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Natural Law Legal Jurisprudence Term Paper

Term Paper  |  2 pages (583 words)
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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…… [read more]


Criminal Justice Legal Issues International Law Term Paper

Term Paper  |  5 pages (1,861 words)
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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.… [read more]


Rule of Law and Extra-Legal Term Paper

Term Paper  |  4 pages (1,160 words)
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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 the obtaining of certain licenses or concessions, and generally consists of the absence of previous records on (e.g.) crimes, bankruptcy, political or commercial irregularities. In some systems, the lack of morality of the individual can also be a sufficient cause for punishment, or can be an element for the grading of the punishment. Especially in the systems where modesty (i.e., with reference to sexual crimes) is legally protected or otherwise regulated, the definition of morality as a legal element and in order to determine the cases of infringement, is usually left to the vision and appreciation of the single judge… [read more]


Influence Natural Law Has Had on the American Legal System Term Paper

Term Paper  |  5 pages (1,283 words)
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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 beings are free and equal but they are not comfortable in that freedom so they surrender enough of their rights to society that provide them with that security.

This natural rights theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States Declaration of Independence (Dolhenty, 2004)."

This provides a measurable backdrop to the question of natural law and how it impacts the American legal system.

NATURAL LAW AND THE AMERICAN LEGAL SYSTEM

Natural law in its most… [read more]


Origins and Characteristics Essay

Essay  |  9 pages (2,347 words)
Bibliography Sources: 10

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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… [read more]


Legal Positivism and Australian Law Term Paper

Term Paper  |  7 pages (1,857 words)
Bibliography Sources: 1+

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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,…… [read more]


Legal Jurisprudence Term Paper

Term Paper  |  2 pages (508 words)
Bibliography Sources: 2

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¶ … 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…… [read more]


Jurisprudence as a Theory Term Paper

Term Paper  |  7 pages (2,009 words)
Bibliography Sources: 1+

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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 can avoid the inevitable pitfalls of codified laws in an effort to understand the meaning of laws in a just and free society. To suggest otherwise is tantamount to advocating the repression, subjugation and suppression of other competing interests in society.

References:

Austin, John (1832/1995), The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge: Cambridge University Press) (first published, 1832).

Nmsu (2010). Online article found at http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf

Wong: http://conwayhwong.blogspot.com/2007/12/natural-law-theory-vs.-legal-positivism.html

Terrence Irwin, trans. Nicomachean Ethics, 2nd Ed., Hackett Publishing

Internet Encyclopedia of Philosophy (2010). Legal Positivism. Retrived from: http://www.iep.utm.edu/legalpos/… [read more]


Rule of Law Legitimate? Term Paper

Term Paper  |  5 pages (2,254 words)
Bibliography Sources: 1+

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(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… [read more]


Natural Law Essay

Essay  |  6 pages (2,202 words)
Bibliography Sources: 1

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¶ … 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… [read more]


Law Legal System Contracts Essay

Essay  |  3 pages (1,016 words)
Style: MLA  |  Bibliography Sources: 2

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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. Provided the underlying terms are sufficient to create a valid contract but for the Statute of Frauds issue, Grace can still recover against Wiley if Wiley happens to admit to the existence of a contractual agreement in his pleadings or statements under oath (Freidman, 2005). If Wiley breaches, Grace would be seeking the remedy of the compensation for any benefit of the bargain lost, such as where she subsequently ends up paying more for the same product. If Grace breaches, Wiley would be seeking his lost profit from the sale.

In the second case between Grace and Eddie, the contract… [read more]


Law Legal System Dispute Resolution Essay

Essay  |  2 pages (924 words)
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¶ … 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 avoid the expense and the time-consuming process of litigation. However, the close personal contact necessitated in mediation can also inflame tensions and result in more, rather than less ill-will, such as in the case of persons negotiating child custody after divorce. The mother or father might simply become angrier, upon being confronted with a former spouse. An overly informal mediation process can…… [read more]


Application of Justification Defense Under Art 35 of NY Penal Law Term Paper

Term Paper  |  5 pages (1,316 words)
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¶ … 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 defining justifiable use of physical force, conduct. which would otherwise constitute an offense is justifiable and not criminal when:

I. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed. through no fault of the actor, and. which is of such gravity that, according to ordinary standards of… [read more]


Individual Rights for a Nation Term Paper

Term Paper  |  10 pages (3,112 words)
Bibliography Sources: 8

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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… [read more]


Adoption (Family Law) by Kansas Term Paper

Term Paper  |  8 pages (2,286 words)
Bibliography Sources: 1+

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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… [read more]


Positive Philosophy in Law Thomas Essay

Essay  |  2 pages (901 words)
Bibliography Sources: 1+

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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 & Caspi, 2003).

References

Lahey, B.B., Moffitt, T.E. & Caspi, A. (2003). Causes of Conduct Disorder and Juvenile

Delinquency. New York: Guilford Press.

Murphy, J.B. (2005). The philosophy of positive law: foundations of jurisprudence. New…… [read more]


Gustav Radbruch Believed That Positivistic Term Paper

Term Paper  |  5 pages (1,848 words)
Style: MLA  |  Bibliography Sources: 6

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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)… [read more]


Exxon Valdez Case Analysis Research Proposal

Research Proposal  |  10 pages (3,133 words)
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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… [read more]


Criminal Justice Systems Term Paper

Term Paper  |  4 pages (1,086 words)
Bibliography Sources: 1+

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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 transnational crime in the world. One of the first things America has begun to do is to provide more international law enforcement agencies trained to recognize and prosecute crimes of an international nature.

The next step taken was to secure the United States borders more stringently than has been attempted in years. Enhanced inspection, monitoring and detection at the border and shores help to reduce transnational crimes.

