará un intento de buena fe para comunicarse con el usuario-infractor?

95


mailto:[email protected]


4. ¿Cómo se procede ante una supuesta violación de los derechos de autor? ¿Quién puede presentar una notificación de violación de derechos de autor en virtud de la DMCA? ¿Ante quién?

5.¿Por qué puede incurrir en responsabilidad por daños y perjuicios? ¿Qué incluye la indemnización?

6. ¿Qué consecuencias tiene quien proporcione una falsa denuncia? ¿Por qué se incluye la recomendación de consultar a un abogado?

7. Describir las acciones posibles en caso de violación de derechos de autor.

45



8. ¿Qué contempla el artículo 512 (g) (2) y (3) de la DMCA?

9. ¿Qué requisitos debe cumplir la contra-notificación?

100


Texto 6 : “Classifications of Municipal Law”Fuente: Newton, Clive R.: General Principles of Law. 3º Edición. Sweet and Maxwell. Londres: 1983. Págs. 3-5.

Classifications of Municipal Law

Municipal law may be classified in the following ways:

A. Public law and private law

(i) Public law is concerned with the state and with the rights and duties between individuals and the state and is subdivided into constitutional law and criminal law.

Constitutional law deals with such matters as the position of Parliament, the Crown and the Central Government, the administration of justice, citizenship, the limits of personal liberty, the citizen’s right to vote and his obligation to perform civil duties.

Criminal law is concerned with the punishment and treatment of criminals.

(ii) Private law deals with the rights and duties existing between one individual and another.

Private law includes:

(a) The law of contract. A Partnership is a type of contract.

(b) The law of torts.

(c) The law of trusts. The rules relating to the law of trusts derive primarily from equity.

(d) The law of property.

(e) The law of succession on death.

(f) Family law. Family law defines and deals with the consequences of marriage, parenthood, guardianship, adoption, legitimacy and certain other matters.

(g) Private international law. Private international law (alternatively called “the conflict of laws”) deals with cases involving a foreign element. For example, suppose an Italian runs over an Englishman in France and the Englishman commences his action in England. Which law is to govern the liability, if any, of the Italian? The answer to such a question is to be found in the rules of private international law, the operation of which is further touched upon in the discussion of domicile, nullity and dissolution of marriage and legitimacy.

B. Criminal law and civil law

The phrase “civil law” is used in several different senses, chiefly.

105

110

115

120

125

130

135

50


(i) (as here) as opposed to criminal law;


(ii) to mean municipal law as opposed to public international law;

(iii) to mean Roman law.

The main distinction between criminal and civil law does not depend on the nature of any wrongful conduct; it is perfectly possible for the same act to be both a crime and a civil wrong. For instance, if A stabs B in the back, A commits both a crime and a tort (which is a civil wrong). The main differences between criminal law and civil law are as follows:

(i) All criminal proceedings are instituted by or on behalf of the Crown and criminal proceedings, once commenced, cannot be dropped or discontinued without the leave of the court unless the Attorney-General stops further proceedings by entering a nolle prosequi.

Civil proceedings are brought by individuals who are free in most cases to discontinue the proceedings either with or without a settlement with the other side.

(ii) A criminal is always liable to be punished. Indeed, the main function of the criminal law is to see that offenders are punished.

The civil law on the other hand is not in general concerned with the punishment of civil wrongdoers (for an exception, see exemplary damages). The main remedy in tort and contract is damages, which is primarily designed to compensate the plaintiff for losses caused by the defendant. In family law the various types of relief that may be claimed include dissolution and annulment of marriage and financial provision for a spouse and any relevant children.

(iii) Criminal procedure is very different from civil procedure. This is reflected in the terminology.

Criminal proceedings are called prosecutions and involve a prosecutor prosecuting a defendant (alternatively called an accused). If the crime is proved, the defendant is convicted.

By contrast, in most civil proceedings a plaintiff is said to sue (i.e. bring an action against) a defendant and, if successful, is said to obtain judgment against the defendant. In matrimonial causes, however, a petitioner petitions for divorce, nullity or judicial separation against a respondent and, if successful, is granted a decree.

C. Adjective and substantive law

140

145

150

155

160

165

170


A third classification is into adjective (i.e. procedural) law and substantive law. In broad terms, adjective law regulates the general conduct of litigation, substantive law all other conduct.

55

175

Actividades

1) Completar para cada caso las áreas de incumbencia cubierta por cada término:

Derecho Público

Derecho Constitucional

Derecho Privado

Derecho de Familia

2) Búsqueda terminológica

(a) Proveer el sinónimo que da el texto para el término “private international law”.

(b) Indicar los sentidos que da el texto al término “civil law”, sea por sinónimos o antónimos.

(c) ¿De qué manera puede construirse una definición para el término “nolle prosequi” a partir del propio texto?

(d) Indicar las alternativas de términos en inglés que aparecen en el texto para los siguientes:

Delincuente:

Resarcimiento:

Parte actora:

Parte demandada:

Sentencia:

Derecho procesal:

5

60

Texto 7: “False Accusations of Child Abuse”Fuente: ExpertLaw, por Aaron Larson

False Accusations of Child Abuse

The rise of false accusations of abuse in child custody proceedings is very disturbing. Courts often choose to "err on the side of caution," and refuse to grant custody to the accused parent. Sometimes, the accused parent cannot even obtain parenting time (child visitation), even after investigation finds no evidence of abuse.

Making a false abuse allegation is a horrible thing to do to a child. The child will often have to undergo unnecessary and intrusive medical and psychological examinations. If the allegations are of sexual abuse, the physical examinations of the child can be extremely embarrassing to the child. Also, depending upon the circumstances and the age of the child, the false accusations can cause a permanent rift between the child and the accused parent, the accusing parent, or both.

Historically, parents who complained of false accusations were ignored. However, recent studies illustrate how common false allegations are. In Ontario, an analysis of child abuse allegations in the Ottawa area revealed that 60% of accusations of abuse were related to marital breakup, and in two thirds of those cases there was no evidence of any abuse.

It is no longer professionally reasonable for a psychologist to presume the truth of abuse allegations made in the context of divorce. The irresponsibility of parents who make false accusations to hurt their spouse, or to stop a child custody action, has caused grave harm to children who actually are abused -- the significant numbers of false allegations make it less likely that true allegations will be believed.

While both mothers and fathers have brought false abuse allegations in divorce proceedings, mothers are more likely to be believed. In one noteworthy case, a young child told her father of improper touching by a babysitter, and he reported the allegations to the authorities. When social workers investigated, the mother accused the father of molesting the daughter. This resulted in a long legal battle, where the father had to fight for even limited access to his daughter. During the father's four-year legal battle, the mother was diagnosed as mentally ill, and was temporarily institutionalized. The social workers investigating the case wrote a report, fretting that the father might gain custody as a result of the hospitalization. Eventually, the father managed to convince a court that the charges were false, and he did gain custody of his daughter, but the emotional and financial consequences of the false allegations were enormous.

Using false accusations of abuse to gain an advantage in child custody proceedings is a horrible thing to do to a child. False accusations should be taken very seriously by courts, and should be viewed as strong evidence that a parent has little concern for the child's mental

10

15

20

25

30

35

40

45

Texto 7: “False Accusations of Child Abuse”Fuente: ExpertLaw, por Aaron Larson

well-being, and cares even less about the child's relationship with the other parent.

If you face false accusations of abuse, you are likely to face a costly and difficult legal battle. It is strongly recommended that you obtain the assistance of an attorney who understands the legal and psychological issues involved in false accusation cases, and who has experience defending falsely accused parents.

50

55

Actividades

1) Responder:

(a) ¿Qué es lo que a menudo, los tribunales rehúsan otorgar al padre acusado falsamente de abuso sexual infantil?

(b) En casos de falsa acusación de abuso sexual infantil, ¿en qué forma incide en las relaciones del hijo con el padre?

(c) ¿A qué obedecen, en un alto porcentaje, las falsas acusaciones de abuso sexual infantil de un padre con respecto a su hijo?

(d) ¿Existe siempre evidencia de tal abuso, según el texto?

(e) ¿Cuál de los progenitores se considera el más creíble en un caso de falso abuso sexual infantil en un proceso de divorcio?

2)

Encontrar en el texto los términos opuestos a los siguientes vocablos:

Vocablos Términos opuestos

(a) Unreasonable renglón:

(b) Proper renglón:

(c) Unlimited renglón:

(d) Illegal renglón:

(e) Responsibility renglón:

(f) Necessary renglón:

3)

Explicar en castellano el significado de las frases o términos siguientes dentro del texto.

(a) “Break up”

(b) “Undergo unnecessary and intrusive medical and psychological examinations”

(c) “make it less likely that true allegations will be believed”

(d) “fight for even limited access to the child”

(e) “should be viewed as strong evidence”

(f) “the child’s mental well-being”

(g) “err on the side of caution”

70

Texto 8 : “Sealed without a KISS”Fuente: HR Magazine, por Timothy S. Bland, octubre de 2000.

