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What Role Does "The Law" Play In Mediation?

The role that the law can and should play in mediation is one of the most widely discussed topics in the field of dispute resolution. It comes up in almost all mediations. It takes volumes to fully develop all the ideas, but the introduction we can make in a blog post should be a useful starting point for your own thinking.

By agreeing to mediate, the parties have chosen to try to resolve the dispute to their own mutual liking, rather than ceding to a judge the power to impose a decision about the outcome. In theory, if a judge decides a dispute, he does so by applying "the law", as that judge understands the law to be. We all know that two lawyers often disagree about how "the law" would make their case come out in court. We know that trial-level judges' decisions are often reversed on appeal. Just from recognizing those few facts, perhaps the best we can hope for from the court system is an approximate adjudication of how "the law" applies to the parties' case.

If all we can depend on in litigation is an approximation of what some Platonic ideal of the law would say, then why do we litigate anything? For one thing, it beats fisticuffs. For another, it's in our culture, if not our genes. We all want to think that we're law-abiding citizens. I do what the law says I should, so if I'm in court, I should win. (If I made a mistake and know it, or if I cheated, then by going to court I'm either trying to delay or I'm hoping the courts make a mistake about the law in my case, as they have in so many others.)

There are other reasons why we rely on "the law". By convention and the social compact, we trust that "the law" provides general rules of behavior and defines some aspects or relationships for most run-of-the-mill situations. Even if we don't know the millions of details in statutes, case decisions, ordinances, regulations, etc., we have the sense that they're all there for the public good. We each think we have a general sense of what they say, even without having specific training. We think that they're dependable. We accept that they state the way we're supposed to live, even when we're not consciously thinking about what the law requires or permits. Suppose two parties enter into a contract to buy and sell gizmos. They don't have to say in their contract what happens if the seller fails to ship, or if the buyer fails to pay. They know "the law" will provide an after-the-default answer about their rights and remedies.

Alright, how do those observations about "the law" apply to mediation? We digress for a moment to negotiation and dispute resolution theory. Negotiating parties should always understand what the likely outcomes would be if they can't agree to a resolution. The range of those other likely outcomes makes up a huge part of the reality in which the parties are negotiating or resolving disputes. This concept was popularized by Roger Fisher and William Ury (of the Harvard Negotiation Project) in their ground-breaking book, Getting to Yes. The acronym is BATNA, the best alternative to a negotiated settlement. If both parties come out better with their proposed deal than they would under the best alternative likely outcome, then it makes sense for both of them to agree. That's why knowing "the law" can be important in mediation. It's vital for everyone in the discussion to have of sense of the range of what a judge would probably say the outcome should be. Knowing the BATNA -- including "what the law would say" -- can be crucial in deciding the shape and dimensions of a mediated deal.

But that doesn't mean that the point of mediation is to come to the same result that a judge would arrive at in litigation. The parties of course might choose to do that (and save a great deal of time and expense by doing so.) But a great strength of mediation is that the parties don't have to do what "the law" would do. (The parties shouldn't enter into a deal that's "against the law," but that's a conversation for another day.)

A few examples can make this clearer than a long discussion. Suppose Alice, a patent holder, claims that Barry infringed on his patent because he's been incorporating Alice's invention in some products that Barry sold over the last few years. "The law" might say that if Alice proves the infringement, then Barry would have to pay a zillion dollars in damages whether or not he know of that he was infringing any patents. But Barry, and eventually Alice, know that Barry priced the products he has already sold without building in any license fee for the use of Alice's patents. Therefore, he just doesn't have a zillion dollars lying around to pay her. All "the law" would permit a judge to do is enter a judgment for a zillion dollars -- assuming Alice could prove everything at a very expensive trial and the judgment withstood years of very expensive appeals. That would put Barry out of business and he couldn't pay it all to Alice anyway. But in mediation, there is a whole world of opportunity for resolving this dispute to the advantage of both Alice and Barry. For example, they could agree that for products sold in the future, Barry will pay Alice a license fee of 6% instead of a more reasonable 4%. Then Barry would know how to price his future products to include enough to cover a 6% fee to Alice. Barry could stay in business, making money for himself and extra money for Alice every time he sold a product. A judge couldn't order that, but the parties can certainly agree to it in mediation.

Take an example from another realm I'm familiar with. New York has a statute that sets forth how child support is to be calculated. Generalizing, it says that child support has to be paid by the parent with whom the child spends less time, to the parent with whom the child spends more time. Calvin and Doris are getting divorced. Calvin makes much more money than Doris does, but for their family, it makes sense that their child, Eddy, spend more time with Calvin. A judge would likely not have the power in a divorce case to compel Calvin to pay Doris any child support. But in mediation, Calvin can say, "OK, I understand that the law doesn't require me to pay any child support. But to me, it only makes sense that I help Doris by paying her some child support. I want Eddy to know that his mom can also afford to live in a home where he has his own room, and she has enough money to pay for things that Eddy needs." Doris and Calvin can make that agreement, and even if a judge wouldn't have the power on his own to order child support payments to Doris, he does have the power to approve their agreement to that effect. That judicial approval of the parties' agreement becomes a judgment.

The patent lawyers for Alice and Barry told them what "the law" is. Each could see that the law would probably provide a remedy that did neither of them any good, and harmed Barry. For Alice and Barry, "the law" helped them understand their circumstances, and they elected to resolve their disputes in a completely different way. The divorce lawyers for Calvin and Doris told them about "the law" of child support. Knowing that law, the couple decided to do what made sense to the two of them, and what was best for Eddy, despite what "the law" would have said.

The beauty is that in mediation, the role of the law is important, but not because it dictates an outcome. It's just one more thing the parties can consider and discuss. The parties can decide how much weight to give "the law," how much sense it makes in their situation. The parties, with the help of the mediator, can use "the law" only in the way they want to, only in the way that makes sense to both of them, in resolving their disputes.

