Law Fish News for 03-31-2018

Roper v Simmons

As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri’s juvenile court system. In mitigation Simmons’ attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. III. A. The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. In the words of the Missouri Supreme Court: “It would be the ultimate in irony if the very fact that the inappropriateness of the death penalty for juveniles was broadly recognized sooner than it was recognized for the mentally retarded were to become a reason to continue the execution of juveniles now that the execution of the mentally retarded has been barred….”. Second, Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and determined that the death penalty should not extend to juveniles. As in Atkins, the objective indicia of consensus in this case-the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice-provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “Categorically less culpable than the average criminal.” A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment…. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. These qualities often result in impetuous and ill-considered actions and decisions……” The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure….The third broad difference is that the character of a juvenile is not as well formed as that of an adult. These differences render suspect any conclusion that a juvenile falls among the worst offenders…. In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death penalty on juveniles below that age.

Keywords: [“juvenile”,”death”,”penalty”]
Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/ropervsimmons.html

Roper v Simmons

As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri’s juvenile court system. In mitigation Simmons’ attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. III. A. The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. In the words of the Missouri Supreme Court: “It would be the ultimate in irony if the very fact that the inappropriateness of the death penalty for juveniles was broadly recognized sooner than it was recognized for the mentally retarded were to become a reason to continue the execution of juveniles now that the execution of the mentally retarded has been barred….”. Second, Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and determined that the death penalty should not extend to juveniles. As in Atkins, the objective indicia of consensus in this case-the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice-provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “Categorically less culpable than the average criminal.” A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment…. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. These qualities often result in impetuous and ill-considered actions and decisions……” The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure….The third broad difference is that the character of a juvenile is not as well formed as that of an adult. These differences render suspect any conclusion that a juvenile falls among the worst offenders…. In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death penalty on juveniles below that age.

Keywords: [“juvenile”,”death”,”penalty”]
Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/ropervsimmons.html

Law Fish News for 03-30-2018

Exceptional and Extremely Unusual Hardship: BIA Reverses Immigration Judge Ruling on an Undocumented Family of 6

One defense option that remains is one where an undocumented or illegal alien has an opportunity to demonstrate 1) 10 years of physical presence in the U.S., 2) good moral character and 3) that deportation would pose an “Exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident parent, spouse or child. In a recent decision, the Board of Immigration Appeals further defined exactly what constitutes “Exceptional and extremely unusual hardship”. Board of Immigration Appeals Further Defines “Exceptional and Extremely Unusual Hardship” The case involved a 39 year old native and citizen of Mexico who entered the U.S. on a visitor visa back in 1988, and except for a brief visit back to Mexico in 1992, she had been continuously present in the U.S. since that time. In proceedings before the Immigration Court, cancellation of removal relief was denied, because, according to the Immigration Judge presiding, “Exceptional and extremely unusual hardship” to these children was not demonstrated. The hardship prong was not quite as prohibitive, in that only “Extreme” hardship need be proven, and that the qualifying hardship could be to a U.S. family member, or to the applicant himself. According to the BIA, in reversing the above decision, an applicant need not demonstrate that the hardships to her qualifying family members be “Unconscionable” nor is the standard “So restrictive that only a handful of applicants, such as those with a serious medical condition, will qualify for relief”. Reaching the conclusion that the above applicant’s U.S. citizen children would indeed face “Extreme and unusual hardships” should she be deported, the BIA found the following factors pivotal: the applicant, a divorced mother, was the children’s sole means of support, and the family’s stable home environment depended entirely on the applicant’s financial and emotional support, the applicant had no family left in Mexico, and presumably no one would be available to help the applicant care for her children should the children accompany her to Mexico. Dramatically lower standard of living in Mexico and the applicant would not have the opportunity to provide for her family in any way comparable to the present level of support, emotional ties of the children to the applicant’s extended family in the U.S. would be severed and, children did not speak Spanish. While this decision does not constitute a revolutionary interpretation of the governing statute, it does appear to give immigration courts a bit more breathing room when it comes to considering the hardships to U.S. family members in deciding requests for “Cancellation of removal”. Filings most commonly submitted with these Services Centers include petitions for family members overseas as well as all employment based immigration filings.

Keywords: [“hardship”,”U.S.”,”applicant”]
Source: http://www.usavisacounsel.com/articles/article-51.htm

Exceptional and Extremely Unusual Hardship: BIA Reverses Immigration Judge Ruling on an Undocumented Family of 6

