Thursday, May 31, 2012

"Caveat Emptor" Is No Way to Practice Law : LawBizBlog

"Caveat Emptor" Is No Way to Practice Law : LawBizBlog

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In the Opinion section of today's Wall Street Journal, two fellows from the Brookings Institute espouse their philosophy for deregulating the legal profession:  Let anyone practice law; whether they've gone through law school or not, and allow anyone to own a law firm.

These are not new ideas, but the assertion that these ideas are the key to lowering costs of delivery of legal services is misplaced.

First, the licensing of lawyers is to protect the public; they are not there to protect the interests of lawyers. For example, an individual must be competent to represent and advocate for the interests of a client.  It’s the same principle as licensing doctors.  Incompetence either in court or in the operating room can cost people their lives.

Second, technology provides many avenues to reduce legal costs. Removing the licensing requirements has no impact on this issue. Yes, requiring a license does cost money and does cost time (opportunity costs for the student), but it also impacts the quality of services delivered ... just as in the case of medicine (oh yes, and plumbing), etc. Why not remove licensing requirements for everyone in everything, from medicine, to plumbing, to driving a car. Licensing assures a minimum standard of quality. Licensing requirements in specific areas of human endeavor are society's way of self-protectionCaveat emptor is acceptable, but not to the degree apparently desired by the authors of the Brookings report.

If lower legal costs are the objective, the argument should focus more on the pricing modalities as they impact the cost of legal services rather than the governance of the law firm. We've talked about this on previous occasions.

Third, the underlying premise that licensing provides an insurmountable barrier to entry and substantially raises costs by controlling supply might be true if one doesn't look at the facts of recent and current reality. There aremany more lawyers than the current demand can accommodate.  Many lawyers cannot find work. Thus, it is illogical to suggest that licensing is the cause for higher legal costs. Those lawyers who are working often provide legal services at lower rates than they used to charge. Even large law firms find significant resistance to raising their rates. Are legal expenses high? Yes, but compared to what? How low should these prices be before they are acceptable? And, if there is no regulation, we might likely see larger law firms pattern their pricing after one another, just as the unregulated airlines currently do, so that the benefit of lower costs would not be evident.
There is no price regulation now in the airline industry. Yet, it's remarkable how similar airline prices are. Yes, there are a few low cost airlines such as Southwest. And, yes, there are also lower cost law firms as we sit here today, even with the regulations we have in place. The only benefit of the authors' "non-licensing" proposal would be the destruction of minimum standards of quality. Caveat emptor might be acceptable if the public had a way of knowing what the quality standards should be ... but they don't and they won't.
Combining other skills such as accounting into one organization (the old "multi-discipline" argument) is not required ... many law firms already work closely with allied professionals for the benefit of clients. This is merely a non-issue.
Dewey, which went into Bankruptcy Court last night, did not fail for lack of credit. The firm had been extended bank lines of credit. It failed for lack of effective management. It's unlikely that investors or others would have given Dewey more money if they understood the true nature of the firm's economics and governance. Thus, this is also a non-issue for the authors’ arguments.
In sum, law firms function no differently from all other businesses. Good, solid business decisions must be made to attract customers/clients and operate cost-effectively. Dewey failed on both counts. The arguments put forth by the authors would not have changed this outcome. But, in the terms of business, by going into bankruptcy, the firm may be able to disgorge its unfunded pension obligations and become a viable candidate for acquisition by another large firm.  That’s when the principle of caveat emptor really comes into play – as a normal risk that businesses take every day.
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SC orders justices, judges to release SALN