Charles Newman has worked diligently as both a lawyer and mediator to resolve conflicts and conclude transactions to the maximum benefit and satisfaction of his clients. For an appointment with a skilled lawyer, mediator and arbitrator, call Charles M. Newman at (212) 332-3321 or contact his office online at http://www.newmanlawmediation.com/contact-us.html

Pirates, Piracy and the Law

I. Introduction

The study of the history of Piracy and Pirates can be studied from the viewpoint of many vocations; including, technological, sociopolitical, or criminological. However piracy and pirates can also be look at through a legal perspective. The relevance of study piracy from the prism is best illustrated by consider what piracy and pirates are. Piracy was a crime, a violation of the law. Pirates are a class of criminals whose primary crime was piracy.

As piracy is a crime their must be in existence specific laws on the subject. Like all criminal laws the laws regarding piracy serve to define what actions or combination of action or omissions would constitute piracy. Like all laws the laws relating to piracy have a source. The Source for laws includes custom, statue and treaties. The law also provides for finality. Laws sometimes have exceptions the exception to the general law om piracy is privateering. Finally the law of piracy provides procedures for the prosecutes pirates and for the alleged pirate to defend against those charges.

II. Law of Piracy and its sources.

Regarding the law defining piracy; Their are many laws on piracy however it is possible assemble a definition of piracy. An individual is guilty of piracy if he disposes and "carries away" or attempts to dispossess and carry away another's vessel its cargo or passengers property on this said vessel; or be the commander or member of crew of a ship used as platform for the completed or attempted act of piracy. All the aforementioned conduct will unless the crew conducting the piratical act is acting under and according to a letter of marque or otherwise functioning as a state apparatus. Furthermore for one to be guilty of piracy the piratical act must take place in international waters which exists at least 3 miles from the coast of the mainland. The law banning piracy would not limit it self to people engaging in traditional acts of piracy; the law also classifies people knowingly helping or involving themselves with pirates as pirates themselves. The type of help or involvement classified as piracy include conspiring with the pirates, financing the pirates, procuring items to be used by pirates, holding stolen goods for them, advising them, directing from shore giving them equipment or helping them recruit etc.

The sources of these laws banning piracy varied. Like all law much of the laws banning piracy were customary law or international customary law. Customary law is created overtime based on a significant number of people or entities engaging in or not engaging an activity based on a belief of a legal duty or legal right. During the age of discovery and latter countries such as England began to use statues as a tool against piracy. These early statues such as the offenses at Sea act of 1535 and the Piracy act of 1698 stated that piracy was illegal and the procedure to be used in Piracy cases. However, in England, these statues did not completely overthrow the customary law regime. These statues such as the Piracy Acts of 1698, and 1717 usually did not generally define piracy and allowed the question of what activities constituted piracy to be answered by customary law. In terms defining what acts constituted piracy the early statues only described specific acts as piracy if those act would not be considered piracy under customary law. As such any description of acts constituting piracy was not a codification of preexisting customary law but an expansion on what activities where defined as piracy. The statues therefore served as a legal tool for governments to treat select maritime crimes with gravity and penalties of piracy. Examples of this practice are included in the 1698 and 1744 Piracy acts and piracy statue expanded customary definition of piracy to include the traitorous act of its citizens serving on an enemy privateer as piracy if English ships are targeted for attack. Also in 1698 the British government revised the law piracy to include Captains and Crew of Ships who voluntarily turn over their vessels to be used by pirates. The enlargement of numbers of acts statutorily classified as piracy continued into the 19th century. In 1824 the British Parliament would follow the United States Congress in expanding the legal definition of piracy to include the oceanic transportation of people to be used as slaves. Not with standing the British parliaments broadening of the definition of piracy, prior to 1997 British statue did not generally define what acts constitute piracy. In its 1997 Maritime security act wrote verbatim the United Nations convention the law of the sea. Latter treaty would ban piracy.

III. Privateering

Of course no discussion of piracy would be complete without discussing the legal form of piracy known as privateering. Privateering involved the state granting private merchant mariner's licenses know as letters of marque legally entitling the licensed mariner to rob ships of an enemies and pirates. By operating under and within the scope of the letter marque an act which would nominally be classified as piracy would not be legally definable as piracy. A liscensed privateer was immune from a charge of piracy not only from the country who issued the license but from all other nations including the nation whose shipping was attacked by the privateer. Customary international law of the time demanded that other nations give a letter of marque full faith and credit and not consider its holder a pirate. Customary international law defined privateers as legal members of his countries service engaging in a legal military operation. As a member of his countries service he was immune from criminal charges for killing done in pursuit of privateering, and if captured had to be granted prisoner of war status. Not with standing its legal status, was very much like piracy. The privateers where motivated by profit. After paying the State a share of the prize they could keep the rest.

The institution of privateering gave all involved including the captains, the crew, and owners of privateering ships a huge legal and financial windfall. In exchange for these amenities privateers where bound to rules. To begin with, their status as a privateer was dependent of the holding of a letter of marque licensing acts which would otherwise be piracy. The letter of Marque while addressed to the present Captain is not held by the present captain as an individual. The rights granted by letter instead vested in the office of the captain of the ship that was intended to be used as the privateering vessel; the individual captain exercised those rights as an office holder. As such, if the ship changes commands the rights and restricts set in letter would remain held by the office of captain and exercised by the new captain. Only a state party authorized party could issue a letter of marque. The process as well the official with the right to grant such a license varied depending on the nation. In Great Britain the right to issue a letter marque was nominally vested in the lord high admiral the head of the British Admiralty who issued these licenses in the name of King. In most of the American and Caribbean Colonies the Lord Admiral usually deputized a local official, usually the Colonies Governor, as the Colonies Admiral or vice Admiral with the power to handle local maritime matters including the issuance of letters marque. . By allowing locals colonial governors the power to issue letters of marques the process was decentralized. When hostiles broke out between the various empires British colonial governors could rapidly commission large numbers of privateers to target the military and economic assets of its enemies. The privateers who the British Colonial governors licensed included notoriously brutal men such as Roche Braziliano and Henry Morgan; these men often targeted non combatants with especially cruel forms murder and torture as means to terrorize their victims into surrendering their wealth. However in spite of their cruelty these privateers where extremely effective they destroyed or stole much of Spain's colonial wealth recaptured colonies and helped insure British dominance. The decentralized process involved in issuing letters marque allowed the British government to deny responsibility for the actions of the privateers while reaping rewards of her way ward privateers. If the British Government received foreign protests they could simply state it's in ability micromanage its governors located thousands of miles away. If an individual privateer committed an atrocity the British government sometimes would completely deny responsible and say as far they know privateer is acting without a letter marque. In analyzing the process of the issuing of letters of Marque was extremely lax. Many of the people who where issued letters of Marque abused their privileges or degenerated into out right piracy. Virtually every major Caribbean Pirate began their career as captains or crew members on an
The Spanish had similar procedures in licensing pirates as the British. The Dutch out sourced the right to issue letters of marque to the Dutch West Indies Company, the premiere international trading company. However, the countries whose privateering licensing protocol where most unique was the United States. The licensing authority was more centralized then in other countries. The steps required to be granted a U.S. letter of marque where also far more rigorous then those of other countries.