Sealed without a KISS

When you get official correspondence from the EEOC, odds are you won’t be opening a love letter

You flip through your mail at the office and run across an envelope with the dreaded return address of the Equal Employment Opportunity Commission (EEOC). As you slowly tear open the envelope, perspiration beads on your forehead. When you remove the contents you learn that it is exactly what you feared: a charge of discrimination. What should you do now?

Unlike proceedings from the Occupational Safety and Health Administration, which usually begin when that agency knocks on your company’s door, EEOC proceedings usually begin with a written charge of discrimination that employers receive in the mail.

By law, the EEOC is supposed to provide employers with a copy of the charge within 10 days of its filing; however, the EEOC often fails to do so, and this failure is not, unfortunately, a defense to the charge.

Once you, as the employer, receive a charge, you should immediately assess the charge’s merits.

Start by looking for any procedural defects. Specifically, ask yourself the four following questions:

Is the charge signed, dated and notarized by the person who filed it? (This person will be referred to in this article as the “charging party”.)

Was the charge filed within the time allowed? In states that have a fair employment agency, charges must be filed within 300 days of the last date on which alleged discrimination occurred; in states that do not have a fair employment agency, charges must be filed within 180 days.

Does the charge name the proper employer (i.e., the company for which the charging party either worked or applied to for work) as the respondent? If not, the charge might have been sent to the wrong company by accident. Further, if the employee making the charge is a temp, the charge might incorrectly name your company, rather than the agency for which the temporary employee works.

5

10

15

20

25

30

35


Finally, if the employee made a minor mistake in naming your company and fails to correct this error, there is a slight chance that this procedural flaw could be enough to get the case dismissed. (But don’t get your hopes up!).

Is the charge filed against a company that is subject to federal anti-discrimination statutes?

The EEOC enforces four federal laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act (EPA).

Only companies with 15 or more employees are subject to Title VII and the ADA. Only companies with 20 or more employees are subject to the ADEA. (Generally, the EPA applies to any employer subject to the Fair Labor Standards Act, which, for practical purposes, is virtually every private sector employer and most, if not all, public sector employers.)

Once you have checked for procedural errors, investigate the factual allegations of the charge. Two primary sources of relevant information are company records and persons with first-hand knowledge of the facts.

Start by reviewing company records- such as the personal file of the employee who filed the charge- to obtain relevant information. (If the charge was filed by a job applicant, review that person’s application, resumè, the job advertisements and other relevant documents.) Personnel documents most often relevant to EEOC charges include production records, disciplinary records, attendance records and performance evaluations.

You also should review the personnel files and other relevant documents of other persons whose situations may be comparable to that of the charging party. For example, if the charging party was discharged for poor attendance, review the personnel files of other employees with comparable attendance records to ensure that none were treated more favorable than the charging party. If one or more were treated more favorable, be sure there is a legitimate business reason for the discrepancy. If there is no legitimate reason, the EEOC may use this disparate treatment as grounds for finding that the company behaved in a discriminatory manner. Next review, any policies or guidelines relevant to the EEOC charge and ensure that the company followed these policies and guidelines when dealing with the charging party. A failure to

40

45

50

55

60

65

70

75


follow company policies may be, in the eyes of the EEOC, evidence that the company treated the charging party discriminatorily.

Finally interview any persons who may have first-hand knowledge of the charge. During these interviews, make it clear that you are merely engaging in a fact-finding investigation and that there will be no retaliation against those interviewed for providing unfavorable information about the company.

75

80

85

Actividades

1) Responder las siguientes preguntas:

(a) ¿Cómo se inicia habitualmente una acción por discriminación laboral?

(b) ¿En qué plazo debe notificarse al empleador? ¿Qué sucede si no se cumple con dicho plazo?

(c) ¿Cómo debe evaluar el empleador si es procedente la acción?

(d) ¿Qué leyes son aplicables?

(e) ¿Qué ejemplos del texto podrían considerarse casos de discriminación?

(f) En términos generales ¿a quién pretende asesorar el artículo?

2)

¿Qué significan en contexto las siguientes palabras?

Inglés Equivalente en castellano

(a)“charges” (renglones: 22-24-52)

(b) “dismiss” (renglón 33)

(c) “grounds” (renglón 61)

(d) “policies” (renglón 65)

(e) “temp” (renglón 28)

(f) “engaging” (renglón 69)

80

3)

Identificar las siglas que aparecen en el texto e indicar el referente:

Sigla Referente

4) Elabore una versión en castellano de las siguientes oraciones:

Once you have checked for procedural errors, investigate the factual allegations of the charge. Two primary sources of relevant information are company records and persons with first-hand knowledge of the facts.

Versión en castellano:

4)

During these interviews, make it clear that you are merely engaging in a fact-finding investigation and that there will be no retaliation against those interviewed for providing unfavorable information about the company.

Versión en castellano:

Texto 9 : “Court to Hear Key Case on Discrimination”Fuente: Waldmeir, Patti; diario Financial Times

Court to Hear Key Case on DiscriminationThe US Supreme Court today hears a case which could have a big impact on the size of damages paid by US employers in employment discrimination lawsuits. The court agreed to hear the case, Carole Kolstad vsl the American Dental Association (ADA), to clarify what kind of employer conduct will give rise to punitive damages - damages awarded to punish and deter an offender - in lawsuits involving sex discrimination.

However, law employment experts said that the suit was also likely to have a knock-on effect on race, age and other employment discrimination suits brought under Title VII of the 1991 Civil Rights Act.

The case involves a female lawyer employed as a lobbyist for the ADA, a professional trade association. A jury found that Ms Kolstad was denied promotion because of intentional sex discrimination. The issue before the court is not whether this is so, but whether such discrimination must be ‘egregious’2 before punitive damages are awarded.

Title VII permits such damages where there was 'malice or ... reckless indifference to the federally protected rights of an individual'.

But in Ms Kolstad's case an Appeals Court found that the ADA’s conduct was neither 'egregious' nor 'truly outrageous' enough to merit punitive damages.

At the moment there is confusion over the standard of conduct necessary to attract punitive damages, with the various circuit courts applying differing standards to define 'reckless indifference'. If the Supreme Court upholds the Appeals Court's decision in Kolstad - that the conduct did not meet this standard of 'egregious' - this would set a new standard nationwide that could limit the size of both jury awards and pre-trial settlements.

'Our concern is that punitive damages would become the norm'

Conversely, if Ms Kolstad wins, jury awards and settlements could shoot up. Her lawyers argue in their brief that 'egregious' is too high a standard, and that employees need only show that their employers knew or should have known their conduct was probably unlawful in order to have claims for punitive damages put before a jury.

' If adopted, this standard would subject employers to punitive damages virtually every time an employee engages in intentional discrimination against another,' the US Chamber of Commerce argues in a brief filed to support the ADA. 'Our concern is that punitive damages would become the norm, not the exception, whereas the law clearly intends them to be the exception,' says Stephen Bokat of the National Chamber Litigation Center, which has also backed the ADA.

According to Jury Verdict Research, which tracks jury awards, 40 % of verdicts in gender discrimination cases in the last six years have included punitive damages. The law caps damages at $50,000-$300,000 per plaintiff, depending on the size of the employer.

85

90

95

100

105

110

115

120

125

130


A lower court jury awarded Ms Kolstad back pay after a male employee in the same office was, according to her lawyer's brief, 'preselected' for a promotion for which he was less qualified than she was.

Legal brief

Discrimination is unfair treatment or denial of normal privileges to people because of their race, age, sex, nationallty or religion. In this case, the US appeal judges were asked to decide if the unfair treatment had been so bad as to warrant an extremely stiff penalty (punitive damages), which should deter others from similar behaviour. Note that each US state administers its own justice system but the system of appeal is from trial court to Appeals Court and then the Supreme Court, which is the highest appeal court in the US.

1 an abbreviation for versus, meaning against2 very bad indeed, disgraceful (widely used in legal terminology in American English)

Actividades

Responder o completar con la información faltante, según corresponda.

1) ¿Por qué se hace mención a la Corte Suprema de los Estados Unidos en el primer párrafo?

2) ¿Por qué la Corte Suprema aceptó el tratamiento del caso?

3) ¿A qué posición se hace referencia? (renglón 7)

135

140

145

150

155


4) ¿Cuál es el estado civil de la parte actora?

5) Describir el caso.

6) ¿Por qué se incluye la referencia al Capítulo VII?

7) ¿A qué conclusión llegó la Cámara sobre el caso?

8) ¿Cuál es la dificultad para establecer unidad de criterio sobre este caso?

90


9) Completar la siguiente tabla:

¿Qué ocurre si la Corte Suprema...

(a)confirma el fallo del Tribunal de Apelaciones?

(b) falla a favor de Kolstad?

