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[Waray]

Halfway my exams, am standing at a 8 out of 10 as grade for both Public & Private Law, now I still have to do Sociology of Law and I'm bound to get all studypoints I need for my first semester :D
(Cum laude here I come)

On to topic,

I've read a very interesting article on European Private Law which stated the differences between all the countries in the EU.

It's example was simple, the Good Samaritan.
(Biblical figure in a speech by Jesus, he helped a beat up robbed man on the side of the road, carried him to a hostel and paid for his expenses, see also Luke 10:33).

Fastforward to today:

Should people be obliged by law to help other people in need?
What is need? Danger? Lifethreatening situation?
And should a person be held responsible for damaging something or the person in need while rescuing that person?

Can I be sued when rescuing a women from a burning car and she loses a limb because I pull her out of the burning, ready to explode car?

I'd be interested to discuss this with Americans, since they carry the Common Law approach similar to the British.
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[Brf]

Well.... you can be charged for allowing them to die by your inaction. It would be lose-lose if you could be charged for helping them too.

[JuntaJoe]

Beacause of that quandary that Brf mentions, we have a belief that you help people at your own risk. It's pretty hard to convict someone for not helping, providing you were not the actual cause of the distress.

Now if you actually cause distress or injury to another then you had better get in there and help or we nail you to the wall for an assortment of crimes.

But if you are a mere bystander then you can claim all kinds of things to escape civil litigation or criminal prosecution. Simple fear is a valid excuse most of the time. Only if a law officer is around and actually orders you to help and you refuse will you likely get into trouble.

[NibbyCat]

Here we go, very topical:

Experts disagree with jury verdict against woman in boy's drowning

Quote: Wednesday, October 05, 2005
By Paula Reed Ward, Pittsburgh Post-Gazette

Standing along the bank of a rain-swollen creek, Susan Newkirk watched as the 2-year-old boy tumbled in and was swept away.

She couldn't swim. Instead of diving into the raging waters after her friend's son, she yelled to his father for help.

The little boy died.

Certainly, her defense attorney argued during her trial for endangering the welfare of a child, his client had a moral obligation to try to save the boy. But, he continued, she did not have a legal one.

The jurors judging Ms. Newkirk's case obviously disagreed when they convicted her in July. Last week, the Hollidaysburg woman was sentenced to up to 18 months in jail.

But legal experts disagree with the verdict.

Instead, they say Ms. Newkirk did not have a "duty of care" to the little boy because she had no special relationship with him.

Her public defender, David Beyer, has vowed to appeal her conviction, arguing that she was not the child's parent or baby sitter, and therefore had no duty to protect him.

On Sept. 18, 2004 -- the day after Hurricane Ivan brought torrential downpours across Western Pennsylvania -- Ms. Newkirk, 41, joined her friend, Thomas E. Reffner, and his 2-year-old son, Hunter Delasko, to do repairs to a trailer in Claysburg, Blair County.

While Mr. Reffner worked on the trailer, Ms. Newkirk walked along South Poplar Run Creek.

She told police that Hunter had been with her and almost fell in. At that point, Ms. Newkirk took the boy back to his father, telling Mr. Reffner that Hunter should not be by the water.

A short time later, the toddler rejoined Ms. Newkirk.

"The little boy walked down to her," Mr. Beyer said.

As he was throwing sticks and stones into the water, Hunter fell in.

"She had no legal duty to go in and save this child," Mr. Beyer said. "If a person is not a parent or guardian, then they owe no duty to that child."

But Blair County District Attorney Dave Gorman said she was, at that moment, the child's guardian.

"Common sense dictates someone in that close proximity to a child is obligated to do something," Mr. Gorman said. "I think anybody in their right mind would jump in."

Both the defense and prosecution agree that Mr. Reffner never specifically asked Ms. Newkirk to watch his son. But the district attorney doesn't think that matters.

"If she didn't believe she had a legal duty, then why did she pull the kid back the first time?" Mr. Gorman asked.

Had Ms. Newkirk left the trailer after returning Hunter to his father, she would have fulfilled her obligation, and there would have been no charges, the prosecutor said.

"It's not just the fact she didn't go in after the kid," Mr. Gorman said. Even having a child that close to a raging stream violates a duty to care, he continued.

As for Ms. Newkirk's argument that she couldn't swim, Mr. Gorman didn't think it was relevant. Two passers-by went into the creek to try to save Hunter after he'd fallen in, and one of them also couldn't swim. One man was able to reach Hunter, but the boy slipped from his grasp before he could pull him to safety, Mr. Gorman said.

David Herring, a professor of child welfare law at the University of Pittsburgh, said there is no Good Samaritan law in Pennsylvania.