In the United States the Constitution allows only the US Congress to issue letters of Marque. This means a would-be privateer would only receive a letter of marque if and when both house of congress vote for it and it passes and, like any other act of Congress, it was signed by the U.S. President. This highly rigorous process was likely indented to screen out undesirable elements attracted to privateering.

Once a privateer captain was granted the letter of marque he would be subject to the rules stated in the letter of marque. The contents of letter of marque state terms and parameters that its holders are legally obligated to follow. The letters of Marque would provide for vital aspects of the mission. It would state who the holder was entitled to target, the methods he could use and what date or event would cause the letter of marque to expire, as well as the percentage that monarch or State was entitled to. These terms where important because in some cases a violation could be seen an act of piracy. Of these terms perhaps the most is the term is who its holder could attack. The terms would state the nationality of the ships a privateer was lawfully able to attack, or if the letter was geared towards piratesw state that it applies to all pirates. This term was very important because privateering was considered an act of war. If a privateer went beyond his commission and attacked the ships of a country that was not at war with the privateer's country that could force the privateer's country into unwanted military and diplomatic entanglements. Consequently, governments took a hard line against such misbehavior, and charged its privateers who attacked nationalities not authorized by the letter of marque as outright pirates. To be in compliance with the law the holder of a letter of marque could not even attack the ships of a country at with the nation who the issue the letter of marque was war if that specific countries shipping was not mentioned in the letter of the marque. To remedy this problem privateers, including William Kidd, made it a practice to secure multiple letters of marques to cover any enemy of England whose ship they would be likely to have an opportunity to rob in their privateering expedition. Privateering licenses might also limit actions and tactics a privateer could use against an enemy. These limitations might limit the degree of force he could use as well as the targets and locations he could attack. In William Kidd's ill fated privateering mission he was instructed to attempt take alive the pirates attempted to attach. These terms where not always abided by, the buccaneer pirates where notorious for attacking locations and using methods forbidden in the terms of the letters marques. The states that issued the letters of marque often turned a bind eye to such violations. The articles of the letter of marque sometimes provided for its own expiration. Letters of marque issued the Dutch and the French where only valid for 6 months. The English letters where valid until peace was signed.

A final demand on privateers is that they pay a share to the government or monarch who licenses them. For English kings this tended to be ten percent of the gross amount of prizes. For the English king the piracy awards where an important part of his income since he needed Parliamentary approval for the creation of taxes.

Privateteering was widely used from prior to the age of discovery until the post Napoleonic error. However in mid 19th countries began to take steps to end privateering. In 1856 the large European powers signed the Declaration of Paris which banned privateering. "Privateering is and remains abolished." The Declaration Paris does not end the discussion about the legality of privateering. As a treaty the Declaration is automatically binding on nation who signed and ratified or latter acceded to it. Not all countries signed and ratified including the United States, Mexico, Spain and others. Further more many current countries where colonies at the time of ratification and thus where not a party to the treaty. While the treaty does not automatically bind these nations just by existence there is an alternative avenue that the Declaration of Paris which could ban privateering. The Declaration would be binding on all countries if it evolved international Customary. A treaty will evolve international customary law if it is norm creating, was universally acceded to or ratified by the nations of the world especially those nations who are most effected by the treaty. Finally the treaty must have been enforce for a sufficient amount of time. The rule is clearly norm creating, its states a clear rule that "privateering is abolished this as stand alone passage clear rule of conduct the privateering is abolished it furthers deals with general policy or norm and not a specific policy for achieving the general policy. The Declaration of Paris has been in force for 150 years, this amount time is clearly long enough for the entire international community to become aware of it. The final criteria requires that the treaty have wide spread ratification especially by States that the provisions are most relevant to. This criterion is probably the criteria that Declaration of Paris's existence as customary law most falls short. While the Declaration of Paris had wide spread acceptance their where a number of countries which did not ratify including the US, Mexico, Spain and various non maritime state. Furthermore many countries which did not exist at the time it was ratified now exist and have not ratified it. In considering who is most affected by the ban on privateering it is countries with smaller navies who use privateering to supplement their navy. Many countries at the time of the treaty that refused to ratify where countries which where not considered naval powers at the time including US and Mexico. Countries which existed but had no maritime force also did not bother to ratify it. In addition many of the countries which exist now but did not exist contemporarily with the creation the Declaration of Paris have yet to ratify it. These countries are typically developing countries with very small navies. As such there is argument that Declaration of Paris does not fulfill the criteria of wide spread acceptance and therefore does has met perquisites necessary for a treaty provision to evolve into customary law. As such for countries that never ratified the Declaration of Paris there is an argument that they could be legally allowed to issue letters of Marque.

Iv. Piracy criminal procedure .

Piracy is defined by every nation as a crime. If an act is defined as a crime nations will have proceedings (a trial) to determine whether an individual apprehended for such an act is guilty as a mater of both fact and law guilty. The nature of the pirates right to trial and procedural due process rights varied from nation to nation. In some legal systems the pirates right to trial was a mere formality. However, in other nations such as Great Britan and U.S. the piracy trial gave the accused had substantial due process rights.

