Uvod u pravo SAD
Introduction to the Law of the USA
Contributor(s): Jovan Ćirić (Editor)
Subject(s): Law, Constitution, Jurisprudence, History of Law, Constitutional Law, Criminal Law, Civil Law, Law on Economics
Published by: Institut za uporedno pravo
- Print-ISBN-13: 978-86-80059-56-3
- Page Count: 398
- Publication Year: 2008
- Language: English, Serbian
Uvod u pravni sistem Sjedinjenih Američkih Država
Uvod u pravni sistem Sjedinjenih Američkih Država
(Introduction to the Legal System of the United States of America)
- Author(s):Dušan Vranjanac
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, History of Law
- Page Range:15-29
- No. of Pages:15
- Keywords:Anglo-Saxon Law; American Law; Federation; Sources of Law; Legal Profession
- Summary/Abstract:The law of the United States of America belongs to the family of Anglo-Saxon law. It has its origin in English law and shares its main characteristics, but due to different historical circumstances the American law developed a substantial number of specific features. The main differences between American and English law have their origin in federal structure of the United States and in the existence of a written constitution. In contrast to the parliamentary system of government in England, the United States have instituted the so called presidential system. Legislative authority being vested in the Congress, the executive branch belonging to the President, and judiciary power entrusted to the system of federal courts and the courts of the member-states. The main sources of law are the federal constitution, federal legislation and case law, each federal state having a system parallel to the federal. The legal system of the united States can be classified according to various criteria. There is, first, a distinction into common law and equity, parallel to the English system. Also, the division into public and private law serves certain purpose in the American law, although lacking the importance it has in the civil law system. The division into substantive and adjective law is of specific importance in the American law. The main branches of American law include constitutional law, administrative law, labour law, law of contracts, law of torts, family law, criminal law, law of civil and criminal procedure, etc.
Izvori američkog prava
Izvori američkog prava
(Sources ofAmerican Law)
- Author(s):Jelena Ćeranić Perišić
- Language:Serbian
- Subject(s):Constitutional Law, Government/Political systems
- Page Range:31-48
- No. of Pages:18
- Keywords:sources of law; case law; judicial decision; statutory law; Congress; Senate; House of Representatives; the State legislatures
- Summary/Abstract:The paper deals with sources of American law. American law originally consisted mainly of case law. However, since the end of the nineteenth century statutory law has increasingly gained into importance. The American legal system today is neither a pure case law system nor consists exclusively of statutes or codifications; rather, it appears as a mixed system and therefore does not differ materially from the Continental European development to a mixed system through increasing significance of case law, although its main emphasis remains on interpretation and development of the law through judicial decisions. After introductory notes with regard to the American legal history development, the author analyses the influence of English law on American law. During the colonial period English law was in force as well as, statutory law and case law. The revolution resulted in reaction against the application of English law. The legislation of some of the states prohibited the citation of English decisions which had been rendered after Independence. The written constitutions adopted in several States were very different. Louisiana continued to follow its French law tradition, adopted codifications modeled after the French example and adheres to this tradition into modern times. In Western and Southwestern States there is still today a remarkable influence of originally Spanish and French legal concept, for instance, in the area of family property law. Approximately at the time of the American Civil War, the English and American legal system began to grow apart. Despite this natural development toward the elaboration own ways and solutions, English and American law constitute a legal family with a closer relation to each other, especially in the area of private law, than is the case of the legal systems of continental Europe. The subject of a first part of the paper is the case law system. The American legal system is methodologically mainly case law system. Most fields of private law still consist primarily of case law and the statutory law continues to be subject to binding interpretation through case law. The author analyses the case law method, the technique of working with case law and the role of Court in making law. The second part of the article is dedicated to the statutory law. Statutory law exists at the federal as well as at the State level. The author especially analyses the legislative procedures at both levels. At the federal level the „Legislative power is vested in“ is Congress (consisting of Senate and House of representatives). The electorate of the several States elects the members of Congress in a direct election, Senators (minimum age of 30) for a term of office of 6 years, members of the House of Representatives (minimum age of 25) for term of 2 years. Reelection is permissible for both offices without limitation. Senators (two from each State) represent the entire electorate of the particular State and are elected in a general election. Members of the House of Representatives represent districts within a particular State, whereby, according to federal constitutional case law, election district must be numerically equivalent in order to realize and assure the constitutional principle of „one man-one vote“. At the State level, the governmental structure of the several States reflects, in the main, that of the Federation. In the majority of the States the legislatures consist of two chambers. Only the State of Nebraska maintains unicameral legislature. The subject of the third part of the article is sources of the secondary authority such as legal texts, commentaries, and articles in legal journals. They are usually designed more to provide information and criticism concerning new legal developments rather than to influence them.
