dimanche 10 février 2013

L3 UNIT 1: Civil cases and criminal cases


Text 2:
The Law Explored: naked and unarmed – but shot dead by mistake

While conducting a search of the victim’s flat, Police Constable Christopher Sherwood shot James Hastley dead, as he believed the latter was threatening him with a weapon.
As a result / Consequently / As a consequence / It ensued that, Constable Sherwood was charged with murder and tried at the Crown Court.
For his defence, Sherwood argued that he genuinely thought Hastley’s had been armed when he came at him and that he had acted in self-defence. Sherwood claimed he had made an honest mistake. His defence was successful and he was acquitted.
Hastley’s family, however, chose to bring a so-called “vindicatory” civil action for assault and battery, that is to say an action motivated by the wish to prove that a fundamental right has been infringed but not by the hope of obtaining compensation (which is usually the point of a civil action).
Although Sherwood had already been acquitted, the Court of Appeal decided a civil trial could go ahead. Indeed, the Court determined, Sherwood may have not committed a crime as he had made an honest mistake, but he might nonetheless have committed a wrong in civil law.
Whereas to convict Sherwood for murder the prosecution had to prove that the defendant’s mistake was not genuine, a defendant pleading “mistaken self-defence” in a civil case (when sued for assault) would have to convince the court that his mistake was both honest and reasonable.
This higher requirement / higher standard (i.e. reasonableness) highlights / throws light on / underlines the difference between criminal law and civil law. This also pinpoints the fact that while a criminal inquiry is mainly subjective, a civil one by comparing the defendant’s action with the way in which a “hypothetical reasonable man” would have reacted in a similar set of circumstances, is mainly objective. 

dimanche 23 décembre 2012

Lawyer Advertising


Lawyer Advertising

The article presents a U.S. Supreme Court’s decision regarding the constitutionality of Florida Bar’s rules prohibitingpersonal injury lawyersfrom soliciting victims or their relatives for a period of 30 days following an accident or a loss.
The issue at stake is whether such rules infringe the freedom of speech protected by the First and Fourteenth Amendments of the U.S. Constitution.
Indeed, with the ruling Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court invalidating a state statute which prohibited pharmacists from advertising the price of prescription goods, held for the first time that truthful commercial speech which did “no more than propose a commercial transaction” merited First Amendment protection.
On the other hand, the Florida Bar, stresses that while thorough surveys have demonstrated that targeted solicitations to accident victims and their relatives were generally quite unpopular among Floridians and reflected poorly on the profession, such distasteful solicitations also encroached on citizens’ constitutional right to privacy.
In Bates v. State Bar of Arizona (1976), the Supreme Court considered that legal advertising deserved first amendment protection.
But the court also said that purely commercial speech deserves a lesser degree of protection under the First Amendment (l. 105: ‘subordinate position’).
Consequently, the Florida Bar regulations meet constitutional standards. (Intermediate scrutiny)
In a dissenting opinion, Justice Kennedy endeavored to establish the need to protect lawyers’ right to solicit clients within a period of 30 days after they had suffered a personal injury.
He reminds that solicitations are not contracts and should clients regret having responded favourably to such targeted solicitations they still have the opportunity to pull out of the scheme.
He also claims that solicitations enable lawyers to provide information essential to their clients. Should lawyers be forbidden to solicit clients, the latter would not have access to vital information such as the necessity to enable counsel to gather evidence as quickly as possible, nor would lawyers have the possibility to dissuade their client from entering into settlement negotiations or evidentiary discussions with investigators for opposing parties.
In a nutshell, Justice Kennedy argues that the system itself may well deserve to be reformed. But clients should not be deprived of information essential to understand how that system works (l. 113-115: “The State’s restriction deprives accident victims of information which may be critical to their right to make a claim for compensation for injuries”).
Vocabulary:
Referral / referral service / referral profession
File an action for declaratory and injunctive relief
To be disbarred
Another Florida lawyer was substituted in his stead (= in his place)
Mindful of these concerns
In the wake of = in the aftermath of
Commensurately
Flagging reputation = waning reputation
To send targeted mail
Intrusion on privacy
It reflects poorly on the profession
As of June 1989…
The anecdotal record mustered by the Bar
Noteworthy for his breadth and detail (remarquable de par…)
Scavenger = an animal that feeds on carrion, or dead plant material /
To burgeon with criticism
Despicable = deserving hatred and contempt
Astounded = astonished
Ambulance chasing
To rent space on billboards
Telephone directories
To hold someone in the utmost contempt
Unsettle leading First Amendment precedents
To undercut a guarantee
To rescind a contract = revoke, cancel, repeal
It is of the essence = it is fundamental, essential / it is of the essence that …
To enter into settlement negotiations
Evidentiary discussions
A device