In England and its successor state of Britain had criminal procedures for piracy cases. While England, like every other Maritime state, took a hard line against piracy if a pirate actually was captured and turned over to civil authorities he would be provided with substantial due process rights. These rights included a trial by jury as well as the right to conduct a criminal defense. Before a pirate could even be tried he had to be indicted by a commission especially appointed for the purpose of investigating piracy. If a pirate was to be tried he would not be tried in a normal court but by the Admiralty which had a judicial branch with jurisdiction of all crimes committed by civilians on the high seas. This court was headed by the Lord Admiral of England. He was entitled to act as judge of all piracy cases though he usually delegated this function to his deputies who where regionally based. Depending on the time and place they went by various titles including Vice Admirals of the coast, "Admiral of Virginia" Judge of the vice Admiralty court etc. It had to be shown that the alleged pirate either committed an act of piracy or based on his conducted intended to commit piracy. The accused was also allowed the right to put forwarded a defense including the right to call witnesses. Some alleged English pirates where acquitted. If a party was acquitted he could not face double jeopardy. The English legal system was not flawless. Their were several examples of corruption at the admiralty courts. Also after 1698 England moved to a more inquisitorial trial model for piracy cases. this lessoned, but did not completely destroy safe guards of English law.

When the United States was formed in the 18th century it borrowed many aspects of the English legal system including the right to trial by jury, and various due process rights. The United States differed from some other countries as it did not assign Piracy cases to a functionally specialized tribunals or assign functionally specialized procedures but used the same Federal courts and procedures as used in any other federal crime. If a pirate was captured by American forced, before he could be brought to trial, he would need to be indicted by a federal grand jury. If indicted the court the case would be held in a Federal court presided over by a Federal Judge. The Federal Judge and Federal Courts have jurisiticition over all legal issues both civil and criminal which involve federal or are an area considered to be under federal jurisdiction (including maritime law). The prosecutor would likely be the U.S. Attorney a lawyer assigned to a regional jurisdiction charged with prosecuting all federal crimes that occur in their regional juristiction. Through out this procedure the accused would have due process rights including the right to a jury trial and the right against self incriminating. These rights where enshrined in the U.S. Constitution and thus could not be easily removed or ignored.

Great Britain and the U.S. where fairly unique in the degree of procedural due process it of offered captured pirates. If a pirate faced captured by Spanish or Portuguese authorities he likely would not live long enough to see a court. Such is because Spanish and Portuguese forces often gave Pirates vulnerable to capture no quarter. Governors also had limited summary execution powers in their role as the colonies military commander. If the capture pirate did live long enough to get to trial he might face a trial in front of the Audienca, the primary colonial court, or a military court. However he would not have the rights he would in an English court. For example a pirate could be tried in abstention before he is even apprehended. Furthermore these courts provided no right to a jury trial.

IV. The criminal procedure of piracy law.

If the society which captured the pirate recognized due process rights the prosecution would have prove its case. Here the prosecution would have to prove the accused is guilty of piracy. A strong prima facia case that is guilty of piracy is made if it shown that an individual is a member of a crew that either committed a piratical act or intends to commit a piratical act. If the accused is originally a privateer they would usually have to prove that he breached the terms of his letter of marque. The defense would try to refute the evidence presented to prove the prima facia case. In response to such a case, pirates had at their disposal a number of legal defenses. For example, an alleged pirate could be exonerated, if it is shown he performed his service for the pirate crew only based on duress. An alleged pirate would likewise be exonerated ig he could show a lack of sufficient intent. Of defenses included effective acceptance of the king's pardon and benefit of clergy. Finally; perhaps the most unique pirate defense. For woman pirates, was pleading ones belly.

If an individual was served pirates only because he was under duress, even if acting deliberately, that individuals actions are considered involuntary. An individual is never liable for an involuntary acts. This defense is not theoretical pirates did sometimes press into service mariners from captured ships. There are two types of duress physical duress and legal duress. Physical duress is where someone is compelled by another to undertake activity out of fear that if does not he or someone else will face immediate physical harm or death in retaliation for not undertaking the desired activity. While an alleged Pirate would be freed if his actions where motivated by physical duress; the mere fact that a person could theoretically face physical violence if he did not engage in a criminal act, such as piracy, is not sufficient if his motive for the piratical act was something other then fear of physical retaliation. 'Such would occur if an alleged pirated acted out of desire for the esteem of the other pirates or for a share of the treasure even there are other consequences for not acting. Similarly, if a persons motives change over the course from duress to another factor he is guilty of piracy for acts done after his motives change.

Besides physical duress there is also legal duress. Legal duress is where a person is motivated to act not out of fear of physical injury but out of fear of legal consequences of breaking the law. Admiralty law nominally holds that disobeying their captain's orders is illegal. The law generally recognized that if a sailor broke the law in order to obey orders he would not be guilty. The legal jeopardy he would potentially face for not obeying the order made his breach of the law involuntary. While this rule might to apply to most mariners a pirate could not claim that legal duress as an excuse for following his captain's orders to commit a crime. Such is because pirate has no legal to follow his captain orders. Such is because the captains authority is predicated on an illegal, and thus unrecognized agreement, that a group will combine under the captain's leadership commit piracy. However, an alleged pirate could claim legal duress as a defense if piratical act occurred on what was initially a privateering mission. This circumstance would occur if sailor is on privateering but on this missions in ordered to commit piratical acts. As the mission had began as a legal mission the crew member would be nominally bound to his captain's orders and thus would feel legally compelled to follow orders even if the orders are illegal. However, like physical duress legal, an alleged pirates feeling of legal duress would only be an adequate defense if fear of legal obligation is what actually compelled him to commit the illegal act.

For both physical duress and legal duress the duress must the motivating factor for the piratical act if that is to be a defense.