SC orders justices, judges to release SALN

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ted 05/30/2012 5:28 PM
ACTING CJ. Supreme Court justices decide to release their SALN in fulll after a special en banc session called by Acting Chief Justice Antonio Carpio. Photo from SC websiteACTING CJ. Supreme Court justices decide to release their SALN in fulll after a special en banc session called by Acting Chief Justice Antonio Carpio. Photo from SC website
MANILA, Philippines (UPDATED) - Overturning a more than two-decade-old guideline, the Supreme Court said it will release the 2011 Statement of Assets, Liabilities and Net Worth (SALN) of "all judges and justices" in the country.
Meeting en banc, the SC decided Wednesday, May 30, to release the SALN of all 14 SC justices, as well as the justices of the Court of Appeals, Sandiganbayan, Court of Tax Appeals, and the country's judges.
The country has about 2,000 justices and judges.
Facing the media after a special en banc session called by Acting Chief Justice Antonio Carpio, new SC spokesperson Gleo Guerra said that this was a "collective decision" made by the justices who met a day after their chief was convicted by the impeachment court and removed immediately from office.
The SC will release the guidelines on the release of the SALNs on June 13, Guerra added. (We earlier erroneously reported that June 13 was the deadline for the SALN release. We regret the error. - Eds.)
Insiders said one SC justice opposed the release but was outvoted by the majority. The justice was not identified though.
In the past, invoking a 1989 resolution, the SC banned the public disclosure of the SALN copies of the justices. Corona himself used this as basis for his refusal to disclose his SALN.
Two justices early this year granted a Rappler request for copies of their SALN, Carpio and Justice Ma Lourdes Sereno. But they only issued summaries.
It was only Justice Martin Villarama, responding to the same request, who issued his full SALN.
Guerra however said that the decision of the SC en banc Wednesday was to release the SALN in full.
In April, when Corona was still chief justice, the 15 members of the High Tribunal submitted their SALNs to the Clerk of Court. But then SC spokesman Jose Midas Marquez said that the Court was withholding their public disclosure in line with the 1989 resolution.
Breaking their recess, the justices met Wednesday for their special en banc session. - With reports from Purple Romero/Rappler.com
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All is well that ends well. Corona is out of office. Let's continue to cleanse the Judiciary.

The cleansing and purification of the Philippine Judiciary has started.

On May 29, 2012 the Philippine Senate Impeachment Court voted 20-3 for the conviction of midnight appointee Chief Justice Renato Corona, resulting in his removal from the post with perpetual disqualification to hold public office.

Corona has always been identified with ex Phil. Pres. Gloria Arroyo, his benefactor, who appointed him to office in  June 2010 after the May 10, 2010 general elections in violation of the 2-month prohibition period provided in the 1987 Constitution.

The Arroyo Supreme Court ratified the much-hated midnight appointment as constitutional, in the process reversing a 50-year old jurisprudence on the matter.

Pres. Noynoy  Aquino from the very start had refused to recognize Corona's appointment but for sometime he did not take concrete actions to oust him from office except for giving a few speeches attacking his predecessor for the midnight appointment and seeking reforms in the Judiciary.

Things came to a head when Corona used his influence in the Arroyo Court to allow ex Pres. Arroyo to leave the country despite the pendency of criminal proceedings against her before the Department of Justice involving election fraud and corruption.

This ultimately led to the impeachment of Corona by the Lower House in December 2011.

And the rest is history.

History will condemn the 3 senators who sided with Corona and Arroyo: the rage-filled, arrogant and agitated Miriam Defensor-Santiago, the human rights lawyer turned traditional politician Joker Arroyo, and the son of The Dictator, Ferdinand Marcos Jr.

We praise Senate Pres. Juan Ponce Enrile for a job well done in presiding over the impeachment court proceedings with wisdom, discipline and orderliness, notwithstanding a few instances during which time we felt he was too strict with the Prosecution and too lenient with the Defense.

Anyway, all is well that ends well.

Now the country can resume its trek to peace, unity, and progress.


- Atty. Manuel J. Laserna Jr.