Trade crime can be reduced through detection of illegal technological exports as well as a closer monitoring and protection of intellectual rights (the Explosive Growth of Globalized Crime (http://usinfo.state.gov/journals/itgic/0801/ijge/gj01.htm).

Research has shown that… [read more]


Damages the Law Term Paper

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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… [read more]


US Supreme Court Case Term Paper

Term Paper  |  4 pages (1,225 words)
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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 IV. Dr. Doe I verified that inmates were unconscious by observing their facial expressions through glass.

Appellee's witness, Dr. Heath, questioned the qualifications of Dr. Doe I, a board certified surgeon, to oversee the induction of general anesthesia. Dr. Heath believed that a humane execution under Missouri's three-prong protocol, would require a state of anesthesia deep enough for surgery. He also suggested that dosage level alone is not enough to ensure that a patient is anesthetized, and believed that independent monitoring was necessary. Dr. Henthorn, another of appellee's experts, testified that a deeper level of anesthesia than that required for… [read more]


Stare Decisis, From the Latin Term Paper

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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… [read more]


Justice and Good Term Paper

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" (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… [read more]


Parens Patriae Four Alleged Juvenile Article Review

Article Review  |  2 pages (580 words)
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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… [read more]


Freedom of Speech Morse v. Frederick Term Paper

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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,… [read more]


Courting Disaster This Response Reviews the Book Book Review

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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 in the history of the United States. Consequently, when a person becomes a Supreme Court Justice, he or she will more than likely keep that job for the rest of their life, regardless of a change of regime or national attitude.

According to Robertson, the major evidence which supports his thesis has to do with whether or not the justices are actually doing what it is they were appointed to do. Namely, the Supreme Court justices are tasked with reading the constitution and interpreting it according to what the document actually says. However, more and more the justices are making… [read more]


Islamic Criminal Justice System Term Paper

Term Paper  |  10 pages (3,747 words)
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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… [read more]


Soviet Law the Legal System Research Paper

Research Paper  |  5 pages (1,661 words)
Bibliography Sources: 3

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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…… [read more]


English Legal System the Sources of Law Essay

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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… [read more]


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

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¶ … 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… [read more]


Legal Traditions in American Law. Common Essay

Essay  |  2 pages (852 words)
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¶ … 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 current judicial interpretation, not merely the 'letter of the law.' "Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a…… [read more]


Procurement the Law Essay

Essay  |  7 pages (1,833 words)
Bibliography Sources: 5

SAMPLE TEXT:

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… [read more]


Ethical and Legal Perspectives in Health Care Case Study

Case Study  |  4 pages (1,405 words)
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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… [read more]


Legal Transplants Term Paper

Term Paper  |  4 pages (1,318 words)
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" (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 the bourgeois, the penalty system, probation, parole, timeliness and principle of statutory crimes." (Dai, 2009, p.1) Legal transplantation has enriched the legal culture of China.

Summary and Conclusion

Legal transplantation is the rendering of cultural, societal and religious beliefs into a cohesion with the legal system of a country. In the country of Turkey, this process is met with inflexibility but with dodged determination to apply the Swiss Code to Turkish legal matters, however, in the country of China the process was much smoother. This is because the entire legal system is somewhat transplanted or formulated from influences outside of… [read more]


Administrative Law & Due Process Essay

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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… [read more]


Lincoln Lawyer by Michael Connelly Book Report

Book Report  |  3 pages (1,191 words)
Bibliography Sources: 1

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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 a client brings a malpractice action against his attorney. Thus, when Roulet later ends up suing Haller, Haller can properly breach his duty of confidentiality.

There is another exception to the confidentiality rule: an attorney may reveal confidential information relating to the representation of a client if the attorney reasonably believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm to another.[footnoteRef:0] Therefore, when Haller reasonably believed that Roulet was going to harm his family, he could have informed the police instead of conspiring to have a motorcycle gang assault Roulet.… [read more]


Moral and Legal Questions Term Paper

Term Paper  |  10 pages (3,247 words)
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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… [read more]


Dworkin on Legal Construction the Law-As-Integrity Approach Essay

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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 constrained by the decisions, definitions, and determinations of all of the judges whose case decisions precede their "new chapters."

One of the concepts that Dworkin sets out to explain is the notion of objective truth or objective rightness and wrongness. Dworkin maintains that the role of judges is not to make law by imposing their independent values in interpreting and applying the law. Their proper role in that capacity is to understand what the law means, to determine the most nearly-perfect application of legal principles with integrity in relation to the values and maximum possible benefit to society, and in… [read more]


Legal Issues in Miranda v. Arizona, 384 Term Paper

Term Paper  |  5 pages (1,799 words)
Bibliography Sources: 4

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¶ … 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… [read more]


Legal Encounters Involving a Fictional Company Newcorp Research Proposal

Research Proposal  |  4 pages (1,318 words)
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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 the connection which Grey has made between his political views and his termination is more concretely stated than the cause for termination on the part of Newcorp, it is reasonable to believe that court would be willing to hear the case arguing an invasion of privacy or the presence of malicious motive in termination.

Legal Encounter 2:

The legal conditions relating to Paula's mistreatment, obstruction from advancement and general experience of hostility at the workplace reflect something of a clearcut case of sexual harassment on the part of Sam. Both in terms of the gender discrimination evidenced by the claim… [read more]


Legal Positivism Term Paper

Term Paper  |  2 pages (610 words)
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Law Theory

Legal Positivism

My recent trip to Pango-Pango, a remote island, was literally a treasure hunt in terms of the law. Admittedly, my first reaction upon finding human beings living on Pango-Pango was that there would be no semblance of an organized society, let alone any legal conventions, but I was mistaken.