Twelve Angry Men


Twelve Angry Men
1957
(Story and screenplay by Reginald Rose. Film directed by Sydney Lumet)
From the reference to the Woolworth building that the jurors may see from the window, we may infer that the action is set in New York.
This building, which is located in lower Manhattan not far from the N.Y. Supreme Court, was built for M. Woolworth who ran a firm of department stores selling cheap items in 1913. The president at the time was Woodrow Wilson (Democratic president 1912-1920). He inaugurated the building from Washington D. C., by pressing a button that lit up the 80.000 bulbs of the building.
Vocabulary:
To be at somebody’s beck and call
To give $5 to the cause (aux bonnes oeuvres)

I. The tension
At first, the tone of the conversations is congenial. But the situation deteriorates (goes downhill) fairly rapidly. To convey a sense of tension, Lumet draws a parallel between the storm which is brewing outside and the stifling atmosphere in the room.
When the jurors enter the jury room, they observe that it is the hottest day of the year. It is sizzling hot / baking hot / stifling hot/ roasting. On top of this, the windows open with difficulty and the fan is on the blink (it has broken down). Finally, they are locked into the room.
Driving rain / to be raining cats and dogs / a downpour
A lightning bolt / A flash of lightning / A roll of thunder
(/ The weather is muggy, and makes the jurors feel hot and clammy)
The bigot (the man who suffers from hay fever which makes him impatient and irritable) cracks a joke. He makes fun of / makes sport of the foreman’s suggestion that the jurors should take a preliminary vote by ballot.
He is eager to leave the room quickly / to get it over with as soon as possible. (He wishes he could go home. He would like to go home.)
Wish + Present Conditional: Wish on present or future
Wish + Preterit: Wish on present or future but impossible to fulfil.
Wish + Past Perfect: Regret
The juror with the hat is of the same opinion, as he is attending a baseball game that evening.
The tension cranks up a notch:
-       When Fonda refuses to raise his hand and suggests spending an hour to discuss the case before “sending the kid to the chair”. The bigot who is a great element of tension chuckles and mutters under his breath: “boy oh boy there’s always one”.
-       When Fonda suggests they should sit for an hour, the “bigot” pretends to tell a funny joke totally unrelated to the case, thereby implying Fonda’s suggestion is preposterous and a waste of time.
-       When the “bigot”, (who constantly upsets the rules of the discussion), launches into a racist diatribe it irritates the old man causing him to stand up and protest.
-       When Fonda asks “the bigot” why he believes the woman’s testimony whereas he doesn’t believe the kid as “she is one of them too”.
-       When the “bigot” calls the foreman a “kid” whereas the latter is only trying to keep things organised, causing the Foreman to grow weary and lose his temper.
The tension reaches its climax when H. Fonda pulls out the very same switchblade knife / flick-knife (…)
(The “gentleman is entitled to see exhibits in evidence”)
II. The case
The defendant is a young offender who has just turned 18 years old and who allegedly stabbed his father to death.
He is said to have stabbed his father. He is accused of having killed his father.
He grew up in a slum. He comes from an under-privileged background (/ neighbourhood).
His mother is not mentioned and he was raised by his father who is a drunkard (an alcoholic), who was convicted for forgery and who used to beat him up. He is a repeat offender (/a “jailbird”). He is a petty criminal. We can infer from the context that the building where the killing took place is probably a “tenement”.
To mug someone: to assault for money.
Two eyewitnesses claim they saw the kid stab his father and runaway from the apartment.
One is a woman who lives in a building opposite the building where the killing took place, across the elevated train.
The other witness is an old man who lives in the same building, in an apartment just one storey below.
These two people bore witness / gave evidence / gave testimony / testified in court.
(To bear witness)
The accused however claims he was at the cinema at the time of the killing.
(To claim ≠ to pretend)
It appears that during the trial, the prosecution relied heavily on these 2 witnesses.
The accused was defended by a public defender. Henry Fonda questions the competence of this attorney. Maybe the public defender believed the kid didn’t stand a chance. Fonda blames him for not having cross-examined the witnesses. Had he been in the place of the accused / If he had been in the place of the accused, he would have asked for another lawyer.
(To blame someone for doing something / for not doing something).
III. Arguments of the Jurors (Never in the movie are the names of the jurors mentioned.
(We’ll only know the names of the old man and of Henry Fonda’s character at the very end of the film. Naturally, this intends to throw light on the fact that jurors are anonymous.)
