Judge A judge is an official person who presides over court proceedings, either alone or as a part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the parties of the case, assesses the credibility and arguments of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgment. In some jurisdictions, the judges powers may be shared with a jury. In inquisitorial systems of criminal investigation, a judge might also be an examining magistrate. A variety of traditions have become associated with the rank or occupation. In many parts of the world, judges wear long robes (usually in black or red) and sit on an elevated platform during trials (known as the bench). In some countries, especially in the Commonwealth of Nations, judges wear wigs. The long wig often associated with judges is now reserved for ceremonial occasions, although it was part of the standard attire in previous centuries. A short wig resembling but not identical to a barristers wig would be worn in court. This tradition, however, is being phased out in Britain in non-criminal courts Magistrate A magistrate is an officer of the state; in modern usage, the term usually refers to a judge. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a magistrate has limited law enforcement and administration authority. In civil law systems, a magistrate might be a judge in a superior court; the magistrates court might have jurisdiction over civil and criminal cases. A related, but not always equivalent, term is chief magistrate, which historically can denote a political and administrative officer. Etymology Magistrate derives from the Middle English word magistrat, denoting a civil officer in charge of administrating laws (c.1374); from the Old French magistrat; from the Latin magistratus, which derives from magister (master), from the root of magnus (great). Original meaning In ancient Rome, the word magistratus referred to one of the highest offices of state, and analogous offices in the local authorities such as municipium, which were subordinate only to the legislature of which they generally were members, often even ex officio, and often combined judicial and executive power, together constituting one jurisdiction. In Rome itself, the highest magistrates were members of the so-called cursus honorum -career of honors. They held both judicial and executive power within their sphere of responsibility (hence the modern use of the term magistrate to denote both judicial and executive officers), and also had the power to issue ius honorarium, or magisterial law. The Consul was the highest Roman magistrate. The Praetor (the office was later divided into two, the Urban and Peregrine Praetors) was the highest judge in matters of private law between individual citizens, while the Curule Aediles, who supervised public works in the city, exercised a limited civil jurisdiction in relation to the market.[1] Roman magistrates were not lawyers, but were advised by jurists who were experts in the law. The term was maintained in most feudal successor states to the western Roman Empire, mainly Germanic kingdoms, especially in city-states, where the term magistrate was also used as an abstract generic term, denoting the highest office, regardless of the formal titles (e.g. Consul, Mayor, Doge), even when that was actually a council. The term chief magistrate applied to the highest official, in sovereign entities the head of state and/or head of government. Arrest warrant An arrest warrant (also officially called warrant of arrest in the Philippines) is a warrant issued by a judge on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individuals property. Warrant of arrest judges order to law enforcement officers to arrest and bring to jail a person charged with a crime. The warrant is issued upon a sworn declaration by the district attorney, a police officer or an alleged victim that the accused person committed a crime. A search warrant is a court order issued by a magistrate, judge or Supreme Court official that authorizes law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate evidence if it is found. A search warrant cannot be issued in aid of civil process. Jurisdictions that respect the rule of law and a right to privacy put constraints on the powers of police investigators, and typically require search warrants, or an equivalent procedure, for searches conducted as part of a criminal investigation. An exception is usually made for hot pursuit: if a criminal flees the scene of a crime and the police officer follows him, the officer has the right to enter a property in which the criminal has sought shelter. Conversely, in authoritarian regimes, the police typically have the right to search property and people without having to provide justification, or without having to secure the permission of a court. Bench trial A bench trial is a trial by judge as opposed to a trial by jury. The term is chiefly used in common law jurisdictions which use both trials by a judge and by a jury, so as to distinguish as to the type of trial. Many legal systems (Roman, Islamic) use bench trials for most or all cases or for certain types of cases. Jury trial A jury trial or trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact, which then direct the actions of a judge. It is distinguished from a bench trial, in which a judge or panel of judges make all decisions. Jury trials are used in a significant share of serious criminal cases in almost all common law legal systems, and juries or lay judges have been incorporated into the legal systems of many civil law countries for criminal cases. Only the United States and Canada make routine use of jury trials in a wide variety of non-criminal cases. Other common law legal jurisdictions use jury trials only in a very select class of cases that make up a tiny share of the overall