The task that I faced in regard to my expedition, as I understood it, was to travel to the island, determine if there were people living on the island, and to find out what types of rules existed among the people to maintain order and protect individuals from the improper conduct of others. With this understanding in mind, I observed the people with a totally open mind, and soon discovered several elements in place among these people that gave every indication of legal positivism, because of the specific aspects of the people of Pango-Pango which matched those of positivism itself.

First, I observed that the people of the island all deferred to one of the oldest men on the island; his clothing was more elaborate than that of the others, and he was the one who closely evaluated me and my party upon our arrival, with no one else approaching us until he gave the permission to do so. Immediately, I associated this hierarchy with the Pedigree Thesis of positivism, which states that the cornerstone of a legal society is the authority of a sovereign, who is viewed as the leader and the source of the order in the society. Finding this in place, I had an inclination that there would be at least something resembling law in this society. Upon closer examination, this inclination became much more of a fact.

My second observation, which lent itself to further belief that laws were in place, was the fact that even as an…… [read more]


Shipping Law Working for Peanuts: A Case Term Paper

Term Paper  |  11 pages (2,903 words)
Bibliography Sources: 7

SAMPLE TEXT:

Shipping Law

Working for Peanuts: A Case Study of International Shipping Liability, Responsibility, and Property Transfer

The globalized world of business that currently exists has led to a variety of new opportunities and advantages for companies and consumers in many countries, but has also created complex challenges to the conducting of business in a secure, efficient, and reliable manner. Evidence… [read more]


Florida Negligence Analysis Legal Claims Research Paper

Research Paper  |  4 pages (1,203 words)
Bibliography Sources: 5

SAMPLE TEXT:

It is foreseeable that car collisions cause injuries to drivers and passengers. Thus, Ann was the proximate cause of his leg injury.

Damages

The final necessary element is damages. The plaintiff must have suffered an injury. The injury can be physical, financial, or damage to property. Here, Cal suffered serious injury to his legs that resulted in both legs being amputated. So, Ann is liable for any and all expenses, pain and suffering, and subsequent loss of income resulting from this injury.

Negligence- Doctor

The third claim that Cal can bring is negligence against the Doctor. The specific type of negligence in this case is commonly referred to as medical malpractice. Negligence is the failure of an individual to use reasonable care. Under Florida law, negligence has four components that must be met in order for damages to be obtained.

Legal Duty

A plaintiff must prove that the negligent person had a legal duty to use reasonable care in protecting the injured person. Under Florida law, the requirement is that the standard of care is one of a "reasonably prudent person." The standard of care specifically would be a reasonably prudent doctor. Here, the doctor owes Cal a duty to perform the surgery without any incidents and according to standard surgical protocol.

Breach of Duty

The second requirement is that Cal prove that the doctor breached this duty. A breach of duty is failure to conform to the standard of care. Here, the doctor performed the surgery but accidentally left a metal clamp in Cal's leg.

Under Florida law, this matches the criteria of a legal concept known as "Res Ipsa Loquitor" or the thing speaks for itself

. Here, medical instruments are never to be left in patients. The fact that the instrument was found and subsequently removed is proof that the doctor breached his legal duty. No further evidence of breach is required.

Causation

The third requirement is causation. In a res ipsa loquitor case, there is causation in fact. Cal would not have suffered the pain or required a subsequent surgical removal of the clamp were it not for the Doctor's negligence. Thus, causation is directly proven.

Damages

The final necessary element is damages. The plaintiff must have suffered an injury. Here, Cal suffered great pain after the surgery until the instrument was found. He also had to undergo another surgery to remove the medical instrument. Thus, Cal has clear damages from the incident.

Under Florida law, Cal can fully recover his physical damages for the actual surgery. Cal is limited, however, to only collecting $500,000 for his pain and suffering. Additionally, because this was a clear res ipsa loquitor case, Cal can also recover up to $500,000 in punitive damages

Conclusions

Cal has three legitimate claims that he can file and collect damages for. Cal can file against Abe for causing the accident and the minor injury to his head. Cal can file against Ann for causing the second collision and the subsequent amputation of his… [read more]


Business Law Final the Case Term Paper

Term Paper  |  5 pages (1,569 words)
Bibliography Sources: 1+

SAMPLE TEXT:

In this aspect, John and Shady Sam are in violation of fraud statutes. As a result, both should be arrested and charged with fraud for their involvement in the illicit transaction.

What conclusion should be drawn?

The conclusion that can be drawn from these events is that John has a pattern of knowingly violating the law. This is troubling, as this trend will continue until he is stopped. As a result, John should be arrested initially on attempted murder and assault. Once this takes place, is when prosecutors can begin including federal charges against him. At the same time, they can work with state to coordinate their case. This will make it harder for John to claim that he is the victim of overzealous prosecution. Instead, the government can show that he is the head of a criminal enterprise (which he created and runs for his own benefit).

Works Cited

"18 U.S.C. § 371." U.S. Justice Department, 2012. Web 7 May 2012

"18 USC Chapter 96." Cornell Law School, 2011. Web. 7 May 2012

"Attempted Murder." U.S. Legal, 2012. Web 7 May 2012

"Fraud Laws." U.S. Legal, 2012. Web. 7 May 2012

"Summary of State Laws." Born Free USA, 2010. Web. 7 May 2012

"Uniform Commercial Code." Cornell Law School, 2012. Web. 7 May 2012

Larson, Aaron. Assault and Battery. Expert Law, 2003. Web. & May 2012 [read more]


Sports Law Essay

Essay  |  5 pages (1,534 words)
Style: Harvard  |  Bibliography Sources: 5

SAMPLE TEXT:

These individuals have shown that they can effectively compete against men. (Women Still Setting Sights 2011)

However, there are still many events (such as: the Masters) that are for men exclusively. Moreover, no one woman has been able to play consistently on the men's tour. Instead, women have played with PGA and then returned to the LPGA at some point. In the future, some of younger women golfers are focusing on breaking these barriers. (Women Still Setting Sights on PGA Tour 2011)

This is showing how discrimination law is focused on giving women the same opportunities to compete against men. Over the course of time, more women are breaking through cultural and traditional barriers in the world of sports. Golf is one area where these changes are becoming increasingly pronounced. This works in conjunction with various discrimination laws (i.e. Sexual Discrimination Act of 1984). These elements are providing women with the opportunities to achieve these objectives. (Topic 9, 2012) However, in some cases the law also allow for women to be excluded if they are at a physical disadvantage. As a result, golf is one of the sports where this does not apply.