In determining whether duress was the true motive for, piracy courts realized they where ill equipped to read a person's heart and mind. They therefore developed an objective test. In evaluating the claim of duress as the alleged pirates motive, the courts would look at whether he accepted the ill gotten prizes. The courts saw the receiving of a share of pirates prizes as distinctively reserved for members of the pirate crew. By accepting the share pirates share an individual was signifying his desire to be part of pirate crew or at least to reap the benefits of being a pirate. If individual was serving to advance himself as a pirate or receive Pirate treasures those would be his motive, and he could not be considered as working under duress.
To be guilty you must have mental intent. If your actions where based on a mistake in fact you would not have the required mental intend and not be guilty. For example the Henry Morgan was charged with piracy because he attacked Spanish assets after his letter of marque had expired based on peace with Spain. Morgan successfully defended his actions by claiming a mistake in fact. He could not be guilty of piracy because he did not know that his peace had been declared.

In their defense Pirates sometimes "pleaded the Kings pardon" and therefore claimed immunity from prosecution. If the alleged pirate had received the King's pardon the pirate would be immune from prosecution for all crimes committed before receiving this amnesty. Periodically the English government would proclaim a conditional amnesty known as the known as the Kings "Pardon". This was done on number including in 1698 (known at the time as the act of Grace) and later in 1718. To be eligible for the amnesty a pirate would have to surrender by the deadline set in the proclamation. He would also have to abide by any other conditions set the amnesty. The proclamations sometimes specifically exempted particularly heinous pirates. Another piracy defense which is now anachronistic is benefit of clergy. The benefit of clergy is a right that members of the clergy had to only be tried in church courts and the right to be immune from prosecution in secular courts. If a person plead benefit of clergy he essentially was asserting that the secular courts lacked personal jurisdiction over him and he should either freed or reassign him to the notoriously lenient church courts. On its face this would seem not to apply to pirates since few if any where clergy men. However, pirates could be freed under this doctrine because the test to determine whether one was a clergyman was simply to recite one bibical passage of the Judges choosing. If he recites the passage correctly then, for purpose of that one case, the accused is irrebuttably considered a clergy man and no evidence can be admitted to contradict the accused plea even if the judge had reason to believe the accused was not clergy. The ease of proving one was clergyman would seem to invite fraudulent pleas as means for an accused escape punishment; indeed it was this way by design. During the 16th, 17th and 18th centuries English law was extremely harsh. The English government and judiciary saw the will full manipulation of the benefit of clergy as a way of lessoning the harshness of the English legal and criminal justice systems without fundamentally changing them. This was by no means a full proof legal defense the judge had discretion on what bible verse would be recite and could simply choose a verse the less educated pirate would be unlikely to recite verbatim. This defense generally was not available for certain crimes such as murder and rape. Therefore, if the pirate killed someone he could face harsh justice for that. This defense did not last the entire age of piracy. The piracy act of 1717 made the Benefit of clergy inapplicable in piracy cases.

Finally one possible defense strategy used by pirates was "pleading ones belly." This defense could only be used by female pirates who happened to pregnant at the time of conviction. Under English law a woman convicted of a capitol crime she would receive a temporary reprieve from capital punishment if she was pregnant and that pregnancy could be medically verified. This defense was used in a piracy case twice by female pirates, Ann Bonny and Mary Reed. In Ann Bonny's case this temporary reprieve probably saved her life. It seems that as the months seeing this young single mother spending her days in the squalor of a colonial jail ultimately created, in her jailer's, pity for her. As a result of this she apparently was released without formal authorization or otherwise was allowed to escape with no attempt made to apprehend her or even record her status as fugitive.

If these defenses did not work the convicted would face punishment until the mid 19th century the punishment was almost always death.

V. Conclusion.

Piracy like any other field had applicable laws. Some of these laws punished piracy others effectively legalized piracy. However they all attempted to bring order into something which fundamentally lacks order.

The author, William G Petrone was born September 26, 1981 in Mobile Alabama and currently resides in westen Mass. Willam holds a Bachelors of Bussiness Adminstration and Juris Doctorate both from Western New England College. He is currently in the process of writing a book about wikipedia. To contact regarding writing jobs or writing assignments for William email: wikaja@aol.com.

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Controversial Immigration Law Brings Fear, Conversation

I had a spirited and energizing conversation with a man this morning. At Dunkin Donuts, I had grabbed a hot chocolate and a donut and took a seat, beginning to peruse the morning Courant. I couldn't help but notice the man at the next table chatting with a young man, and they were quite engaged. What they were discussing, I do not know; only that they were clearly enjoying their conversation.

Shortly after I sat, the young man left. As I read through the news section of the paper, the gentleman (now with no one to share his time with) asked if there was anything good "in there." I responded by telling him there was lots of crazy stuff.

"Have you heard about what they're doing in Arizona?" I asked him. Before allowing a response, I informed him of the new legislation signed by Arizona Governor Jan Brewer, which makes it a misdemeanor to not possess proper immigration paperwork and also requires police to determine whether people are in the country illegally.

His take on the matter? He feels it's okay...after all, we need to know who's here legally and who's here illegally. I countered with my argument that it's blatant discrimination. Now he didn't tell me what part of the south he's from, but he did tell me that down south it was a way of life to be discriminated against when he was coming up, and it was "just how it was." "But it's still discrimination," I protested.

Noting that I recognized how there were separate toilets, separate water fountains, separate everything, I fervently told him, "Medgar Evers died for freedom from discrimination, Martin Luther King died for freedom, all sorts of folk died for freedom." He mentioned how on the buses he was required to sit in the back. I countered thus, "Yeah, Rosa Parks made a stand for freedom!"

There was no way in which I was going to convince him of the wrong perpetrated on the citizenry of Arizona, though. He was adamant about the need to be certain of who was who. After all, "back in the day, 90% of the black people were outlaws." My protest to that statement brought his estimate down to 80%. I laughed and protested again, to no avail.

I told him about the time I was driving on Weston Street in Hartford with my Jamaican sister, Michelle, on a Sunday morning. We were heading to church and I got pulled over by a police officer. This was shortly after my license plate had been stolen, and I had put the other plate in my back window so as to prevent another theft.

Now I know the only reason I got pulled over was because it was 9:30 on a Sunday morning, I was in North Hartford, and there was a Black woman in my passenger seat. Ostensibly, the reason was the license plate, but Michelle and I both knew better (So did the cop!). Of course, there was no ticket, no warning, just the traffic stop and what we considered to be harassment.

