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Natural Law Legal Jurisprudence

Natural Law is the law that exists outside of a politically ordered society. As a legal genre, it is fundamentally the law of nature, holding essentially that things are the way they are simply because, by nature, it is how they are. Philosophically, natural law expresses the basic, natural rights of all human beings. These rights are outlined and declared in such documents as the Declaration of Independence. Natural rights fundamental to natural law include the right to life, liberty and the pursuit of property; along with the belief that all men are created equally. Historically, natural law has been more closely related to the common law than civil law. At its core is a fundamental belief that all laws derive from the natural world (or from a supreme being). The common law of a society is typically based on traditions, which derive from natural-world or spiritual beliefs. These natural beliefs are eventually transferred from the individuals and families to the sovereign state as groups of people organized into political systems governed by the rule of law. As applied to American law, it is quite clear the nation was founded on a theory of natural law. As previously stated, the Declaration of Independence cites four main principals of natural law: equality, life, liberty and property. These principles have subsequently greatly influenced the development of American-style democracy. For example, a fundamental component of American democracy is free-market capitalism, which is based on a belief of individual ownership of property. However, if the American legal system still operates under a pure natural law mentality, it could be argued that the death penalty is not be an option. Clearly the death penalty violates the fundamental natural law principal of life. Under a natural law……

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Criminal Justice Legal Issues International Law Legal

Criminal Justice Legal Issues International Law Legal Systems There are four types of legal systems in existence in the modern world: civil law, common law, customary law, and religious law. All four types of legal systems have lengthy histories and share some common elements. In addition, one can see the overlapping influence of different legal systems in each different type.…

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Rule of Law and Extra-Legal

Laws may also simply mandate what procedures are to be followed in a given context; for example, the United States (U.S.) Constitution mandates how Congress, along with the President, may create laws. A more specific example might be the Securities and Exchange Act, which, along with the SEC, a regulatory body, mandates how public companies must go about making periodic disclosures to investors. The question that has received the most substantial attention from philosophers of law is "What is law?" Several schools of thought have provided rival answers to this question. Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which "unjust" is defined as contrary to natural law. The natural law or law of nature is a system of justice that exists independently of the positive law of a given political order. Its usage has varied through its history. It presently has a meaning in both moral theory and legal theory, despite the fact that the core claims of the two kinds of theory are logically independent. According to natural law ethical theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings. According to natural law legal theory, the authority of at least some legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law theories of law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. The concept of natural law was very important in the development of Anglo-American common law. In the struggles between Parliament and the monarchy, Parliament often made reference to the Fundamental Laws of England, which embodied natural law since time immemorial and set limits on the power of the monarchy. The concept of natural law was expressed in the English Bill of Rights and the U.S. Declaration of Independence, and by 19th century anarchist and legal theorist, Lysander Spooner. Morality is not law, even if law reflects or intends to reflect morality. In some juridical systems, the word morality concretely means a requirement for the access to certain charges or careers, or for…

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Influence Natural Law Has Had on the American Legal System

Natural Law and America's Legal System This paper presents an examination of how natural law impacts the America legal system. The writer explores natural law and how it applies to the current legal system and argues that the natural law helps to drive the current system. There were four sources used to complete this paper. The American legal system is one that has stood the test of time since the penning of the United States Constitution. It has worked throughout the country and been held worldwide as an excellent standard of justice. While the constitution and the laws that have been passed to support the constitution are the benchmarks of the American legal system much of how it was derived follows the patterns of natural law theories. While most people believe that the foundation for today's laws revolve around the United States Constitution, the actual foundation for the American legal system is the theory of natural law. NATURAL LAW Before one can begin to define how natural law and its theories impact the American legal system it is important to understand the theory of natural law. While there has been much debates with regard to natural law theories over the years there are several key elements of the theories that provide a foundation for their existence. One of the most widely recognized natural theorists is Thomas Aquinas whose moral law theories dovetail perfectly with the theory of natural law (Natural Law Theorists (http://plato.stanford.edu/entries/natural-law-ethics/#1). Natural law theory is one of the most important theories in the philosophy of Classical Realism. It is also widely misunderstood by many who have either not taken the time to study it or have heard of it and dismissed it as a "medieval" relic (Dolhenty, 2004)." The idea of natural law dates back to the ancient Greek era when the universe was believed to be ruled by an eternal law. Later on Christian philosophers easily adapted to and accepted natural law principles as the law of God. It is what Aquinas's beliefs are based in that part of the law of God is human ability to use reason to make the right choices in life. Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law (Dolhenty, 2004)." As history moved forward John Locke emerged as another expert in the natural law theory as he introduced the concept that human…

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Origins and Characteristics of the

That's why today America has a federalist system of government. Power is divided. The federal government has three branches: the Executive, the Judicial and the Legislative. The federal legislature is further divided into two parts -- the House and the Senate. State governments are modeled along the same lines. There are state courts, state legislatures (most have two houses as…

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Legal Positivism and Australian Law