References

Topic 5, 2012.

Topic 6, 2012.

Topic 9, 2012

Waverly Municipal Council v Swain, 2003.

Waverly Municipal Council v Swain, 2007.

Women Still Setting Sights, 2011, Golf Today. Available from: [13 June 2012]…… [read more]


Legal System: Where Laws Term Paper

Term Paper  |  2 pages (919 words)
Bibliography Sources: 1+

SAMPLE TEXT:

S.

The term 'crime' could be defined as any action or omission which is being banned by the law. Most of the states differentiate among the various kinds of crimes. (Survey of Criminal Justice: Chapter Four -- Crime) Crimes are brought into classification in several varieties of ways namely -- common law crimes against statutory crimes, and crimes which are mala in se against which are mala prohibita. (Criminal Law: encarta.msn.com) The most commonly found classifications are between misdemeanors and felonies. A misdemeanor is a minor crime which the state punished by confinement for less than a year and this is normally found in a local jail. A felony on the other hand is a more serious crime whereby the state punishes by means of death or incarceration for more than a year, and it is normally found in a state prison. A crime is a wrong which is committed against the entire society. (Survey of Criminal Justice: Chapter Four -- Crime)

The term 'degree of crime' pertains to the differentiations in the culpability of a crime due to the environment which is prevailing around which leads to its commitment. Crimes are at times classified on the basis of their nature into crimes mala in se and crimes mala prohibita. The first class deals with those activities which are considered to be immoral or wrong, or which are naturally evil inclusive of rape, murder, burglary, arson, larceny, etc., The latter class deals with those activities whcih are not naturally evil but are banned by statute since they infringe on the others rights. (Criminal Law, Law: Divisions and Codes) In our federal system of government, it is quite possible for an individual to perform crimes against the State and also against the U.S. When an activity violates the laws prevailing in both state and federal governments, then the constitutional matter of jurisdiction would be brought into focus. The states would maintain law-making powers which are not particularly provided to the congress. Hence, most of the criminal laws are created and enforced by the state. (Survey of Criminal Justice: Chapter Four -- Crime)

References

Criminal Law, Law: Divisions and Codes. Retrieved from http://reference.allrefer.com/encyclopedia/C/criminal-classification-of-crimes.html Accessed on 1 June, 2005

Criminal Law. Retrieved from http://encarta.msn.com/encyclopedia_761557653_3/Criminal_Law.html Accessed on 1 June, 2005

Introduction to the United States Legal System. Retrieved from http://tenant.net/Court/Legsystm/uslawsum.html Accessed on 1 June, 2005

Survey of Criminal Justice: Chapter Four -- Crime. Retrieved from http://www.iejs.com/Survey_of_CJ/CH04.htm Accessed on 1 June, 2005

Understanding the U.S. Legal System. 2001. Retrieved from http://calbar.ca.gov/calbar/pdfs/publications/legalliteracy2001.pdf Accessed on 1 June, 2005… [read more]


Evolution of Commercial Law From the 18th Century to the Current International E-Commerce Era Research Paper

Research Paper  |  15 pages (4,491 words)
Bibliography Sources: 11

SAMPLE TEXT:

¶ … evolution of commercial law from the eighteenth century to the current international e-commerce era, with an eye towards specific crises and responses that led to formation of the current system of general commercial law. These crises include the conflict between national law and the law merchant during the eighteenth century, the emergence of negotiable instruments in the early… [read more]


Sarah's Legal Adviser Essay

Essay  |  6 pages (1,904 words)
Bibliography Sources: 15

SAMPLE TEXT:

To this end, the procurement of date-stamps and other signifiers from Sarah's voicemail service or cellular phone provider is crucial, because if it can be shown that she was unaware of Barry's tender of

9 Ex-parte Fealey (1897) 18 LR (NSW) L. 282.

acceptance to the purchase without a warranty, there can be no determination of contractual obligation on her part.

When the facts of this case are clearly elucidated, it becomes clear that the only legally enforceable contract entered into by Sarah involves her sale of the laptop for $1,200 to Aiden. After waiting until the end of the week, as per her promise to Barry, Sarah spoke directly to Aiden via telephone, and he tendered an offer to purchase the item above its listed selling price. Furthermore, Aiden never asked for a warranty to be included, providing Sarah with the opportunity to accept his offer effective immediately. When the funds were transferred from Aiden's account to Sarah's on Monday morning, the deal became an executed agreement as per the precedent of certainty established in 196710, and reaffirmed in a 1982 case which preserved the common law precept that courts should act to give primacy to the priority of upholding agreements11.

In order to find Sarah in breach of a contract with Barry, thus awarding Barry ownership of the laptop in exchange for $1,000, a judge would be forced to nullify the contract rightfully entered into by Sarah and Aiden in order to transfer possession of the property. This action would undoubtedly compel Aiden to file his own suit for breach of contract against Sarah, and when two competing claims of contractual validity are made simultaneously, only that which can prove agreement (phone conversation on Friday between Sarah and Aiden), consideration (transfer of $1,200 into her account), capacity (Aiden's status as a mentally competent adult), and intention (Sarah's immediate acceptance of Aiden's offer) should be enforced.