Razvoj službeničkog sistema federalne uprave SAD: od potrage za političkim plenom ka ostvarenju javnog interesa
Razvoj službeničkog sistema federalne uprave SAD: od potrage za političkim plenom ka ostvarenju javnog interesa
(The US Civil Service Development: from the Spoils to the Merit Based System)
- Author(s):Aleksandra Rabrenović
- Language:Serbian
- Subject(s):History of Law, Public Administration, Public Law
- Page Range:49-70
- No. of Pages:22
- Keywords:merit based civil service; US federal administration; human resources management
- Summary/Abstract:The paper analyses historical development of the US civil service since XIX century to date. Until the end of XIX century, the US federal service was characterized by wide-spread political patronage and corruption, which resulted in a creation of a so-called »spoils system«. The Pendleton Act of 1883 made a radical shift in the development of the US civil service, by introducing the concept of non partisan merit and protection from political influence in the recruitment, promotion and retention of federal government workers. The author argues that the concept of merit further denotes a public service character – a desire to act not for individual self interest but for a broader public good. Merit is therefore related to values, ideals and ethics to the appropriate role of the civil service in democracy and thus to governance in a democratic society. The paper further analyses the provisions of the Civil Service Reform Act of 1978, which constitutes the first major reform of the federal public service personnel system since the Pendleton Act. The idea was to develop civil service reform proposal that would make government more efficient and businesslike. Objectives were to modernize human resource management by streamlining the system through simplification and decentralization and restructure the reform management structures by replacing the Civil Service Commission, creating the Senior Executive Service, as a highly-professional senior civil service and to address such issues as productivity, compensation and performance evaluation. Performance appraisals and merit pay were standardized and procedurally sound, but lacked in higher productivity outcomes. The original merit pay system was therefore eventually replaced and abandoned in 1993. National Performance Review (NPR) shifted the focus away from the individual performance appraisal and rewards and toward agency or organizational goals instead. Furthermore, the Senior Executive Service did not become the higher civil service that its framers had envisioned. However, members of the Senior Executive Service do enjoy the prestige of senior personnel and their position allows them to focus on leadership and career development. Nevertheless, the Senior Executive Service structure has also allowed politicians to infiltrate their political supports into the career bureaucratic structures, which had a negative effect on career civil servants morale. Politicization remains one of the weakest points of the US federal administration. The number of political appointees steadily increased during the last half ot the 20th century and beginning of the 21st century, as did the methods of appointment to those positions. A great majority of political appointees lack minimal technical qualifications or understanding of how to work with the career civil servants. Therefore, their increased number creates an extra political and management burden for the White House. Although the Presidents have legitimate authority to direct the executive branch, the career civil service assumes a level of expertise that permits questioning political directives if they are questionable or unsound. Further politicization of the civil service may, however, jeopardize civil servants commitment to broader public good and integrity in performing one’s job to the best of one’s ability and therefore put at risk the realization of the US civil service merit ideal.
Pojam, vrste i aktivnosti federalnih agencija u pravnom sistemu SAD
Pojam, vrste i aktivnosti federalnih agencija u pravnom sistemu SAD
(Definition, Types and Functions of Federal Agencies in the U.S. Legal System)
- Author(s):Marko Davinić
- Language:Serbian
- Subject(s):Public Administration, Government/Political systems
- Page Range:71-88
- No. of Pages:18
- Keywords:federal agencies ; departments ; independent regulatory agencies ; independent government corporations
- Summary/Abstract:The federal bureaucracy comprises the diverse collection of departments, bureaus, services, commissions, boards and other units that carry out national policies (e.g. regulating private conduct, managing federal property, giving or denying persons welfare benefits, licensing, etc). For the sake of the simplicity, we have classified all federal agencies into four broad categories. The most important agencies are departments, and their heads (secretaries) form the President’s Cabinet. At the moment, there are 15 Departments with different roles and functions (e.g. the Department for Homeland Security was formed in 2002 with the main responsibility to organize the defense against terrorism). Departments normally contain a number of agencies within them (e.g. The Federal Bureau of Investigation is placed inside the structure of Department of Justice). The heads of these agencies are appointed by the President, or by the head of the Department. Third category of agencies finds its place outside Departments, but still inside Executive Branch (e.g. the Central Intelligence Agency). The heads of these agencies are also appointed by the President, with the advice and consent of the Senate. All these agencies are considered part of the Executive Branch and are under substantial control of the President. On the other side, Independent Regulatory Agencies (Commissions, Boards) are designed to maintain their independence from the President and executive departments. They are founded to regulate vital areas which are too dynamic, technical or unpopular to be regulated by Congress (e.g. Federal Reserve Board is in charge of U.S. monetary policy). They are run by boards of commissioners, who are appointed by the President, with the advice and consent of the Senate. However, they can not be removed without “cause” (malfeasance), which means that they have substantial level of independence in their work. Sometimes, those agencies are even described as “the headless fourth branch of government”. In addition, there are independent government corporations responsible of delivering the kinds of services usually provided by private corporations (e.g. National Railroad Passenger Corporation – Amtrak). Despite the striking similarities with previous entities, they are not generally considered public agencies. Deregulation process was dominant movement worldwide in the last two decades of the XX century, with the dogmatic belief that the free market and private initiative take necessary corrective measures to solve all problems in modern society. However, corporate failures and scandals at the beginning of the XXI century (e.g. Enron, WorldCom) and especially huge economic crisis in 2008 have been warning signs for more regulatory reforms concerning markets, banks, insurance companies and corporations. Taking that into account, there is no doubt that federal agencies will play even more important role in American society in the years to come.