Juror n°2: “The little man with the glasses sitting on the left of the Foreman”
His argument is that the defence did not prove that the boy was innocent. However, as Henry Fonda’s character points out, the burden of proof is on the prosecution. It is up to the prosecution to prove that the defendant is guilty.
Juror n°3: “The loud man at the head of the “beck and call” company who tells the story of his son.
When this juror presents his argument, he asserts that he is only concerned with facts. However as he digresses to tell the story of his own personal fight with his son, one can’t help but feel that somehow the man identifies himself with the victim. He sympathises with the victim (/ he feels sympathetic to the victim).
In reality, he has a personal issue which prevents him from being objective.
Juror n°4: “The Broker”
This juror appears as extremely rational and tempered. His is a very analytical mind. For him the boy his guilty and he explains the guilt of the accused by the environment in which the boy grew up (“slums are breeding grounds for criminals”).
Besides, he is very suspicious of the boy’s alibi. He considers the boy’s alibi is ‘flimsy’. Indeed nobody saw the defendant at the cinema and he cannot remember the title of the film he is supposed to have watched.
He does not set / put great store by the defendant’s arguments. (To set great store by something)
He focuses on the weapon the kid is supposed to have used as well, trying to prove that his knife was a very unusual knife.
Juror n°5: “The man from the Slum”
At first, this juror decides not to justify his choice. We note that when the jurors took the customary preliminary vote, he hesitated to raise his hand, as if not quite certain of boy’s guilt, but influenced by the other jurors around him.
Juror n°6: “The painter”
This juror is not concerned with the fact that the defendant was unable to prove his innocence, nor does he try to explain the boy’s criminal mind by the environment in which he grew up. On the contrary, he is mainly concerned with the motive of the accused. For him, the fact that the boy had been beaten up repeatedly by his father prompted him to retaliate and stab him to death. As the broker says, everybody has a breaking point and the two slaps in the face may have been “two too many”. Contrary to the broker, the painter grants a lot of importance to the fact that the kid said he had been punched in the face and not slapped in the face.
Juror n°7: “The baseball man”
He is eager to go to the stadium to see a baseball game. He believed the boy was guilty right from the start. He focuses on the past of the accused, on his personal record. The assaults he had committed previously some of which involved the use of a knife: “Oh, he is really handy with a knife”.  
He’s still convinced of his guilt and asserts that discussing the case for a hundred years would not make him change his mind.
Juror n°8: Henry Fonda’s character who voted Not-Guilty
He is the only one to have doubts as to the guilt of the accused. He challenges all the other jurors’ arguments. He says the defendant does not have to prove his innocence. He is not convinced by the prosecution’s arguments. He believes the prosecution does not have a strong case as it relies only on the two testimonies of the witnesses and that even if the witnesses were under oath, they’re only humans and as such are liable to make mistakes. He also proves for instance that the kid’s knife is not as unusual as the prosecution or the broker claim.
Juror n°9: The old man
He does not get a chance to talk but he disagrees with the bigot’s arguments right from the start.
Juror n°10: A watchmaker (who is not a native speaker)
He is one of the jurors who are not given the opportunity to talk. However, as an immigrant, we understand that he is not receptive to the arguments of the bigot / he does not see the bigot’s arguments in a favourable light.
He sides with the man who grew up in a slum when the latter snaps at the insulting bigot.
Juror n°11: The bigot who is also a bully
He keeps interrupting the other jurors and breaking the rules that have been fixed by the foreman. He is cranky and cynical. He is a bully as he keeps interrupting everyone else in the room. He relies on the testimony of the witness who lives in the apartment across the street. But his arguments against the defendant are mainly motivated by pure racism and xenophobia.
To be prejudiced against someone
Juror n°12: The advertising man
He is nice, pleasant and accommodating and tries to appease the tension between the jurors. But he is also a little shallow (i.e. superficial). He trusts the testimonies of the two witnesses as “these people were under oath”, even though he concedes that a trial ‘is not an exact science’.
Juror n°1: The Foreman
Does not present any argument.
IV. Inconsistencies
The juries are supposed to represent a cross-section of society. However we note that jurors in the film are exclusively white men (and as such do not represent minorities such as women for example). Even in the 1950s this would have been unusual. 