Tuesday, May 29, 2012

April 2012 Philippine Supreme Court Decisions on Commercial Law | LEXOTERICA: A PHILIPPINE BLAWG

April 2012 Philippine Supreme Court Decisions on Commercial Law | LEXOTERICA: A PHILIPPINE BLAWG

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Here are selected April 2012 rulings of the Philippine Supreme Court on commercial law:
Corporation; derivative suit. In Hi-Yield Realty, Incorporated v. Court of Appeals, the Court enumerated the requisites for filing a derivative suit, as follows:
(a)  the party bringing the suit should be a shareholder as of the time of the act or transaction complained of, the number of his shares not being material;
(b)  he has tried to exhaust intra-corporate remedies, i.e., has made a demand on the board of directors for the appropriate relief but the latter has failed or refused to heed his plea; and
(c)  the cause of action actually devolves on the corporation, the wrongdoing or harm having been, or being caused to the corporation and not to the particular stockholder bringing the suit. Lisam Enterprises, Inc., represented by Lolita A. Soriano and Lolita A. Soriano vs. Banco de Oro Unibank, Inc., et al., G.R. No. 143264, April 23, 2012.
Corporation; doing business without a license.  The appointment of a distributor in the Philippines is not sufficient to constitute “doing business” unless it is under the full control of the foreign corporation.  On the other hand, if the distributor is an independent entity which buys and distributes products, other than those of the foreign corporation, for its own name and its own account, the latter cannot be considered to be doing business in the Philippines.  It should be kept in mind that the determination of whether a foreign corporation is doing business in the Philippines must be judged in light of the attendant circumstances.
 In the case at bench, it is undisputed that DISI was founded in 1979 and is independently owned and managed by the spouses Leandro and Josephine Bantug.  In addition to Steelcase products, DISI also distributed products of other companies including carpet tiles, relocatable walls and theater settings. The dealership agreement between Steelcase and DISI had been described by the owner himself as:
basically a buy and sell arrangement whereby we would inform Steelcase of the volume of the products needed for a particular project and Steelcase would, in turn, give ‘special quotations’ or discounts after considering the value of the entire package.  In making the bid of the project, we would then add out profit margin over Steelcase’s prices.  After the approval of the bid by the client, we would thereafter place the orders to Steelcase.  The latter, upon our payment, would then ship the goods to the Philippines, with us shouldering the freight charges and taxes.
This clearly belies DISI’s assertion that it was a mere conduit through which Steelcase conducted its business in the country.  From the preceding facts, the only reasonable conclusion that can be reached is that DISI was an independent contractor, distributing various products of Steelcase and of other companies, acting in its own name and for its own account. Steelcase, Inc.  vs. Design International Selections, Inc. G.R. No. 171995, April 18, 2012.
Corporation; doing business without a license; estoppel. As shown in the previously cited cases, this Court has time and again upheld the principle that a foreign corporation doing business in the Philippines without a license may still sue before the Philippine courts a Filipino or a Philippine entity that had derived some benefit from their contractual arrangement because the latter is considered to be estopped from challenging the personality of a corporation after it had acknowledged the said corporation by entering into a contract with it.
In Antam Consolidated, Inc. v. Court of Appeals, this Court had the occasion to draw attention to the common ploy of invoking the incapacity to sue of an unlicensed foreign corporation utilized by defaulting domestic companies which seek to avoid the suit by the former.  The Court cannot allow this to continue by always ruling in favor of local companies, despite the injustice to the overseas corporation which is left with no available remedy. Steelcase, Inc.  vs. Design International Selections, Inc., G.R. No. 171995, April 18, 2012.
Corporation; head office and branch as one entity. The Court begins by examining the manner by which a foreign corporation can establish its presence in the Philippines.  It may choose to incorporate its own subsidiary as a domestic corporation, in which case such subsidiary would have its own separate and independent legal personality to conduct business in the country.  In the alternative, it may create a branch in the Philippines, which would not be a legally independent unit, and simply obtain a license to do business in the Philippines.
In the case of Citibank and BA, it is apparent that they both did not incorporate a separate domestic corporation to represent its business interests in the Philippines.  Their Philippine branches are, as the name implies, merely branches, without a separate legal personality from their parent company, Citibank and BA.  Thus, being one and the same entity, the funds placed by the respondents in their respective branches in the Philippines should not be treated as deposits made by third parties subject to deposit insurance under the PDIC Charter.