Organizacija krivičnog sudstva u SAD
Organizacija krivičnog sudstva u SAD
(Organization of Criminal Justice in the USA)
- Author(s):Goran P. Ilić
- Language:Serbian
- Subject(s):Constitutional Law, Criminal Law
- Page Range:89-104
- No. of Pages:16
- Keywords:Common law; continental criminal procedure; Anglo-American criminal procedure; federalism; courts; the US Supreme court
- Summary/Abstract:Difficulties which criminal procedure legislation of the European continental countries are encountering have triggered their legislators to look for solutions in the comparative Anglo-American legal system. However, in the course of introduction of new procedural solutions insufficient attention is paid to understanding of the character and organization of the foreign justice system, role perceptions of parties to the proceedings and leading views on the goals of criminal procedure. Reform of the criminal procedure can be initiated only if there is sufficient knowledge of the organization and competences of courts which deal with criminal cases. Analysis of the organization of criminal justice system in the US therefore assumes adequate examination of reception of the common law system and dilemmas arising from it, especially in the light of adoption of the federal Constitution. Special attention is paid to the American understanding of federalism which represents a decisive factor in the organization of American law. Federalism is a symbol of freedom of American citizens and a confirmation that they are in charge of local governance, while governance processes at other levels are of indirect character. In accordance with this view, three levels of governance can be distinguished: local, state and federal. The understanding of concept of federalism had also a decisive impact on the organization of court network in the USA. The key feature of the court system is an existence of parallelism between the courts which exist in each federal state and the federal court system. Due to specificities of court organization in each federal state it is difficult to draw some common characteristics, except for existence of three instances: first, appellate and the highest. It is also possible to differentiate between three levels within the federal court system. County courts are deciding in the first instance, the second instance is in competence of appellate courts, while the highest court is the US Supreme Court. Analysis of the judicial competences in criminal cases demonstrates that judicial decision making, especially before lower courts, is seriously criticized, from the standpoint of guarantees of a fair trial. Furthermore, in the proceedings upon legal remedies there are some solutions which are not known in the continental legal system. One of them is the discretionary authority of the Supreme Court to decide whether it would take a certain case into consideration.
Vrhovni sud SAD – organizacija, funkcije, rana istorija
Vrhovni sud SAD – organizacija, funkcije, rana istorija
(The United States Supreme Court – Organization, Functions, Early History)
- Author(s):Predrag Vukasović
- Language:Serbian
- Subject(s):History of Law, Constitutional Law
- Page Range:105-139
- No. of Pages:35
- Keywords:Supreme court; organization; functions; history; USA Constitution
- Summary/Abstract:The United States’ Supreme Court (USSC) is the highest body of judiciary in USA. Its powerful position reflects the entire status of government’s judicial branch in American political system, marked by a complex play of independence and interdependence. It is often said that judiciary is more equal than other two branches - executive and legislature. American social, economic, even political history is able to be written in terms of Supreme Court’s decisions, as well as through the usually applied succession of the presidential administrations. The present contribution ought to examine the Supreme Court’s role in the working of USA Constitution. The main stress is laid upon its function as a kind of Constitutional Tribunal of the continental legal systems. The key organizational guarantees of its independence, as well as the inherent limits of their effectuality are reviewed. Its members are appointed by President with Senate’s approval. The independence from executive and legislative branches is due to their unlimited term of office, the clear-cut sphere of its jurisdiction and the precedent nature of American legal system, inherited from English common law. The US Supreme Court can be defined as specific combination of an appeal, cassation and constitutional tribunal. Besides, it has some very restricted original competences. But the Court’s politically most important power is to declare every executive or legislative act null and void unless its provisions are consistent with USA Constitution. For this reason, every President endeavored to have its makeup favorable to his own policies, using his right to appoint its members for creating a majority prone, capable and ready to support him. The executive’s influence on Supreme Court is reflected into divisions and disagreements among its own members, aligned with the conservative, mainstream and liberal wings of political spectrum. These differences have ever existed in the highest American tribunal, but they are increasingly sharpened from Reagan’s conservative revolution onwards. The particular attention is paid to the formative period of Supreme Court’s history. Few seminal decisions are cited in order to illustrate the means by which Supreme Court was, through the interpretation of constitutional provisions, shaping the entire political and legal system of newly-founded Republic.