"You can't ask them to have to sacrifice their own lives," Mr. Herring said. "That's quite a stretch to impose that duty on her."

He called the case against Ms. Newkirk an "aggressive prosecution."

"The father's the one the law should be holding responsible," he said.

Mr. Reffner was charged, but he pleaded guilty to a lesser charge -- reckless endangerment. He was offered probation to testify against Ms. Newkirk. The prosecution, however, never called Mr. Reffner to the stand. Mr. Gorman said his testimony wasn't necessary.

As for the plea agreement, the district attorney said he wasn't sure a jury would have convicted him.

"I'm not saying in any way, shape or form Mr. Reffner isn't culpable," the prosecutor said. "I think there was an issue as to whether a jury would have returned a guilty verdict on [him]."

But Kirk Henderson, an assistant public defender for Allegheny County, said that's not a valid justification for the lesser charge.

"A parent has the ultimate responsibility," he said.

Under the current case law, charging Ms. Newkirk should have come down to whether she was aware of the duty to the child, Mr. Henderson said. He didn't buy the district attorney's argument that Ms. Newkirk recognized her duty when she returned Hunter to his father the first time.

"I don't think that one time, telling a child what to do invests that person with responsibility," Mr. Henderson said.

"People have their own choices they have to live with, but that doesn't make it criminal."

Mr. Beyer agrees.

"The jury wanted someone to pay for this little boy," he said. "I can understand from a moral perspective, we all think something different should have happened here. That doesn't mean she's guilty of a crime."

(Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-1601.)

She didn't just stand idly by, she DID go to get the boy's father. She knew she couldn't swim, and the current was especially strong at that time. Why SHOULD she essentially commit suicide, with no guarantee that the boy would even be saved?

This case shows one big flaw of the jury system: Juries are emotional.

Personally, I never understood what "Common Law" means, and how it differs from what the French do.

[JuntaJoe]

I hope that lady wins her appeal. That conviction was insane.

Risking your life to save another should not be a law.



Common Law differs from Code (the French system) that prior judicial precedent should be the standard until a new law is drafted. Code says the letter of the law should prevail regardless of prior precedent.

There's your explanation. So what does it mean in real terms?

In a Common Law based system, the court officers (judge, lawyers) look to the past to support and decide the case.

In a Code system, each trial is fresh with just the current law to give all the directions.

[Brf]

Well... in that case, the woman was convicted of "endangering the welfare of a child", and was as much for allowing the boy to play next to the creek as for not jumping in after him.

[s_stabeler]

Small problem with the argument that she was endangering the life of a child- it seems she took him back to his father the time before and specifically told him that the son shouldn't go near the water. That sounds to me like she was asking the boy's father to make sure the boy didn't go near the water, the boy went near the water, so it would seem that who is at fault is the boy's father for not watching over his kid carefully enough, he should have noticed the kid going back to the water's edge( i am assuming that is where the kid went, as otherwise he could not have fallen in w/o rolling down a slope, offering an opportunity to stop him going in the water.) so it would seem that the kid's father is most to blame- and i thought plea bargins were conditional on you keeping your side of the bargain, in other words, in this case, testifying against the woman. Kn which case, why was the man still able to complete the reduced sentance, i'm not saying it would be easy to enforce, but that would cause problems for testifying plea bargains.

[Brf]

His bargain was for his willingness to testify, not the actual act which wasnt needed in this case. Remember he did plead guilty and was punished with probation for his crime.

The fact that she took him away from the water the first time showed that she knew the child was in a dangerous situation. Since she didnt take him back the second time she was showing that she was allowing the child to stay in that same dangerous situation. She probably would have been better off letting him drown the first time, than allowing him to stay there the second.

[s_stabeler]

Well, there is a flaw there. what if she didn't notice until too late where the kid was, it doesn't say in the article that she saw the kid come down to her.

[Waray]

JuntaJoe wrote: In a Common Law based system, the court officers (judge, lawyers) look to the past to support and decide the case.

In a Code system, each trial is fresh with just the current law to give all the directions.

I disagree. The European Treaty for HR has a term for this:

prescribed by law.

Both Common & Civil law fall under this category, since the definition by the European Court for prescribed by law means that a law needs to be accesible and that the consequences reasonably foreseeable.

Code is codified laws whichs are made out of words. Words have "space" in their meaning so in Civil Law one must look to the past as well.

Maybe this is better put: in a competitive society (like the US) as in a class society (Like the UK) common law is better, for compromising (like the Netherlands) as in a carefull society (like France) Code/Civil Law is better.
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[JuntaJoe]

You are talking the current definitions of Code and Common Law.