One defense option that remains is one where an undocumented or illegal alien has an opportunity to demonstrate 1) 10 years of physical presence in the U.S., 2) good moral character and 3) that deportation would pose an “Exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident parent, spouse or child. In a recent decision, the Board of Immigration Appeals further defined exactly what constitutes “Exceptional and extremely unusual hardship”. Board of Immigration Appeals Further Defines “Exceptional and Extremely Unusual Hardship” The case involved a 39 year old native and citizen of Mexico who entered the U.S. on a visitor visa back in 1988, and except for a brief visit back to Mexico in 1992, she had been continuously present in the U.S. since that time. In proceedings before the Immigration Court, cancellation of removal relief was denied, because, according to the Immigration Judge presiding, “Exceptional and extremely unusual hardship” to these children was not demonstrated. The hardship prong was not quite as prohibitive, in that only “Extreme” hardship need be proven, and that the qualifying hardship could be to a U.S. family member, or to the applicant himself. According to the BIA, in reversing the above decision, an applicant need not demonstrate that the hardships to her qualifying family members be “Unconscionable” nor is the standard “So restrictive that only a handful of applicants, such as those with a serious medical condition, will qualify for relief”. Reaching the conclusion that the above applicant’s U.S. citizen children would indeed face “Extreme and unusual hardships” should she be deported, the BIA found the following factors pivotal: the applicant, a divorced mother, was the children’s sole means of support, and the family’s stable home environment depended entirely on the applicant’s financial and emotional support, the applicant had no family left in Mexico, and presumably no one would be available to help the applicant care for her children should the children accompany her to Mexico. Dramatically lower standard of living in Mexico and the applicant would not have the opportunity to provide for her family in any way comparable to the present level of support, emotional ties of the children to the applicant’s extended family in the U.S. would be severed and, children did not speak Spanish. While this decision does not constitute a revolutionary interpretation of the governing statute, it does appear to give immigration courts a bit more breathing room when it comes to considering the hardships to U.S. family members in deciding requests for “Cancellation of removal”. Filings most commonly submitted with these Services Centers include petitions for family members overseas as well as all employment based immigration filings.

Keywords: [“hardship”,”U.S.”,”applicant”]
Source: http://www.usavisacounsel.com/articles/article-51.htm

Law Fish News for 03-29-2018

Oregon Police Misconduct Attorney

Under the 8th and 14th Amendments of the U.S. Constitution What constitutes cruel and unusual punishment under the U.S. constitution?Denial or Delay of Essential Medical Care: Under the 8th Amendment, which addresses Cruel and Unusual Punishment and 41 U.S.C. §1983, a prisoner is entitled to be free from cruel and unusual punishment pursuant to the parameters of the Eighth and Fourteenth Amendments to the United States Constitution. The prohibitions against cruel and unusual punishment apply to prison conditions and, specifically, medical care when prison officials are deliberately indifferent to a prisoner’s serious medical needs and personal safety. What do I need to prove in order to show that a governmental official was deliberately indifferent to my needs?There are two elements that must be proven: An objective component requiring that the pain or deprivation be sufficiently serious and a subjective component requiring that the offending officials acted with a sufficiently culpable state of mind. Is it a violation of my 8th amendment right, if I am a non-violent offender and I am put in jail with known violent offender(s) and they/he/she beat(s) me up?The deliberately indifferent standard may apply to more than just medical needs. There are a number of Circuit Courts that have ruled similarly to the above-referenced case: In Calderon-Oritz v. Laboy-Alvarado, 300 F.3d 60, the court held that the constitutional protection afforded to pretrial detained under the Due Process Clause of the Fourteenth Amendment is “At least as great as the Eighth Amendment protections available to convicted prisoners.” They held that prison officials must take reasonable measures to guarantee inmate safety from attacks by other inmates. The knowledge required is not knowledge that a specific harm would befall the plaintiff, but rather knowledge of facts from which the official can draw the inference that a substantial risk of harm exists. Prison officials must adopt some system of classifying and housing prisoners to assure that a prisoner’s propensity for violence as well as an inmate’s emotional and physical health be accounted for so as to minimize the risk of harm from felon inmates. Rape and Sexual Abuse:In Schwenk v. Hartford, 204 F.3d 1187 the law was clearly established that rape and sexual abuse of inmates by guards violated the Eight Amendment, regardless of the gender of the parties involved. Is it a violation of my 8th Amendment rights if I am not resisting arrest and a governmental official tortures me?There is U.S. Supreme Court case law that held handcuffing inmates to a fence or a cell for prolonged periods of time as a form of punishment violated the 8th Amendment. The reasoning is that “Physical abuse directed at an inmate after he terminates his resistance to authority” is unconstitutional.

Keywords: [“Amendment”,”official”,”inmate”]
Source: http://oregonpolicemisconductattorney.com/cruel-and-unusual-punishment

Oregon Police Misconduct Attorney

Under the 8th and 14th Amendments of the U.S. Constitution What constitutes cruel and unusual punishment under the U.S. constitution?Denial or Delay of Essential Medical Care: Under the 8th Amendment, which addresses Cruel and Unusual Punishment and 41 U.S.C. §1983, a prisoner is entitled to be free from cruel and unusual punishment pursuant to the parameters of the Eighth and Fourteenth Amendments to the United States Constitution. The prohibitions against cruel and unusual punishment apply to prison conditions and, specifically, medical care when prison officials are deliberately indifferent to a prisoner’s serious medical needs and personal safety. What do I need to prove in order to show that a governmental official was deliberately indifferent to my needs?There are two elements that must be proven: An objective component requiring that the pain or deprivation be sufficiently serious and a subjective component requiring that the offending officials acted with a sufficiently culpable state of mind. Is it a violation of my 8th amendment right, if I am a non-violent offender and I am put in jail with known violent offender(s) and they/he/she beat(s) me up?The deliberately indifferent standard may apply to more than just medical needs. There are a number of Circuit Courts that have ruled similarly to the above-referenced case: In Calderon-Oritz v. Laboy-Alvarado, 300 F.3d 60, the court held that the constitutional protection afforded to pretrial detained under the Due Process Clause of the Fourteenth Amendment is “At least as great as the Eighth Amendment protections available to convicted prisoners.” They held that prison officials must take reasonable measures to guarantee inmate safety from attacks by other inmates. The knowledge required is not knowledge that a specific harm would befall the plaintiff, but rather knowledge of facts from which the official can draw the inference that a substantial risk of harm exists. Prison officials must adopt some system of classifying and housing prisoners to assure that a prisoner’s propensity for violence as well as an inmate’s emotional and physical health be accounted for so as to minimize the risk of harm from felon inmates. Rape and Sexual Abuse:In Schwenk v. Hartford, 204 F.3d 1187 the law was clearly established that rape and sexual abuse of inmates by guards violated the Eight Amendment, regardless of the gender of the parties involved. Is it a violation of my 8th Amendment rights if I am not resisting arrest and a governmental official tortures me?There is U.S. Supreme Court case law that held handcuffing inmates to a fence or a cell for prolonged periods of time as a form of punishment violated the 8th Amendment. The reasoning is that “Physical abuse directed at an inmate after he terminates his resistance to authority” is unconstitutional.

