Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

Right of Appeal under Section 35 of the Arbitration Act of Kenya

An arbitral award is final and binding on the parties but may be set aside for failure to adhere to due process requirements. Section 35 of the Arbitration Act (Act hereafter) provides grounds for setting aside an arbitral award. It does not state whether decisions of the High Court on setting aside an arbitral award are final and thus cannot be appealed. In Nyutu Agrovet Limited v Airtel Networks Limited, the Supreme Court interpreted Section 35 to allow appeals on High Court decisions of setting aside an arbitral award. This paper analyses the Supreme Court decision and finds that it abrogated the internationally recognised arbitration principles such as party autonomy, the finality of arbitral awards and limited court intervention. Additionally, the paper discusses the implications of the decision on arbitral practice in Kenya. Using literature review and comparative jurisprudence, it advances that Section 35 does not allow appeals on decisions of the High Court. To this end, it proposes better interpretation techniques to safeguard the sanctity of arbitral awards.

US election lawsuits unlikely to change result

Significance However, Republican President Donald Trump is alleging that vote tallies are fraudulent and inaccurate. He is seeking recounts and undertaking lawsuits over alleged vote-counting irregularities. Impacts Two run-off elections in Georgia will determine whether the US Senate stays Republican or is tied 50-50 with the Democrats. Given the type of complaints raised by Trump’s campaign, prospects for a Supreme Court intervention look remote. Controversy over the election result will linger, perhaps until the 2024 presidential election.

Spanner in the Works or Cogs in a Wheel?

In what circumstances should medical treatment decisions concerning a child be treated differently from any one of a myriad of important decisions that parents routinely make for their children without any state intervention? Who is best placed to make such decisions and on what basis? Why does conflict arise and how can it be minimized? This chapter deals with the sensitive and complex question of decision making for critically ill children. An analysis of the case law reveals that parents are generally believed to be the best-placed to make a shared decision with the medical team focusing on the child’s best interests. However, when conflict arises, it is necessary to seek court intervention. I examine how the framework of the child’s best interests includes consideration of what the child personally may want, yet this begs the question why is the judge’s interpretation of what the child would want any more valid than that of the parents or the doctors? Rejecting the claim that the court should only be involved when it is shown that the parents’ decision on the child’s treatment would cause harm to the child, I suggest framing the question as a ‘not against the child’s interests’ test, or what is ‘compatible’ with the child’s interests. This would alleviate the perception that it is a binary decision between a right and wrong choice, and better serve the overall objective of minimizing conflict. Focusing on how the decision is taken is ultimately just as important as who makes the decision.

Stuck between Justice and the Carceral State

Chapter 9 analyzes the Ruiz trial itself as drawing from prisoner-initiated narrative, but it situates even the most far-reaching courtroom victory within a political arrangement of carceral massive resistance, where southern Democrats resisted court orders and new southern Republicans consciously reinterpreted the court’s intent as part of mass incarceration’s broader political project. In the immediate aftermath of the 1980 Ruiz decision, the prisoners’ courtroom victory was stuck over a political struggle between the state and the federal system. Prisoners were at the mercy of a variation on “massive resistance,” where the TDC resisted federal court intervention at every turn. Making matters worse, as mass incarceration was now fully taking hold, the prisons were becoming more and more overcrowded and prone to violence. Trapped between the court and the state, prisoners had fewer external political allies as the 1980s dawned.

Asset Reconstruction in Banking Industry

The concept of Securitization can be identified as one of a major financial service. In general banks NPA gave a lot of trouble to banks in the way that banks could not sell the pledged asset to recover their money after defaults without court order. Indian banks have been plagued with the problem of NPA since 2006. The problem started when the banks started lending to heavy industries such as metal, mining sectors and to infrastructure development. Since the projects funded before were completed on time, the banks assumed that the future projects would also be completed at the same pace. The world economic slowdown of 2008 casted their effects on the Indian economy making the growth slow and reducing the demand. The projects started to miss deadlines and the banks showed least interest to restructure them. The promoters too inflated the cost of capital over a period of time which was left unchecked by the banks. However, this scenario changed with the introduction of SARFAESI Act 2002, where banks were authorized to recover money by selling pledged asset without any court intervention. The aforementioned Act also paved the concept for securitization. In this article, the primary focus is laid on understanding the workings of such ARC along with its performance in the Indian banking sector and the key challenges faced by such companies..

Youthful Discretion: Police Selection Bias in Access to Pre-Charge Diversion Programs in Canada

The increase use of formal youth diversion programs in Canada coincided with the enactment of the Youth Criminal Justice Act in 2003. Following the tenets of the labeling theory, the statute sought a balance that would help limit formal court intervention to increase fairness and accountability for youth committing minor offenses. Despite the perceived benefits, diversion programs have not escaped criticism. Some researchers contend pre-charge diversion programs that are based on police discretion may suffer from selection bias. Using police data from a local police service ( N = 6,479 cases) in Ontario, Canada, this article conducts a bivariate analysis to explore the personal characteristics of first-time offending youth (gender, race, and area of residence) and attempts to determine whether there are any differences in the youth being charged or diverted for minor drug possession and minor thefts. Results demonstrate variances in charging practices based on race. Race has a small but statistically significant impact on arrest decisions. In general, Black youth are more likely to be charged and less likely to be cautioned than White youth and youth from other racial backgrounds. The implications of these findings are discussed.

Born into Care: characterising newborn babies and infants in care proceedings in England and Wales

Background/rationaleNations with advanced child protection systems place considerable emphasis on the developmental salience of infancy. However, this emphasis is not matched by any differentiated analysis of the timing of family court intervention in the lives of infants or the final legal order outcomes of these cases. This presentation shares findings from the first ever population profiling study of infants subject to care proceedings within the family justice system in England and Wales. AimTo estimate the proportion of all infant care proceedings cases issued within 7 days and 4 weeks of birth and describe case and infant characteristics; to calculate incidence rates over time and by local authority and family court region; to describe and compare legal order outcomes according to age. Methods/approachData was extracted from case management records produced by the Children and Family Court Advisory and Support Service (Cafcass) England and Wales. Records were first restructured to link infants to legal order outcome data and birth mother records. Incidence rates were calculated using ONS mid-year population estimates and annual live births. Within the SAIL Databank, Welsh infant records were linked to birth registration and community child health data to produce a fuller picture of infant characteristics in Wales. ResultsThe cohort we created comprised all infants recorded as subjects within care proceedings in England (2007/08-2016/17) and Wales (2011/12-2018/19). The study captured the high proportion of infant cases that are issued at/close to birth, but also marked regional and local authority variation in incidence rates. ConclusionHigh rates of adoption, particularly for babies born to mothers without a previous family court history, have prompted calls for new preventative solutions. The President of the Family (Court) Division in England has initiated a review of legal proceedings at birth.