10)

¿Qué sucede en caso de adoptarse este criterio? (renglones 31 a 35)

11)

Asignar un título a los párrafos 2 y 3 y resumir sus contenidos.

Párrafo 2

Título:

Contenido:


Párrafo 3

Título:

Contenido:

Civil ProcedureCivil Procedure Rules

Alisdair Hannah, a barrister, is talking to a visiting group of young European Lawyers.

“All cases concerning goods, property, debt repayment, breach of contract (with some exceptions such as insolvency proceedings and non-contentious litigation) are subject to Civil Procedure Rules. The Rules, which came into force in 1999 in England and Wales, made radical changes to civil process in the County Court and the High Court.

The judge performs the role of case manager. The court sets a timetable for litigation, with the parties being under an obligation to the court to adhere to timescales which control the progress of the case. Procedure rules are supplemented by detailed instructions made by the judge which support the rules, known as practice directions.”

Proceeding with a claim

“Most claims are initiated by the use of a claim form, which functions as a summons. The claim form can be used for different types of claim, for example, for specified or unspecified monetary sums, or for the claimant to ask the court to make an order. Once a claim has been issued a copy is served on, that is, delivered to, the defendant with a response pack inviting them to either admit the claim, using a form of admission, or to defend it, using a form of defence. The response pack also contains an acknowledgement of service form to confirm receipt of the claim and a counterclaim form for the defendant to use if they wish to claim against the claimant. A defendant must respond within 14 days of service of the particulars of the claim. If the defendant does not respond, judgment may be given in favour of the

160

165

170

175

180

185


claimant. The defendant may be able to get a time extension for filing a reply on defence by using the part of the acknowledgement o service form which states an intention to defend the claim.

Cases are allocated to a regime or track by a procedural judge according to their monetary value. Claims of £ 5,000 or less are allocated to a small claims track while claims of up to £15,000 are allocated to a fast track. More complex claims with a greater value are allocated to a multi track regime. As track directions might include disclosure, where the claimant tells the defence of any relevant documents in their possession. This is followed by inspection, initiated by a written request by the claimant to look at relevant documents held by the defence, and an exchange of witness statements. The multi track regime is intended to be flexible and does not have a standard procedure. In all regimes, parties are encouraged to settle their differences and for this purpose a stay in the proceedings, that is, a temporary halt may be agreed. Case management conferences are often conducted by telephone and give parties the opportunity to review the process and make decisions. If a defendant is ordered to pay a judge and fails to do so, the claimant can enforce the judgment in the Magistrates’ Court.”

Note: the reforms to the Civil Procedure Ruled led by Woolf in 1998 included the following changes in legal language:

Claim form, formerly known as a writ of summons

Specified, formerly known as a liquidated claim (a fixed monetary sum)

Claimant, formerly known as a plaintiff

Actividad

1) Responder:

95

190

195

200

205

210

215

220


(a) ¿Quién es Alisdair Hannah? ¿Qué explica sobre las Reglas del Procedimiento Civil?

(b) ¿Qué funciones tiene el juez?

(c) ¿Cómo se inician las demandas normalmente?

(d) ¿Qué sucede si el demandado no responde dentro de los plazos establecidos?

(e) ¿Qué diferencias existen según el valor de la demanda?

Texto 11 : “Calm Needed in Abortion Clinic Debate”Fuente: internet: http://www.theaustralian.news.com.au

Calm Needed in Abortion Clinic DebateThere is no place in Australia for US-style violence directed at those who enter abortion clinics. We have, until now, been mercifully free of the bloodshed and terror tactics that characterise public protest against pregnancy termination in the United States. Yet that prospect has been raised, prematurely, by activists on both sides of this emotional issue following the killing of a 45-year old security guard at an East Melbourne abortion clinic.

It is time for passionate opponents and proponents of abortion to take a collective deep breath. Police are yet to determine the identity or possible motives of the man accused of killing Steve Rogers at Australia’s first legal abortion clinic. And there is no suggestion the accused man had any involvement with the members of the Christian anti-abortion prayer group, Helpers of God’s Precious Innocents, who had just finished their daily prayer vigil near the clinic 15 minutes before the shooting.

But there is a legitimate debate to be had about tactics and strategies employed by those who object to abortion, and their vehement detractors in the pro-choice camp. Critics had a point when they questioned the wisdom of Right to Life president Margaret Tighe, who said that “given the nature of what occurs at these places, it’s a wonder there had not been more of these incidents”.

From the standpoint of her own movement and its aim to win support, Ms Tighe is better off disavowing any links between the anti-abortion cause and violence. It is unfair to sheet home responsibility for the alleged actions of one man to her opponents. A leading figure in the abortion debate since the push for legislation in the 1960s and 1970s, Ms Tighe scored few political points with her inflammatory comments because they seemed to offer an excuse, or at least an explanation, for fanatical or violent acts. It is almost as if the Right to Life president is launching a pre-emptive attack on her opponents in anticipation of some mud sticking to her own side.

Ms Tighe and members of the anti-abortion group that assembles daily outside the clinic have distanced themselves from the killing. Indeed, they continued with their demonstrations and prayers the day after the shooting. As long as their protests remain non-violent and lawful, and their actions do not stop or harass people entering or leaving the clinics, these people are entitled to assemble and register their convictions in a public place.

Victorian Premier Steve Bracks and others may well think the immediate resumption of picketing was “disrespectful”. Anti-abortion activists, however, can justifiably argue that carrying on business at the clinic the day after the murder was also in poor taste. Urging concerned citizens to “back off” from their democratic right to protest is unwarranted advice from the Premier of a democratic state. Yet Mr Bracks failed to caution the Socialist Alliance and other abortion

225

230

235

240

245

250

255

260

265

100


supporters, who had no qualms about protesting on the steps of the Victorian Parliament after the clinic killing.

Rather than blaming one another, critics and advocates of abortion should await the outcome of the court case. There is no need to escalate tensions on this issue to the point where sensible discussion about reform of the law is impossible.

Actividades

1) Responder:

(a) ¿Cómo define el texto las acciones de quienes se oponen al aborto en los Estados Unidos?

(b) ¿Qué se entiende por “pregnancy termination”? ¿Cómo lo expresaría en castellano?

(c) ¿Fue posible vincular al acusado de efectuar los disparos con grupos anti-abortistas? ¿Por qué?

(d) ¿Por qué se criticó a la presidenta de “Right to life”?

270

275


(e) ¿Qué condiciones deben darse para que los grupos anti-abortistas puedan ejercer su derecho de protesta en espacios públicos?

(f) ¿Qué opinión generó la vuelta a las protestas de los anti-abortistas tras el asesinato?

(g) ¿Qué dos críticas se le hacen a Steve Bracks? ¿Qué cargo ocupa?

Texto 12 : “Saddam’s Jailer Court-martialled for Treason”Fuente: internet: http://www.timesonline.co.uk/tol/news/world/iraq/article2664250.ece, Jenny Booth and agencies from Times Online, October 15, 2007

Saddam's Jailer Court-martialled for Treason

Saddam Hussein's former jailer went on trial before a US court martial in Baghdad today charged with aiding the enemy, and accused of buying hair dye and cigars for the former Iraqi dictator.

Lieutenant-Colonel William Steele is accused of allowing prisoners access to an unmonitored mobile phone while he was the commanding officer of Camp Cropper, the maximum security military prison near Baghdad airport where Saddam was held until he was hanged in December.

He is also accused of allowing special privileges to detainees, including paying for a supply of hair dye and Cuban cigars for Saddam. He is further charged with failing to obey an order; and of carrying on an inappropriate relationship with an interpreter.

An army reservist from Prince George, Virginia, Lieutenant-Colonel Steele originally faced the death penalty if found guilty of the most serious charge, that of aiding the enemy, which is a capital offence under US military law.

The maximum penalty he faces has however since been commuted to life imprisonment, after US military leaders decided to make it a non-capital case. He has been in custody in Kuwait since March.

As the trial began in a pine-panelled courtroom in Camp Liberty, a US base, the defence tried to obtain a motion to dismiss the charge of aiding the enemy, arguing that giving a mobile phone to detainees did not fall into the legal definition of supplying "arms, munitions, money and other things".

Lieutenant-Colonel Timothy Grammel, the presiding judge, denied the request, but said that the prosecution must prove that the detainees Lieutenant-Colonel Steele was helping qualified as "enemies", and not as former enemies.

Prosecutors attempted to justify the charge, citing a speech by President Bush, but Lieutenant Colonel Grammel dismissed this as "vague". The prosecution will have other opportunities to make their case.

Lieutenant-Colonel Steele has already pleaded guilty to three charges, relating to the improper use of classified information and possession of pornography, each of which carries a potential sentence of two years, plus forfeiture of pay and dismissal from the Army.

An eighth charge, that he had an improper relationship with the daughter of a detainee, and a ninth, of misusing Government funds to buy treats for prisoners, were dismissed at a pre-trial hearing in June.