Keywords: [“Amendment”,”official”,”inmate”]
Source: http://oregonpolicemisconductattorney.com/cruel-and-unusual-punishment

Law Fish News for 03-28-2018

Ingraham v. Wright, :: 430 U.S. 651 :: Justia US Supreme Court Center

B. In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is “Cruel and unusual” within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty. In urging us to extend the Eighth Amendment to ban school paddlings, petitioners rely on the many decisions in which this Court has held that the prohibition against “Cruel and unusual” punishments is not “Fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.'” Gregg v. Georgia, 428 U.S. at 428 U. S. 171; see, e.g., Trop v. Dulles, 356 U. S. 86, 356 U. S. 100-101; Weems v. United States, 217 U. S. 349, 217 U. S. 373, 217 U. S. 378. Although an imposition must be “Punishment” for the Cruel and Unusual Punishments Clause to apply, the Court has never held that all punishments are subject to Eighth Amendment scrutiny. In Kennedy v. Mendoza-Martinez, 372 U. S. 144, where the Court considered denationalization as a punishment for evading the draft, the Court refused to reach the Eighth Amendment issue, holding instead that the punishment could be imposed only through the criminal process. If the common law privilege to inflict reasonable corporal punishment in school were inapplicable, it is doubtful whether any procedure short of a trial in a criminal or juvenile court could satisfy the requirements of procedural due process for the imposition of such punishment. “Every decision of this Court considering whether a punishment is ‘cruel and unusual’ within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment.” The Court would have us believe from this fact that there is a recognized distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. In utmost good faith … on the reports and advice of others,” supra at 430 U. S. 692; the student has no remedy at all for punishment imposed on the basis of mistaken facts, at least as long as the punishment was reasonable from the point of view of the disciplinarian, uninformed by any prior hearing. All the cases in other jurisdictions cited by the majority, ante at 430 U. S. 663 n. 28, involved allegations of punishment disproportionate to the misconduct with which the student was charged; none of the decisions even suggest that a student could recover by showing that the teacher incorrectly imposed punishment for something the student had not done.

Keywords: [“punishment”,”school”,”us”]
Source: https://supreme.justia.com/cases/federal/us/430/651/case.html

Ingraham v. Wright, :: 430 U.S. 651 :: Justia US Supreme Court Center

B. In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is “Cruel and unusual” within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty. In urging us to extend the Eighth Amendment to ban school paddlings, petitioners rely on the many decisions in which this Court has held that the prohibition against “Cruel and unusual” punishments is not “Fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.'” Gregg v. Georgia, 428 U.S. at 428 U. S. 171; see, e.g., Trop v. Dulles, 356 U. S. 86, 356 U. S. 100-101; Weems v. United States, 217 U. S. 349, 217 U. S. 373, 217 U. S. 378. Although an imposition must be “Punishment” for the Cruel and Unusual Punishments Clause to apply, the Court has never held that all punishments are subject to Eighth Amendment scrutiny. In Kennedy v. Mendoza-Martinez, 372 U. S. 144, where the Court considered denationalization as a punishment for evading the draft, the Court refused to reach the Eighth Amendment issue, holding instead that the punishment could be imposed only through the criminal process. If the common law privilege to inflict reasonable corporal punishment in school were inapplicable, it is doubtful whether any procedure short of a trial in a criminal or juvenile court could satisfy the requirements of procedural due process for the imposition of such punishment. “Every decision of this Court considering whether a punishment is ‘cruel and unusual’ within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment.” The Court would have us believe from this fact that there is a recognized distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. In utmost good faith … on the reports and advice of others,” supra at 430 U. S. 692; the student has no remedy at all for punishment imposed on the basis of mistaken facts, at least as long as the punishment was reasonable from the point of view of the disciplinarian, uninformed by any prior hearing. All the cases in other jurisdictions cited by the majority, ante at 430 U. S. 663 n. 28, involved allegations of punishment disproportionate to the misconduct with which the student was charged; none of the decisions even suggest that a student could recover by showing that the teacher incorrectly imposed punishment for something the student had not done.