10 F & G. Sykes (Wessex) Ltd. v Fine Fare Ltd. (1967) 1 Lloyd's Rep 53 at 57.

11 Meehan v Jones (1982) 149 CLR 571 at 589; 42 ALR 463 at 473.

References

Australian Woollen Mills Pty Ltd. v Commonwealth (1954) 92 CLR 424 at 457 per the Full High…… [read more]


Criminal Law Due Process Research Paper

Research Paper  |  5 pages (1,635 words)
Bibliography Sources: 5

SAMPLE TEXT:

It also depends on factors of law that pertains to the rights of the individuals. These factors are used by judges to determine what due processes are required for each case.

Due process protects citizens against abusive actions that can come from government officials in respects to legality of law. The abusive actions can deprivation of rights, such as not making the citizen aware of rights when trying to make an arrest for a crime. It can also be the official making claims without proper evidence to prove guilt beyond reasonable doubt. The fair procedure requirement of due process also works to ensure innocent citizens are not required to answer for crimes they did not do.

The functions of due process in criminal law are important to ensure the legality and fairness of procedures when dealing with crimes committed by criminals. Due process ensures that criminals are not mistreated and just pay for what they do by serving consequences the judge renders in each case. The fairness in procedures help to ensure that government, whether federal or state, are within the confines of the U.S. Constitution when dealing with the punishment for crimes being committed. It also ensures that victims of crimes are treated fairly in the ensuring that justice is served.

Bibliography

Criminal Procedure. (2010, August 19). Retrieved from Cornell University Law School: http://www.law.cornell.edu/wex/criminal_procedure

Due Process of Law - Substantive due Process, Procedural Due Process, Further Reading. (2013). Retrieved from JRank: http://law.jrank.org/pages/6315/Due-Process-Law.html

Fifth Amendment. (n.d.). Retrieved from Cornell University Law School: http://www.law.cornell.edu/we/fifth_amendment

Procedural Due Process. (n.d.). Retrieved from University of Missouri: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/proceduraldueprocess.html

Strauss, P. (n.d.). Due Process. Retrieved from Cornell University Law School: http://www.law.cornell.edu/we/due_process… [read more]


Law Enforcement Essay

Essay  |  7 pages (2,489 words)
Bibliography Sources: 3

SAMPLE TEXT:

Such is the case here.

All occupants of vehicles are considered seized under the Fourth Amendment, according to Brendlin v. California (2007, 551). This traffic stop became a bit more problematic when the officers ordered the occupants to show their hands, thus revealing an active suspicion of a possible danger to the officers. The order to show their hands though,… [read more]


Business Law: Arbitration Agreements Research Paper

Research Paper  |  6 pages (1,931 words)
Style: APA  |  Bibliography Sources: 3

SAMPLE TEXT:

" (Oberman, 2012, p.1) The result is that arbitration providers were "suddenly were being filed often, particularly consumer class actions and employment class actions." (Oberman, 2012, p.1) The response of the Supreme Court to this trend has been evidenced in the decisions it has issued since Bazzle. Specifically reported is that in 2009 in the case Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., the court held that "…where the parties agree that their agreement was 'silent' on whether class arbitration should be permitted, an arbitrator could not find that the agreement permitted class action. This was initially seen as cutting off class arbitrations unless an agreement expressly provided for it. However, a number of courts have read Stolt-Nielsen narrowly, as applying only to cases where the parties stipulate that their agreement is silent as to class arbitration and as allowing an arbitrator to find that the parties intended class arbitration absent such a stipulation. Meanwhile, after Bazzle, many employers and companies dealing with consumers (among others) were including in their arbitration provisions a class action waiver -- that is, a clause that provides all disputes will be resolved by bilateral arbitration between, say, a bank and a credit card consumer, and that the consumer waives any right to seek a class action. Some courts -- particularly state courts -- began to find that class action waivers in this situation were unconscionable and therefore unenforceable. Then, in 2011, the Supreme Court held in AT&T Mobility LLC v. Concepcion that the FAA preempts state law that singles out arbitration agreements and voids class action waivers in them." Concepcion was seen by The New York Times as "a devastating blow to consumer rights," yet some courts are not finding that Concepcion protects all class action waivers." (Oberman, 2012, p.1)

Summary and Conclusion

Arbitration makes a requirement that the arbitrators in the hearing are not biased either for or against the parties to the arbitration or that parties' case. This is not optional and is an issue that is satisfactorily settled by issue of a decision of the U.S. Supreme Court.

Bibliography

Arbitration (2012) Class of 1. Retrieved from: http://classof1.com/homework_answers/business_law/arbitration/

Matosky, J., Davison, RM and Harding, JT (2012) Case Notes: Two Recent Decisions Address the Duties of a Disinterested Arbitrator. MReBA. Retrieved from: http://www.mreba.org/articles.php?AID=18

Oberman, MS (2012) Arbitration Law -- One Issue Settled, Another Issue Still Percolating. 19 Mar 2012. The Metropolitan Corporate Counsel. Retrieved from: http://www.metrocorpcounsel.com/articles/18118/arbitration-law-%E2%80%93-one-issue-settled-another-issue-still-percolating

Yu, HY and Shore, L. (2033) Independence, Impartiality and immunity of Arbitrators -- U.S. And English Perspectives. The…… [read more]


Harvard College's "Oncomouse Term Paper

Term Paper  |  5 pages (1,633 words)
Style: APA  |  Bibliography Sources: 0

SAMPLE TEXT:

4. For a number of reasons, I found the dissenting opinion to contain better legal reasoning than the minority opinion. First, I agreed with the dissent's suggestion that the law did not invite moral judgments about the subject matter of patents. I did not see how it was possible to exclude a mouse's genetic code from the composition of matter contemplated under the relevant patent law. In fact, the term composition of matter seemed aimed at encompassing new chemical combinations, whether organic as in the products of genetic engineering, or inorganic. Had Parliament intended a more limited term, they certainly could have included those limitations in the law, which was specifically drafted. I also found the dissent's mention of previously patented living material to be extremely relevant; if fungi had previously been patented, what legal rule was the majority using to distinguish between fungi and mice? Moreover, I found the fact that human beings are otherwise allowed to exercise total dominion over mice to be significant; the law already provides for the ownership of the animals in question. Why would the law, then, not provide specific protections for the owners of a certain strain of mice?