The alleged offences took place between October 2005 and February this year, starting when Lieutenant-Colonel Steele was commander of the 451st Military Police Detachment at Camp Cropper, and later when he was posted to nearby Camp Victory as senior patrol officer with the 89th Military Police Brigade

A witness at the hearing in June spoke of an occasion at Camp Cropper when Lieutenant-Colonel Steele used his service pistol to intimidate the guards in a prison tower. Brigadier General Kevin McBride added,

105

280

285

290

295

300

305

310

315

320


however, that Camp Cropper was positively reviewed by the Red Cross while Lieutenant-Colonel Steele was in charge.

Special Agent John Nocella told the June hearing that Lieutenant-Colonel Steele had empathised with the senior detainees in his charge, who included Saddam and other senior figures from his regime. It has not been made clear which of them was allowed to use the mobile phone.

Actividades

1) Responder:

(a) ¿Por qué se hace mención a Saddam Hussein en el primer párrafo?

(b) ¿Qué cargos se le imputan al Teniente Coronel William Steel?

1.

2.

3.

4.

(c) ¿Qué pena le correspondería por los cargos imputados?

(d) ¿Cuál es la pena máxima que se le aplicará?

325

330


(e) ¿Qué solicitó la defensa respecto del cargo de haber ayudado al enemigo?

(f) ¿Qué resolvió el jurado respecto de esa solicitud?

(g) ¿Por qué se hace referencia al Presidente Bush?

2) Establecer si las siguientes afirmaciones son verdaderas o falsas. Fundamentar oralmente la elección en cada caso.

Verdadera

Falsa

(a)

El Teniente Coronel William Steel se declaró inocente del cargo de uso indebido de información reservada.

(b)

Al Teniente Coronel William Steel se lo declaró inocente del cargo de mantener relaciones indebidas con la hija de un detenido.

(c)

El Teniente Coronel William Steel solía hacer uso de su arma reglamentaria para lograr sus objetivos mediante la intimidación.

110


(d)

El trato del Teniente Coronel William Steel con el detenido Saddam Hussein era degradante e insensible.


3) Incluir en la columna que corresponda cinco términos pertenecientes al área jurídica y cinco al área militar. Agregar su equivalente en castellano según el contexto en el que aparecen en el artículo.

ÁREA JURÍDICA

Término Equivalente en castellano

(a)

(b)

(c)

(d)

(e)

ÁREA MILITAR

Término Equivalente en castellano

(a)

(b)

(c)

(d)

(e)

Texto 13: “The Court and Constitutional Interpretation”Fuente: internet: http://www.supremecourtus.gov

The Court and Constitutional InterpretationEqual justice under law

“Equal justice under law” - These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution. The Supreme Court is “distinctly American in concept and function”, as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations. “The representative system of government has been adopted in several states of Europe”, he remarked, “but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans”.

A more imposing judicial power was never constituted by any people. The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom.

To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a living Constitution, whose broad provisions are continually applied to complicated new situations. While the function of judicial review is not

115

335

340

345

350

355

360

365

370

375


explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that “the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. It is emphatically the province of the judicial department to say what the law is”, he declared.

Actividades

1) Responder e indicar los renglones de referencia:

(a) ¿Cuál es la función de la Corte Suprema de los Estados Unidos de América?

Renglón de referencia:

380

385

390

395

400

405


(b) ¿Por qué se dice que la Constitución es un documento cuidadosamente equilibrado?


(c) ¿Qué se entiende por “judicial review”? ¿Cómo se efectiviza?


(d) ¿De dónde surge el “judicial review”?


(e) Según Madison ¿quién debe realizar la interpretación constitucional? ¿Qué sucedería en caso contrario?


120


(f) ¿En qué año y con qué fallo se confirmó la facultad de la CSJ para efectuar el control de constitucionalidad?



2) Especificar :

(a) El significado de “AS” según el contexto en el que aparece.

(1)

As the final arbiter of the law, the Court is charged with ensuring... (renglón 6):

(2)

The Supreme Court is “distinctly American in concept and function”, as Chief Justice Charles Evans Hughes observed. (renglones 8, 9 y 10):

(3)

None have exercised power for as long and with as much influence (renglones 11 y 12):

(4)

... in the same manner as the Americans (renglón 16):

(5)

... as well as in maintaining a living constitution. (renglones 36 y 37):

(b) El equivalente en castellano del tiempo verbal indicado en negrita.

Tiempo Verbal Equivalencia en castellano

(1)

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.

(2)

Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions.

(3)

Alexander Hamilton and James Madison had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

(4)

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature...


(5)

And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.

125

410

Texto 14 : “Mortgage Loan”Fuente: Wikipedia

Mortgage LoanA mortgage loan is a loan secured by real property through the use of a mortgage (a legal instrument). However, the word mortgage alone, in everyday usage, is most often used to mean mortgage loan.

According to Anglo-American property law, a mortgage occurs when an owner (usually of a fee simple interest in realty) pledges his interest as security or collateral for a loan. Therefore, a mortgage is an encumbrance on property just as an easement would be, but because most mortgages occur as a condition for new loan money, the word mortgage has become the generic term for a loan secured by such real property.

As with other types of loans, mortgages have an interest rate and are scheduled to amortize over a set period of time; typically 30 years. All types of real property can, and usually are, secured with a mortgage and bear an interest rate that is supposed to reflect the lender's risk.

Mortgage lending is the primary mechanism used in many countries to finance private ownership of residential property. Although the terminology and precise forms will differ from country to country, the basic components tend to be similar:

Property: the physical residence being financed. The exact form of ownership will vary from country to country, and may restrict the types of lending that are possible.

Mortgage: the security created on the property by the lender, which will usually include certain restrictions on the use or disposal of the property (such as paying any outstanding debt before selling the property).

Borrower: the person borrowing who either has or is creating an ownership interest in the property.

Lender: any lender, but usually a bank or other financial institution.

Principal: the original size of the loan, which may or may not include certain other costs; as any principal is repaid, the principal will go down in size.

Interest: a financial charge for use of the lender's money.

Foreclosure or repossession: the possibility that the lender has to foreclose, repossess or seize the property under certain circumstances is essential to a mortgage loan; without this aspect, the loan is arguably no different from any other type of loan.

Many other specific characteristics are common to many markets, but the above are the essential features. Governments usually regulate many aspects of mortgage lending, either directly (through legal

415

420

425

430

435

440

445

450


requirements, for example) or indirectly (through regulation of the participants or the financial markets, such 455

130


as the banking industry), and often through state intervention (direct lending by the government, by state-owned banks, or sponsorship of various entities). Other aspects that define a specific mortgage market may be regional, historical, or driven by specific characteristics of the legal or financial system.

Repaying the capitalThere are various ways to repay a mortgage loan; repayment depends on locality, tax laws and prevailing culture.

Capital and interest

The most common way to repay a loan is to make regular payments of the capital (also called principal) and interest over a set term. This is commonly referred to as (self) amortization in the U.S. and as a repayment mortgage in the UK. A mortgage is a form of annuity (from the perspective of the lender), and the calculation of the periodic payments is based on the time value of money formulas. Certain details may be specific to different locations: interest may be calculated on the basis of a 360-day year, for example; interest may be compounded daily, yearly, or semi-annually; prepayment penalties may apply; and other factors. There may be legal restrictions on certain matters, and consumer protection laws may specify or prohibit certain practices.

Depending on the size of the loan and the prevailing practice in the country the term may be short (10 years) or long (50 years plus). In the UK and U.S., 25 to 30 years is the usual maximum term (although shorter periods, such as 15-year mortgage loans, are common). Mortgage payments, which are typically made monthly, contain a capital (repayment of the principal) and an interest element. The amount of capital included in each payment varies throughout the term of the mortgage. In the early years the repayments are largely interest and a small part capital. Towards the end of the mortgage the payments are mostly capital and a smaller portion interest. In this way the payment amount determined at outset is calculated to ensure the loan is repaid at a specified date in the future. This gives borrowers assurance that by maintaining repayment the loan will be cleared at a specified date, if the interest rate does not change.

Interest only

The main alternative to capital and interest mortgage is an interest only mortgage, where the capital is not repaid throughout the term. This type of mortgage is common in the UK, especially when associated with a regular investment plan. With this arrangement regular contributions are made to a separate investment plan designed to build up a lump sum to repay the mortgage at maturity. This type of arrangement is called an investment-backed mortgage or is often related to the type of plan used: endowment mortgage if an endowment policy is used, similarly a Personal Equity Plan (PEP)

460

465

470

475

480

485

490

495

500


mortgage, Individual Savings Account (ISA) mortgage or pension mortgage. Historically, investment-backed mortgages offered various tax advantages over repayment mortgages, although this is no longer the case in the UK. Investment-backed mortgages are seen as higher risk as they are dependent on the investment making sufficient return to clear the debt.