Keywords: [“punishment”,”school”,”us”]
Source: https://supreme.justia.com/cases/federal/us/430/651/case.html

Law Fish News for 03-27-2018

A Cruel and Unusual Burden: The Case for the Unconstitutionality of Solitary Confinement – Columbia Undergraduate Law Review

The Eighth Amendment in the United States Constitution prohibits cruel and unusual punishment, defined as the “Unnecessary and wanton infliction of pain.” Despite recognition by the Supreme Court of the cruelly negative effects accrued through forced isolation in prisons, the practice of solitary confinement remains constitutional in the United States. In light of scientific evidence suggesting that prolonged periods of isolation are harmful to any human being, it can be argued that the use of solitary confinement in America’s prisons poses a violation of the Eighth Amendment’s distinguished clause against cruel and unusual punishment. In 1890, James Medley, a man awaiting the death penalty for murdering his wife, took his case to court after being held in solitary confinement for forty-five days before his execution. Medley argued that the period of solitary confinement was inhumane, constituting cruel and unusual punishment. Writing for the majority, Supreme Court Justice Samuel Miller recognized the harmful effects of the practice, explaining: “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be any subsequent service to the community.” As far back as 1890, the Court recognized the harm of solitary confinement; yet, in this case, the Court found that although the additional punishment of solitary confinement was unconstitutional, the practice by itself was still legal. In Hutto v. Finney, following the logic laid out in Re: Medley that solitary confinement alone did not constitute cruel and unusual punishment, the Court took the stance that while some instances of solitary confinement may veer towards cruel and unusual, the practice by itself is not. By considering inmate health risks separately from the harms accrued through solitary confinement, the Court failed to recognize that solitary confinement in it of itself poses dangerous psychological risks to its prisoners. The issue at stake here is the definition of cruel and unusual punishment and how it applies to solitary confinement. The Court found that cruel and unusual punishment requires the vague standard of “Unnecessary and wanton infliction of pain,” and that for this to occur, prison officials have to show “Intentional cruelty” which would result in a “Culpable state of mind.” While this standard has not been applied to solitary confinement, it seems as if many conditions of solitary confinement fit this standard. Thus, it can be argued that the practice of solitary confinement is a clear example of “Unnecessary and wanton infliction of pain,” and thus poses a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

Keywords: [“confinement”,”solitary”,”Court”]
Source: http://blogs.cuit.columbia.edu/culr/2017/11/19/a-cruel-and-unusual-burden…

A Cruel and Unusual Burden: The Case for the Unconstitutionality of Solitary Confinement – Columbia Undergraduate Law Review

The Eighth Amendment in the United States Constitution prohibits cruel and unusual punishment, defined as the “Unnecessary and wanton infliction of pain.” Despite recognition by the Supreme Court of the cruelly negative effects accrued through forced isolation in prisons, the practice of solitary confinement remains constitutional in the United States. In light of scientific evidence suggesting that prolonged periods of isolation are harmful to any human being, it can be argued that the use of solitary confinement in America’s prisons poses a violation of the Eighth Amendment’s distinguished clause against cruel and unusual punishment. In 1890, James Medley, a man awaiting the death penalty for murdering his wife, took his case to court after being held in solitary confinement for forty-five days before his execution. Medley argued that the period of solitary confinement was inhumane, constituting cruel and unusual punishment. Writing for the majority, Supreme Court Justice Samuel Miller recognized the harmful effects of the practice, explaining: “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be any subsequent service to the community.” As far back as 1890, the Court recognized the harm of solitary confinement; yet, in this case, the Court found that although the additional punishment of solitary confinement was unconstitutional, the practice by itself was still legal. In Hutto v. Finney, following the logic laid out in Re: Medley that solitary confinement alone did not constitute cruel and unusual punishment, the Court took the stance that while some instances of solitary confinement may veer towards cruel and unusual, the practice by itself is not. By considering inmate health risks separately from the harms accrued through solitary confinement, the Court failed to recognize that solitary confinement in it of itself poses dangerous psychological risks to its prisoners. The issue at stake here is the definition of cruel and unusual punishment and how it applies to solitary confinement. The Court found that cruel and unusual punishment requires the vague standard of “Unnecessary and wanton infliction of pain,” and that for this to occur, prison officials have to show “Intentional cruelty” which would result in a “Culpable state of mind.” While this standard has not been applied to solitary confinement, it seems as if many conditions of solitary confinement fit this standard. Thus, it can be argued that the practice of solitary confinement is a clear example of “Unnecessary and wanton infliction of pain,” and thus poses a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

Keywords: [“confinement”,”solitary”,”Court”]
Source: http://blogs.cuit.columbia.edu/culr/2017/11/19/a-cruel-and-unusual-burden…

Law Fish News for 03-26-2018

Arbitration in Asia: The next generation?

“I think we will continue to see an uptick in China-related work as it becomes more sophisticated, and as arbitration is increasingly adopted as a preferred means of dispute resolution,” says Wu. The swing towards arbitration in Asia has been further evidenced by the opening of the Seoul International Dispute Resolution Centre in Korea in May 2013, as well as the launch of Cambodia’s first arbitration venue – the National Arbitration Centre – in Phnom Penh last March. In recent years, the Kuala Lumpur Regional Centre for Arbitration has emerged as a strong contender to become a credible arbitration hub in Asia. The nation amended its Arbitration Act in 2005, which was then updated with the Arbitration Act in 2011. While new regional arbitration centres may administer some international arbitration cases, these are likely to involve a domestic entity or business or some connection to the forum, says Bautista. The opening of the Seoul International Dispute Resolution Centre in Korea in May 2013, as well as the launch of Cambodia’s first arbitration venue – the National Arbitration Centre – in Phnom Penh in March last year suggest that arbitration is catching on across Asia as a viable avenue for dispute resolution. Although the complex is smaller than its counterparts in Hong Kong and Singapore, a number of institutions have already taken up an address, including the International Chamber of Commerce, Singapore International Arbitration Centre, Hong Kong International Arbitration Centre, American Arbitration Association/International Centre for Dispute Resolution and the London Court of International Arbitration. “There is a desire to ensure that the courts understand the role of arbitration and therefore respect the process and enforce arbitral awards. It is very important for Cambodian businesses to be able to rely on this. Once people feel that they can rely on the courts respecting arbitration awards, then you encourage investment and parties to refer their disputes to the NAC,” says Spooner. The international commercial court in Singapore will unlikely have a significant impact on the overall arbitration workload at least in the immediate future, says Fried Frank’s Wu. “The Singapore international commercial court provides an alternative to arbitration. The people who opt for the international commercial court to settle their disputes are the ones who believe in the court process more, or who are not considering arbitration in the first place,” he says. Some of the key amendments include new provisions for the appointment of an emergency arbitrator, expedited procedures, the ability to consolidate multiple HKIAC arbitrations into a single arbitration, and provisions for claims under multiple contracts in a single arbitration. The Malaysian Arbitration Act, 2005 and the Arbitration Act 2011 limits court interference and provides the Director of the KLRCA the statutory authority and independence to appoint arbitrators.