When I told him, he just nodded his head in (I suppose) agreement; acknowledging that it's just how things are. Though he agreed that discrimination was wrong, I could tell that there was no way I was going to change his mind about it being normal and expected.

As for the Arizona law itself, supporters have described it as a way for police to take the handcuffs off police in dealing with illegal immigration in Arizona, a gateway for illegal human and drug smuggling (primarily from Mexico). The Mexican American Legal Defense and Education Fund is planning a legal challenge to the law, saying that it "launches Arizona into a spiral of pervasive fear, community distrust, increased crime and costly litigation, with nationwide repercussions.

Governor Brewer ignored an admonition from President Barack Obama that it would lead to widespread racial profiling. Also, on Thursday, April 21, Mexico's Senate unanimously passed a resolution that urged the governor to veto the law. The Vice President of Guatemala, Rafael Estrada, said the law is "a step back for those migrants who have fought" for their rights; and Guatemala's Foreign Relations Department decried the measure in a statement that said "it threatens basic notions of justice."

Approximately 2000 protestors booed upon learning that Gov. Brewer had signed the bill and, according to County Supervisor Mary Rose Wilcox, "the governor did not listen to our prayers."

Gov. Brewer has ordered that the state's law enforcement licensing agency develop a training course to teach implementation of the law without violations of civil rights. "We must enforce the law evenly, and without regard to skin color, accent, or social status," she said. "We must prove the alarmists and the cynics wrong."

Time will obviously be the judge. President Obama has instructed the Justice Department to examine the law for its legality. He called the bill "misguided" and said the federal government must enact immigration reform at the national level - or leave the door open to "irresponsibility by others."

Now back to my conversation with John (I learned his name just before I departed). We did, in the end, agree to disagree. Our hour-long conversation covered all sorts of topics...church, white folk, New Orleans (somehow I almost always get to insert that topic into conversation), the peculiar habits of church-folk, the need to stay in shape (prompted by a friend of his on her way to the gym to work out).

I would imagine I'll see John again, and I'll welcome it. For me, I'm hoping that the next opportunity will enable me to say "I told you so" about this immigration (anti-immigration) law; but if it's not to be, that will still be fine with me. I'll enjoy another opportunity to share a beverage and a coffee shop with a new friend.

George M. Akerley

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Overzealous Law Enforcement Strikes Again

Recently, six teenagers at a Pennsylvania high school were caught participating in a new fad called 'sexting'. Named as an obvious takeoff of texting, it is a practice in which one sends nude or semi-nude photographs of oneself, via a cell phone, to a peer - usually of the opposite sex. In this particular case, three girls had been taking and sending nude photographs of themselves to three boys. Besides being suspended from school, these teens, incredibly enough, now face much more serious consequences.

The girls are being charged with manufacturing and disseminating child pornography. The boys face charges of possession of child porn. All six of these students are minors, under the age of 18. Granted, these kids were participating in lewd and immoral acts on school grounds and were well deserving of their suspensions.

However, bringing child porn charges against them is completely ludicrous. Child pornography laws were created to protect innocent children from exploitation by adults, not to protect horny teenagers from each other. While it might be well within the letter of law to charge these teens with child pornography, it is clearly a perversion of the spirit of law to even consider doing so.

How many teen boys would rebuff a teen girl's attempt to send them a risqué picture of herself? Assuming the girl is not one who has been beaten with an ugly stick (to borrow an insult from Fred Sanford), I doubt that many teen boys - even the most moral and well-behaved - would be able to resist. There were no cell phones when I was in high school, but I can imagine that I would not have mounted much resistance in a similar situation.

If convicted of the charges brought against them, these six teens would likely be stigmatized for life. Each would be labeled with our modern-day scarlet letter - sex offender. This label is an albatross around one's neck that is difficult, if not impossible, to remove. In many states, it means they would have to register as sex offenders and then be constantly monitored by law enforcement officials in addition to being restricted in where they could live, work, and visit. All of this after possibly serving prison sentences. And for what? The girls for being stupid and the boys for being ... well ... boys! What a heavy price to pay for such 'offenses'!

It's as if we are living in some silly Islamic theocracy instead of the United States of America. This is the kind of overzealous law enforcement that often makes the U.S. the laughing stock of the rest of the civilized world. I can just imagine their laughter right now. It would indeed be funny if it wasn't so sad. It's right up there with many of those asinine "zero tolerance" stances and other breaches of common sense. One can only hope and pray that reasonable judges will intervene in this case and spare these kids a life of hell and our nation further humiliation.

Terry Mitchell is a software engineer, freelance writer, amateur political analyst, and blogger from Hopewell, VA. On his blog - http://commenterry.blogs.com - he posts commentaries on various subjects such as politics, technology, religion, health and well-being, personal finance, and sports. His commentaries offer a unique point of view that is not often found in mainstream media.

You can now have any article and blog post he writes -- in advance, if you would like -- for use in your book, newspaper, magazine, ezine, newsletter, website, or whatever!! This includes the thousands of articles and blog posts he's previously written. Contact him via his blog for details.

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How to deal with a Burn Injury

A burn injury can, depending on the severity of it, be extremely painful and discomforting. There are many different forms of burns injury that you can suffer from and there are many different aspects that can cause you to suffer the effect of a burn such as; heat, cold, electricity, chemicals, light and radiation or even friction even though it is usually heat that causes the most burn injuries.

It is estimated that around 112,000 people visit Accident and Emergency departments each year as a result of burns and at least another 230,000 people visit their GP surgeries due to the effect of burns. Burns units also see an average of 7800 people come through their doors each year and over 200 people die annually as a result of injuries caused by burns.

The effect that a burn can have varies from person to person in terms of the tissue that is affected as a result of it as well as the severity of the burn and the complications that arise as a result of it. When it comes to what damage can be done from a burn then you are looking at facing damage to your muscles, bones, blood vessels and epidermal tissue. Any of these areas could be damaged with subsequent pain to your nerve endings. Depending on the location affected and the degree of severity, a burn victim may experience a wide number of potentially fatal complications including shock, infection, electrolyte imbalance and respiratory distress. Beyond physical complications, burns can also result in severe psychological and emotional distress due to scarring and deformity.