For lack of judicial precedents on this issue, the Court seeks guidance from American jurisprudence. In the leading case of Sokoloff v. The National City Bank of New York, where the Supreme Court of New York held:
Where a bank maintains branches, each branch becomes a separate business entity with separate books of account.  A depositor in one branch cannot issue checks or drafts upon another branch or demand payment from such other branch, and in many other respects the branches are considered separate corporate entities and as distinct from one another as any other bank.  Nevertheless, when considered with relation to the parent bank they are not independent agencies; they are, what their name imports, merely branches, and are subject to the supervision and control of the parent bank, and are instrumentalities whereby the parent bank carries on its business, and are established for its own particular purposes, and their business conduct and policies are controlled by the parent bank and their property and assets belong to the parent bank, although nominally held in the names of the particular branches.  Ultimate liability for a debt of a branch would rest upon the parent bank.
This ruling was later reiterated in the more recent case of United States v. BCCI Holdings Luxembourg where the United States Court of Appeals, District of Columbia Circuit, emphasized that “while individual bank branches may be treated as independent of one another, each branch, unless separately incorporated, must be viewed as a part of the parent bank rather than as an independent entity.”
In addition, Philippine banking laws also support the conclusion that the head office of a foreign bank and its branches are considered as one legal entity. PDIC vs. Citibank, N.A. and Bank of America, S.T. & N.A, G.R. No. 170290, April 11, 2012.
Corporation; intra-corporate controversy. An intra-corporate controversy is one which “pertains to any of the following relationships: (1) between the corporation, partnership or association and the public; (2) between the corporation, partnership or association and the State in so far as its franchise, permit or license to operate is concerned; (3) between the corporation, partnership or association and its stockholders, partners, members or officers; and (4) among the stockholders, partners or associates themselves.”
Based on the foregoing definition, there is no doubt that the controversy in this case is essentially intra-corporate in character, for being between a condominium corporation and its members-unit owners. In the recent case of Chateau De Baie Condominium Corporation v. Sps. Moreno, an action involving the legality of assessment dues against the condominium owner/developer, the Court held that, the matter being an intra-corporate dispute, the RTC had jurisdiction to hear the same pursuant to R.A. No. 8799. Philip L. Go, Pacifico Q. Lim, et al. vs. Distinction Properties Development and Construction, Inc., G.R. No. 194024, April 25, 2012.
PDIC Law; Inter-branch deposits; not covered by PDIC Law.  As explained by the respondents, the transfer of funds, which resulted from the inter-branch transactions, took place in the books of account of the respective branches in their head office located in theUnited States.  Hence, because it is payable outside of the Philippines, it is not considered a deposit pursuant to Section 3(f) of the PDIC Charter:
Sec. 3(f) The term “deposit” means the unpaid balance of money or its equivalent received by a bank in the usual course of business and for which it has given or is obliged to give credit to a commercial, checking, savings, time or thrift account or which is evidenced by its certificate of deposit, and trust funds held by such bank whether retained or deposited in any department of said bank or deposit in another bank, together with such other obligations of a bank as the Board of Directors shall find and shall prescribe by regulations to be deposit liabilities of the Bank; Provided, that any obligation of a bank which is payable at the office of the bank located outside of the Philippines shall not be a deposit for any of the purposes of this Act or included as part of the total deposits or of the insured deposits; Provided further, that any insured bank which is incorporated under the laws of the Philippines may elect to include for insurance its deposit obligation payable only at such branch.
The testimony of Mr. Shaffer as to the treatment of such inter-branch deposits by the FDIC, after which PDIC was modelled, is also persuasive.  Inter-branch deposits refer to funds of one branch deposited in another branch and both branches are part of the same parent company and it is the practice of the FDIC to exclude such inter-branch deposits from a bank’s total deposit liabilities subject to assessment.  PDIC vs. Citibank, N.A. and Bank of America, S.T. & N.A, G.R. No. 170290, April 11, 2012.
(Hector thanks Jon Edmarc R. Castillo for his assistance to Lexoterica.)
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Friday, May 25, 2012