He wanted his entire community to be the owner of this property since it was more in line with his customs and cultural beliefs. Judge Von Doussa however refused to combine customary law with Copyright Law and decided to stay with strict interpretation of the law thus taking a positivistic approach as Bowrey (2001) explains: "It is difficult to ascertain whether or not von Doussa grasped the cultural implications that flow from his endorsement of these precedents about joint authorship. At key points in the decision closure to consideration of the indigenous point-of-view was achieved by using legal positivist interpretative practice. He identified the appropriate legal rule concerning joint authorship without reference to any discourse about the meaning of the terminology. Copyright law is "entirely a creature of statute." Australian law is thus very closely linked with legal positivism since it revolves around the concept of power. The sovereign order is treated as the final word, which cannot be altered or amended. While the same is the case in the United States too, we notice some flexibility there where modern interpretations of law are concerned. United States gives its judiciary enough freedom to interpret law according to the circumstances. The same is however missing from Australian legal system where modern interpretations are often met to disapproval. This is the essential difference between legal systems of the two countries, which has turned Australian law into a more rigid and positivistic form of law. References Katz, Avery Wiener, Positivism and the separation of law and economics. Michigan Law Review; 6/1/1996; Robert P. George, The Autonomy of Law: Essays on Legal Positivism. Clarendon Press. Place of Publication: Oxford. Publication Year: 1999. Kathy Bowrey, Senior Lecturer, School of Law, University of New South Wales, The Outer Limits Of Copyright Law - Where Law Meets Philosophy and Culture, Law and Critique, (2001) Vol 12:1, pp1-24. The political and philosophical origins of Australia's constitutional system, Australian Public Law, Last updated: 27 February, 2003, Retrieved online 1st April 2004: http://www.ntu.edu.au/faculties/lba/schools/Law/apl/Constitutional_Law/philosophicalorigins.htm Austin, John, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press,……

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Legal Jurisprudence

¶ … Computers by Z. Bankowski and the Ethics of Legalism by D.N. MacCormick present interesting theories of jurisprudence as to how the rule of law can govern without being influenced by human emotions that are attached to specific situations. In other words, the issue is that legal rules cannot be expected to govern all situations equally because each situation is unique. The two theories compared in this paper attempt to understand the jurisprudence that exists when, in reality, there is no rule of law. According to Zenon Bankowski, a Professor of Legal Theory at the University of Edinburgh, an inherent conflict exists between the generality of legal rules and the particularity of a specific situation. Bankowski argues that, by nature, legal rules cannot govern a particular situation automatically and instead governs through humans' use of them. Instead of being viewed as an impersonal computer, Bankowski states that, because humans are the ones who apply the law, it is more correct to view the law as being governed by what he terms "love." By love, Bankowski means the personal and emotional attachments that a decision maker will have with every particular legal situation. Thus, according to Bankowski, real judicial adjudication swings between the generality of the law and the correctness of love. As he states, "In applying the law, we need, through our explosions of love, to get to the particular and be able to see the things behind the rule." According to Bankowski, the answer to this conflict between the universality maintained by……

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Jurisprudence as a Theory in

In this way, legal realism is subject to differing, subjective interpretations because that is the nature of man. Critical legal studies As a critique of the well established norms and mores in a society, the critical legal studies school of legal theories suggests that logic and structure of the law are derived from relationships of power in a given society. In this way, the critical legal studies school theory seems similar to a Marxist ideology concerning social power struggles. In fact, proponents of the critical legal studies camp believe that the law is a primary mechanism used to support and foster certain socially desirable outcomes, even to the detriment of less powerful, less authoritative groups or classes of people. Thus, law is simply an amalgamation of the ruling classes collective belief systems; the rich, the powerful, the well-connected legitimize laws and provide for sanctions to give authority to legal strictures. However, because man can be a whimsical creature, with self-serving interests, the law, according to the critical legal studies advocate, can be a bastardized creation of justice. In this way, those in power use the law and the legal system to suppress the desires and needs of the less powerful in an effort to maintain power and prestige; law is thus a tool for repression to ensure status quo. Thus, to those advocating a critical legal studies approach to jurisprudence believe that no law, no manmade legislation is ever content neutral and free of value judgments. The critical legal studies camp encompasses several other like-minded, social-struggles based theories in legal circles; feminist legal theory, critical race theory, and post-modernism theories are all aligned with the critical legal studies theory in an effort to call attention to the vagaries, nuisances, indiscretions, and whims of the politically connected. Conclusion: While theories of law, theories of legal systems and of the nature of law vs. The nature of man are convoluted, with little consensus between the respective schools of thought, it seems that the field of jurisprudence, of legal theories will continue to develop and provide greater insights into the nature of man. While manmade laws are certainly not perfect, like man, they are subject to interpretations and provide a foundation for socially desired behaviors. With the effects that laws have in our American society on the weak, on the poor, on the disadvantaged and downtrodden, there is room for improvement. Perhaps legislators…

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Rule of Law Legitimate? 'The

(Hart, 105) Therefore, this means that the fundamental provisions of a Constitution are really law. (Hart, 111) However, because the assertion that a legal system does exist is cloaked in mystery and complexity, it can be seen that at one stage it may be considered as unborn, at another, as yet unseparated from its mother, and at another, independent, and…

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Natural Law

¶ … constitutes religion, science, sociology and so on is hard to define and ambiguous at times. Take, for instance, fundamentalism in religion, the fact that life is still difficult to define in scientific terms or the complexity of natural law, in Latin, lex naturalis. What each of these three issues have in common is the difficulty they impose on…