And those definitions are made by who? Lawyers and politicians. :P


I'm refering to the historical basic difference between the two systems.


These days, so much has blended and evolved to never remotely give a clear definition of either in current use.

Louisiana still retains the Napoleanic Code as the basis for their law. But that state resides inside a federal system based on Common Law. Precedent gets used all the time there even though that was not the original intention. And our federal system has been flooded over the last 50 years with new laws that are specifically worded to contradict old Common Law. Safety, equality, security, and health laws have been implemented that oppose old law that protected property rights, caste, and privacy.

So a modern day definitions of those two systems is pretty impossible with all the blending going on. But the historical models do a fine job to illustrate the difference between the roots of those two systems.

[Waray]

JuntaJoe wrote: You are talking the current definitions of Code and Common Law.

And those definitions are made by who? Lawyers and politicians. :P


Yup. Because who makes laws? Judges and politicians :P

Anywayz, I look at the Code & Common Law as historically different as the following.

Common Law -> Out of a single basic right of nature several judges on several cases have several explanations.

Code Law -> Out of several explanations and customs a single right is put to paper.(Note, not an explanation of basic rights of nature!).
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[s_stabeler]

yawn, simple definition- common law treats court judgements as valid in future cases provided the circumstances are the same or similar, code law mandates that all trials are done only according to the laswe, not precedent. am i correct?

[JuntaJoe]

Waray wrote:
Yup. Because who makes laws? Judges and politicians

Yipes! I hope that wasn't a Freudian slip. Judges should never, NEVER, make law.

A career in law is well served by staunchly support this premise.

Let the citizens, through their representatives, determine the framework of the legal system.

Judges should simply read, enterpret, and apply those laws as mandated by the people.

When judges create law, they become political activists who are fairly immune to recall by the citizenry.

That is extremely un-democratic.




Stabler, you and I agree completely. The difference between Code and Common Law revolves primarly about the concept of precedent. Should what happened before become a controlling factor in a new judgement? Or should the current law be the primary guide and be enterpreted anew in every case?

[Waray]

JuntaJoe wrote: Waray wrote:
Yup. Because who makes laws? Judges and politicians

Yipes! I hope that wasn't a Freudian slip. Judges should never, NEVER, make law.


Tis a fact. Not officially in the sense of drafting new laws, but be honest. Best example: the Constitution of the USA says what the Supreme Court says it says.

Cases from Common (and Code) law are used to fill in blank spots in the law.
Jurisprudence (I'm not quite sure if that's the correct English term) is one of the three formal sources of Positive Law.

-Prescribed Law (be it Common or Code)
-Jurisprudence (Judges' interpretation of law)
-common rights (rights which are unwritten but natural, like unwritten codes).

Ofcourse anyone fanatical about Trias Politica would get a heartattack. But it's like that.
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[s_stabeler]

the thing is, what judges say only matters with precedent. it does NOT draft new law. it only says that in these circumstances, then this should be ruled by a future judge. it does NOT say, these circumstances are...by law now. that is the distinction, and it is an important one, as otherwise you have an unelected body making laws that might not be what the elected legislature wants.

[JuntaJoe]

Tell'em, Stabler.

Waray, you must realize that we are talking about a very hot issue in America. Judges who do more that simply interpreting the law face the music here. They get reamed by citizen outcry if they try to stretch the law to fit their beliefs.

The Supreme Court's role is to decide if laws passed by the US and state legistlations are Constitutional. They don't rewrite laws, only pass or reject them. If rejected then it goes back to legistlators to try again.

You can bet that the next Supreme Court nominee will be asked the direct question:

Will you strictly enterpret the law or will you legistlate from the bench?


You might consider it as a natural consequence of their role to accept that judges generate the law structure. We see that acceptance as a slippery slope and demand that judges be on guard for that type of behavior. To be known as a judge who is flexible on this issue is to get a political label and become a target for executive review and censure.

You should also remember that many judges are actually elected here at the state level. You can bet that last Euro of yours that any elected judge who gets the label that they do anything other than strict enterpretation will not be re-elected.


This is a powerful issue here. If it wasn't for the abortion issue, most Americans, even the lefty types, would prefer a conservative judge who guards against judicial liberties.

[s_stabeler]

exactly. if a judge tried to create new legislation, then it would not matter if he/she was supposed to be appointed for life/until he/she resigns, there would be such an outcry that they would be FORCED to resign in shame. NO judge would dare to legislate from the bench. it would be judicual suicide, and to be frank, if you are a judge and do not care if you are forced to resign or not, you would resign yourself and splash your reasoning across the papers. that way, pressure is on the government, not you.