A Spanish Doctor Has To Pay Child Support After An Abortion Failed - Business Insider

A Spanish Doctor Has To Pay Child Support After An Abortion Failed - Business Insider

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A Spanish doctor has been ordered to pay for the upkeep of a child after an abortion sought by the mother failed and she gave birth.
A judge on the island of Majorca ordered the unnamed gynecologist to pay the mother 150,000 euros (£120,000) in "moral damages" for his negligence and a monthly maintenance of 978 euros (£780) until the child reaches its 26th birthday.
The court in Palma heard how the woman had sought to terminate an unwanted pregnancy at a clinic in April 2010 when she was eight weeks pregnant but, unbeknown to her at the time, the procedure failed.
She returned to the clinic three months later seeking another abortion because she believed that she had fallen pregnant again.
But an ultrasound revealed she was five months pregnant and she was refused a termination because it was over the legal time limit of 14 weeks.
She was offered a refund of the £320 she paid for the initial procedure and referred to a clinic in Barcelona, which, it was suggested, might have performed a late-term abortion, but doctors there also refused.
She later gave birth to a healthy son, who is now 18 months old.
Judge Jose Perez Martinez, in a written ruling ordered the gynaecologist and the private clinic he worked at to pay compensation to the woman.
He also ordered the doctor to foot the bill for the upkeep of the unwanted child until he turns 26.
The woman, whose identity has been kept secret, spoke through her lawyer of her happiness at the sentence and how she had no regrets about having the child.


Read more: http://www.telegraph.co.uk/health/healthnews/9288275/Spanish-doctor-ordered-to-pay-child-monthly-maintenance-after-botched-abortion.html#ixzz1vpsWJpuU


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Separating Church and State Money - Reason.com

Separating Church and State Money - Reason.com

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Writing for the 5-to-4 majority in Everson, Black declared, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” So far, so good. But Black also argued that government “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it,from receiving the benefits of public welfare legislation.” The Court therefore ruled that New Jersey’s policy of reimbursing parents for bus transportation to and from parochial schools did not violate the First Amendment’s ban on “an establishment of religion” because the state was merely supplying a general service to all schools.
When the Constitution was adopted in the 18th century, Justice Black’s two principles—1) citizens cannot be taxed to support religious activities, and 2) the state may not deny tax-financed public welfare benefits to any citizen based on his religious beliefs—rarely conflicted. “In an era with few public welfare benefits,” Laycock explained in a 2006 essay from his collection Religious Liberty, “no-aid [to religious activities] protected citizens from being forced to contribute to churches involuntarily: it protected the churches from financial dependence on government, and thus from government control.”
But with the relentless expansion of the welfare state, this separation of church and government transfers became a thing of the past. In their 1997 book The Challenge of Pluralism, political scientists Stephen Monsma of Calvin College and J. Christopher Soper of Pepperdine University argued that government funding of secular nonprofit public service programs places similar religious programs “at a government-created disadvantage.” This claim makes sense only if one assumes that government agencies are engaged in teaching religious or nonreligious beliefs as they dispense food stamps, rent vouchers, and vaccines. A cynical public choice analysis suggests that both churches and government welfare agencies may see themselves in competition when it comes to increasing the number of people who are dependent upon them.
To address concerns that religious organizations are “disadvantaged” by competition with secular welfare agencies, recent administrations have devised ways to shower tax dollars on various faith-based initiatives. The total amount of tax money involved is hard to determine. But Catholic Charities affiliates, for example, received more than 60 percent of their budgets (nearly $3 billion) from government sources in 2010, while only 3 percent came from diocesan church contributions. Subsidizing a religious group’s welfare activities, of course, frees up other funds to be used for nonsecular purposes. 
There is a way to call a ceasefire in Rick Santorum’s culture war. As Monsma and Soper observe, “Government’s advantaging of the secular over the religious could be avoided if government would simply stay out of a given policy area.” But they think there is no way to untangle the contentious church/state social service mess into which we’ve gotten ourselves. Here they are wrong. 
Consider public education. States and localities could collect tax dollars as usual and then offer school vouchers that parents could use to send their children to whatever religious or secular school they choose. States likewise could use vouchers to subsidize higher education, rather than running their own universities.
What about health insurance? The tax code could be reformed so that employers give their workers cash instead of medical benefits, allowing individuals to select the private health plan that works best for them, deciding for themselves whether they want coverage for contraception, abortion, sterilization, stem cell treatments, and so on. The poor could receive tax-financed vouchers to buy whatever private insurance they prefer. In fact, most public welfare services, including job training, nutrition support, and drug treatment, could be converted into voucher programs. 
Religious groups have always been welcome to make their cases in the public square, but if churches want to be left alone, they should stop begging for alms from the government. Rick Santorum should heed Ronald Reagan’s admonition. “We establish no religion in this country,” Reagan declared in 1984. “We command no worship, we mandate no belief, nor will we ever. Church and state are, and must remain, separate.” 
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Choosing Your Issues on Appeal