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Law Legal System Contracts

Business Law and Enforcing Contracts Grace v. Wiley The valid contract for the sale of the stereo system for $6,000 is enforceable depending on circumstances, such as which party is seeking to enforce it, because it falls within the UCC Statute of Frauds (Freidman, 2005). According to Article II of the UCC, contracts for sale of goods for $5,000 or more are not enforceable without some record (or admission) of the existence of a valid contract (Freidman, 2005). More specifically, the party wishing to enforce the contract must be able to prove the existence of a written contract signed by the party against whom enforcement is sought (Halbert & Ingulli, 2008). In this particular case, the valid contract was signed by Grace but not by Wiley. Therefore, while the contract is otherwise valid, Grace would not be able to enforce it against Wiley or to prevail in an action for any loss of the benefit of the bargain pursuant to a breach or anticipatory breach by Wiley, simply because Wiley accepted the offer verbally instead of in writing. Wiley, on the other hand, could prevail in enforcing the same contract against Grace because her agreement to the contractual terms was memorialized in a writing. Grace v. Eddie The contract between Grace and Eddie is for professional services rather than for the sale of goods; therefore, it does not fall under the UCC and it is not one of the other types of contractual agreements that fall within the Statue of Frauds (Freidman, 2005). In principle, the contract is enforceable by each party against the other but subject to the ability of the party filing the claim to prove the existence of a valid and enforceable contract. Where the defendant denies ever entering into the agreement, the contract is, for all intents and purposes, unenforceable only because the plaintiff bears the burden of proof to establish that a verbal agreement capable of establishing an enforceable contract existed (Halbert & Ingulli, 2008). Breach of Contract Issues In the first case between Grace and Wiley, a breach of contract by Grace is more enforceable from a practical perspective by Wiley than the reverse situation. If the underlying agreement supports a bilateral contractual obligation, Wiley need only produce the signed document evidencing Grace's acceptance of the terms. However, because Wiley never furnished a signed writing, his breach is more difficult for Grace to enforce.…

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Law Legal System Dispute Resolution

¶ … Legal System//Dispute resolution You are a party (plaintiff or defendant) in a civil lawsuit. You and your attorney are deciding whether you should request that the trial be conducted with a jury. Identify and explain three factors to consider in this decision. From the plaintiff's perspective, a civil lawsuit involving complicated and technical evidence with strong emotional implications will likely be more fairly evaluated by a judge. For example, in cases involving medical malpractice, the sight of a bereaved widow or a child with a severe birth defect might be more emotionally persuasive than hard, cold medical evidence that indicates that there was nothing the physician could do to prevent the tragedy from occurring. If a large corporation is being sued, a jury might even think that the company can 'afford to pay a large settlement' to a defendant who is sympathetic but has a tenuous product safety complaint. Jurors may not ignore inflammatory and inadmissible evidence that a lawyer attempts to 'sneak in,' even if the judge tells them to disregard it when coming to a conclusion. Thus, knowing that the opposing party has a persuasive and grand-standing lawyer might be another reason to take the emotional pull of the other side's case into consideration, and ask for a judge rather than a jury trial. The dangers of emotional appeal are not the only reasons to have a case heard by a judge: cases involving complex legal or scientific matters may simply not be comprehensible to the average juror. Patent disputes, cases involving intellectual property, or arcane aspects of zoning laws might be too detailed (or to dull) to command a jury's full comprehension and understanding. Finally, speed is another consideration: if a speedy decision is desired or necessitated, having a single deciding individual in the form of a judge is likely to yield a swifter decision than a jury trial. Identify and explain the advantages and disadvantages of dispute resolution by litigation, arbitration and mediation Of the three methods of dealing with a dispute, mediation is the least formal. Mediation is non-binding, while in arbitration, the neutral third party often functions as a judge and can make decisions about the type of evidence that is admissible or inadmissible. The advantage to mediation is that all parties get to air their grievances: in some instances, that is the main desire of both parties, who may wish to…

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Application of Justification Defense Under Art 35 of NY Penal Law

¶ … Legal Briefs Abstract/Scenario For the purposes of providing a hypothetical case against which to apply the standards of Articles 35 and 20 of New York's Penal Law, the following scenario is presented, in short summary: Popeye, in defending the honor of Olive Oyl, and after being encouraged by her to take physical action against Bluto, finds himself being beaten to death by Bluto. Ultimately, Olive Oyl, in an effort to save Popeye's life, kills Bluto. Therefore, there are several important questions to consider in regard to these laws and actual precedent. With this in mind, this paper will answer these questions in an effort to better understand these laws and how they apply in theoretical, and actual cases. Olive's Most Serious Crimes from the Viewpoint of a Juror From the viewpoint of a New York juror, there are legal implications that must be taken into consideration when evaluating Olive Oyl's most serious crimes in the incident that led to the death of Bluto. First, in prompting Popeye to physically confront Bluto, Olive has specifically violated Section 20.00 of the New York Penal Code, which states the following: When one person engages in conduct which constitutes an offense, another-person is criminally liab1e for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct (State Of New York, n.d.) " Given the wording of the Code as stated above, Olive wandered into criminality when compelling Popeye to take action, and in possessing the mental capacity to rationally request such action, has implicated herself. At least in theory, both Olive and Popeye possessed not only the mental faculties to reasonably ignore the rude and provocative comments of Bluto, but were required by the letter of the law to do so. Olive's suggestion of physical action, and Popeye's compliance in taking that action, compounded to create a legal and human tragedy. Availability of Justification Defense Under Article 35 of New York Penal Law Olive Oyl's seeming criminality under Article 20 of New York Penal law, while damning, is not the absolute final word in the case; conversely to the accusation of her guilt, there exists a justification defense under the Penal Law's Article 35.05, which provides the following under the heading "Defense of Justification": Unless otherwise limited by the ensuing provisions of this article…

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Individual Rights for a Nation

According to The Chronicle of Higher Education (2005), "Whether it's a Summers, a Churchill, or a worker cleaning a toilet, everyone should have the right to express any and all opinions. The freedoms of thought and speech should be protected universally, for all people. If we make the rights of free speech and thought dependent on context, and give an…

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Adoption (Family Law) by Kansas

Statute 59-2121(a) The traditional costs for the legal and professional services executed inside United States should be equivalent to the costs for legal and professional services executed outside United States. Acceptable expenses for coordinating the adoption implementation (Kansas Adoption Statute, 2005). Statute 59-2121(c) Consciously and deliberately taking evidently undue costs is an offense. Permissible expenditure for Abandoning Child (Kansas Adoption…

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Positive Philosophy in Law Thomas