civil docket (e.g. defamation suits in England and Wales), while true civil jury trials are almost entirely absent elsewhere in the world. Some civil law jurisdictions do, however, have arbitration panels where non-legally trained members decide cases in select subject-matter areas relevant to the arbitration panel members areas of expertise. The availability of a trial by jury in American jurisdictions varies. Because the United States system separated from that of the England at the time of the American Revolution, the types of proceedings that use juries depends on whether such cases were tried by jury under English Common Law at that time, rather than the methods used in English or UK courts in the present. For example, at the time English courts of law tried cases of torts or private law for monetary damages but courts of equity tried civil cases seeking an injunction or another form of non-monetary relief. As a result, this practice continues in American civil laws, even though in modern English law only criminal proceedings and some inquests are likely to be heard by a jury. The use of jury trials evolved within common law systems rather than civil law systems, has had a profound impact on the nature of American civil procedure and criminal procedure rules, even in cases where a bench trial is actually contemplated in a particular case. In general, the availability of a jury trial if properly demanded has given rise to a system where fact finding is concentrated in a single trial rather than multiple hearings, and where appellate review of trial court decisions is greatly limited. Jury trials are of far less importance (or of no importance) in countries that do not have a common law system. Pretrial Hearings and Motions In the criminal justice system, a case is often decided before the actual trial. Prosecutors and defense attorneys can file any number of pre-trial motions that exclude evidence or otherwise shape the proceedings. Oftentimes, the outcome of a case hinges on the results of these motions and the hearings that accompany them. This section describes some of the different types of pre-trial motions and hearings that can occur during a criminal prosecution. Statute A statute is a formal written enactment of a legislative authority that governs a state, city, or country.[1] Typically, statutes command or prohibit something, or declare policy.[1] The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations issued by government agencies.[1] Statutes are sometimes referred to as legislation or black letter law. As a source of law, statutes are considered primary authority (as opposed to secondary authority). Ideally all statutes must be in harmony with the fundamental law of the land (constitutional). This word is used in contradistinction to the common law. Statutes acquire their force from the time of their passage, however unless otherwise provided. Statutes are of several kinds; namely, Public or private. Declaratory or remedial. Temporary or perpetual. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. A perpetual statute is one for the continuance of which there is no limited time, although it may not be expressly declared to be so. If, however, a statute which did not itself contain any limitation is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.[2] Before a statute becomes law in some countries, it must be agreed upon by the highest executive in the government, and finally published as part of a code. In many countries, statutes are organized in topical arrangements (or codified) within publications called codes, such as the United States Code. In many nations statutory law is distinguished from and subordinate to constitutional law. Plain view doctrine The plain view doctrine allows an officer to seize – without a warrant – evidence and contraband found in plain view during a lawful observation. This doctrine is also regularly used by TSA Federal Government Officers while screening persons and property at U.S. airports. For the plain view doctrine to apply for discoveries, the three-prong Horton test requires: 1. the officer to be lawfully present at the place where the evidence can be plainly viewed, 2. the officer to have a lawful right of access to the object, and 3. the incriminating character of the object to be “immediately apparent.” In order for the officer to seize the item, the officer must have probable cause to believe the item is evidence of a crime or is contraband. The police may not move objects to get a better view. In Arizona v. Hicks, 480 U.S. 321 (1987), the officer was found to have acted unlawfully. While investigating a shooting, the officer moved, without probable cause, stereo equipment to record the serial numbers. The plain view doctrine has also been expanded to include the sub doctrines of plain feel, plain smell, and plain hearing.[1] Double jeopardy Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquit or autrefois convict (autrefois means in the past in French), meaning the defendant has been acquitted or convicted of the same offence. If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries, including Canada, Mexico and the United States, the guarantee against being twice put in jeopardy is a constitutional right. In other countries, the protection is afforded by statute law.[3] Motion a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case.