Keywords: [“Arbitration”,”dispute”,”KLRCA”]
Source: http://www.legalbusinessonline.com/reports/arbitration-asia-next-generation

Arbitration in Asia: The next generation?

“I think we will continue to see an uptick in China-related work as it becomes more sophisticated, and as arbitration is increasingly adopted as a preferred means of dispute resolution,” says Wu. The swing towards arbitration in Asia has been further evidenced by the opening of the Seoul International Dispute Resolution Centre in Korea in May 2013, as well as the launch of Cambodia’s first arbitration venue – the National Arbitration Centre – in Phnom Penh last March. In recent years, the Kuala Lumpur Regional Centre for Arbitration has emerged as a strong contender to become a credible arbitration hub in Asia. The nation amended its Arbitration Act in 2005, which was then updated with the Arbitration Act in 2011. While new regional arbitration centres may administer some international arbitration cases, these are likely to involve a domestic entity or business or some connection to the forum, says Bautista. The opening of the Seoul International Dispute Resolution Centre in Korea in May 2013, as well as the launch of Cambodia’s first arbitration venue – the National Arbitration Centre – in Phnom Penh in March last year suggest that arbitration is catching on across Asia as a viable avenue for dispute resolution. Although the complex is smaller than its counterparts in Hong Kong and Singapore, a number of institutions have already taken up an address, including the International Chamber of Commerce, Singapore International Arbitration Centre, Hong Kong International Arbitration Centre, American Arbitration Association/International Centre for Dispute Resolution and the London Court of International Arbitration. “There is a desire to ensure that the courts understand the role of arbitration and therefore respect the process and enforce arbitral awards. It is very important for Cambodian businesses to be able to rely on this. Once people feel that they can rely on the courts respecting arbitration awards, then you encourage investment and parties to refer their disputes to the NAC,” says Spooner. The international commercial court in Singapore will unlikely have a significant impact on the overall arbitration workload at least in the immediate future, says Fried Frank’s Wu. “The Singapore international commercial court provides an alternative to arbitration. The people who opt for the international commercial court to settle their disputes are the ones who believe in the court process more, or who are not considering arbitration in the first place,” he says. Some of the key amendments include new provisions for the appointment of an emergency arbitrator, expedited procedures, the ability to consolidate multiple HKIAC arbitrations into a single arbitration, and provisions for claims under multiple contracts in a single arbitration. The Malaysian Arbitration Act, 2005 and the Arbitration Act 2011 limits court interference and provides the Director of the KLRCA the statutory authority and independence to appoint arbitrators.

Keywords: [“Arbitration”,”dispute”,”KLRCA”]
Source: http://www.legalbusinessonline.com/reports/arbitration-asia-next-generation

Law Fish News for 03-25-2018

American Law Reports

American Law Reports, also known as A.L.R.’s, are unique because they include both the full text of actual court decisions and “Annotations” that analyze the point of law found in the reported case. What is it about this annotation that makes it so valuable in legal research? An A.L.R annotation can be tremendously useful because it often covers an extremely narrow point of law in depth, citing most of the cases decided on that point of law from jurisdictions across the country. Although the coverage of the legal issues is descriptive rather than critical, an A.L.R annotation is one of the best places to begin a research project, particularly where you need to do a multi-state survey of the law. Turn to the first page of an annotation that should be near and dear to your heart: an annotation title “Modern status of intentional infliction of mental distress as independent tort; `outrage’.” The annotation follows the reported decision in all A.L.R. volumes, except as we’ll see in a few minutes with the fifth series. As we see in the Intentional Infliction of Emotional Distress annotation, the annotation first discusses the view that intentional infliction of emotional distress constitutes an independent tort and then the annotation considers the jurisdictions that refuse to recognize the tort. There are scores of IIED cases that have been decided since 1996, but because the tort is now firmly recognized in Illinois, those cases do not appear in an annotation discussing the modern status of IIED. Although all A.L.R annotations roughly follow the same format as that in A.L.R.4th, the annotations in A.L.R.5th have some unique features. Look at the annotation entitled “Smoking as Basis for Reduction of Damages in Personal Injury Action.” In the A.L.R.5th series, you will see that there are some minor differences in format: the annotation precedes the case, it begins with a summary of the law, including a summary of the reported decision. The A.L.R. Index contains a vital tool called the “Annotation History Table.” This Table enables you to determine whether the annotation you have identified in the Index has been supplemented or superseded by a later annotation. As we mentioned earlier, to make sure that the annotation you are working with has not been superseded by a more recent annotation, you must check the “Annotation History Table” in the A.L.R. Index. These volumes are located on the first shelf to the right of A.L.R.5th and they provide citations to cases relevant to annotations in the first series of A.L.R. To update annotations in A.L.R. 2d, you must consult a resource called Later Case Service.