A burn can happen on any part of your body; the location of a burn by no means makes it better or worse; however a burn can be classified as either first, second third or forth with forth degree burns being the worst. First degree burns are usually limited to redness (erythema) a white plaque and minor pain at the site of injury.

Second degree burns manifest as erythema with superficial blistering of the skin, and can involve more or less pain depending on the level of nerve involvement. Second-degree burns involve the superficial (papillary) dermis and may also involve the deep (reticular) dermis layer.

Third degree burns are more severe and can cause damage to the underlying ligaments, tendons and muscles. If suffering from third degree burns you will most likely exhibit charring of the skin. These types of burns are often considered painless, because nerve endings have been destroyed in the burned area. Hair follicles and sweat glands may also be lost due to complete destruction of the dermis. Third-degree burns result in scarring and may be fatal if the affected area is significantly large. If extensive enough, it can increase the risk of infection, including bacterial, and can result in death.

Forth degree burns are the most serious and can damage bone tissue, which may result in a condition called compartment syndrome, which threatens both the life of the limb and the patient. Forth degree burns are frequently fatal.

Helen is the web master of Accident Consult, specialists in all aspects of Burns Injuries.

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Admirable characteristics of a medium size law department regarding talent

A profile of Respironics’ general counsel, Steve Fulton, has dotted throughout four commendable people practices in his department.

Strong hires and strong retention. During Fulton’s 13-year tenure, “I have never needed to terminate an attorney and none of the attorneys I hired has left” as quoted in GC Mid-Atlantic, June 2008 at 8 (See my posts of Dec. 12, 2006: low attrition in UK legal teams; March 4, 2007: rates of departure; June 24, 2007: blame the general counsel for high attrition rates; and June 15, 2008: Qwest lowers its attrition rate.).

Experienced, mature lawyers. Respironics’ four transactional attorneys average 17 years of experience.

Autonomy for lawyers. Work comes from clients to the individual attorney, rather than coming to Fulton to parcel out. This system allows the attorneys to build relationships with what are in effect their own clients. General counsel should not be the primary clearinghouse for work assignments.

Keep good work inside. The Respironics legal team does nearly all of the company’s legal work inside. The exceptions are international work and litigation (See my post of July 11, 2008: autarky and Respironics.). Keep good work inside and you keep good workers inside.
Law Department Management

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So many cottage industries thrive on law departments! A village!

As Rees Morrison points out, there's a whole cottage industry of niche legal services that are making a living off law departments. Here's the list compiled by Rees Morrison:
  • ADR (alternative dispute resolution)
  • Auditors of legal bills
  • Class action claims
  • Consultants on law department management
  • Consultants on compliance, corporate governance, and ethics
  • Corporate governance groups
  • Corporate secretary services and software
  • Corporate secretary portals
  • Court reporters
  • Decision analysts
  • Document assembly
  • Document discovery
  • E-billing vendors
  • Economic analysis experts
  • Electronic discovery
  • Ethics line third parties
  • Expert witness sites online
  • Legal and compliance training online
  • Legal research
  • Litigation and trial consultants
  • Matter management systems
  • Medical/nurse analysts
  • Offshore providers
  • Online selection of law firms
  • Part-time general counsel
  • Search firms
  • Settlement and ADR capabilities online
  • Settlement counsel
  • Writing instructors
Law Department Management

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License Plate Custom Italian Charms

Add your favorite state to your Italian charm collection with a unique piece of history. This license plate italian charms features a license plate of each 50 states, unique as where you can customize it with any text you choose...

California License Plate Custom Charm
California License Plate Italian Custom Charm
Connecticut License Plate Custom Charm
Connecticut License Plate Custom Italian Charm
Alaska License Plate Custom Charm
Alaska License Plate Italian Custom Charm
Hawaii License Plate Custom Charm
Hawaii License Plate Custom Charm
Florida License Plate Custom Charm
Florida License Plate Italian Custom Charm
Maryland License Plate Custom Charm
Maryland License Plate Custom Charm
Pennsylvania License Plate Custom Charm
Pennsylvania License Plate Custom Charm
New York License Plate Custom Charm
New York License Plate Custom Italian Charm
Michigan License Plate Custom Charm
Michigan License Plate Custom Charm
New Jersey License Plate Custom Charm
New Jersey License Plate Custom Charm
Texas License Plate Custom Charm
Texas License Plate Custom Charm
Washington, DC License Plate Custom Charm
Washington, DC License Plate Custom Charm
Alabama License Plate Custom Charm
Alabama License Plate Custom Charm
Massachusetts License Plate Custom Charm
Massachusetts License Plate Custom Charm
Arizona License Plate Custom Charm
Arizona License Plate Custom Charm

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LWB: The Impact of Children on Lawyer Productivity

Carolyn Elefant:
Having children impacts lawyer productivity in different ways depending on gender, concludes a recent investigation by the British Psychological Society, reported here. After studying the schedules and billing records of 670 lawyers in Alberta, Canada, researchers Jean Wallace and Marisa Young found that when women lawyers have children, their productivity (or at least hours worked) decreases. The decrease occurs because female lawyers with children usually juggle professional and domestic responsibilities. By contrast, male lawyers with children were found to be more productive than their childless male counterparts, which according to the study " is consistent with the dominant cultural view of men as breadwinners, such that those with greater family responsibilities put in more hours to earn more money." At the same time, male lawyers with children were more likely to have a partner who did not work and could assume responsibility for household duties.

The study also examined the impact of "family friendly" work practices on productivity. Interestingly, the researchers concluded that flexible hours negatively impacted the productivity of male staff, but not female staff.

So which category of lawyers is most productive? That would be childless female lawyers, whose productivity exceeds that of their childless male counterparts and male and female lawyers with children.

My biggest gripe with the study is that it uses hours as a proxy for productivity. But as we all know, hours billed don't necessarily correlate to efficiency; indeed, longer hours may signal less productivity, not more. I'd be curious to see, for example, whether women lawyers manage to complete tasks more quickly precisely because they have less time. If that's the case (and I suspect it is), perhaps having children makes them productive, not less.