Izbor sudija u Sjedinjenim Američkim Državama
Izbor sudija u Sjedinjenim Američkim Državama
(Selection of Judges in the United States of America)
- Author(s):Ana Knežević Bojović
- Language:Serbian
- Subject(s):Constitutional Law
- Page Range:141-162
- No. of Pages:22
- Keywords:American judicial system; selection and appointment of judges; disciplinary liability
- Summary/Abstract:The issues of selection, appointment, disciplinary liability of judges and termination of judicial offices are of particular importance in every transitional country, where judicial independence is a major step in establishing the rule of law. Consequently, the manner in which these issues are regulated in other countries, particularly in old democracies, is of special interest. Admittedly, the judicial system of the United States of America is unique, and it’s solutions are tailored to serve the legal and political needs of a complex federation, and consequently cannot serve as a relevant model for Serbia. However, the problem of stricking a delicate balance (or a lack thereof) between the need for judicial independence and established procedures for appointment of judges and their removal from office in which the public and the executive and legislative powers are closely involved, is one that is in common for all legal systems. It it also true that American judiciary is an underexamined issue in Serbian legal studies. In keeping with the title of this book and its’s underlying idea, the article provides an outlook on the general system of appointment of state court judges, and other relevant rules and procedures concerning their status. Furthermore, it provides a detailed overview of the procedure for the appointment of federal court judges and examines the relevant topical issues. Complemented by the paper on the Supreme Court of America in this publication, it provides a unique insight in the American judiciary from the perspective of continental lawyers.
Stanje kriminaliteta u SAD i njegova kontrola
Stanje kriminaliteta u SAD i njegova kontrola
(State of Crime and its Control in the USA)
- Author(s):Đorđe M. Ignjatović
- Language:Serbian
- Subject(s):Criminal Law, Criminology
- Page Range:163-182
- No. of Pages:20
- Keywords:USA; crime trends; crime factors; crime control; criminal justice
- Summary/Abstract:The paper first of all briefly analysis the phenomenological and etiological problems of crime in USA. Then it points out the ways in which crime control is being effected in the United States. Regarding the issues of crime structure and dynamics, the data of Uniform Crime Reports, National Incident-Based Reporting System, Victimization Surveys and Self-Report Studies were used. Then, there are briefly presented the ways in which american criminologists explain why US crime rate is one of the highest in the world, as well as why it has been changed during the last two decades. When considering crime control, there have been firstly analyzed its informal mechanisms; then, the accent was put on the formal crime control exibited by work of the police, courts and correction institutions. There were concisely presented penal philosophies that have been fully expressed by two models of criminal procedure (crime control model and due prosess model), and problematized the approach seeing the purpose of crime control agencies in simultaneous achieving of several incompatible goals: deterrence, incapacitation, retribution, rehabilitation and restoration. Instead of a conclusion, the key trends and topics of crime control in USA today are addressed: decline in crime; fear of crime; growing role of the victim; growing prison population; race and crime; women and crime; children and violence; and terrorism and civil liberties. At the end it is concluded that the views of american criminologists as well as the present solutions in the US legal system must not be overlooked, neither in the area of theoretical thought nor in the practical operatring in crime control.
Pravo konkurencije u Sjedinjenim Američkim Državama
Pravo konkurencije u Sjedinjenim Američkim Državama
(Competition Law in the United States of America)
- Author(s):Dijana Marković-Bajalović, Ivana Stanković
- Language:Serbian
- Subject(s):Law on Economics
- Page Range:183-204
- No. of Pages:22
- Keywords:antitrust; monopoly power; monopolization; vertical restraints; horizontal restraints; merger control
- Summary/Abstract:Development of antitrust law in U.S.A. was gradual and lengthy. In the course of its building up from initial standpoint of criticism of monopoly concept as a social evil, based on the Sherman Act as a criminal-legal act, up to the modern understanding of primary function of antimonopoly norms as regulators of market mechanisms, almost of identical importance were legal provisions, administrative authorities’ acts and court practice. This fact is actually the main cause of its negative characteristics – diversity and mutual entanglement of the contents of material - legal regulations. However, exactly those characteristics enabled its flexibility, adjustment and evolution and created environment in which American competition law, as concerns its quality of material- legal solutions, has significant advantage over remaining legal systems. Besides, one of the glories of the U.S. system, while also one of its challenges, is the leading role played by private enforcement (especially treble damages enforcement). The legal rules that comprise American antitrust are clearer and more reliable because they have to be. This overview shows that U.S. competition law is the product of legal evolution, informed by changes in economic understanding. The antitrust agencies play critical roles not just by filing lawsuits but also by participating in the “antitrust conversation” by filing amicus briefs, issuing guidelines, giving speeches, doing studies, and conducting hearings and workshops. That evolution continues to this day; indeed, an Antitrust Modernization Commission has been charged formally with considering whether to propose changes. The authors in their work point out to the evolution of US antitrust law, analyzing important highlights of much of substantive antitrust law.