Furthermore, I found the majority's slippery slope arguments to be spurious. In order to prevent the patenting of human genetic material, all that Parliament would need to do would be to write a law preventing the patenting of human genetic material. This would be true even if there were not clearly recognized distinctions between human rights and animal rights, already recognized in the law. For example, slavery, the only means of legal ownership of human beings, is already outlawed. In contrast, humans are able to own or otherwise exercise dominion over every other type of animal, though there may be some restrictions in the cases of endangered or dangerous animals. Therefore, the idea that allowing a patent on mouse genetic material would lead to a world in which one could not prevent the patenting of…… [read more]


Politics of Administrative Law Term Paper

Term Paper  |  4 pages (1,193 words)
Bibliography Sources: 1+

SAMPLE TEXT:

The Court further noted the existence of many regulatory statutes, none of which had been adjudicated to be in violation of "constitutional prohibitions against interference with private property" Munn v. Illinois, 94 U.S. 113, 124 (1876).

In Lochner v. New York (1905), the Court looked to, among other things, the common law contract doctrine of incapacity (Brauneis 1996). According to Brauneis,.".. practitioners of Lochner-era ahistoricism relied on a willingness to undertake some independent investigation of a statute's purposes" (1996:613). In this regard, the proclamation in Lochner serves to summarize the rationale of the day:

The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether or not it is repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation and not from their proclaimed purpose (Munn v. Illinois, 94 U.S. 113, 124, 1876).

With the New Deal, though, President Roosevelt and Congress began to increasingly test the Court's standards and judicial limits by enacting laws that stretched previous boundaries of the commerce power to their absolute limits (Scott 2003). In NLRB vs. Jones & Laughlin Steel, the Court joined the President and Congress by dropping the "direct effects" test for a "close and substantial relation to interstate commerce" test. "This newly expanded test enabled Congress to regulate even wholly intrastate activities provided they had at least a "close and substantial relation to interstate commerce" (Scott 2003:753).

In NLRB vs. Jones & Laughlin Steel Corp., Chief Justice Hughes delivered the opinion of the Court. The NLRB had determined Jones & Laughlin Steel Corp. ("Jones") violated the National Labor Relations Act of 1935 by firing employees at its Aliquippa, Pennsylvania plant who had engaged in union activities. It ordered reinstatement and other relief. The court of appeals refused to enforce the Supreme Court's orders because it maintained the matter was not subject to federal jurisdiction. The Supreme Court reversed. The legal question in this case was whether the labor matter was in fact subject to federal intervention, with the ultimate decision being it was.

Conclusion

Ever since John Marshall first introduced the concept of judicial review, there has been an enormous amount of controversy about the Supreme Court's role in American society and what part it should play in regulating commerce between individuals and the States. While the Commerce Clause may have been stretched painfully by the Court ever since, Jones was a logical extension at the time. Because the plant in question was involved in interstate commerce by virtue of its integrated configuration (in other words, drawing raw materials and other supplies from several surrounding states), the labor practices at Jones were legitimately subject to federal oversight. The decision in Jones reflected the shifts in the social contract as well as growing sense that interstate commerce required increasing regulation if a level playing field was to be maintained in the American marketplace.

Works Cited

Brauneis, Robert. "The Foundation of Our… [read more]


Australia's Tort Law Term Paper

Term Paper  |  7 pages (2,554 words)
Bibliography Sources: 10

SAMPLE TEXT:

The two lawsuits analyzed elements of Wright J's basic principle but don't aim to alter or expand it. Nevertheless, Maxwell P. In Giller v Procopets introduced a powerful discussion for reformulating Wilkinson v Downton as being a cause of action relating to intentional infliction and involves psychiatric harm (Handford, 2012).

This was a case wherein the accused secretly videoed himself… [read more]


Compare and Contrast Two Law Cases Essay

Essay  |  2 pages (828 words)
Bibliography Sources: 2

SAMPLE TEXT:

¶ … rules of law established in the following cases: The Slaughterhouse Cases and the Civil Rights Cases. What legal rights did the United States Supreme Court recognize in these cases? In your analysis be sure to include the relevant facts, issues, arguments, and reasons discussed in each case. Do you agree or disagree with the outcome of these cases?

The Slaughterhouse Cases and the Civil Rights cases, resolved by the U.S. Supreme Court in 1873 and 1883, respectively, are important cases in U.S. legal history, but both have proved controversial. The Slaughterhouse issue began in New Orleans over the filth and dirt in the city and the state attempts to enforce hygienic procedures. In 1869, the Louisiana legislature passed a law "to protect the health of the City of New Orleans" (Ross, 1998, p. 653). The law also granted a virtual monopoly to the Crescent City Livestock Landing & Slaughterhouse Company to slaughter animals in the vicinity. The legislative decision in exchange required that the Crescent City Company complied with the state provisions governing the hygienic procedures in the vicinity, including the "quality of facilities and products, output volume, and price of livestock" (the Slaughterhouse Cases, n.d.). The company was also obliged to allow independent butchers to work in the Company's facilities at a set rate. The butchers were not allowed to own independent slaughterhouses. Angered by the new law, a group of butchers in New Orleans sued Louisiana in a state court, claiming that their right to "privileges and immunities" clause had been violated.