Keywords: [“annotation”,”ALR”,”case”]
Source: http://www.kentlaw.edu/academics/lrw/tutorials/alr.htm

American Law Reports

American Law Reports, also known as A.L.R.’s, are unique because they include both the full text of actual court decisions and “Annotations” that analyze the point of law found in the reported case. What is it about this annotation that makes it so valuable in legal research? An A.L.R annotation can be tremendously useful because it often covers an extremely narrow point of law in depth, citing most of the cases decided on that point of law from jurisdictions across the country. Although the coverage of the legal issues is descriptive rather than critical, an A.L.R annotation is one of the best places to begin a research project, particularly where you need to do a multi-state survey of the law. Turn to the first page of an annotation that should be near and dear to your heart: an annotation title “Modern status of intentional infliction of mental distress as independent tort; `outrage’.” The annotation follows the reported decision in all A.L.R. volumes, except as we’ll see in a few minutes with the fifth series. As we see in the Intentional Infliction of Emotional Distress annotation, the annotation first discusses the view that intentional infliction of emotional distress constitutes an independent tort and then the annotation considers the jurisdictions that refuse to recognize the tort. There are scores of IIED cases that have been decided since 1996, but because the tort is now firmly recognized in Illinois, those cases do not appear in an annotation discussing the modern status of IIED. Although all A.L.R annotations roughly follow the same format as that in A.L.R.4th, the annotations in A.L.R.5th have some unique features. Look at the annotation entitled “Smoking as Basis for Reduction of Damages in Personal Injury Action.” In the A.L.R.5th series, you will see that there are some minor differences in format: the annotation precedes the case, it begins with a summary of the law, including a summary of the reported decision. The A.L.R. Index contains a vital tool called the “Annotation History Table.” This Table enables you to determine whether the annotation you have identified in the Index has been supplemented or superseded by a later annotation. As we mentioned earlier, to make sure that the annotation you are working with has not been superseded by a more recent annotation, you must check the “Annotation History Table” in the A.L.R. Index. These volumes are located on the first shelf to the right of A.L.R.5th and they provide citations to cases relevant to annotations in the first series of A.L.R. To update annotations in A.L.R. 2d, you must consult a resource called Later Case Service.

Keywords: [“annotation”,”ALR”,”case”]
Source: http://www.kentlaw.edu/academics/lrw/tutorials/alr.htm

Law Fish News for 03-24-2018

FIRST PRINCIPLES: Constitutional Matters: Cruel and Unusual Punishment

United States v. Akbar, 74 M.J. 364 those who are insane; those who suffer from intellectual disability; and those who were under the age of eighteen when they committed their crimes). An objective test whether there is a sufficiently serious act or omission that has produced a denial of necessities; and a subjective test whether the state of mind of the prison official demonstrates deliberate indifference to inmate health or safety). United States v. Erby, 54 MJ 476,, UCMJ, to determine whether a sentence is correct in law, and that authority includes determining on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eighth Amendment or Article 55, UCMJ). Court of Appeals for the Armed Forces could not determine on this record whether any of the asserted facts, individually or in conjunction with other evidence, provided a basis for deciding whether appellant exhausted available administrative remedies; and the court could not determine without further clarification whether the alleged mistreatment amounted to a violation of Article 55, UCMJ, or the Eighth Amendment). United States v. White, 54 MJ 469., UCMJ, to determine on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eight Amendment or Article 55, UCMJ; Article 67(c) grants the authority to ensure that the severity of the adjudged and approved sentence has not been unlawfully increased by prison officials, and to ensure that the sentence is executed in a manner consistent with Article 55, UCMJ, and the Constitution). Objectively, an act or omission must result in the denial of necessities and be sufficiently serious; subjectively, there must be a culpable state of mind by prison officials, which is one of deliberate indifference to inmate health or safety a conscious awareness of the risk or danger to the inmate and a choice to ignore it). Viewed objectively, a deprivation must be sufficiently serious to result in the denial of the minimal civilized measure of lifes necessities; and prison officials must have a sufficiently culpable state of mind, one of deliberate indifference to inmate health and safety). Objectively, the acts or omissions must result in the denial of necessities and be sufficiently serious; and subjectively, there must be a culpable state of mind, one of deliberate indifference to inmate health or safety). She did not tell the guards or supervisors that she was being offended and harassed by other inmates; officials were not aware of facts and, thus, could not have drawn inference that a substantial risk of serious harm existed; and once appellant did report the harassment to the commanding officer, the commander instituted a full investigation). United States v. Reed, 54 MJ 37 was there a fine that was punishment for some offense; and if there was a fine, was that fine excessive? See United States v. Bajakajian, 524 U.S. 321.