Rešavanje međunarodnih trgovinskih sporova pred američkom arbitražom
Rešavanje međunarodnih trgovinskih sporova pred američkom arbitražom
(The Settlement of International Trade Disputes in Front the American Arbitration)
- Author(s):Katarina Jovičić
- Language:Serbian
- Subject(s):International Law, Law on Economics
- Page Range:205-233
- No. of Pages:29
- Summary/Abstract:The legal framework for international trade arbitration in American law is given in the Federal Arbitration Act, whose main characteristic are scarce provisions governing arbitration proceedings. As a result, other sources of law are applied in this field, primarily case law and rules of procedure of international arbitrations. Consequent to tradition and case law formed over eight decades of applying the present law, the USA has chosen not to reform its arbitration law by accepting dominant solutions in comparative law, mainly inspired by the UNCITAL Model Law of Arbitration. The Federal Arbitration Act is no different from other similar regulations in comparative law in terms of the importance given to party autonomy when it comes to stipulating arbitration and limiting curial involvement in the arbitration. However, it does have rather characteristic solutions regarding a number of procedural issues, resulting in a formation of specific arbitration law. For instance, the arbitration tribunal is not authorised to decide on its own competence unless so expressly stipulated by the parties in arbitration agreement. Once the arbitration reaches a decision on this matter in accordance with the party’s agreement, such decision can be challenged in the procedure for setting aside the arbitration award on any grounds prescribed by law. The procedure for appointing arbitrators and their number are also matters for which specific solutions are provided in American law: federal law sets a rule on one arbitrator instead of an arbitration tribunal, and, should the parties fail to regulate the manner of appointment of arbitrators – the court appoints the arbitrator or arbitrators or the umpire at the proposal of any party to the proceedings. When it comes the arbitrator is under a disclosure obligation, or to the procedure for challenging arbitrators, the Federal Arbitration Act remains silent. Consequently, the parties before the arbitration having objections to arbitators’ qualifications or impartiallity can only wait for the arbitration proceedings to end by the passing of final arbitration award and then challenge such decision in separate proceedings. Unlike the Act, most institutional arbitrations in America provide detailed rules governing these issues, enabling the parties to resolve this issue during arbitration proceedings. Availability of provisional remedies in arbitration proceedings are not comprehensively regulated by the Act, and it hence not surprising that USA courts resolve such issues on a case-to-case basis. However, the parties should not have any problems with this issue if they regulate the manner in which it is to be resolved in their arbitration agreement, whether by consenting to application of arbitration rules envisaging the possibility of pronouncing and implementing provisional measures, or by expressly providing the right to request the court or arbitration to pronounce such remedies. Even though this issue is still not regulated by law, and the Supreme Court still has not ruled on it, the trend is for US federal courts to order provisional remedies where such remedies are warranted. When it comes to modifications or corrections of award, the American law is again, characteristic, by prescribing that corrections to arbitral award can only be made by court, not by the arbitration tribunal. Rules of Procedure of institutional arbitrations generally resolve this issue in a different manner – by allowing the arbitration tribunal to meet again in order to rule on such requests. Grounds for setting aside of award prescribed in USA Federal Act include two that are uncommon in comparative law: when the award was procured by corruption, fraud or undue means or if there was evident partiality or corruption in the arbitrators. The existence of these grounds is directly linked to the fact that the Act does not provide for the possibility of challenging arbitrators during arbitration proceedings, and that hence manifest bias or misconduct on the part of arbitrators regarding the passing of decision must be adequately sanctioned. Given its characteristic solution and relative incompatibility with comparative solutions in the field of arbitration in international trade disputes, the idea that the US Federal Arbitrations Act should be reformed, using the UNICTRAL Model Acct has been present for a long time. However, this initiative has not received sufficient support amongst legal practitioners and scholars, their main argument being that there is no need to change rules that are still yielding positive practical results. The fact that the number of international trade disputes that are being resolved by American arbitrations is constantly growing is a clear indication of the successful functioning of the Federal Arbitration Act. Consequently, it would be unreasonable to anticipate it to be changed any time soon. This is certainly not a result of the good quality of the law, but rather of rich practice of those implementing the law, compatible, to the extent allowed by the Act, with contemporary tendencies in the field. In that respect, it is important to note the adopted Rules of Procedure of institutional arbitrations, which, unlike the Act regulate in detail all the important issues that may arise in proceedings before such arbitrations.