Choosing Your Issues on Appeal

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Narrowing Your Issues

Judge Aldisert suggests a two step approach to choosing your issues on appeal. In Winning on Appeal he explains that the “first step is to make an informal list of all the possible issues that may be presented.” But he cautions, that “this list is only the beginning point, and it will be over-inclusive. Unfortunately, too many brief writers consider it the ending point as well. They dump this gross listing on the laps of appellate judges instead of performing the crucial next step…”
While clerking I kept track of the potential appellate issues as they happened. If there was a close call on an objection, I jotted it down. Similarly, if a witness or attorney said something that could create an appellate issue, I made a note of it.
When reviewing transcripts now, I make a note of anything that could even come close to an issue on appeal. I keep these notes in one big word document with references to where they are in the record. This makes it much easier to comb through my list later on.
The second step, as you probably guessed, is weeding out the issues that do not have a reasonable probability of prevailing in the appellate court. No other issues matter. Judge Aldisert explains that you should only raise “case-dispositive issues and arguments that may carry the day.” This means really trimming the fat off of your earlier list.
It’s often too easy, as the judge points out, to let emotions play a part in choosing the issues. This is especially true where you were the trial attorney. At trial, emotions get heated. You may even get angry at the judge or opposing counsel. But emotions have no place in choosing your issues. Only cold, hard, tactical reasoning should play a part.
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JURIST - Paper Chase: Pakistan doctor sentenced for helping CIA find Bin Laden

JURIST - Paper Chase: Pakistan doctor sentenced for helping CIA find Bin Laden

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Photo source or description
[JURIST] A Pakistani doctor was sentenced to 33 years in prison Wednesday for helping the Central Intelligence Agency (CIA) [official website] locate Osama Bin Laden[JURIST news archive]. After a trial lasting two months during which Shakeel Afridi was not afforded the opportunity to defend himself, a tribal court convicted him of treason and spying [CNN report]. Afridi was part of a CIA attempt to gather DNA samples from residents of Bin Laden's Abbattobad compound in an effort to determine whether Bin Laden was present there. US Senators John McCain (R-AZ) and Carl Levin (D-MI) [official websites] released astatement [text] after the sentence was handed down condemning the sentence and urging the Pakistani government to release Afridi:
It is shocking and outrageous that Dr. Shakil Afridi, the Pakistani doctor who assisted the United States in the search for Osama bin Laden, has been sentenced to 33 years in prison for the crime of treason. What Dr. Afridi did is the furthest thing from treason. It was a courageous, heroic, and patriotic act, which helped to locate the most wanted terrorist in the world - a mass murderer who had the blood of many innocent Pakistanis on his hands.
Afridi will likely be able to appeal the ruling, and analysts have suggested that a reversal is likely.