The state courts decided that the Slaughterhouse Act was constitutional. The Butchers in response took the case to the Supreme Court which resolved it in 1873. The Supreme Court ruling, written by Justice Samuel Taylor Miller, stated that the law did not violate the "privileges and immunities" clause of the Fourteenth Amendment. The Court ruled that the Fourteenth Amendment empowered the Federal government to overrule state violation of rights belonging to American citizenship, but not to state citizenship. The ruling also stated that the Fifteenth Amendment prohibited discrimination based on "the slave race" but "did not guarantee that all citizens, regardless of their race, should receive equal economic privileges by the state" (Slaughterhouse Cases). The Crescent City Company was allowed to continue its operations as mandated by the Louisiana law.

The Civil Rights Cases involved five similar cases initially resolved by state courts. All five cases involved some form of institutionalized discrimination against African-Americans and were then reviewed…… [read more]


Business Law Products Liability and Negligence Research Paper

Research Paper  |  3 pages (1,000 words)
Bibliography Sources: 0

SAMPLE TEXT:

Business Law

Products Liability and Negligence: With the evidence that Vioxx leads to an increased heart risk of heart attack and stroke, Merck is facing the issue of product liability. Product liability, a tort of negligence, holds manufacturers liable for negligently made goods that harm consumers. Manufacturers must meet the standard of care for reasonable manufacturers in the design, manufacture, and marketing of a product. With respect to Merck, this applies to a failure to warn of a danger of using Vioxx. Merck may be liable under this tort because it owes a duty of care to the users of the medicine and it is foreseeable that carelessness by Merck would impact that group. If the court finds that Merck was careless and did not meet the duty of care, it will be held liable for the damages to the plaintiffs. Competitors selling similar products with warnings may be considered evidence that Merck is not meeting the standard of care for a manufacturer in its industry. In some countries, if there is a defective product, Merck would be held strictly liable without consideration of negligence. Thus, depending on jurisdiction, liability may differ.

Categories of Damages: The four categories of damages Merck may have to pay are pecuniary, nonpecuniary, punitive, and aggravated. Pecuniary damages compensate for incurred, out-of-pocket losses, loss of future income, and cost of future care. Individuals that took Vioxx and suffered a heart attack or stroke could ask for payment for care and loss of income. Nonpecuniary damages compensate for pain and suffering, loss of life expectancy, and loss of enjoyment of life. The plaintiffs against Merck could claim to have lost life expectancy, suffered in their heart attack or stroke, and, afterwards, lost life enjoyment. Punitive damages are awarded to punish the defendant when the defendant has engaged in behaviour that is particularly offensive. If the court finds Merck's conduct egregious, it may award punitive damages. Aggravated damages are awarded when the defendant's reprehensible conduct causes intangible injury such as distress or humiliation. The plaintiffs against Merck may have suffered distress after taking Vioxx, as distress would be common with a heart attack or stroke. Thus, aggravated damages may also be proper.

Dispute Resolution and Litigation: Merck is facing a large number of lawsuits and the 20 that have been settled have already exceeded Merck's annual profit. Litigation is time-consuming with a number of steps including pleadings, discovery, trial, and appeals. These all incur attorneys' fees which quickly add up. Alternative dispute resolution may be a viable option for Merck. Their options are negotiation, mediation, and arbitration. Negotiation can be used to settle each of the cases, but those have already cost almost $5 billion. Mediation uses a third party that helps reach a compromise, which may help find a lower-cost solution that satisfies some of the claimants. Arbitration is binding and has a third party hear the dispute and make a ruling, similar to that of a court, but without the same extent of procedure. By…… [read more]


Business Knowledge of the Law Term Paper

Term Paper  |  8 pages (2,325 words)
Bibliography Sources: 2

SAMPLE TEXT:

Business

Knowledge of the Law Is a Business Asset

Relationship between Ethics and the Law in Business

Why is knowledge of the law considered to be a business asset?

Whatever the power and influence of the lawyers prior to the client's arrival at court, it becomes overwhelming once the parties are on court premises. The powerlessness of clients in the… [read more]


Legal Implications of Being a Nutritional Consultant in California Essay

Essay  |  3 pages (913 words)
Bibliography Sources: 3

SAMPLE TEXT:

¶ … legal implications of being a nutritional consultant in the state of California. While being a nutritional consultant is not a profession that most would equate with being related to problems with the law, there are times when the recommendations that nutritional consultants give their clients can result in adverse effects, making the nutritional consultant liable. Wilson's () book, Legal guidelines for unlicensed practitioners, discusses how one may practice holistic therapies without any type of legal implications. It is replete with an overview of how the legal system works, disclaimer forms and consent forms, as well as a discussion of problems related to licensing.

In the state of California, a nutritional consultant can assess signs of nutritional deficiency in an individual and recommend certain foods, supplements, and lifestyle changes -- for example walking, yoga, etc. Though a nutritionist or nutritional consultant may possess quite a bit of knowledge about anatomy and physiology, it is against the law for a nutritional consultant to diagnose symptoms of a disease and prescribe any type of medication for it (Harrison 2011). Wilson notes that this can sometimes be a very harry thing for nutritional consultants to deal with. This can be especially true if patients have "self-diagnosed" or if they are coming to a nutritionist after getting a diagnosis already from a physician. Wilson points out that it is necessary to understand that nutritional consultants are not doctors and that they cannot and must not claim to be able to cure a person of anything. The role of the nutritional consultant is only to give clients nutritional information that they feel would benefit them. A nutritional consultant can get into trouble with the law in California if they suggest that someone leaves their current doctor or that a person should stop taking the medication that was prescribed by his or her doctor. These rules are quite strict, but they are necessary in order to make sure that the nutritional consultant knows the boundaries of their profession and what it means in terms of the law and the legal implications that can go along with not abiding by the law.