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As Long As The Accident Wasn’t Your Fault You Can Claim

So you’ve been involved in an accident and it wasn’t your fault but you’re unsure if you can claim? If so, you’ve come to the right place.

Here at Accident Consult Ltd we are able to advise you on your compensation and the amount of money you may receive. You need to live in the United Kingdom and have had an accident of some sort may it be a road traffic accident to repetitive strain injury and it wasn’t your fault to make an accident claim. If you decide to fill in the accident claim form your compensation claim will be dealt with efficiently and honestly.

Accident Consult Ltd won’t take any of your accident compensation as we work on No Win No Fee Basis, the losing party will pay for your legal fees and if your claim is unsuccessful you won’t have to pay any legal fees. Pursing a accident claim is not expensive and complicated so why suffer loss of earning, painful joints, hospital costs etc. for something that isn’t your fault.

Over 2 million accidents last year were the fault of another persons negligence so why should we put up with this, the answer is don’t put up with it claim today. Whatever your accident fill in the claim form and wait for your response, we have dealt with: whiplash injuries, road traffic accidents, slip trip fall injuries, repetitive strain injury, medical negligence cases, work and public place accidents.

Once you have submitted a compensation accident claim the personal injury solicitors will investigate the case before they agree to take the case on. The case will be discussed with you at length so they are able to get the full facts and circumstances surrounding the accident. If the solicitor thinks it has a good chance of winning they will begin to collect evidence on your behalf. If the accident happened more than 3 years ago it is unlikely the solicitor will take the case on due to statute barred. The solicitors will contact the doctors who have dealt with your accident injuries and take all the details as evidence for the claim. If police have been involved a specialist accident claims advice solicitor will liaise with the police officers who were witnesses or arrived shortly after the accident and obtain the police accident report as evidence for the client. Any witnesses to the client’s accident will be contacted and written statements will be signed by the witness which will be used to verify the client’s accident claim.

If you’ve had an accident recently write a daily diary with the details of your injuries, how you’re feeling and the amount of pain you’re in. Any photographs of the place of accident and or injuries can be used as part of the evidence in accident claiming as well as any expenses you’ve paid for since the accident relating to your injury.

People who experience personal injuries through accidents caused by someone else’s negligence fully deserve compensation payouts for their distress and lost earnings so claim today!

by Mike Cain

About the author: Accident claims for the UK market contact Accident Consult for advice on Accident Claims. This article is free to republish provided this resource box remains intact.

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Is an Oral Contract as Good as a Written Contract?

An Oral Contract is as legally binding as a Written Contract, the issue with an Oral Contract is in proving its existence. To begin, the existence of a Written Contract is fairly obvious, either there is a writing or there isn’t. An oral contract, by definition, does not have a writing to support its terms, conditions or even existence. So how can we prove that it exists? One way is to use witness testimony. If A and B enter into an oral agreement, and C and D are present at the time the oral contract is made, C and D can be used to prove the existence of the oral contract. Their testimony that they heard the terms of the agreement will be sufficient to prove the existence of an Oral Contract.

Course of Conduct is another way to prove the existence of an oral contract. Let’s assume that X offers to buy a radio from Y for $50. Y accepts and hands the radio to X, who then gives Y $50. The parties’ course of conduct indicates that an oral contract existed. If the radio were defective, or if Y changed his mind, he could not say that a contract did not exist. Another example of Course of Conduct would be your typical neighborhood newspaper delivery. For the most part, the newspaper boy delivers a newspaper to you and you pay him on a weekly basis. There is rarely a written agreement with the newspaper boy to deliver newspapers. You simply tell him, “please deliver a paper to me, and I will pay you”. If the newspaper boy delivers newspapers to you for a few week, and you pay him, an oral contract exists based upon the parties course of conduct. After this time, if the papers are delivered and then you refuse to pay, you cannot allege that there is no contract. The Course of Conduct indicates that an Oral Contract exists.

Credibility of the parties is another factor in proving the existence of an Oral Contract. Suppose that Patron walks into a local restaurant and orders a plate of spaghetti. When Patron orders the spaghetti, an offer is made by Patron to pay for a plate of spaghetti. When the server brings the spaghetti to Patron, an Acceptance occurs and a binding oral contract is made. Credibility comes into play where the Patron then refuses to pay for spaghetti, saying “I never agreed to pay for this, I thought it was free”. All of you can see that is an incredible statement. Should that type of matter go to court, a judge would look at the credibility of the parties in regard to the situation and likely find that an oral contract was formed. If you reconsider the spaghetti scenario, though, you can see where an oral contract would be just as legally binding as a written contract. If a lawsuit were to arise out of the patron’s failure to pay, any court in the land would find the existence of the oral contract based upon credibility.

The existence of an oral contract can be more difficult to prove in a different type of scenario. Imagine a scenario with P and Q. P and Q are complete strangers. P approached Q and offers to buy a Corvette from Q for $1,000. Q laughs, and says “sure”, then drives away in the Corvette. If P attempts to enforce what he feels is a binding oral agreement, will he succeed? He will have a very difficult time proving that a contract exists. There is no writing to show the agreement. There is no prior course of dealing between the parties. There were no other witnesses to this alleged conversation. Credibility becomes an issue here, along with believe-ability.
As you can see, the difficulty in enforcement of an oral contract lies in the parties' ability to prove what the terms of the contract were. Absent proof of the terms of the contract, a party may be unable to enforce what it believes to be a firm contract. Evidence, such as witness testimony, prior dealing of the parties, course of conduct and credibility of the parties are some factors that may play into the enforcement of an oral contract. If sufficient evidence can be established that the parties orally entered into a contract, the terms of that contract will be enforced. If the proof is strong, then an oral contract is just as binding as a written one. The question at hand lies with the sufficiency of that oral evidence.

About the author: Greg Artim is an Attorney with offices located in Pittsburgh, Pennsylvania. For more answers to your Contracts or other legal questions, please visit his website at www.gregartim.com

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