Since controversy arose over the killing of Bin Laden[JURIST report] by US forces in Pakistan last May, Pakistan's alliance with the US has been questioned. In December theSupreme Court of Pakistan [official website] formed a judicial committee to investigate a secret memo sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Former Pakistan ambassador to the US Husain Haqqani and Pakistani President Asif Ali Zardari [BBC profile] have been accused of writing or having knowledge of the memo, and both have denied these allegations. The growing conflict between the US and Pakistan was analyzed by JURIST guest columnist Sikander Ahmed Shah in Drone Strikes in Pakistan: Examining Consent in International Law[JURIST op-ed]. Pakistan has also faced an ongoing struggle with corruption that the courts have attempted to battle.


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JURIST - Paper Chase: Federal appeals court rules on legal definition of piracy

JURIST - Paper Chase: Federal appeals court rules on legal definition of piracy

"x x x.

A number of countries around the world have been making attempts to solve the problem of maritime piracy. Earlier this week a United Arab Emirates court sentenced 10 Somali pirates [JURIST report] to 25 years in prison. Also this week six accused Somali pirates went on trial [JURIST report] in a Paris court for taking 30 crew members hostage in 2008 on the ship Le Ponant in the Gulf of Aden. The US government in March handed over [JURIST report] 15 suspected Somali pirates it captured in January to the Republic of Seychelles for prosecution. Italy ordered its first international piracy trial in February against nine Somali pirates, while France began its first international piracy trial [JURIST reports] in November. In October the UN Security Council adopted a resolution encouraging states to criminalize and punish piracy after maritime piracy reached an all-time high [JURIST reports] last year. The UN also donated $9.3 million [JURIST report] in 2010 to fund piracy courts in Seychelles and Kenya, the only two countries that have created such courts.


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Citing to Wikipedia: The Wave of the Future?

Citing to Wikipedia: The Wave of the Future?

"x x x.


Would you even consider citing to Wikipedia in a brief or other legal document?  Well, Federal Appeals Courts have cited to it nearly 100 times in the past 5 years according to The Wall Street Journal Law Blog. The Law Blog decided to research this trend after the recent decision of the Richmond-based U.S. Court of Appeals for the Forth Circuit, United States v. Lawson, in which the judges criticized its use.
In this case, the court vacated several convictions due to juror misconduct which involved the unauthorized research of an element of the crime on Wikipedia, claiming that this deprived the defendants of their right to a fair trial. It considers Wikipedia to be unreliable because of open access, meaning that anyone can register for a Wikipedia account and then create and edit anything they want.
I myself have done just that. After creating my account, I logged in and added some information to an entry for which I have knowledge but for which I did not create. In addition, it is basically policed by its registrants.  Although Wikipedia prefers the preservation of information already entered, it can be removed or flagged directly by the registrant if it is inappropriate or incorrect. Thus, there is the possibility that the information might be inaccurate, exaggerated, misleading, and the like. See Wikipedia’s Editing Policy.
However, many courts have cited it for various reasons, including for definitions of terms, descriptions of injuries, and biographical information. In some cases this could have an impact on the outcome of the case. Although Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, believes “Wikipedia is a terrific resource,” he added that “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.” Courts turn to Wikipedia, but Selectively
As a result of its research, the Law Blog found the following citations statistics.
  • Seventh Circuit: 36 citations
  • Ninth Circuit: 17 citations
  • Tenth Circuit: 8 citations
  • Sixth Circuit: 6 citations
  • D.C. Circuit, Federal Circuit, Supreme Court: 0 citations
  • Remaining Circuits: 5 or less citations
Obviously this opens up the door for a lot of questions. Will judges increasingly cite to Wikipedia as if it were an authoritative source? What would this teach our law students? What ethical implications would this have? It seems that, when it comes to substantive issues, the citations should be from a truly authoritative and reliable source.
Related Material
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Republic Act No. 10156 - Sanggunian members given civil service eligibility.

Republic Act No. 10156 | Official Gazette of the Republic of the Philippines

"x x x.


