Seminar 2 (2017)Apunte Inglés
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QUESTION SET 1 - COMMON and CIVIL LAW LEGAL TRADITIONS
List the main characteristics of a common law legal system.
List the main characteristics of a civil law legal system.
Provide two advantages of common law system versus a civil law system. Provide two disadvantages of the common law system vs. the civil law system What are the main reasons why common law is considered to be more efficient or allow for higher economic growth? How do legal systems matter for economic growth? A.
Mostly unwritten Stare decisis Adversarial, and not ex officio (by the jurisdiction)→ it means that you always have to have two parties and a neutral judge that decides the party that's right. In criminal law, however, since if you are dead you cannot sue the murderer, the state is one of the parties, but if the general attorney has to prove its place: if a general attorney doesn't work well, the judge says "you have not argued well so the other guy walks" Role for juries: the judge says what you can present to de jury and what not, and the jury decides is someone is guilty or innocent. However, the judge decides the punishment. They are mostly used in criminal law cases. The presence of the jury depends on the crime.
Judicial review: means the right to appeal, you can have a sentence in the trial court, and they appeal it in the appellate court and the supreme court.
Written: •Codes create the civil law rather than revealing existent law •Laws replace, rather than supplement, previous law Precedent is not binding Inquisitorial rather than adversarial → the judge acts like a hand of the state, that's why he has the right to be less objective, to act questions, if he needs clarification of something, he can ask the defendant.
Little use of juries C. Advantages common law: 1. common law can also respond to cases, situations and facts that were not foreseen or anticipated by legislators 2. Common law is faster, more flexible and responsive than parliamentary law. Common law often reacts and responds more quickly to changing social values, community expectation and so on.
Disadvantages common law: 1. Courts can only deal with cases which are brought before them. Laws and precedents may be obviously outdated and in need of reform – but until relevant criminal charges are laid or relevant civil action is initiated, there is not an opportunity for these laws and precedents to be changed.
2. In common law, justice is something subjective, that is conditioned by religion, society, culture, etc., so since common law acts on precedent, is a judge of a higher court decide something that doesn't "agree" with what another judge thinks, he would have to rule the same way that he did.
D. When we were asking why is common law more efficient for economic growth is because common law changes quickly, and so do business. Civil law, on the other hand, is hard to change laws or even to put more laws. So, common law is better because it responds to new challenges faster. When a real, empirical research was made, it was found that the efficiency behind them was actually the same, so empirical research doesn't back up that common law is better no more efficient.
E. The fact is that US used to grow faster, but not because common law would be more efficient, but because there's no protection for social matters. There's no protection for the workers nor the enterprises, they are fast to react, their business can be more reactive and responsive because there's no protection for environment nor individuals.
QUESTION SET 2 – MIRANDA RIGHTS Please read the Fifth Amendment of the US Constitution and the case Miranda v. Arizona and answer the following questions: 1. What does the Fifth Amendment guarantee? 2. What was the factual situation in Miranda case? 3. What was the question to be decided in Miranda case? 4. What is the final common law rule that came out of Miranda case? 5. What is the consequence if Miranda decision is not abided by in today’s criminal law? 1. It guarantees the right of the American Citizens, mainly in the context of criminal justice. It says that the police must read you your rights, and also prohibits that a person is tried twice for the same crime.
2. In the Miranda case, the accused wasn't aware of his rights and confessed during the interrogatory. This was used in court against him, and they condemned him. When they appealed, the new defendant said that the accused didn't know that he could ask for a lawyer etc, so they let him free.
NO DOUBLE JEOPARDY: you cannot be tried for the same crime twice (OJ Simpson) You cannot be a witness against yourself: you can be silent, you don’t have to say I did this and I'm guilty, the right not to incriminate yourself Due process of law: that you have a trial, that you have your right read, that you get a lawyer that the lawyer defends you, that you have a judge, that they hear the evidence…. And then, finally, you get convicted.