However, before doing that, it is pertinent that a number of factors are considered. These include what such people think is right or wrong, how they relate to other people, and what they care about. People vary in their propensity to engage in crime just like they vary in their morally and self-control. This underscores the role environment plays in an individual's development. Such factors have to be factored in when handing down sentences to convicts. Some people can take to attacking others and causing significant injury because the environment they stay in makes it a norm. Crimes like battery are linked to temptations and provocations. Certain microenvironments produce higher levels of temptation, provocation, and deterrence than others. Cognizance has to be taken of the fact that certain behavior settings are more criminogenic than others hence offenders who come from certain neighborhood are likely to be tempted or provoked. Such offenders have very weak deterrence. For such offenders, punishments should not be applied across the board because of the difference in circumstances. Necessary steps should be taken to ensure that deterrence is upheld. The pattern of social activities and social relationships can have a bearing on ones morality and self-control. A community's cultural characteristic has profound effect on conditions for social life and control in the community because people who grow up in such communities will develop their individual characteristics relevant to their future propensity to offend (Lahey, Moffitt & Caspi, 2003). Lack of essential resources can constrain human development and action. Individual and institutional resources constitute a community's capital. Communities often vary in their level of resources like access to resourceful relationships, access to and quality of child care, schools and medical facilities (Lahey, Moffitt & Caspi, 2003). Communities with weak social and economic resources are commonly referred to as disadvantaged. Resources that a community has will determine the routine behavior of the community residents (Lahey, Moffitt & Caspi, 2003). Given that community resources are experienced and utilized by community residents in the behavior settings created by community routines, it is probable that lack of education and proper health care can drive somebody into crime. It is extremely difficult to survive in the 21st century without necessary skills. When such people are sentenced, it is important that they are given some vocational training that can make them relevant in the society after serving their sentence to term (Lahey, Moffitt…

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Gustav Radbruch Believed That Positivistic

Hart's opinion may be that Radbruch would have expected that laws against women voting took a position of formulating an objection that because it is evil it is not law. Conclusion In conclusion, this paper discussed positivism. Gustav Radbruch believed that positivistic theory was a more sound foundation for our laws and legal system. He wanted the legal system to not make citizens totally subservient to the system. This work also tried to understand the works of H.L.A. Hart. His more naturalist views were complete opposites of the Radbruch. I believe that Hart did in fact provide adequate responses to the criticisms made by Radbruch. "What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law." (Hart 1958) These questions were answered by offering a detailed view of the legal positivism philosophies. This report addressed these issues. References Alexy, Robert. "Famous scholars from Kiel: Gustav Radbruch." Retrieved on November 3, 2009, from http://www.uni-kiel.de/ps/cgi-bin/fo-bio.php?nid=radbruch&lang=e Hart, H.L.A., The Concept of Law. Second Edition (Oxford: Clarendon Press, 1994) Hart, H.L.A., "American Jurisprudence through English Eyes: The Nightmare and the Noble Dream." reprinted in Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 123-144. Hart, H.L.A., "Book Review of The Morality of Law" 78 Harvard Law Review 1281 (1965) Leawoods, Heather. "Gustav Radbruch: An Extraordinary Legal Philosopher." Retrieved on November 3, 2009, from http://law.wustl.edu/journal/2/p489leawoods.pdf. Hart, H.L.A., Essays on Bentham (Oxford: Clarendon Press, 1982) Hart, H.L.A., "Positivism and the Separation of Law and Morals," 71 Harvard Law Review 593 (1958)…

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Exxon Valdez Case Analysis

Exxon Valdez Case Analysis: Common Law vs. Maritime Law Legal Implications for Tort and Claim Liability Case Details: The Exxon Valdez a massive oil tanker went aground in Alaska, spilling more than 11 million gallons of crude oil into the sound, doing irreparable damage to the environement and subsequently the thousands of fishery and subsidiary industries in the reqgion and…

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Criminal Justice Systems

Transnational Crime Globalization for the most part, has provided a positive new dimension to life. People can chat with others around the world, cultural diversity is being shared on a global business level and parts of the world that used to live in fear of each other now know they have little to fear. With the positive aspects of globalization however, come some negative ones including increased transnational crime (the Explosive Growth of Globalized Crime (http://usinfo.state.gov/journals/itgic/0801/ijge/gj01.htm). Transnational crime is committed in literally thousands of ways. Some examples of transnational crime include the shipment into the U.S. Of the drug Ecstasy, being manufactured in the Netherlands, computer viruses being sent worldwide from one office in the Philippines and large U.S. banks discovering that they have been used in large Russian money laundering operations. Transnational crimes have increased steadily since the advent of the Internet as many crimes can be done from half way around the world with the click of a mouse (the Explosive Growth of Globalized Crime (http://usinfo.state.gov/journals/itgic/0801/ijge/gj01.htm). These examples represent the new face of crime. Certain types of international crime -- terrorism, human trafficking, drug trafficking, and contraband smuggling -- involve serious violence and physical harm. Other forms -- fraud, extortion, money laundering, bribery, economic espionage, intellectual property theft, and counterfeiting -- don't require guns to cause major damage. Moreover, the spread of information technology has created new categories of cyber-crime (the Explosive Growth of Globalized Crime (http://usinfo.state.gov/journals/itgic/0801/ijge/gj01.htm)." For Americans, transnational crimes cause problems in three areas. When illegal immigrants enter the nation with drugs, guns and other contraband and sell it to people in the street, there is no way to track their activities and arrest them before they rush across the border again. In addition, the American business expansion that has opened worldwide opportunities for foreign-based criminals to set up shop costs millions of dollars each year in lost profits and American jobs. Finally the national security of America is threatened every time international criminals plan and carry out their crimes. Examples include the acquisition of weapons of mass destruction, trade in banned or dangerous substances, and trafficking in women and children. Corruption and the enormous flow of unregulated, crime-generated profits are serious threats to the stability of democratic institutions and free market economies around the world (the Explosive Growth of Globalized Crime (http://usinfo.state.gov/journals/itgic/0801/ijge/gj01.htm)." There are several steps that can be taken to reduce the incidence of…