Leasing posao u SAD
Leasing posao u SAD
(Leasing in the USA)
- Author(s):Ivanka Spasić
- Language:Serbian
- Subject(s):Law on Economics
- Page Range:235-260
- No. of Pages:26
- Keywords:Leasing; Leasing cotract; True lease; Security interest; Conditional sale; Uniform Commercial Code (UCC);
- Summary/Abstract:Leasing is an institute of modern economic law, both national and international; it is used in business practice of technologicaly developed countries, but in developing countries and countries in transition also. Leasing has appeared in United States of America in the early fifties; in Europe it was appeard ten years later, in the early sixties in France and than in Belgiam, Italy, Swiitzerland, Great Britain, Germany. Asian countries started to use leasing some ten years later (the first Japan, Singapore, India, Korea). Ex-socialist countries, nowadays countries in transition, also used leasing in their business practice (some of them like Hungary and Chekoslovakia used leasing for their financsing even in the “socialist era”). Developing countries are also familiar with some forms of leasing. Leasing practice usel several diferent forms of leases; some of them are more innovative, important and useful the other are common and ordinary. They are all necesary. The most important of all is finacial leasing,, it is a special method of financing the acquisition of goods (generally equipment). Besides financial there are other, more “clasical” forms of leases (operating leasing, renting, and forms of true lease in general). In modern business practice are used same other types and forms of leasing like “sale and leaseback”, “off shore leasing”, “leveraged leasing”. Some of them are used primerily in American business practice. There is a diference between leasing, as a method of financing, (or in case of true lease, just a lease of an asset for the payment of rentals), and a leasing contract, the legal instrument which is necesary for the lease transaction to be performed. In this study the Author is analysing specialities of american leasing practice, the concept, origin and developement of this institute, varieties of business types, the legal nature of the leasing contracts, and the laws which govern the realisation of these operations in American legal practice. Besides the usual and more frequent leasing operations like financial, operating, equipment leasing, renting and variety of true lease types, American business practice is using some special and very complicated types of transactions like leveraged leasing for example. American judicial sistem has a very specal treatmant of leasing transactions; every lease can be treated as a true lease or lease intended as security. Financial lease, which is more important then others, can be both true lease or security. Lease in form of security is treated as conditional sale (pactum reservati dominii). If the intention of the contracting parties (found by the Court, in actual case) was to provide the equipment by way of using lease contract, it is legaly treated as “hiden up sale” and is considered as a taxe violation. One of the more interesting questions concerning leasing is the question of the legal reforme of Uniform Commercial Code (UCC). The new edition of UCC contains a special part concerning the leases (art. 2A). Artical 2A firstly has given all more important definitions concerning leases; first of all definition of leasing agreement and leasing contract,then of the suppliy contract, financial lease, true lease, consumer lease, goods,contracting parties (lessor and lessee), supplier, termination of the contract, etc. Besides definitions art.2A contains rules that govern the formation and construction of lease contracts (the rules about offers, acceptance and closing up the contracts, the warranties, risk, insurances, priority of the liens, ect.). Delivery of the goods, the consequences of non-delivery, acceptance of goods and payment of rentals are also regulated. The UCC s art. 2A contain also rules about performance of the lease contract (substitute performance, excused performance, procedure, irrevocability of the promises in case of financaial lease). Article 2A of the UCC also contains rules about default (procedure, liquidation of damage, default by lessee and lessor and the other partie”s remedies, which is one of the most importante parts of the Rule). The Author is analysing all these new solutions and gives her opinion about their usefulness.
Accessorial Liability in Common Law: A Critical Analysis
Accessorial Liability in Common Law: A Critical Analysis
(Accessorial Liability in Common Law: A Critical Analysis)
- Author(s):Fernanda Florentino Fernandez Jankov
- Language:Serbian
- Subject(s):Criminal Law, Sociology of Law
- Page Range:261-268
- No. of Pages:8
- Keywords:accessory liability; joint criminal enterprise; critical analyze; American law
- Summary/Abstract:In this work it is analyzed an interesting institute of American criminal law and that is accessory liability. This institute, besides else, stays in a very interesting relation with the doctrine of so called joint criminal enterprise. That relation is not so clear, and the author points out some problems in that relation. The author also makes an analyze of some cases of accessory liability.
O nekim aspektima Glave VII federalnog zakona o građanskim pravima iz 1964.
O nekim aspektima Glave VII federalnog zakona o građanskim pravima iz 1964.
(On Certain Aspects of Title VII of the 1964 Civil Rights Act)
- Author(s):Milica V. Matijević
- Language:Serbian
- Subject(s):History of Law, Constitutional Law, Civil Law
- Page Range:269-293
- No. of Pages:25
- Keywords:prohibition of employment discrimination; Title VII of the 1964 Civil Rights Act; burden of proof in discriminatory cases
- Summary/Abstract:The 1964 Civil Rights Act, which was the first major civil rights legislation since the Reconstruction era, was enacted to deal with the remaining forms of segregation and to that end it addressed discrimination in public accommodations, education, exercise of voting rights and employment. Title VII prohibition of workplace discrimination, which had its roots in the Unemployment Relief Act of 1933, have brought great change in the life of a million of Americans belonging to the traditionally marginalized groups. Once legal challenges to the constitutionality of Title VII were resolved the American courts started to build the rules of evidence in the Title VII cases. In McDonnell Douglas Corp. v. Green and in Griggs v. Duke Power Co. the Supreme Court shaped two major theories and on the basis of them developed two major methods of proving discrimination in employment. The “disparate treatment theory” and “disparate impact theory” respectively, are still used as the prevailing frameworks for interpreting the Title VII provisions in most discrimination cases involving circumstantial evidence. These two methods have proved as equally useful in all types of employment actions – from a failure to hire or promote to termination of a contract and discriminatory application of a seniority system. Differently from the progressive role the Supreme Court had had in the first two decades after the enactment of Title VII, in the late 1980’s and early 1990’s, civil rights activists and litigants experienced mounting frustration over a more and more rigid interpretation of the Title VII provisions in the decisions of this supreme judicial body. After the Supreme Court’s decisions in Wards Cove Packing Co. v. Antonio and in Price Waterhouse v. Hopkins, there was a general feeling that the Court had seriously misinterpreted the political will and Congress quickly began the process of setting a different course. The Civil Rights Act of 1991 highlights the relationship between the Court and Congress in interpreting Title VII and it came as a direct response of the Congress to the Supreme Court ruling in the two cases. The 1991 Act added a new subsection to Title VII codifying the “disparate impact theory” of discrimination. In response to Price-Waterhouse ruling, the 1991 Act provided that where the plaintiff shows that discrimination was a motivating factor for an employment decision the employer is liable even though it proves it would have made the same decision in the absence of a discriminatory motive. However, even after these legislative changes the question remains whether the Title VII system of protection can adequately respond to the more subtle and complex forms of discrimination featuring the XXI century workplace. The so-called “second generation workplace discrimination” involve social practices and patterns of interaction among groups that lead to the exclusion of non-dominant groups. These patterns of exclusion often cannot be directly traced to intentional, distinct actions of particular workplace actors and may be visible only at the level of a general trend. Furthermore, the general presence of symbolic forms of compliance with Title VII provisions in the majority of business entities does not necessarily mean that these forms result in substantive change. Rather, the process of “menagerialization of law”, when the discrimination-related problems are recast as interpersonal or managerial issues and “workplace diversity” postulated as the ultimate attainment of the prohibition of discrimination, tend to undermine the logic of the American anti-discrimination law.