Is the jury that decides that if the accused is guilty or innocent, so it's the JURY the one that DECIDES Miranda vs. Arizona: It started as state level. The guy wasn't read it's rights. He is said to be guilty. The lawyer appeals to Arizona's Supreme Court, where they appealed the judgment. Then, the lawyer appealed again to the US Supreme Court →4 different cases came with the same background, where the right weren't read, and they were presented at the same time: Miranda and 3 others, and the US supreme court said "no, this doesn't agree with the fifth amendment" and from that point US citizens had the Miranda Rights, also in Europe in criminal code.
Fifth amendment was there before Miranda Rights. They are: 1. You have the right to remain silent 2. Anything you say can and will be used against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be provided for you.
5. Do you understand the right I have just read to you? With this rights in mind, do you wish to speak to me? DEATH PENALTY Benefits: it serves as an example for other people, an incentive to not do this crime. As a deterrence factor it's not really effective, but maybe in some cases it works. It also prevents that the person that commits the crime will never commit it again. Lots of people that goes down or death penalty is people that has already done the crime before: "obviously we cannot treat this person, so we have to remove them for society" → we don't put them in prison forever because it would be really expensive. In US prisons are really extremely populated, so this is a good way to keep them from overpopulating them even more. A reason for this overpopulations are: how easy is to get a weapon; repetition of crimes (1.
people don't "get better"; 2. poverty; 3. social stigma of people that have gone to prison;); lots of prisons are private, so those prisons get money for the inmates that are there → the general economic situation and rules in the US are producing crimes → things are really expensive: college, kindergarten…. this system makes people desperate.
Death penalty is quite common all over the world, not only in the US → we would expect that it would be lower as time goes by, but actually it stays the same. It's quite hard to get out of Islamic law, because you cannot get it outside of the religious book that rules that system.
Most citizens in US don't agree with this type of penalty. Why doesn't it change? ECONOMY→ that sentence saves money. But, actually, Amnistia Internacional says it's more expensive than prison for live, in the stage prior to the death → it's the court that's more expensive, but this money goes to the privileged pockets, so they don't want to eliminate it.
Also, 1 in each 25 prisoners killed are innocent. The general trend is going towards less executions, because DNA evidence started → since we got the DNA prove many sentences were removed, but lost of those people were already dead. The issue is that Death Penalty is Irreversible, if later on you find that the accused is innocent, you cannot bring him back to live.
Who gets sentenced? People that cannot afford a lawyer → a state assigned lawyer is not a good lawyer.
Is really biased, because is usually black, Hispanic and poor people the ones that get executed. Until 2005 it was allowed to kill a juvenile (under 18); and since 2002 is not allowed to apply dead penalty to people with mental disabilities.
A "governatoria moratoria" is a law that exists on the book but is not applied anymore.
So, can Death Penalty exist at the same time of Human Rights, that say live is a right? Technically no, it would be an "eye for an eye", which is not appropriate.
In North Carolina, is easier to get a Death Sentence if the victim is white → it's a poor state, people cannot afford a lawyer. Death penalty is more applied when the victim is white than when it's a victim of another race. →It's a problem HOW DEATH PENALTY IS IMPOSED In southern USA there are more death penalties. People usually wait for decades for their death penalty to be applied. The waiting line is extremely long.
How many of convicted individuals are found to be innocent at the end? 1/25 → They were found innocent thanks to DNA test. Why isn't it bigger? 1. They don't have sufficient representation. 2. There are a lot of persons that are already dead.
Arbitrary use of death penalty: blacks, Hispanics, poor. The use of death penalty is inconsistent: what is enough to kill someone? Mainly the facts are murder, rape, terrorism (you get to federal court for terrorism, and there, god help you darling), repetition of a crime with severe violence Costs are high, and deterrence is quite low. Crucifixion has a higher deterrence than lethal injection, because everyone can see it.