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Damages the Law of Damages Is an

Damages The law of damages is an attempt to establish a standard for measuring any potential monetary award for awarding those meriting compensation for their loss or injuries. There are essentially two primary classifications of damages under the law: tort and contract. The purpose of contract damages is to place the injured party in substantially the same position as he…

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US Supreme Court Case Brief

Taylor v. Crawford Case Citation: Taylor v. Crawford, 487 F.3d 1072 (2007) (United States Court of Appeals, 8th Circuit) Appellants: Larry Crawford, Director, Missouri Department of Corrections; James D. Purkett, Superintendent, Eastern Reception Diagnostic & Correctional Center Appellee: Michael Anthony Taylor Character of Action: Appellants sought review of the decision of the United States District Court for the Western District of Missouri, which granted judgment in favor of appellee in his action under 42 U.S.C. 1983, and determined that Missouri's lethal injection protocol, as outlined in Mo. Rev. Stat. 546.720 was unconstitutional. Facts: Appellee pleaded guilty in the Missouri state trial court to the abduction, abuse, and murder of a 15-year-old victim. He was sentenced to death. He appealed his convictions and his sentence through direct appeal and federal habeas corpus proceedings, but both his convictions and his sentence were affirmed. Appellee then filed an action under 42 U.S.C. 1983, challenging Missouri's three-chemical procedure for lethal injections. At the time of appellee's suit, Missouri intended to use a procedure that involved the use of three chemicals through an intravenous line (IV) placed in the femoral vein. First, the inmate is injected with a 5-gram does of sodium pentothal, which renders him unconscious. Next, the inmate is injected with a 60-milligram dose of pancuronium bromide to paralyze the inmate's muscles. Finally, the inmate is injected with a 240 milliequivalent injection of potassium chloride to stop the heart. Each injection is followed by a sodium flush. Appellee alleged that he would suffer from cruel and unusual punishment because Missouri's injection procedure introduced the risk that he would suffer from pain. Appellee maintained that if the thiopental did not sufficiently anesthetize him, he would feel the burning pain of the potassium chloride as it travels through his veins to induce a heart attack, but be rendered unable to indicate that he was experiencing pain because of the pancuronium-bromide- induced paralysis. The facts included testimony of a Dr. Doe I, the physician who introduced the IV lines for the last six inmates who were executed by lethal injection. His testimony indicated that the execution logs were not always accurate, and that he occasionally deviated from the normal amounts of each chemical. However, in the last six executions, death occurred within five minutes of the introduction of the first chemical. Furthermore, there was no evidence that any prisoner suffered pain beyond the insertion of the…

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Stare Decisis, From the Latin

Judges were drawn from these differing groups and could come up with opposing decisions, even while relying on the same Constitution to determine individual and group rights. Today, pro-choice groups argue that it violates a woman's Constitutional right to privacy to deny her abortion-on-demand. In contrast, pro-life groups argue that it argues a fetus's Constitutional right to life to provide…

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Justice and Good the Concept

" (p. 146) He further adds that all basic rules are influenced by moral standards: "... [I]t cannot be seriously disputed that the development of law, at all times and places, has in fact been profoundly influenced both by conventional morality and ideals of particular social groups, and also by forms of enlightened moral criticism urged by individuals, whose moral…

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Parens Patriae Four Alleged Juvenile

The Indiana Supreme Court agreed that juveniles have a constitutional right to have their competency determined before they are subjected to delinquency proceedings but disagreed that the juvenile code provides no procedure for determining the competency of children. Since the juvenile code "must be liberally construed" to "ensure that children within the juvenile justice system are treated as persons in need of care, protection, treatment, and rehabilitation" (Ind. Code § 31"10"2-1(5)) and since Ind. Code § 31"32"12?1 provides that "the [juvenile] court may also order medical examinations and treatment of the child under any circumstances otherwise permitted in this section," (thereby allowing the juvenile court to order competency evaluations without the specific guidelines of the adult competency statute), the adult competency statute does not apply to children. Use of Parens Patriae The Doctrine of Parens Patriae (Latin: "parent of the country") acknowledges the inherent power/authority of the state to protect individuals legally incapable of acting on their own behalf (Fairlex, Inc., 2013). Though the doctrine was developed in English Common Law, American jurisprudence usually applies Parens Patriae to the state's ability to protect the best interests of children, the mentally ill and other persons who are somehow legally incompetent to manage their own affairs (Fairlex, Inc., 2013). The first two categories are self-explanatory and the third category might include a senile or comatose person, for example. Before discussing whether the courts appropriately applied Parens Patriae, it must be…

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Freedom of Speech Morse v. Frederick -

Freedom of Speech Morse v. Frederick - Freedom of Speech The issue of freedom of speech has very often been misunderstood and misinterpreted by American citizens who believe they can say anything they want or print anything they want in any contest. But as the case of Morse v. Frederick points out, there are limits to what can be stated,…

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Courting Disaster This Response Reviews the Book