ACLU – American Civil Liberties Union
ACLU – American Civil Liberties Union
(ACLU – American Civil Liberties Union)
- Author(s):Jovan Ćirić
- Language:Serbian
- Subject(s):History of Law, Human Rights and Humanitarian Law
- Page Range:295-313
- No. of Pages:19
- Keywords:CLU; freedom of speech; Miranda rule; liberalism; human rights
- Summary/Abstract:Talking about those cases, Ćirić has tried to bring closer the American legal system in general, especially when the word is about the liberalism as the main characterstic of the whole American law.
Osnovne karakteristike američkog zatvorskog sistema
Osnovne karakteristike američkog zatvorskog sistema
(Basic Characteristics of American Prison System)
- Author(s):Zoran Stevanović, Biljana Simeunović-Patić
- Language:Serbian
- Subject(s):Criminal Law, Criminology, Penology
- Page Range:315-332
- No. of Pages:18
- Keywords:American prison system; types of correction institutions; the structure of prison population; prison system’s organization
- Summary/Abstract:American prison system is organizationally complex, with several jurisdictions and many penitentiary institutions. Divided jurisdiction between federal, state and local authorities from one side, and many kinds and types of prisons from another, make this prison system complicated and disunited. Thus there are inexplicable differences in conditions, standards and many other issues from state to state. American penologists look toward the future of state control of crime with much of anxiety. Enormous rise of a number of prisoners, an inefficacy of correction system and lack of really efficient corrective programs capable of correcting prisoners’ behavior strengthen a dark foreboding of the future in this field. The construction of prisons primarily for isolation of prisoners, not for ther behavior correction gets more and more frequent. At the end of 2006 there were 2.333.331 persons in prisons or jails in the USA or one-in-98 residents, presenting the biggest prison population rate in the world. From one year to another the number of prisoners rises by an average of 3.7 per cent. In recent years there has been noticed a tendency of increasing of number of prisoners in federal and state prisons while the numbers of prisoners in local prisons have been decreasing because of lack of resurces at the level of local community. As a reaction to permanent growth of prison population and more and more distinct danger to the safety of citizens, it has been developing the idea of super-maximum custody or ’supermax’. These prisons are described as “prisons of the future“ that should serve a purpose of harsher sentencing of those who are too violent, or for settling of those prisoners who must not be placed together with usual prison population.
Američki odgovor na nasilje u porodici
Američki odgovor na nasilje u porodici
(The American Response to Family Violoence)
- Author(s):Slađana Jovanović
- Language:Serbian
- Subject(s):Constitutional Law, Civil Law
- Page Range:333-346
- No. of Pages:14
- Keywords:domestic violence; Duluth model; protection orders; mandatory arrest; mandatory prosecution
- Summary/Abstract:The author has analyzed features of the legal protection system against domestic and family violence in the USA, particularly those comparable to actual Serbian response. In the first place, there is terminological explanation related to domestic and family violence, as these are two notions equally translated into Serbian language, thus creating certain difficulties in interpretation and practice. The most important legal and organizational solutions at the federal level in the field of prevention and suppression of the domestic violence have been presented. Among the measures on the state level as the most important have been selected following ones: concept of coordinated actions in the local community, protection orders, mandatory arrest and mandatory prosecution policy. Each measure is on the line of providing for efficiency in the protection of victims of domestic violence primarily, but also in the protection of the society itself. Appliance of some measures, especially of the concept of the coordinated action on the local level, urgent and efficient intervention emphasizing safety of the victim has been considered welcome to the Serbian system of protection against domestic violence.