mercredi 14 novembre 2012

L2 THE ELECTORAL SYSTEM: MAKING VOTES COUNT


Understanding the document:

- What is the journalist’s opinion of the Electoral College?
The journalist thinks that the Electoral College system has many flaws and that it should be abolished.  “There should be a bipartisan movement for direct election of the president.”

- What arguments does he put forward to justify his position?
·      The Winner-takes-All system does not take account of the minority vote in each state.
·      A candidate may become President without having won the popular vote.
·      The system creates another form of distortion in favour of small states as they are allocated at least three electors and as such are over-represented.
·      The campaign does not focus equally on the needs of Americans in every state: the outcome of the election depends on a handful of swing states. As a consequence, the needs of many Americans are ignored whereas candidates focus excessively on the needs of voters in a few states only (“focus their attention, money and promises on a small slice of the electorate”)
ê This situation does not encourage people to develop an interest in the campaign or to go to the polls (“removes the incentive for a large part of the population to follow the campaign, or even to vote”)
·      Because electors do not have to vote for the candidates they are pledged to, the defection of a “faithless elector” may have severe consequences. It could cause other electors to defect and if the vote is close in the Electoral College, this could upset the outcome of the election.
·      If both candidates obtain the same amount of electoral votes, the House of Representatives is in charge of selecting the president. According to the procedure, each state has one vote, no matter the size of its population.

- Explain why the state of Florida is so important for candidates.
Cf. Florida is a swing state and as such focuses the attention of both candidates for the presidency.

3. Explain the following expressions:

- In paragraph 1: “a surefire blue state”: a state that is certain to vote for the Democrats
- In paragraph 4: “a swing state”: a large state with a significant number of electors, which alternates between support for Democrats and Republicans and where the outcome of the election is difficult to predict (ex: Florida).
- In paragraph 4: “The interests of people from Puerto Rico scarcely come up at all”: the candidates pay little attention to the interests of the Puerto Rican community because a significant part of this community lives in the State of New York where a majority of voters traditionally vote in favour of the Democratic candidate. Therefore candidates are not inclined to spend time and money courting the votes of Puerto Ricans. The Democratic candidate therefore does not need these votes.
For a Republican candidate on the other hand had better focus his campaign on swing states where the votes of a
voting minority can help him carry those states. 