Courting Disaster This response reviews the book Courting Disaster: How the Supreme Court is usurping the Power of Congress and the People. In the book, the concept of the Supreme Court in the United States of America is fully explained, giving particular attention to the successes and the failures of the Supreme Court. The others postulate that the growing power of the U.S. Supreme Court, whose initial function was to review laws and ensure their legality, is using its position to actually form and modulate legal rights according to their personal politics. Since the Supreme Court has ultimate authority in terms both of constitutionality and over the types of actions the other two branches can perform without fear of ramification from the Judicial Branch. More and more, the Supreme Court has been found to have usurped its responsibilities and to have tried to implement and enforce laws which are the parameters of the Legislative and Executive Branches respectively. Review: Pat Robertson (2004) wrote his book Courting Disaster How the Supreme Court is usurping the Power of Congress and the People for the explicit purpose of bringing up the issue of Judicial powers and the evidence he sees that this branch of the government is taking over powers which were constitutionally given to either the Legislative or Executive Branch. The author believes that slowly but surely, the United States Supreme Court has forfeited their original purpose and rather than simply decided upon the legality or validity of legislation, are actually becoming a politically biased unit who use the court system to determine morality, values, customs, and the perspective of the American people. First he disseminates the differences between the original constitutional powers granted to the Supreme Court, how they have expanded their powers, and how they have become usurpers as the subtitle of the book accuses. More frighteningly, unlike Congress and the President, the Supreme Court's authority is seldom checked and those who are in positions of power, namely the justices, do not have the same penalties as the other government representatives which further differentiate the power between branches. The Supreme Court, unlike Congress or the Executive Branch, is comprised of members who, once appointed, hold their positions for life (Appel 2009). According to the actual terminology, the justices are to serve only until the point where their judgment might be impeded. They can be impeached but this has never happened…

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Islamic Criminal Justice System to

The integration within the western society mostly go beyond the national systems which parallel between the civil law and the common law are much more important than the practical disparities. For instance, Quebec civil law is identical to the French law that have similarity of ideas with British law and the traditional absurdities of 19th Century regulations; to put it…

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Soviet Law the Legal System

In the United States, if a party fails to present evidence at the trial level that evidence cannot be considered at the appellate level, in Russia, however, appellate courts allow parties to introduce additional information and evidence which was not presented at the trial level (Reshetnikova, 2009, p. 6). Modern Russian courts are evolving and have incorporated European and western legal principles and codified those rules in their statutes, constitution, and civil regulations. However, the Russian court system, like the Soviet legal system, is a complex and political entity. The increasing standardization of Russian law in the modern era has not eliminated the influence of government officials and wealthy businessman in Russia. Two groups which are often exempt from punishment funder the law for various criminal and civil infractions. Of the two court systems, criminal and civil, the Russian civil law system is far more effective. Russian criminal law, like the law of the Soviet Union, is far more likely to be used as a weapon by the government to identify and punish political adversaries (Reshetnikova, 2009). It is interesting and ironic to note that even in a post-communist environment, the Marxist beliefs about the use of the law as a tool of oppression, remain behind and actually manifest themselves in modern Russian law. Although to be accurate, in the modern context, the law can operate in both ways to both assist and oppress Russian citizens. References Berman, J., (1948). The challenge of soviet law. Harvard Law Review, 62(220), pp. 220-264. Dobrin, S., (1956). Some questions of early soviet legal history. Soviet Studies, 7(4), pp. 353-372. Kahn, J., (2008). Law and Legal System of the Russian Federation. Review of Central & East European Law, 33(2), 239-247. Krygier, M. (1990)., Marxism and the rule of law: Reflections after the collapse of communism. Law & Social Inquiry, 15(4), pp. 633-663. Marochkin, S., (2009). Do discrimination and inequality exist in the Russian legal system? International Law, National Legislation and Judicial……

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English Legal System the Sources of Law

English Legal System The Sources of Law and the Development of Equity The phrase "the source of law" can mean both the reason that laws are necessary in a society, as well as the specific and direct procedural influences that have shaped the laws in any given civil society (Slapper & Kelly 2006, pp. 1). The English legal system has…

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Gilbert Law's "Legal Writing, Research, and Analysis"

¶ … Gilbert Law's "Legal Writing, Research, and Analysis" Each profession has its own set of rules and language, and the field of law is no exception. In order to effectively research, analyze, and write about any legal topic, it is imperative to have not only the correct tools, but also the knowledge of how to best use them. One…

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Legal Traditions in American Law. Common Law.

¶ … legal traditions in American law. Common law. Roman law, etc.... compare and contrast the 4 legal traditions Early influences on American law: English, common, civil, and Roman law traditions America was originally a British colony, so it should come as little surprise that the predominant influence upon American law is that of English law, with its system of Parliament and divided governance. England's balance of power between the king and a democratically elected legislature obviously influenced the Founding Fathers, as did Great Britain's early establishment of an independent judiciary. State and federal taxation has its roots in British law's taxation of various independent provinces. William the Conqueror as early as 1066 created a Domesday Survey, that recorded the amount and value of property held by all persons in England "for the purpose of assessing taxes against the owners" (English law, 2008, Law Library). Trial by jury originates in Anglo-Saxon times through a practice known as compurgation "in which accused persons might clear themselves of an alleged wrongdoing by taking a sworn oath denying the claim made against them, and corroborating the denial by the sworn oaths of twelve other persons, usually neighbors or relatives" (English law, 2008, Law library). Trial by a jury of one's peers supplanted the earlier, more barbaric and arbitrary faith-based practices of trial-by-ordeal and trial-by-combat, in which the accused person would be subjected to a trial such as dunking in water and God would decide the accused person's innocence or guilt. Fairness, democracy, and impartiality -- even secularity -- were early characteristics of English law. The establishment of the Magna Carta which defined the rights and legal obligations of the church, nobles, and king was also influential on American law. No one party could infringe upon the rights of the others, and English kings who tried to grow too powerful met with opposition, rebellion and death. For example, in 1649, King Charles I was tried, convicted, and executed for subverting Parliament (English law, 2008, Law library). Another type of law derived from Britain that influenced the Founding Fathers was that of common law. Common law, as opposed to formal, written English documents like the Magna Carta is "the ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts" (Common law, 2008, Law Library). In practical terms, this means that custom and past interpretations guide…