It is not uncommon for interest only mortgages to be arranged without a repayment vehicle, with the borrower gambling that the property market will rise sufficiently for the loan to be repaid by trading down at retirement (or when rent on the property and inflation combine to surpass the interest rate).

Foreclosure and non-recourse lending

In most jurisdictions, a lender may foreclose the mortgaged property if certain conditions - principally, non-payment of the mortgage loan - obtain. Subject to local legal requirements, the property may then be sold. Any amounts received from the sale (net of costs) are applied to the original debt. In some jurisdictions, mortgage loans are non-recourse loans: if the funds recouped from sale of the mortgaged property are insufficient to cover the outstanding debt, the lender may not have recourse to the borrower after foreclosure. In other jurisdictions, the borrower remains responsible for any remaining debt. In virtually all jurisdictions, specific procedures for foreclosure and sale of the mortgaged property apply, and may be tightly regulated by the relevant government; in some jurisdictions, foreclosure and sale can occur quite rapidly, while in others, foreclosure may take many months or even years. In many countries, the ability of lenders to foreclose is extremely limited, and mortgage market development has been notably slower.

Actividades

1)

Predicción.

Antes de leer el texto: Indicar el número de la palabra que corresponde a cada definición.

1) Principal

2) Lender 3) Foreclosure

4) Mortgage

5) Interest 6) Borrower

DefiniciónPalab

ra

a) Financial charge when using the lender’s money

505

510

515

520

525

530


b) The legal process by which a lender acquires possession of the property securing a mortgage loan when the borrower defaults

c) The portion of the monthly payment that is used to reduce the loan balance

d) The party receiving a loan

e) Legal instrument created as a security on a property

f) The party that disburses funds to a borrower

135


2)

Escanear el texto y controlar las respuestas.

3)

Leer las siguientes definiciones.

Fee simple (Black´s Law Dictionary – abridged) Absolute A fee simple absolute is an estate limited absolutely to a man and his heirs and assigns forever without limitation or condition. Conditional. Type of transfer in which grantor conveys fee simply on condition that something be done or not done.

http://www.citifinancial.com/glossary/defin/FeeSimple.htm

Fee simple is the most common type of ownership that allows you to have unlimited control over a property – most homes are held in fee simple. You can find this term written on the deed to your home. A property held in fee simple, unlike other types of ownership, can be included in a will for someone to inherit. Fee simple is also called an estate of inheritance or estate in fee.

¿Existe algo similar en nuestra legislación?

SI NO

4)

Comprensión.

De acuerdo a lo expresado en el texto:

1 “Mortgage” se refiere a:

(a) el interés que debe pagarse por un préstamo

(b) una inversión a largo plazo

(c) un aval sobre una propiedad

2 “Foreclosure” se refiere a:

(a) finalizar una hipoteca mediante su cancelación

(b)el derecho a ejecutar una hipoteca por falta de pago de parte del deudor hipotecario

(c) el pago total de la deuda avalada por la hipoteca

3Explicar cómo evoluciona la composición del monto de las cuotas de la hipoteca.

http://www.citifinancial.com/glossary/defin/FeeSimple.htm


140


4- Explicar el significado de “non recourse loans”.

5)

Dar el equivalente en castellano de las siguientes palabras o frases dentro del contexto:

Inglés Equivalente en castellano

(a) “scheduled” (renglón 10)

(b) “lump sum” (renglón 76)

(c) “easement” (renglón 7)

(d)“term” (renglón ?: 8-50-60-61-64-73)

(e) “maturity” (renglón 77)

(f) “bear an interest” (renglón 12)

(g) “clear the debt” (renglón 84)

(h) “remaining debt” (renglón 97)

(j)“this is no longer the case” (renglón 82)

(k) “ability of lenders” (renglón 102)

(l)“consumer protection laws” (renglón 58)

(m)

“repay a loan” (renglón 49)

(n)“state-owned banks” (renglón 42)

(ñ) “set period of time” (renglón 11)


6)

Gramática.

(a) La expresión: “mortgages are seen as higher risk as they are dependent on the investment”, ¿es un comparativo?

SI NO

En el caso de no ser un comparativo, ¿qué significado tiene en ese contexto?

¿Qué significa “AS” en ambos casos?

(b) Completar los espacios en blanco con palabras del texto.

Persona A Persona B Objeto Verbo

Payor payee

- Lend

- - Amortization

- own

- - foreclose

sponsor - sponsor

- - borrow


Liberty of the SubjectI

Liberty may be roughly defined as 'not being prevented from doing what one wants to do: not being compelled to do what one does not want to do'.

Equality is complementary, since if any have special rights (privilege) it reduces the liberty of others. ('Men are born, and continue equal, in respect of their rights,' Declaration of the Rights of Man, 1789).

Liberty is made up of component liberties (freedoms or rights)-political liberty (the freedom to choose one's government) ; personal liberty (the first casualty of war) freedom of expression (the first victim of tyranny); freedom of association; religious freedom, etc. (the nature of these components will depend on political conditions, (compare the liberties cited in the Bill of Rights 1688, the Declaration of the Rights of Man 1789, the Grundrecht 1848, the Universal Declaration of Human Rights 1948 and the most recent demands for additional freedoms, e.g. the right to privacy).

It is assumed that 'man is born free', from the premise of homo sapiens -that man is a reasoning animal and will develop best if allowed to express himself. The alternative would be authoritarianism based on the premise that the individual is incapable of discerning his own good. Therefore interference with the liberty of the subject must always justify itself.

Alternatively liberties may be established by a constitution (see the US constitution, the first ten amendments, the Belgian constitution -Dicey, Law of the Constitution, ref. 23, ch. 6).

The legal justification for restricting the liberty of the individual should be to protect the liberty of other individuals, represented by the state (hence 'la liberté est le droit de faire tout ce que les lois permettent'. Montesquieu, and 'a man is innocent until he is proved guilty' and 'every invasion is a trespass').The real distinction between democracy and tyranny, and between individualism and collectivism lies in the degree of liberty allowed to the subject, or the degree of authority allowed to the state.

II

Liberty requires protection. 'The price of liberty is eternal vigilance.'

Governments desire to increase their power, for arbitrary power is not only more satisfying to those who exercise it but also easier to exercise.

As the business of the state has increased there has been of necessity an increased encroachment on the liberty of the individual. Some of

145

535

540

545

550

555

560

565

570

575


this has been justified by the state taking legal powers (technically this would not be an infringement of liberty according to the above definition). Some has been done without legal justification or with somewhat dubious legal justification (e.g. the actions of administrative tribunals where no appeal lies to the courts).580

Actividades

1) Completar el siguiente cuadro:

2) Responder:

(a) ¿Por qué se menciona la Declaración de los Derechos del Hombre de 1789 -segundo párrafo?


LIBERTAD

Concepto Complemento

Libertades Básicas

585

590

595

600

605

610

615

150

(b) ¿Qué nuevo derecho ha demandado el hombre en los últimos tiempos?

(c) ¿Cuál es la bipolaridad de las dos premisas que cita el texto?

(d) ¿Qué podría justificar la restricción de ciertas libertades?

(e) ¿Por qué se introducen los conceptos de democracia y de individualismo?

(f) ¿Qué justifica la referencia a la protección introducida en la Parte II?


(g) ¿Cómo vertería en castellano, literalmente, el contenido de la oración subrayada –renglones 34/35?

(h) ¿Cómo han concretado los gobernantes lo que se afirma en la oración vertida al castellano?


Texto 16 : “The Factorame case”Fuente: http://www.bookrags.com/wiki/Factortame_case 02/20/2011

The Factortame Case

The Factortame case was a landmark constitutional case in the United Kingdom (UK), which confirmed the primacy of European Union law over English law whilst the European Communities Act 1972 is not expressly repealed. The Factorame cases spanned a period of over ten years and are of particular constitutional significance in the debate over the erosion of Parliamentary supremacy in Britain. The two most important judgements are to be found in R v Secretary of State for Transport (ex parte Factortame) [1990] 2 AC 85 and R v Secretary of State for Transport (ex parte Factortame) No 2 [1991] 1 AC 603 which are often referred to as Factortame I and Factortame II.

Background

The case first came to prominence when a Spanish fishing company incorporated by Directors; Joseph J LCouceiro, John A Couceiro and Ken L Couceiro, appealed in the UK courts against restrictions imposed on them by the UK government under the Merchant Shipping Act 1988. A section of the Act prevented companies using foreign ships registered as British vessels from fishing in UK waters. Factortame's argument was that they were permitted to fish under the law of the European Economic Community

First Instance

The case reached the High Court, which granted an order requiring that the relevant part of the Merchant Shipping Act be disapplied. However, on 22 March, 1989, this was overturned by the Court of Appeal on the basis that the constitution did not give any court the right to suspend Acts of Parliament, and this was confirmed by the House of Lords, the highest court in the UK.