Keywords: [“state”,”whether”,”UCMJ”]
Source: http://www.armfor.uscourts.gov/newcaaf/digest/IB4.htm

FIRST PRINCIPLES: Constitutional Matters: Cruel and Unusual Punishment

United States v. Akbar, 74 M.J. 364 those who are insane; those who suffer from intellectual disability; and those who were under the age of eighteen when they committed their crimes). An objective test whether there is a sufficiently serious act or omission that has produced a denial of necessities; and a subjective test whether the state of mind of the prison official demonstrates deliberate indifference to inmate health or safety). United States v. Erby, 54 MJ 476,, UCMJ, to determine whether a sentence is correct in law, and that authority includes determining on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eighth Amendment or Article 55, UCMJ). Court of Appeals for the Armed Forces could not determine on this record whether any of the asserted facts, individually or in conjunction with other evidence, provided a basis for deciding whether appellant exhausted available administrative remedies; and the court could not determine without further clarification whether the alleged mistreatment amounted to a violation of Article 55, UCMJ, or the Eighth Amendment). United States v. White, 54 MJ 469., UCMJ, to determine on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eight Amendment or Article 55, UCMJ; Article 67(c) grants the authority to ensure that the severity of the adjudged and approved sentence has not been unlawfully increased by prison officials, and to ensure that the sentence is executed in a manner consistent with Article 55, UCMJ, and the Constitution). Objectively, an act or omission must result in the denial of necessities and be sufficiently serious; subjectively, there must be a culpable state of mind by prison officials, which is one of deliberate indifference to inmate health or safety a conscious awareness of the risk or danger to the inmate and a choice to ignore it). Viewed objectively, a deprivation must be sufficiently serious to result in the denial of the minimal civilized measure of lifes necessities; and prison officials must have a sufficiently culpable state of mind, one of deliberate indifference to inmate health and safety). Objectively, the acts or omissions must result in the denial of necessities and be sufficiently serious; and subjectively, there must be a culpable state of mind, one of deliberate indifference to inmate health or safety). She did not tell the guards or supervisors that she was being offended and harassed by other inmates; officials were not aware of facts and, thus, could not have drawn inference that a substantial risk of serious harm existed; and once appellant did report the harassment to the commanding officer, the commander instituted a full investigation). United States v. Reed, 54 MJ 37 was there a fine that was punishment for some offense; and if there was a fine, was that fine excessive? See United States v. Bajakajian, 524 U.S. 321.

Keywords: [“state”,”whether”,”UCMJ”]
Source: http://www.armfor.uscourts.gov/newcaaf/digest/IB4.htm

Law Fish News for 03-23-2018

BREAKING! 3 Arrested in an Unusual Way!

Stanford Rape Case Raises Questions About Rape Law

The rest of us shouldn’t be calling for his head. Instead, we should be rethinking American rape law, and the legal profession should be having tough conversations about the competing ethical obligations in sexual violence cases. Toward the end of the second-wave feminist movement, feminist legal scholars pushed for, and saw implemented, rape shield laws – rules of evidence that bar defense lawyers from introducing irrelevant information about a rape victim’s sexual history at trial. Over the past several decades, rape law itself has evolved: marital rape is now largely outlawed, some states have removed statutory requirements that rape victims fight back, and many states now take incapacitation from drugs or alcohol into account when criminalizing nonconsensual sex. Our social understanding of rape as something a woman should fight off, and our entrenched skepticism of the morals of sexually active women, explains why defense attorneys are able to point to women’s behavior or supposed consent in defending their clients. The Stanford case, for example, was probably won in part because of the two graduate student witnesses who interfered in the rape and offered sworn statements about what they saw. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming – and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client – especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place – which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case? The American Bar Association, and the Bar associations of all 50 states, should set to work on the question of how best to reform American rape laws, evaluating affirmative consent as an option alongside other proposals, with input from prosecutors, defense attorneys, feminist legal experts, and rape survivors alike. Ethics committees should develop a modern, highly specific set of best practices for arguments that rely on harmful stereotypes or play into biases, whether that’s bringing up women drinking or having consensual sex or partying in rape cases; relying on a jury’s racism in criminal cases generally; or utilizing defenses like the one known as “Trans panic,” used to justify the actions of men who murder transgender women by asserting that the man on trial panicked when he discovered a sexual partner’s trans status and is therefore less culpable for killing her. Law schools should address these complex questions and the roles lawyers play not just in carrying out the law, but in shaping American values, norms, and culture. The Stanford case is not an example of an individual glitch or a bad defense lawyer.

Keywords: [“defense”,”rape”,”victim”]
Source: http://www.cosmopolitan.com/politics/news/a59569/stanford-rape-case…

Stanford Rape Case Raises Questions About Rape Law

The rest of us shouldn’t be calling for his head. Instead, we should be rethinking American rape law, and the legal profession should be having tough conversations about the competing ethical obligations in sexual violence cases. Toward the end of the second-wave feminist movement, feminist legal scholars pushed for, and saw implemented, rape shield laws – rules of evidence that bar defense lawyers from introducing irrelevant information about a rape victim’s sexual history at trial. Over the past several decades, rape law itself has evolved: marital rape is now largely outlawed, some states have removed statutory requirements that rape victims fight back, and many states now take incapacitation from drugs or alcohol into account when criminalizing nonconsensual sex. Our social understanding of rape as something a woman should fight off, and our entrenched skepticism of the morals of sexually active women, explains why defense attorneys are able to point to women’s behavior or supposed consent in defending their clients. The Stanford case, for example, was probably won in part because of the two graduate student witnesses who interfered in the rape and offered sworn statements about what they saw. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming – and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client – especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place – which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case? The American Bar Association, and the Bar associations of all 50 states, should set to work on the question of how best to reform American rape laws, evaluating affirmative consent as an option alongside other proposals, with input from prosecutors, defense attorneys, feminist legal experts, and rape survivors alike. Ethics committees should develop a modern, highly specific set of best practices for arguments that rely on harmful stereotypes or play into biases, whether that’s bringing up women drinking or having consensual sex or partying in rape cases; relying on a jury’s racism in criminal cases generally; or utilizing defenses like the one known as “Trans panic,” used to justify the actions of men who murder transgender women by asserting that the man on trial panicked when he discovered a sexual partner’s trans status and is therefore less culpable for killing her. Law schools should address these complex questions and the roles lawyers play not just in carrying out the law, but in shaping American values, norms, and culture. The Stanford case is not an example of an individual glitch or a bad defense lawyer.