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Procurement the Law Is Both

he FAR precludes agency acquisition regulations that unnecessarily repeat, paraphrase, or otherwise restate the FAR, limits agency acquisition regulations to those necessary to implement FAR policies and procedures within an agency, and provides for coordination, simplicity, and uniformity in the Federal acquisition process. It also provides for agency and public participation in developing the FAR and agency acquisition regulation. Recommendations It appears that the company should operate in a matter that should limit the exposure to these complicated and complex sets of regulations. A negotiated settlement appears to be the best position to take. If this position is unattainable it would be wise to argue from a contractual law standpoint and find errors and loopholes within the contract to exploit. This is not the preferred approach legal battles may cost much in legal fees and distract from more important aspects of the maintaining a competitive advantage within the industry. The aforementioned aspects of the legality of procurements and purchasing contracts is only a brief summary of a much larger and sophisticated legal battle of words and meanings that must be fought out in a court of law. This decision be based upon your confidence in your legal teams ability to maneuver and succeed at the legal arts. References Brown, G. (2009). Procurement and the Project Manager. Project Times, 15 April, 2009. Retrieved from http://www.projecttimes.com/articles/procurement-and-the-project- manager.html The Federal Acquisition Regulation (FAR) (2005). Viewed on 30 July 2013. Retrieved from http://www.acquisition.gov/far/ Gabbard, E. (1996). The UCC as A Tool for Procurement Professionals. Institute for Supply Management, Viewed 30 July 2013. Retrieved from http://www.ism.ws/pubs/Proceedings/confproceedingsdetail.cfm?ItemNumber=10033 Larson, A. (2003). Contract Law- An Introduction. Expert Law, October 2003. Retrieved from http://www.expertlaw.com/library/business/contract_law.html Rasmusen, E. (2001). Agency Law and Contract Formation. Discussion Paper No. 323, Harvard Law School, May 2001. Retrieved from http://www.law.harvard.edu/programs/olin_center/papers/pdf/323.pdf The Uniform Commercial Code. Viewed 30 July 2013. Retrieved from http://www.law.cornell.edu/ucc/ucc.table.html…

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Ethical and Legal Perspectives in Health Care

Ybarra vs. Spangard Case Study The issue of negligence is of paramount importance within a capitalistic societal structure, because as citizens engage in the open exchange of services, the party conducting commercial activities, medicinal practice, or other specialized activities bears a certain responsibility in terms of adhering to a basic standard of conduct. American jurisprudence provides for a clear system…

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Legal Transplants the Objective of

" (p.10) According to Oguz this adoption should be held as a "continuing, living social process from the adoption point forward." (p.10-11) Oguz reports that soon following the Swiss Code being passed, "the law of obligations, commercial law, regulations, and laws of judgment and execution were passed and Turkey became a member of the western legal family." (2005, p.10) It is stated however, that it would take time for the legislative law to be adopted as the law of Turkey. While it was expected by the legislature that the judges in Turkey would use the theoretical background and flexibility of the Swiss code" and that this would morph into a national legal system difficulties arose in application of the law and noted as the first of difficulties with interpreting the language of the Turkish Code. (Oguz, 2005, paraphrased) The method used was a conceptual rather than literal interpretation of the code and it is reported that the primary responsibility of the new legal system adaptation was assigned to students pursuing theory and legal education resulting the accomplishment of this mission in what is described as a "a step-by-step manner." (Oguz, 2005, p.12) II. China The word transplantation in the Chinese language has two primary meanings: (1) grafting, which "in a botanical sense, refers to botanical transplantation; and (2) technological transplantation, which refers to a particular organ or body part of human beings. (Dai, 2009, p. 1) However, in regards to legal transplantation there are reported to be a diversity of views that exist and one being that legal transplantation is "followed by the identification, recognition, adaptation, integration, based on the introduction, absorption, adoption, uptake, assimilation of foreign law (including the legal concepts, technology, norms, principles, systems and legal concepts, etc.)." (Dai, 2009, p.1) The work of Arlanwosen, a British legal history scholar writes that legal transplantation means "a transition of legal systems from one country to another country, or from one family to another family." ( p. ) It is reported that the constitutional framework which was published in 1908 provided the "rights and obligations of citizenship" which are stated to be "subject to the principle of all speeches, all press, all assembly, all association, all quasi, are all free." (Dai, 2009, p.1) By 1911 the Constitutions was already immersed into the emperor's creed and by the end of the Qing Dynasty, "legal transplantation was related to the structure of…

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Administrative Law & Due Process

The revolution that has occurred with regard to interpretation of due process cases has become even more complex with the burgeoning outsourcing of government functions to private entities. The considerations are of both authority and responsibility since the source of any deprivation of constitutional rights must be determined, and as in American Manufacturers Mutual Insurance Company v. Sullivan (1999), issues…

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Lincoln Lawyer by Michael Connelly