House of Lords

In 1990, the House of Lords, ruling that they did not have the power to suspend Acts of Parliament, referred the case to the European Court of Justice (ECJ), as was legally required. The ECJ in June, 1990, ruled that national courts could disapply legislation that contravened EU law. Consequently, the House of Lords ruled in favour of Factortame, meaning that in effect the Merchant Shipping Act 1988 was struck down.

Relevance

The key issue in this case was not whether European law was superior to national law. In the view of the European Court of Justice, this was already well established in case law, since the decision in Costa v. ENEL; although another view is that European law is only superior whilst the UK Parliament allows it to be. The question was whether or


155

620

625

630

635

640

645

650

655

http://www.bookrags.com/wiki/Factortame_case

http://www.bookrags.com/Costa_v._ENEL


http://www.bookrags.com/European_Court_of_Justice

http://www.bookrags.com/European_Court_of_Justice

http://www.bookrags.com/Acts_of_Parliament

http://www.bookrags.com/1990

http://www.bookrags.com/Judicial_functions_of_the_House_of_Lords

http://www.bookrags.com/Court_of_Appeal_of_England_and_Wales

http://www.bookrags.com/Court_of_Appeal_of_England_and_Wales

http://www.bookrags.com/1989

http://www.bookrags.com/22_March

http://www.bookrags.com/High_Court_of_Justice_of_England_and_Wales

http://www.bookrags.com/European_Economic_Community#European_Economic_Community

http://www.bookrags.com/European_Economic_Community#European_Economic_Community

http://www.bookrags.com/Merchant_Shipping_Act_1988

http://www.bookrags.com/Spain

http://www.bookrags.com/Parliamentary_supremacy

http://www.bookrags.com/European_Communities_Act_1972

http://www.bookrags.com/English_law

http://www.bookrags.com/European_Union_law

http://www.bookrags.com/European_Union_law

http://www.bookrags.com/United_Kingdom

http://www.bookrags.com/United_Kingdom


not a domestic British court could overturn an Act of Parliament on grounds of incompatibility with EU legislation. (For a further discussion of this issue see Erskine May, Parliamentary Practice) This appears to breach English constitutional principle of Parliamentary sovereignty, which holds that Parliament is the supreme law-making body and that no external body can override its legislation. In Factortame, the courts were able to prevent the operation of the law created by Parliament. Effectively, the House of Lords has been given the power to disapply Acts of Parliament where they are incompatible with EU law. The comments made by Lord Bridge in the case have been seen in some quarters as being 'revolutionary' (Wade), in that he suggests that Parliament has, in the European Communities Act (ECA) 1972, managed to bind its successors from repealing the Act impliedly. It had previously been thought that no Parliament could ever bind its successors in such a way. In a case where two statutes conflicted, the traditional approach would have been to apply the later statute on the basis that the inconsistent parts of the earlier statute had been repealed. Such an interpretation of the case is supported by statements inThoburn v Sunderland City Council and Hunt v Hackney Borough Council to the effect that there now exist two forms of Acts of Parliament: ordinary acts which can be repealed impliedly, and 'statutory' or 'constitutional' acts which can only be repealed expressly. (See in particular the judgement of Laws LJ in Thoburn). Nevertheless, there is no restriction on the ability of Parliament to expressly repeal ECA 1972. Furthermore, the case does not, on a strict reading, constitute a breach of Parliamentary sovereignty. The Merchant Shipping Act 1988 was not a purposeful and direct conflict with EC law, but was instead an attempt to give effect to the fishing quotas required under EC law. Therefore, the courts were not striking down a domestic Act of Parliament, but were instead attempting to interpret legislation in a manner compatible with the Treaty obligations that arise under ECA 1972 (as proposed by Lord Diplock in the case of Garland v British Rail Engineering). It remains to be seen how the courts would respond to an Act of Parliament intentionally contradicting EC law. However, in the case of MacArthy's v Smith, Lord Denning suggested that, should such an event occur, the courts would be obliged to obey the domestic law over the European.

SovereigntyThe issue of whether the UK Parliament or the European Court of Justice has ultimate sovereignty over European Community laws which apply to the UK is still an area of intense legal debate and conflicting views. In current practice, the UK recognises the primacy of the European Court of Justice for those areas of law in which the EU has competency. However, inMacarthys Ltd v Smith, Lord Denning said, "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or of intentionally acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament." This view of the UK's ultimate sovereignty was supported by Lord Justice Laws in the Metric


660

665

670

675

680

685

690

695

700

705


http://www.bookrags.com/Thoburn_v_Sunderland_City_Council


http://www.bookrags.com/Lord_Diplock



http://www.bookrags.com/European_Communities_Act

http://www.bookrags.com/Nigel_Bridge%2C_Baron_Bridge_of_Harwich

http://www.bookrags.com/Parliamentary_sovereignty


Martyrscase, when he said, "...there is nothing in the European Communities Act which allows the European Court, or any other institution of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom...That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions." The opposing view, that European law has primacy over UK law, has been stated many times by the European Court of Justice. In ECJ Case 6/64 Costa v. ENEL (1964), the ECJ stated, "...the Members States have limited their sovereign rights, albeit within limited fields." In Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) their ruling states, "...the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights." The question of who has the ultimate 'Kompetenz-Kompetenz' (i.e. the right to decide the limits the European Court of Justice's jurisdiction) has not been settled. The Factortame case is important for two reasons. Firstly, the European Court of Justice re-asserts the primacy of European Community law, and its ability to overrule conflicting domestic legislation. It also changes the balance of power in the constitution. For the first time since 1688 (prior to the Bill of Rights), the judiciary is able to set aside the will of the legislature, even though it has knowledge of its express wish. The Factortame case is often cited as evidence for the erosion of UK sovereignty and independence by the Eurosceptic movement in the UK. The central question is therefore whether Parliament is truly sovereign.

Actividades

1) Predicción

i. ¿Qué saben algo sobre el caso Factortame?

2) Responder

(a) ¿Cuáles son las dos razones por las que el caso Factortame es importante?


710

715

720

725

730

735

160


http://www.bookrags.com/Euroscepticism_in_the_United_Kingdom

http://www.bookrags.com/Bill_of_Rights_1689

http://www.bookrags.com/Constitution_of_the_United_Kingdom

http://www.bookrags.com/Van_Gend_en_Loos_v._Nederlandse_Administratie_der_Belastingen

http://www.bookrags.com/Van_Gend_en_Loos_v._Nederlandse_Administratie_der_Belastingen






(b) Explicar el caso.

(c) ¿Qué pasa en el caso de los alumnos que han crecido utilizando la tecnología?

(d) ¿Cuál es el tema a resolver en este caso?

(e) ¿Qué sugiere Lord Bridge?

(f) ¿Cómo responden los tribunales del Reino Unido cuando una Ley Parlamentaria contradice el derecho de la Comunidad Europea?




(g) ¿Qué se dice sobre el caso Metric Martyrs?

3) Complete el siguiente cuadro:

Supremacía del Derecho Comunitario sobre el Derecho del Reino Unido

A favor En contra

4) Vocabulario: hacer una lista de palabras relacionadas con el funcionamiento parlamentario.


740




165


Texto 17 : “Supreme Court Allows Lethal Injection for Execution”Fuente: The New York Times, 16 de abril de 2008

Supreme Court Allows Lethal Injection for Execution

WASHINGTON (AP) -- The Supreme Court on Wednesday upheld the most common method of lethal injection executions, likely clearing the way to resume executions that have been on hold for nearly 7 months.

The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

''We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,'' Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Roberts' opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.

Justices Ruth Bader Ginsburg and David Souter dissented.

Executions have been on hold since September, when the court agreed to hear the Kentucky case. There was no immediate indication when they would resume, but prosecutors in several states said they would seek new execution dates if the court ruled favorably in the Kentucky case.

Forty-two people were executed last year among more than 3,300 people on death row across the country. Another roughly two dozen executions did not go forward because of the Supreme Court's review, death penalty opponents said.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.

The case before the court came from Kentucky, where two death row inmates did not ask to be spared execution or death by injection. Instead, they wanted the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.


745

750

755

760

765

770

775

780


At the very least, they said, the state should be required to impose tighter controls on the three-drug process to ensure that the anesthetic is given properly.

Roberts said the one-drug method, frequently used in animal euthanasia, ''has problems of its own, and has never been tried by a single state.''

Kentucky has had only one execution by lethal injection and it did not present any obvious problems, both sides in the case agreed.

But executions elsewhere, in Florida and Ohio, took much longer than usual, with strong indications that the prisoners suffered severe pain in the process. Workers had trouble inserting the IV lines that are used to deliver the drugs.

Roberts said ''a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative.''

Ginsburg, in her dissent, said her colleagues should have asked Kentucky courts to consider whether the state includes adequate safeguards to ensure a prisoner is unconscious and thus unlikely to suffer severe pain.