L2 THE ELECTORAL SYSTEM: Terminology


Terminology:

Exercise 1: In the text above, find translations or synonyms for the following words.

a. Translations

b. Synonyms

Colistier : a running mate

Disloyal: faithless

Un scrutin : a ballot

To abandon: to drop out

Faire prêter serment à quelqu’un: to swear someone in

A list (of candidates): a slate 

Années paires : even years

To compose: to make up

Années impaires : odd years

To necessitate: to require
Un serment : an oath

A draw: a tie
Un grief, une plainte : a grievance

A result: the outcome of the election
Préciser : to specify

To swear, to commit oneself: to pledge




Exercise 2: Fill in the blanks in the article with the twenty words listed below.

battleground / delegates / economic / Vice President / running mate / term / chairman / establishment / unemployment / Medicare / swing / percent / Convention / fall / vowing / pick / nomination / spending / cheered / surveys

Mitt Romney Announces Paul Ryan As Vice Presidential Running Mate
By Kasie Hunt
The Huffington Post, August 11, 2012

NORFOLK, Va. — Republican Mitt Romney anointed Wisconsin Rep. Paul Ryan, an ardent conservative and devoted budget cutter, as his vice presidential 1 running mate on Saturday, and the two men immediately embarked on a tour of campaign battleground states 2 vowing to defeat President Barack Obama and repair the long-ailing U.S. economy.
America is "a nation facing debt, doubt and despair," and a transformative change in leadership is vital, Ryan declared to a flag-waving crowd in the first moments after Romney introduced him as his partner for the 3 fall campaign.
"Regrettably, President Obama has become part of the problem... and Mitt Romney is the solution," said the seven-term lawmaker, who at 42 is a generation younger than Romney, 65. Ryan is 4 chairman of the House Budget Committee, the chief architect of deeply controversial budget plans and widely viewed by Republican lawmakers as an intellectual leader within the party.
The two Republican ticket mates basked in the cheers of supporters in a made-for-television debut on a ticket hoping to make Obama's first term his last. "I did not make a mistake with this guy," Romney exulted. Romney declared that in the campaign to come, Republicans will present 5 economic solutions "that are bold, specific and achievable. (…) We offer our commitment to help create 12 million new jobs and to bring better take-home pay to middle class families."
The party 6 establishment, rank-and-file conservatives and tea party groups all 7 cheered the pick made by Romney, whose own record as a moderate during his term as Massachusetts governor less than a decade ago made his march to the presidential nomination an uneven one.
Obama's campaign didn't wait long to respond. It criticized the budget blueprints Ryan has authored, particularly his recommendations to fundamentally remake Medicare and cut $ 5.3 trillion in government 8 spending over the coming decade.
Ryan joins a race that has been defined from the beginning by a weak economy and high 9 unemployment measured most recently at 8.3 10 percent in July. Even so, recent national polls as well as 11 surveys in several 12 battleground states indicate a narrow advantage for Obama.
While Romney's 13 pick unified Republicans, the impact in 14 swing states such as Florida, Iowa and Pennsylvania was an open question. All are home to large numbers of seniors whose reaction to Ryan's prescription for 15 Medicare is certain to be tested by Democrats.
Ryan's selection as well as Romney's own 16 nomination will be ratified by 17 delegates to the Republican National 18 Convention that begins on Aug. 27 in Tampa, Fla.
Obama and 19 Vice-President Joe Biden will be nominated for a second 20 term at the Democratic convention the following week. The vice president called Ryan to congratulate him on his selection, the president's campaign said.
The GOP ticket made its debut at a naval museum in Norfolk, Va., opening stop of a long-planned bus tour through four states in as many days. A trip to Ryan's home state was added to previously scheduled appearances in Virginia, North Carolina, Florida and Ohio.

L2 THE ELECTORAL SYSTEM: Electing a U.S. President in Plain English



dimanche 11 novembre 2012

L2 Chapter 4 THE ELECTORAL SYSTEM, Translation


1.
California is the most populated state of the USA. As a consequence, it is the state that has the most electors / that has the greatest number of electoral votes.
2.
Texas also plays an important part in the election but it is not as populated as California. Consequently, there are fewer electors in Texas than in California.
3.
Since there are as many electors in each state as there are senators and representatives, the state the least populated / the smallest state / the least populated state cannot have less than three electors.
4.
According to some political analysts / commentators, the Democratic candidate is more likely to win the election than his Republican rival.
5.
Super Tuesday is probably the most important moment of the primaries.