Employing this approach, Haller zealously litigated and advocated on Roulet's behalf throughout trial, even though he began to detest his dishonest client, believing him to be guilty. Haller pursued an excellent defense at trial even though he began violating his own rule to ignore the irrelevant question of whether a client was guilty. Haller's continued advocacy on Roulet's behalf demonstrates Haller's commitment to defense work -- if Haller had wished to end his employment for Roulet based on his suspicion of Roulet in the murder of his investigator and other conflicts within their relationship, he could have requested permission from the court. Per the California Rules of Professional Conduct, with the court's permission, an attorney may withdraw from representing a client if the client renders it unreasonably difficult for the attorney to carry out the representation effectively.[footnoteRef:-1] [-1: Cal. Rules of Professional Conduct, rule 3-700] Ironically, Haller declined to zealously advocate and pursue a defense at jury trial for Jose Menendez, an incarcerated past client. Like Roulet, Mendendez had also insisted on his innocence to the charge of murder, but Haller failed to recognize his innocence. Haller had convinced Menendez, who was in fact, innocent, to plead guilty rather than go to trial. With his discovery of Mendendez innocence, in connection with his discovery of Roulet's guilt, Haller was haunted by the words of his lawyer father: " the scariest client a lawyer will ever have is an innocent client. Because if you fuck up and he goes to prison, it'll scar you for life." (p. 100). Menendez was later released and brought a malpractice action against Haller. Through defense investigation and communications with Roulet, Haller learned that Roulet had killed people in the past, and Haller suspected that Roulet killed his investigator, Levin. However, Haller has a duty of confidentiality to his client. As a general rule, communications between an attorney and client during the course of professional representation are confidential. This means that the client has a privilege to refuse to disclose, and to prevent others from disclosing, most information communicated between him and his attorney. Even if a client such as Roulet confesses that he committed the charged crime, or that he committed murders in the past, the rules of professional conduct prohibit an attorney from disclosing such information if he learned it within the scope of legal representation. Fortunately for Haller, the attorney-client privilege ceases when…

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Moral and Legal Questions of

In reverse order, the supporters of critical legal studies are most represented by the scientists, and those who financially back them. These men and women are pressing on into the work regardless of governmental regulation, or threats over financial assistance. Their view is that this research holds positive benefits for mankind, so it should progress to bring those benefits to…

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Dworkin on Legal Construction the Law-As-Integrity Approach

Dworkin on Legal Construction The Law-as-Integrity Approach to Jurisprudence Ronald Dworkin presents a view of legal constructivism predicated on the notion of congruence between laws and moral justice to which he refers as law as integrity. In the legal context, integrity means that laws are more appropriately driven by objective principle and not by policy implications; stated another way, the law must be true to principle rather than fit to factual circumstances and desired outcomes in specific cases. Dworkin also argues that judges must not interject their own opinions and beliefs into the law or into decisions requiring the correct interpretation and application of existing laws to factual situations before courts of justice. According to Dworkin, it is never the case that "reasonable minds may differ" about the correct interpretation of law or of the implications of correctly applying formal laws to cases before them. Rather, Dworkin maintains that the law always provides the means to identify the correct answer; the principal role of the judge is therefore to accurately interpret and then correctly apply the law to factual situations in legal disputes. In that regard, Dworkin very specifically rejects the proposition that there are any "gaps" in the law. Dworkin employs several conceptual arguments to support his approach to legal construction and jurisprudence. He explains the evolution of law through the continual contributions of judges over time with an analogy about writing novels; he illustrates what is meant by the notion of objective analysis through a hypothetical "perfect" judge; and he uses an old English case to argue for balancing the moral equities in laws whose purpose it is to benefit society. The Chain Novel and Objective Rightness of Legal Decisions and Applications To provide an analogy for understanding the way that the law evolves over the course of jurisprudential history, Dworkin describes the process of writing a "chain novel" whereby different authors collaborate to write successive chapters of a novel one at a time. The second author is constrained in that the second chapter may build upon and develop ideas from the first chapter, but it must not conflict outright or be logically or historically inconsistent or irreconcilable with anything in the first chapter. Each successive author is more constrained by the details added in the series of prior chapter. The law develops the same way through the continual addition of new "chapters" by judges who are necessarily…

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Legal Issues in Miranda v. Arizona, 384

¶ … Legal Issues in Miranda v. Arizona, 384 U.S. 436 (1966) The issues and their importance Justice Warren summarized the issues in the case in the opening paragraph of his opinon, saying that the opinion would decide questions about "the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures…

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Legal Encounters Involving a Fictional Company Newcorp

Legal Employment Scenario Employment Law Scenarios: Legal Encounter The scenario described in the first Legal Encounter suggests an inconsistency on the part of Newcorp. To the defense of Newcorp, its general policy of maintaining employees at will was designed to afford it greater latitude in maintaining, advancing or dismissing personnel where deemed necessary. And according to the legal premise of this status, it should be seen as the company's right to provide as much or as little notice and justification for its decisions to terminate as it determines necessary. However, the at will policy is essentially a passive policy, meaning that it remains a latent reality for an employee unless other pretenses have been explicitly provided stating otherwise. In the case of Newcorp, its Personnel Manual does provide explicit detail of the policy and procedures relating to the employee's potential dismissal. As a mode of offering some job security assurances, this becomes something of a more binding policy. Indeed, failure to adhere to the requirement to provide an employee with proper notice of a dissatisfaction with performance may suggest to Mr. Grey that he had been hired and courted away from another position and location under false pretenses. Evidence suggests that a failure on the part of Newcorp to engage even nominally the steps preceding entitlement for termination manifests as a legal failure. Mr. Grey's challenge is made all the more potent by his claim that political and personal views related in the public forum and outside of the work space may have contributed to his abrupt dismissal. While there may be no way for us to establish the veracity of this claim, in light of other failures in abiding due process when approaching Mr. Grey's dismissal, these claims strengthen his position that he was dismissed on false or legally unjust grounds. This constitutes a liability on the part of Newcorp connecting Grey's termination to some of the conceptual protections that may exist for those working under at will conditions. Namely, "if permitted in the particular state, at-will employees file cases based upon torts, which are alleged wrongdoing by the employer. For example, an employee may file a case based upon wrongful termination with a malicious motive, intentional infliction of emotional distress and invasion of privacy, among others." (Jessica, 1) for Newcorp, this denotes a necessity to determine whether its state of primary operation provides such tort prospects. Given that…

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