[1] Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party. How motions are made In the United States, as a general rule, courts do not have self-executing powers. In other words, in order for the court to rule on a contested issue in a case before it, one of the parties or a third party must raise an appropriate motion asking for a particular order. Some motions may be made in the form of an oral request in open court, which is then either summarily granted or denied orally by the court. Today, however, most motions (especially on important or dispositive issues that could decide the entire case) are decided after oral argument preceded by the filing and service of legal papers. That is, the movant is usually required to serve advance written notice along with some kind of written legal argument justifying the motion. The legal argument may come in the form of a memorandum of points and authorities supported by affidavits or declarations. Some northeastern U.S. states have a tradition in which the legal argument comes in the form of an affidavit from the attorney, speaking personally as himself on behalf of his client. In contrast, in most U.S. states, the memorandum is written impersonally or as if the client were speaking directly to the court, and the attorney reserves declarations of his own personal knowledge to a separate declaration or affidavit (which are then cited to in the memorandum). One U.S. state, Missouri, uses the term suggestions for the memorandum of points and authorities. Either way, the nonmovant usually has the opportunity to file and serve papers opposing the motion. In addition, most jurisdictions allow for time for the movant to file reply papers rebutting the arguments made in the opposition. Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete. Some courts issue tentative rulings (after which the loser may demand oral argument) while others do not. Depending upon the type of motion and the jurisdiction, the court may simply issue an oral decision from the bench (possibly accompanied by a request to the winner to draft an order for its signature reducing the salient points to writing), take the matter under submission and draft a lengthy written decision and order, or simply fill out a standard court form with check boxes for different outcomes. The court may serve all parties directly with its decision or may serve only the winner and order the winner to serve everyone else in the case. Bond (finance) In finance, a bond is an instrument of indebtedness of the bond issuer to the holders. It is a debt security, under which the issuer owes the holders a debt and, depending on the terms of the bond, is obliged to pay them interest (the coupon) and/or to repay the principal at a later date, termed the maturity date.[1] Interest is usually payable at fixed intervals (semiannual, annual, sometimes monthly). Very often the bond is negotiable, i.e. the ownership of the instrument can be transferred in the secondary market. This means that once the transfer agents at the bank medallion stamp the bond, it is highly liquid on the second market. [2] Thus a bond is a form of loan or IOU (sounded I owe you): the holder of the bond is the lender (creditor), the issuer of the bond is the borrower (debtor), and the coupon is the interest. Bonds provide the borrower with external funds to finance long-term investments, or, in the case of government bonds, to finance current expenditure. Certificates of deposit (CDs) or short term commercial paper are considered to be money market instruments and not bonds: the main difference is in the length of the term of the instrument. Bonds and stocks are both securities, but the major difference between the two is that (capital) stockholders have an equity stake in the company (i.e. they are investors), whereas bondholders have a creditor stake in the company (i.e. they are lenders). Being a creditor, bondholders have absolute priority and will be repaid before stockholders (who are owners) in the event of bankruptcy.[3] Another difference is that bonds usually have a defined term, or maturity, after which the bond is redeemed, whereas stocks are typically outstanding indefinitely. An exception is an irredeemable bond, such as Consols, which is a perpetuity, i.e. a bond with no maturity. Issuance A Bonds are issued by public authorities, credit institutions, companies and supranational institutions in the primary markets. The most common process for issuing bonds is through underwriting. When a bond issue is underwritten, one or more securities firms or banks, forming a syndicate, buy the entire issue of bonds from the issuer and re-sell them to investors. The security firm takes the risk of being unable to sell on the issue to end investors. Primary issuance is arranged by bookrunners who arrange the bond issue, have direct contact with investors and act as advisers to the bond issuer in terms of timing and price of the bond issue. The bookrunner is listed first among all underwriters participating in the issuance in the tombstone ads commonly used to announce bonds to the public. The bookrunners willingness to underwrite must be discussed prior to any decision on the terms of the bond issue as there may be limited demand for the bonds. In contrast, government bonds are usually issued in an auction. In some cases both members of the public and banks may bid for bonds. In other cases only market makers may bid for bonds. The overall rate of return on the bond depends on both the terms of the bond and the price paid.[4] The terms of the bond, such as the coupon, are fixed in advance and the price is determined by the market. In the case of an underwritten bond, the underwriters will charge a fee for underwriting. An alternative process for bond issuance, which is commonly used for smaller issues and avoids this cost, is the private placement bond. Bonds sold directly to buyers and may not be tradeable in the bond market. Historically an alternative practice of issuance was for the borrowing government authority to issue bonds over a period of time, usually at a fixed price, with volumes sold on a particular day dependent on market conditions. This was called a tap issue or bond tap.