Justice John Paul Stevens, while agreeing with the outcome, said the court's decision would not end the debate over lethal injection. ''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself,'' Stevens said.

Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.

Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California-Berkeley School of Law, said he expects challenges to lethal injections will continue in several states.

Actividad

1) Responder:


785

790

795

800

805

810

170


(a) ¿Qué está en discusión en el caso de la pena de muerte en Kentucky?

(b) ¿Cuáles son los riesgos de la aplicación de las tres drogas en la inyección letal?

(c) ¿Cuál es la opinión del Presidente de la Corte Suprema con respecto a la aplicación de la inyección letal?

(d) ¿Qué sucede si el anestésico aplicado no surte efecto?

(e) ¿Qué otro tema se debate en el artículo, aparte de la inyección letal?



(f) ¿Qué se le debe exigir al estado frente a la aplicación de la inyección letal?

(g) ¿Ty Alper está a favor o en contra de la inyección letal?



175

Texto 18 : “The Institutions of the European Union”Fuente: internet: www.historylearningsite.co.uk/institutions_of_the_european_uni.htm

The Institutions of the European UnionThe European Union is run not by one body but by a series of institutions with their own remit. The following institutions were created in the 1960’s and have developed since. The European Commission has come in for criticism from those who oppose the European Union and many have criticised the apparent lack of national democracy as a result of the powers of these institutions in the European Union.

The most senior of these institutions is the Council of Ministers. Other important bodies are: The European Commission, The European Parliament, The European Court of Justice

The council of ministers

This is the European Union’s most powerful decision-making body. It is made up of the foreign ministers of member states. Other ministers from member states may have an input in topics relevant to their expertise.

The policies discussed and eventually decided on by the Council are largely developed by non-elected civil servants in member states and by the non-elected Commission . This has led to many complaints about how this system works in that 320 million people have decisions taken for them by elected ministers but these ministers discuss policies created by non-elected civil servants.

Before 1986, just one country represented in the Council could veto a policy but in 1986 Qualified Majority Voting was introduced. This is a system whereby each country has been given a block of votes dependent on its size. Britain, France and Germany as the largest member states have 10 votes each. Luxembourg has 2 votes. In total, there are 87 votes in the Council and 62 are needed to secure a majority.

A unanimous vote is required to enlarge membership of the Union. It would also be needed if there was a move towards a harmonisation of the tax systems of member states.

Britain has suffered rebuffs using this QMV system. Britain was overruled on the principle of a 48 hour week in 1993. In 1996, the Major government, in retaliation for the EU banning the sale of British beef as a result of the BSE scare, introduced a policy of non-co-operation with the EU. However, this was doomed to fail and was no more than gesture politics as the Council of Ministers did not need Britain’s 10 votes to push through policy.

This aspect of the Council alone has brought criticism from those against the EU in that the Council can impose a policy on member states even if they (a) did not vote for it in the Council or (b) simply, for whatever reason, did not participate in the work done in the Council on that policy. This ability to impose its will is all part of the supranational nature of the EU i.e. where member states ability to create domestic policy is inferior to that of the European Union.

The european commission

5

10

15

20

25

30

35

40

45

http://www.historylearningsite.co.uk/european_commission.htm


THE EUROPEAN PARLIAMENT -The European Parliament, based in Strasburg, is an elected body. Members of it are known as Members of the European Parliament (MEPs) and they are elected by voters within a member state. However, turnout for MEP elections within Britain is low –much lower than for a national election. In 1999, the average MEP constituency vote was a mere 23% in the UK, comparing less than favourably with the average 60% in mainland European Union states.

The European Parliament is not a legislative body. It is consulted on issues and can influence changes to suggested policies but it cannot introduce them –this is only done by the Commission and it is the Commission that initiates the whole process. In this sense, what power does the European Parliament have?

The European Parliament has two theoretical powers but in reality it is unlikely to ever use both.

The Parliament can reject the annual budget of the European Union (which it did 6 times in the 1980’s) but now with a centralised currency, this would bring to a halt all the work the European Union does and bring the whole concept of a Europe working together into disrepute. The two bodies clashing would fundamentally weaken the whole fabric of the Union and give added ammunition to those anti the European Union.

The Parliament also has the theoretical right to dismiss the European Commission if two-thirds of MEP’s vote for this. This would cause huge chaos and simply will not happen. As the driving force behind policy initiative is the Commission, such an act would deprive the European Union, in many senses, of its modus operandi. However, it was pressure from the Parliament that lead to the resignation of all 20 commissioners in 1999.

The Parliament has 626 MEP’s and they are elected for 5 years. The more populated member states have been allocated a higher number of seats. When the Parliament sits, those who belong to a political party, tend to sit with all those from a similar party –i.e., the Socialists will all sit together regardless of which member state they are from; the environmentalists will also do the same etc.

The european court of justice

This body is the one most anti-Europeans target as the one which has/will undermine British political sovereignty. They believe that the European Court of Justice will impose onto member states what they want and that the people within those states will not have any choice.

When Britain joined the EEC, simply by doing this the government put European law above British law. Though the Treaty of Rome has no validity in itself, what it stated was brought into British law by an Act of Parliament – the European Communities Act – in 1972. Therefore, all British domestic law has to be in synch with European Union law. The European Court will decide if it is or is not. The first time this affected Britain was in 1991 when the House of Lords used the 1972 Act to adjudge the 1988 Merchant Shipping Act to be contrary to European

50

55

60

65

70

75

80

85

90

180


Union law (known as the Factortame Case). The summary of that case is blunt:

The European Court of Justice is made up of 15 judges appointed by the member states. Their appointment is for a fixed term of office of 6 years though the term is renewable.

95

100


Actividades

1) Responder:

(a) ¿Qué se afirma en la primera oración?

(b) ¿Cuándo se crearon las instituciones a las que se hace referencia en la oración 1?

(c) ¿A qué críticas se hace referencia en la oración 3 del primer párrafo?

(d) ¿Qué instituciones conforman la Unión Europea?

(e) ¿Cuál de las instituciones es la de mayor relevancia y quiénes la integran?


(f) ¿Qué planteos existen en relación con las tomas de decisiones del Consejo de Ministros?

(g) ¿Qué modificación se introdujo en 1986 y en qué consistió dicha reforma?

(h) ¿En qué casos se exige la aprobación por totalidad de votos?

(i) ¿Qué efecto tuvo en Gran Bretaña la introducción del sistema de aprobación por mayoría de votos?

(j) ¿Qué aspectos se le critican al Consejo de Ministros?

185


(k) ¿Por qué se incluye la referencia a la naturaleza supranacional de la Unión Europea?

2) Asignar un título a cada uno de los párrafos que desarrollan el tema La Comisión Europea y resumir su contenido.

Párrafo 1

Título:

Contenido:

Párrafo 2

Título:

Contenido:

Párrafo 3

Título:


Contenido:

Párrafo 4

Título:

Contenido:

3) Indicar con una cruz si la información es Verdadera o Falsa. Fundamentar la respuesta.

Verdadera

Falsa

(a)

La Corte Europea de Justicia fortalecerá la soberanía política de Gran Bretaña.

(b)

El ingreso de Gran Bretaña a la Comunidad Europea le otorgó al país mayor independencia en asuntos legales.

(c)

El efecto del ingreso de Gran Bretaña a la Comunidad Europea se verificó con claridad en 1991.

190


(d)

Los estados miembros de la Comunidad Europea no están facultados para nombrar Jueces del Tribunal de Justicia.

4) Detectar siglas y determinar su significado.

Sigla Significado

5)

Establecer a qué hacen referencia las palabras subrayadas en el texto:

“their” (renglón 2):

“those” (renglón 3):

“these” (renglón 5):

“it” (renglón 11):

“this” (renglón 16):

“whereby” (renglón 20):

“its” (renglón 21):


“its” (renglón 37):

“that” (renglón 39):

“them” (renglón 49):



“it” (renglón 50):

“did” (renglón 54):

“such” (renglón 62):

“those” (renglón 68):


“itself” (renglón 77):


Texto 19 : “Case: Wohl v. Spectrum Manufacturing, Inc.”Fuente: West’s Business Law. Text , Cases, Legal, Ethical, Regulatory and International Environment. Seventh Edition. Kenneth W. Clarkson. Roger LeRoy Miller. Gaylord A. Jents. Frank B. Cross. West Educational Publishing. An International Thomson Publishing Company. CHAPTER 4 COURT PROCEDURES. Páginas 65 - 66.

Case: Wohl v. Spectrum Manufacturing, Inc.

CASE 4.1 United

States Court of

Appeals Seventh Circuit,

1996. 94 F.3d

353.

Wohl v. Spectrum Manufacturing, Inc.