Sportsko pravo u Sjedinjenim Američkim Državama
Sportsko pravo u Sjedinjenim Američkim Državama
(The USA Sports Law)
- Author(s):Dejan Šuput
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:347-368
- No. of Pages:22
- Keywords:ports law; Law on Sport; sports system; sports organizations; sports activities
- Summary/Abstract:The development of the modern sports system and its commercial services creates a need for the establishment of new types of laws and regulations dealing with various legal, economical and ethical issues related with sports. The 20th century saw significant developments in form and substantial elements of sports law. The United States of America legal system is one of the most developed legal systems in the field of sports law. That is due to the fact that sport in the United States represents an important part of the national culture. However, the sporting culture of the USA is different from that of many other countries. Within the USA legal system, Sports Law encompasses a multitude areas of law brought together in unique ways. Issues such as antitrust, contracts and torts are quite common for all US Federal States and their regulations. Issues like defamation and privacy rights are also an integral aspect of sports law. Besides that, US Sports Law can be roughly divided into the areas of amateur, professional and international sports. Because of that, the article is divided into a number of categories based on particular focus, with some categories further subdivided by area of law or area of the sports field. It is interesting to mention that there is no single federal government agency that regulates sports-related activities in the USA. However, there are several organizations dealing with some aspects of sports and fitness legal issues and the most important ones are the following: The President’s Council on Physical Fitness and Sports, National Collegiate Athletic Association (NCAA), National Federation of State High School Associations (NFHS), U.S. Olympic Committee, Special Olympics. Besides that, the U.S. Congress has also involved itself in several aspects of sports, notably gender equity in college athletics, illegal drugs in professional sports, sports broadcasting and the application of antitrust law to sports leagues.
Pravna regulativa istopolonih zajednica u Sjedinjenim Američkim Državama
Pravna regulativa istopolonih zajednica u Sjedinjenim Američkim Državama
(Legal Regulation of Same-sex Partnership in the USA)
- Author(s):Zorica Mršević
- Language:Serbian
- Subject(s):Gender Studies, Civil Law, Human Rights and Humanitarian Law
- Page Range:369-398
- No. of Pages:30
- Keywords:Civil Rights Act; legalization of same sex marriage; California; Connecticut; New York; Massachusetts; demographic capacity of same sex families
- Summary/Abstract:The preface of the text comprises presentation of the Civil Rights Act of 1964 as a landmark legislation in the United States that outlawed segregation in the U.S. schools and public places. Based on this legacy, the history of legal recognition same sex partnerships and marriages was profiled in nineties by the decision of the Supreme Court of Hawaii. Through different expert findings and results of researches in the court was proved the following: Sexual orientation of parent doesn’t represent a circumstance that disqualifies such people a priori from being good, successful, responsible and suitable parents, full of suitable parental warmth and love; Gay and lesbian parents as well as same-sex couples have all the preconditions to rear children who are happy, healthy and well-adapted; Gays and lesbians as well as same-sex couples should have license to adopt children, take tutelage over them and to care for them and bring them up as healthy children, because it has been proved that they are capable of providing them necessary care; they are as much capable to be suitable parents as different-sex couples are. It hasn’t been proved that any more relevant differences in child rearing will originate as a result of the fact that the same-sex parents and not different-sex parents reared them. The author presented various research data showing that the same-sex parents’ community is the most similar to community composed of one biological parent of the child while the other one is stepfather or stepmother or child’s aunt or uncle. These are the family communities that have proved in practice as stable and totally adequate for child’s development. Therefore they should be allowed to the same-sex partners too, because they offer to children more complete family than single-parent family. Researches prove that single parents, adopted child parents, lesbian mothers and gay fathers, as well as same-sex couples can create family atmosphere and raise healthy and well-adapted children. The third part of the text presented the contemporary development of the same sex marriages. In California, the state Supreme Court decided in May in a historic ruling that gays and lesbians have a constitutional right to marry. The justices said the state’s ban on same-sex marriage violates the “fundamental constitutional right to form a family relationship.” Moreover, doctors can’t discriminate against gay people because they disapprove of homosexuality, the California Supreme Court ruled unanimously Aug. 18. The ruling came in the case of Benítez in San Diego County, who was denied assistance in getting pregnant by North Coast Women’s Care Medical Group, the only such facility covered by her insurance plan. Doctors at the group claimed their Christian beliefs prevented them from inseminating Benítez. But the court declared that constitutional protections for religious liberty do not excuse unlawful discrimination. Gov. David Paterson of New York has told state agencies to recognize samesex marriages performed in states and countries where they are legal, because failing to recognize gay marriages would violate the New York’s human rights law, That decision says that legal same-sex marriages performed in other jurisdictions are entitled to recognition in New York. Considering this decisions as not enough, hundreds of people marched across the Brooklyn Bridge Sept. 14 in support of marriage equality for same-sex couples. The New York state Assembly has passed a bill to legalize same-sex marriage but the measure has stalled in the state Senate. New York state recognizes the marriages of same-sex couples who marry in states and countries where they can — California, Massachusetts, Belgium, Canada, the Netherlands, Spain and South Africa. Same-sex couples won the right to marry in Connecticut in a historic ruling by the decision of the Supreme Court in October 2008. Citing the equal protection clause of the state constitution, the justices ruled that civil unions were discriminatory and that the state’s “understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. “Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice,” the majority wrote. “To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.” The court’s ruling today will likely be the final judicial judgment in the case because it is based on the state constitution, rather then the U.S. Constitution. But the often emotional, contentious debate over gay marriage is far from over in the United States of America.