[ Soft law From Wikipedia, the free encyclopedia The term soft law refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law, often contrasted with soft law by being referred to as hard law. Traditionally, the term soft law is associated with international law, although more recently it has been transferred to other branches of domestic law as well. International law Definition of soft law In the context of international law, the term soft law covers such elements as: • Most Resolutions and Declarations of the UN General Assembly • Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties; • Action plans (for example, Agenda 21); • Other non-treaty obligations Bail Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If a bondsman is used and a surety bond has been obtained, the fee for that bond is the fee for the insurance policy purchased and is not refundable. In some countries granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Legislatures may also set out certain crimes to be not bailable, such as capital crimes. Regulation A regulation is a rule or law designed to control or govern conduct. In statist mechanisms it can also be extended to monitoring and enforcement of rules as established by primary and/or delegated legislation. In this form, it is generally a written instrument containing rules having the force of statist law. (as opposed to natural law). Other forms of regulation are self regulation. Regulation creates, limits, constrains a right, creates or limits a duty, or allocates a responsibility. Regulation can take many forms: legal restrictions promulgated by a government authority, contractual obligations that bind many parties (for example, insurance regulations that arise out of contracts between insurers and their insureds), self-regulation by an industry such as through a trade association, social regulation (e.g. norms), co-regulation, third-party regulation, certification, accreditation or market regulation. In its legal sense regulation can and should be distinguished from primary legislation (by Parliament of elected legislative body) on the one hand and judge-made law on the other.[1] Regulation mandated by a state attempts to produce outcomes which might not otherwise occur, produce or prevent outcomes in different places to what might otherwise occur, or produce or prevent outcomes in different timescales than would otherwise occur. In this way, regulations can be seen as implementation artifacts of policy statements. Common examples of regulation include controls on market entries, prices, wages, development approvals, pollution effects, employment for certain people in certain industries, standards of production for certain goods, the military forces and services. The economics of imposing or removing regulations relating to markets is analysed in regulatory economics. Reasons Regulations may create costs as well as benefits and may produce unintended reactivity effects, such as defensive practice.[2] Efficient regulations can be defined as those where total benefits exceed total costs. Regulations can be advocated for a variety of reasons, including:[citation needed] • Market failures - regulation due to inefficiency. Intervention due to what economists call market failure. o To constrain sellers options in markets characterized by monopoly o As a means to implement collective action, in order to provide public goods o To assure adequate information in the market o To mitigate undesirable externalities • Collective desires - regulation about collective desires or considered judgments on the part of a significant segment of society[vague] • Diverse experiences - regulation with a view of eliminating or enhancing opportunities for the formation of diverse preferences and beliefs[vague] • Social subordination - regulation aimed to increase or reduce social subordination of various social groups[citation needed] • Endogenous preferences - regulation intended to affect the development of certain preferences on an aggregate level[vague] • Irreversibility - regulation that deals with the problem of irreversibility – the problem in which a certain type of conduct from current generations results in outcomes from which future generations may not recover from at all. [3] • Professional conduct - the regulation of members of professional bodies, either acting under statutory or contractual powers.[4] • Interest group transfers - regulation that results from efforts by self-interest groups to redistribute wealth in their favor, which may be disguised as one or more of the justifications above. The study of formal (legal and/or official) and informal (extra-legal and/or unofficial) regulation constitutes one of the central concerns of the sociology of law. History Regulation of businesses existed in the ancient early Egyptian, Indian, Greek, and Roman civilizations. Standardized weights and measures existed to an extent in the ancient world, and gold may have operated to some degree as an international currency. In China, a national currency system existed and paper currency was invented. Sophisticated law existed in Ancient Rome. In the European Early Middle Ages, law and standardization declined with the Roman Empire, but regulation existed in the form of norms, customs, and privileges; this regulation was aided by the unified Christian identity and a sense of honor in regard to contracts.[5]:5 Beginning in the late 19th and 20th century, much of regulation in the United States was administered and enforced by regulatory agencies which produced their own administrative law and procedures under the authority of statutes. Legislators created these agencies to allow experts in the industry to focus their attention on the issue. At the federal level, one the earliest
Posted on: Wed, 09 Jul 2014 14:42:45 +0000
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