SECTION 1. Conferment of Civil Service Eligibility. – An eligibility equivalent to a Career Service Professional Eligibility is hereby conferred upon a member of the Sangguniang Bayan, the Sangguniang Panlungsod and the Sangguniang Panlalawigan who has served for an aggregate period of nine (9) years in office: Provided, That such member must be a holder of a bachelor’s degree.
A member who has served for an aggregate period of six (6) years shah be granted an eligibility equivalent to a Career Service Sub-Professional Eligibility: Provided, That such member shall have at least earned seventy-two (72) units in any baccalaureate degree program: Provided, finally, That the eligibility granted under this section shall be considered appropriate for second and first level positions in the career service respectively, except those which require qualifications in skills or trade test and/or requiring board examinations and other special eligibilities provided under special laws.
SEC. 2. Implementing Rules and Regulations. – The Civil Service Commission (CSC), in consultation with the Department of the Interior and Local Government (DILG), shall promulgate the necessary rules and regulations to implement this Act within ninety (90) days after the effectivity of this Act.
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Philippine prisons

----Index----

"x x x.

Crimes against persons, such as murder, homicide, parricide, continue to dominate the offense profile, accounts for 50% of the cases of national prisoners.

      17 persons were executed by hanging after world war 2, and 84 thru electric chair from 1924 to 1976. NBP is also the designated facility for death sentenced prisoners, the site of the Lethal Injection Chamber. Following the re-imposition of Death Penalty in 1994, 7 death convicts were so far executed by lethal injection. At present there are more than a thousand death convicts awaiting their execution.

      A majority of inmates confined in national prison did not finish secondary education while nearly 6% never went to school or were illiterate. Only 3% earned a college degree.

      It was felt that the first step in our rehabilitation effort is to provide the basic needs of inmate as human being. The other steps in the rehabilitation process are the provision of work programs, health care, education and skills training, recreation and sports, religious guidance and behavior modification using the therapeutic community 


x x x."




(Note: Death penalty has been abolished in the Philippines a few years back under the term of ex Pres. G. Arroyo).


Visit the website of the Bureau of Corrections. Click the link above.

When may the Dept. of Justice refuse to render a legal opinion to gov't agencies requesting the same?

Issuances | Department of Justice - Republic of the Philippines | Tel: (+632) 523 8481, (+632) 523 6826

"x x x.

20 April 2012

MEMORANDUM CIRCULAR NO. 026

TO: THE CHIEF STATE COUNSEL, THE ASSISTANT CHIEF STATE COUNSELS, STATE COUNSELS AND OTHER MEMBERS OF THE LEGAL STAFF
SUBJECT: GROUNDS FOR DECLINING TO RENDER AN OPINION

In order for the Department to more faithfully fulfill its mandate and function as legal counsel for the government (Sections 1 to 3, Chapter 1, Title III, Book IV, Administrative Code of 1987) the Office of the Legal Staff - which is, in turn, mandated to, among others, assist the Secretary in the performance of his duties as Attorney General of the Philippines and as ex-officio legal adviser of governmentowned or controlled corporations or enterprises and their subsidiaries, and prepare and finally act for and in behalf of the Secretary on all queries and/or requests for legal advice or guidance coming from private parties, and minor officials and employees of the government (Section 7, Chapter 2) - is hereby advised that, henceforth, the Department shall retain only the following grounds for declining to render opinions:
  1. Issues posed have already been passed upon by the courts, Provided that the Department shall not decline rendering an opinion where, although related matters have already been passed upon by the courts, what is being sought from the Department is, for instance, an opinion on the implications of the courts' decision, and other similar matters;
  2. Issues that are subjudice;
  3. Issues the resolution of which properly pertains to the prosecuting officers;
  4. Issues raised by subordinate officials of other offices or agencies, Provided that the Department shall not decline rendering an opinion where there exists exceptional reasons to do so, such as the issue/s raised is/are of national interest or importance, or the subordinate official has raised other sufficient justification as to why his/her request for advice/opinion ought to be granted, including absence of other adequate recourse or remedy, etc.;
  5. Issues which are already moot and academic;
  6. Issues that do not involve specific legal issues but questions of facts or mixed questions of fact and law; and
  7. Issues which are purely hypothetical and speculative.
For compliance.
(signed)
LEILA M. DE LIMA
Secretary

x x x."