Keywords: [“defense”,”rape”,”victim”]
Source: http://www.cosmopolitan.com/politics/news/a59569/stanford-rape-case…

Law Fish News for 03-22-2018

Charges dropped for man in Arakan Army Cup ‘unlawful association’ case | by Army Times

Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom

Three important commonwealth cases suggest a possibility of successful procedural entrenchment, but an essential difference – the supremacy of the UK parliament – is likely to prevent this transplant into the UK. The availability of European Community law supremacy hints at the possibility of legislative entrenchment but its boundaries have not been established. 2010 ] Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom 195 This stance has been challenged by the ‘new view’, ‘self-embracing’ theorists who argue that procedural entrenchment is possible. 2010 ] Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom 197 law and national law.28 Factortame29 contained dicta from the House of Lords of a general nature regarding sovereignty as it misapplied the later Merchant Shipping Act 1988 in favour of the earlier ECA, violating the doctrine of implied repeal. 30 Bridge LJ had also suggested a possible mechanism for this result earlier in Factortame,31 that is, Section 2(4) of the ECA should be seen as being incorporated into Part II of the MSA.32 If this is indeed the case, then it would appear that entrenchment is a legal possibility within the UK legal system, especially having regard to the likelihood that courts will follow the European Court of Justice in the future. 35 In Thoburn v Sunderland City Council, Laws LJ at the Divisional Court drew a distinction between fundamental or constitutional common law rights and ordinary ones.36 He claimed that the same spectrum was present for statutes and that while ordinary statutes were capable of being impliedly repealed, constitutional ones were not. 2010 ] Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom 199 rights could be abolished by the government, they will not be rights as such, but merely privileges. 44 Laws notes that in the UK, the rules that set the legal framework are alterable like any ordinary statute and therefore, the contradictory situation arises, where there are no higher-order laws to confer powers onto parliament but which is itself an established legal power. Geoffrey Marshall uses the words of Justice Jackson of the US Supreme Court that basic rights must not be put to the vote, and advocates an absolute brand of entrenchment, because any form of procedural entrenchment is, at its core, still a vote.46 That basic rights should not be put to vote has been the basis on which simple majority legislation has been overturned in the United States, which reveals the dangers and the benefits of absolute rights. V. Conclusion The incapacity of parliament to bind its successors in the orthodox view may be related to common law principles, which allow for the unrestricted development of the law, suggesting that there may be a shared principle behind the concepts. The courts have been shown to protect fundamental rights by declaring allegiance to some higher form of law than the law made by parliament.

Keywords: [“law”,”rights”,”entrenchment”]
Source: http://www.academia.edu/312367/Constitutional_Entrenchment_Questions_of…

Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom

Three important commonwealth cases suggest a possibility of successful procedural entrenchment, but an essential difference – the supremacy of the UK parliament – is likely to prevent this transplant into the UK. The availability of European Community law supremacy hints at the possibility of legislative entrenchment but its boundaries have not been established. 2010 ] Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom 195 This stance has been challenged by the ‘new view’, ‘self-embracing’ theorists who argue that procedural entrenchment is possible. 2010 ] Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom 197 law and national law.28 Factortame29 contained dicta from the House of Lords of a general nature regarding sovereignty as it misapplied the later Merchant Shipping Act 1988 in favour of the earlier ECA, violating the doctrine of implied repeal. 30 Bridge LJ had also suggested a possible mechanism for this result earlier in Factortame,31 that is, Section 2(4) of the ECA should be seen as being incorporated into Part II of the MSA.32 If this is indeed the case, then it would appear that entrenchment is a legal possibility within the UK legal system, especially having regard to the likelihood that courts will follow the European Court of Justice in the future. 35 In Thoburn v Sunderland City Council, Laws LJ at the Divisional Court drew a distinction between fundamental or constitutional common law rights and ordinary ones.36 He claimed that the same spectrum was present for statutes and that while ordinary statutes were capable of being impliedly repealed, constitutional ones were not. 2010 ] Constitutional Entrenchment: Questions of Legal Possibility and Moral Desirability in the United Kingdom 199 rights could be abolished by the government, they will not be rights as such, but merely privileges. 44 Laws notes that in the UK, the rules that set the legal framework are alterable like any ordinary statute and therefore, the contradictory situation arises, where there are no higher-order laws to confer powers onto parliament but which is itself an established legal power. Geoffrey Marshall uses the words of Justice Jackson of the US Supreme Court that basic rights must not be put to the vote, and advocates an absolute brand of entrenchment, because any form of procedural entrenchment is, at its core, still a vote.46 That basic rights should not be put to vote has been the basis on which simple majority legislation has been overturned in the United States, which reveals the dangers and the benefits of absolute rights. V. Conclusion The incapacity of parliament to bind its successors in the orthodox view may be related to common law principles, which allow for the unrestricted development of the law, suggesting that there may be a shared principle behind the concepts. The courts have been shown to protect fundamental rights by declaring allegiance to some higher form of law than the law made by parliament.

Keywords: [“law”,”rights”,”entrenchment”]
Source: http://www.academia.edu/312367/Constitutional_Entrenchment_Questions_of…