1

5

10

15

20

25

BACKGROUND AND FACTS: Martin Wohl worked for Spectrum Manufacturing, Inc., as the firm´s controller. His responsibilities included financial and cost accounting. Billing, which would normally fall under a controller´s supervision, was handled by Greg Reuhs, Spectrum´s general manager. According to Wohl, Reuhs´s unorthodox billing policy (involving “stealing” billing from, and allocating labor to, subsequent months) made it difficult for Wohl to obtain accurate information for his accounting reports. It also prevented management from obtaining an accurate picture of departrment profit and loss. Wohl discussed the problem with Spectrum´s president and others, but he was told to “get along with” Reuhs and to work out the differences. Wohl later stated that it was clear to him “that the company considered Reuhs, who was the younger man, to be a key player in the organization, and that he was to be appeased. “ When Spectrum fired Wohl, who was then fifty-four years old, and replaced him with a man who was twenty years younger, Wohl sued the company in a federal district court for age discrimination in violation of federal law. Spectrum moved for summary judgment, arguing that it had fired Wohl not because of his age but because of his inability to produce certain accounting reports. The district court granted the motion, and Wohl appealed.

IN THE LANGUAGE OF THE COURT

30

ESCHBACH, Circuit Judge.

* * * *

A plaintiff in an age discrimination case may defeat a summary judgment motion brought by the employer if the plaintiff produces evidence that the employer [offered] a phony reason for firing the employee. * * *

* * * *

195


35

40

45

50

* * * [The] facts all support Wohl´s contention that his failure to produce accurate and reliable reports was not the true reason that he was fired. We recognize that a reasonable fact-finder may infer contrary conclusions, but we reemphasize that all reasonable inferences must be viewed in the light most favorable to the nonmoving party [the party who is not bringing the motion; the opposing party] on summary judgment.

* * * *

Spectrum gave Wohl a substantial raise just before he was fired, Wohl produced financial reports as best he was able, and Spectrum provides no documentary evidence that Wohl did not meet their legitimate expectations. Plaintiff also stated in his affidavit that “[u] until I was fired, I had every reason to believe that the company was happy with my performance. I was never given any indication that Spectrum considered my efforts * * * to be deficient.” This is essentially a swearing contest. Summary judgment is not the appropiate place to resolve this genuine dispute over a material fact.

DECISION AND REMEDY

55

The U.S. Court of Appeals for the Seventh Circuit reversed the district court´s grant of summary judgment in favor of Spectrum and remanded the case (sent it back to the trial court) for trial.

Palabras: 498

Actividades

1) Actividad de anticipación. Responder las siguientes preguntas.

(a) ¿Cómo está organizada la información desde el punto de vista gráfico?

5


(b) ¿De qué manera contribuye a la comprensión?

(c) ¿Por qué se utiliza distinta tipografía?

(d) ¿Por qué se utilizan asteriscos (*), corchetes ([ ]) y comillas (“ “)?

(e) ¿Qué tipo de texto es?

(f) ¿Cómo se interpretan los títulos de la columna izquierda?

200


(g) Identificar conectores dentro de cada párrafo principal de la columna derecha.

(h) Analizar la organización de la información en “Background and Facts". Identificar oraciones, secuencia y conectores.

2) Actividad de contenido. Responder las siguientes preguntas.

(a) ¿Cuáles eran las tareas a cargo de Martín Wohl?

(b) ¿Cuáles eran las tareas a cargo de Reuhs?

(c) ¿Cómo se encuentra acreditado en el primer párrafo que la tarea de Reuhs dificulta el normal desarrollo del trabajo de Wohl?


(d) ¿Por qué se manifiesta que los métodos utilizados por Reuhs no son ortodoxos?

(e) ¿De qué manera afecta esta conducta al nivel gerencial del empleador?

(f) ¿Qué actitud asumió Wohl ante esta conducta por parte de Reuhs?

(g) ¿Cuándo presentó Wohl su demanda?

(h) ¿Ante que tribunal la presentó?


(i) ¿Cuál fue el curso de acción de Spectrum ante tal demanda?

(j) ¿Cuál fue el pronunciamiento del Tribunal?

(k) ¿Qué hizo Wohl?

(l) ¿Qué criterio debe aplicarse en las causas en las que el actor alega discriminación por razón de la edad?

(m) ¿Cómo valora el tribunal los hechos?

205


(n) De acuerdo con el tribunal, ¿qué principio se debe aplicar?

(o) ¿Cuáles son las conclusiones a las que llegó el tribunal respecto de los hechos?

(p) ¿Por qué el tribunal no considera apropiado el “summary judgment”?

(q) ¿Cuál fue la decisión del tribunal de apelaciones del séptimo circuito?

Texto 20 : “Case:Ohio v. Lessin”Fuente: West’s Business Law. Text , Cases, Legal, Ethical, Regulatory and International Environment. Seventh Edition. Kenneth W. Clarkson. Roger LeRoy Miller. Gaylord A. Jents. Frank B. Cross. West Educational Publishing. An International Thomson Publishing Company. CHAPTER 4 COURT PROCEDURES. Páginas 71 - 72.

Case: Ohio v. LessinCASE 4.2

Supreme Court of Ohio

1993.

67 Ohio St.3d 487,620 N.E.2.d 72.

Ohio v. Lessin

1

5

10

15

20

BACKGROUND AND FACTS: Cheryl Lessin, a member of the Revolutionary Communist Party, participated in a political demonstration over President George Bush´s ordering of American troops to the Persian Gulf in 1990. Lessin made prepared political statements to the crowd; assisted in the burning of an American flag to illustrate her own and her party´s disapproval of the president´s decision; and then pushed, shoved, and punched her way through the crowd until she was arrested by police. In 1989, prior to Lessins´s trial, the United States Supreme Court had decided, in Texas v. Johnsona, that burning an American flag to convey a political message is protected speech under the First Amendment. The trial court in Lessin´s case, however, failed to instruct the jury on the law set forth by the Supreme Court in Johnson and did not preclude the members of the jury from considering the evidence of political speech, particularly flag burning, in their determination of Lessin´s guilt. When Lessin appealed the court´s guilty verdict, the court of appeals affirmed the trial court´s decision. Lessin then appealed to the Ohio Supreme Court.

IN THE LANGUAGE OF THE COURT

25

30

MOYER, Chief Justice

* * * *

The risk that a jury will premise its guilty verdict on constitutionally protected conduct is reduced, if not completely eliminated, by an accurate and thorough set of jury instructions which direct the jury to refrain from considering certain evidence as proof of guilt. In this case, the role of the jury instructions was critical in obviating [removing] the possibility that each juror would convict based on his or her personal prejudices against flag burners and Communists. * * *

We cannot uphold Lessin´s conviction for the

a 491 U.S. 387, 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989)210


35

40

45

50

crime of inciting violence because it is impossible to say with any degree of certainty that her burning of the United States flag was disregarded by the jury in reaching its verdict. The trial court´s instruction given to the jury on free speech did not serve to adequately protect the defendant´s rights because it did not inform the jury that (1) flag burning in the absence of a call to violence is protected speech under the First Amendment and (2) the jury is not to consider the fact that Lessin burned the flag in determining whether she is guilty of inciting violence. The necessity of giving a more precise instruction is further underscored because of the * * * exchange which occurred between defense counsel and the trial judge during voir dire [ in which the trial judge told the defense counsel, “There has been no Supreme Court Case, to my knowledge, that permits under any circumstances that it´s okay to burn the flag”].


DECISION AND REMEDY

55

The Ohio Supreme Court reversed the appellate court´s decision. The case was sent back for a new trial in which jury instructions reflecting the United States Supreme Court´s decision in Johnson would be given and Lessin´s freedom of Speech would be protected.

ETHICALCONSIDERATIONS

60

The Supreme Court´s position that flag burning is a form of speech protected by the First Amendment has been controversial. Many feel that to allow the flag to be so desecrated is to repudiate the freedom and independence symbolized by the flag. In the Court´s judgment, however, to prohibit Americans from freely expressing their political views- symbolically or otherwise- would violate not only the First Amendment to the Constitution but also the basis for democratic government. b

b Flag Burning and other forms of symbolic speech are discussed in further detail in Chapter 5.

Palabras: 596

(a)ActividadesActividad de contenido. Responder las siguientes preguntas.(a) ¿Qué actitud asumió Cherryl Lessin frente al envío de tropas al Golfo Pérsico en 1990?(b) ¿Qué resolvió la Suprema Corte de EEUU en la causa Texas V Johnson?(c) ¿Qué resolvió el tribunal en el caso Lessin?

(d) ¿Cuál fue el voto razonado del Juez Moyer?

215

220

225

230

235

240


(e) ¿De qué información se privó al jurado?(f) ¿Por qué era tan importante dicha

información?(g) ¿Qué ocurrió durante el proceso de selección del jurado?(h) ¿Qué

dispuso la Suprema Corte de Ohio?(i) ¿Cuál fue la posición de la Corte Suprema de

EEUU?(j) ¿Cuáles son las opiniones doctrinarias al respecto?

245

250

255

cuadernillo lecto - nivel ii - 08-03-2011 corregido

Documents