Some of the precautions that can and must be taken are to have a "Client Statement" form, which is similar to a disclaimer (Harrison 2011). This client statement form gives the client a very clear reference that tells them that the nutritional consultant is not and never will be in the business of diagnosing anyone or curing anything. The nutritional consultant must have the client agree to and sign this form is imperative. The client should keep a copy for his or her own records and the nutritional consultant should keep one for his or her own records in case…… [read more]


International Law Assess the Legality Seminar Paper

Seminar Paper  |  7 pages (2,295 words)
Bibliography Sources: 1+

SAMPLE TEXT:

International Law

Assess the legality of the 2003 American invasion of Iraq in the context of the United Nations Charter provisions governing the use of force. Does the legal position adopted by the United States on the Iraq war a signal the emergence of new norms governing the use of force under International treaty or customary law? Make sure to… [read more]


Law and Business When Glenn Assessment

Assessment  |  20 pages (5,286 words)
Bibliography Sources: 0

SAMPLE TEXT:

¶ … Law and Business

When Glenn says that a legal tradition is information, he is referring to the way that the legal process helps form the basis of historical tradition, of the way societies decided to form a code of morality and ethics in order to retain a positive and cooperative (e.g. social) state of affairs. Since humanity is… [read more]


Dog Bite Florida Law Only Representing Person Bitten Essay

Essay  |  3 pages (836 words)
Bibliography Sources: 12

SAMPLE TEXT:

starting point for this legal analysis is Florida Revised Code section 767.04. The statute has three essential elements. First, it imposes strict liability on the dog owner.

This means that the Plaintiff will not have to demonstrate that the dog was either vicious or had a prior history of biting. Secondly, the statute also establishes the doctrine of comparative negligence and, therefore, any behavior by the Plaintiff that might be construed as contributing to the injury might be used to offset the potential damages. Finally, the statute provides a defense to the dog owner's liability through the use of the "Bad Dog" exception. The defense allows the dog owner to avoid liability by prominently displaying a sign warning of the dog's presence.

Defendant's Display of Warning Sign

The law in Florida has long been that a dog owner will not be liable for injuries caused by his dog where he prominently displays a sign on the premises warning of the dog's presence.

According to deposition testimony by the defendant, Jimmy Taylor, there was a sign to the side of his driveway that was clearly visible, however, the wording of the sign, "Beware of the Dog," does not adhere to the exact wording of the statute granting the defense. Under the terms of the statute the sign must contain the words "Bad Dog" and the defendant's own testimony clearly indicates that his sign did not include such language. This failure by the Defendant may open the door for the court to disregard the availability of this defense.

It should be pointed out that the Plaintiff claims to not have seen the warning sign. This claim, however, has no bearing on the application of the defense. The fact that she did not see the sign will not serve to change the outcome as the case law clearly states that the failure to notice a prominently displayed sign does not prevent the application of the statutory defense.

I. Plaintiff's Voluntarily Exposed to Herself to Potential Injury

The fact that the Plaintiff also voluntarily placed herself in a position of danger may also serve to affect the Defendant's liability in this action.

In the preliminary notes it was reflected that the Ms. Buffet was initially out of the reach of the dog but voluntarily placed herself within his reach when she moved to acquire a piece of sponge cake.

In mitigation of Ms. Buffet's actions, she did rely upon the fact that the dog appeared to be properly tethered at the time…… [read more]


Natural Law Term Paper

Term Paper  |  4 pages (1,386 words)
Bibliography Sources: 4

SAMPLE TEXT:

Natural law theory is one of the main significant theories in the viewpoint of Classical Realism. It is also extensively mistaken by many whom both have not taken the time to examine it or have heard of it and put it aside as a medieval relic. The notion of natural law has appeared in numerous structures. The design started with the ancient Greeks' formation of a world ruled in every way by an outside, unchallengeable law and in their difference amid what is just by nature and just by principle. Stoicism offered the most absolute traditional shaping of natural law. The Stoics challenged that the world is ruled by rationale, or balanced standard; they additionally challenged that all people have cause within them and can consequently know and comply with its rule. Since people have the facility of option, they will not unavoidably follow the law; if they proceed in agreement with rationale, nevertheless, they will be abiding by nature (Dolhenty, 2003).

Christian philosophers eagerly modified Stoic natural law theory, recognizing natural law with the law of God. For Thomas Aquinas, natural law is that division of the eternal law of God which is predictable by people by way of their rules of cause. Human, or affirmative, law is the function of natural law to exacting social conditions. Like the Stoics, Aquinas thought that an affirmative law that infringes natural law is not accurate law. With the secularization of civilization ensuing from the Renaissance and Reformation, natural law theory established a new foundation in human reason. The 17th-century Dutch jurist Hugo Grotius thought that people by nature are not only sensible but social. Thus the regulations that are natural to them, those uttered by cause alone are those which allow them to exist in agreement with one another. From this dispute, Grotius came up with the first all-inclusive theory of international law (Dolhenty, 2003).

Natural law theory ultimately gave birth to an idea of natural rights. John Locke disputed that people in the state of nature are free and equivalent, yet unconfident in their liberty. When they come into civilization they give up only such privileges as are essential for their safety and for the widespread good. Each person holds on to basic freedoms taken from natural law connecting to the honesty of person and property. This natural rights theory offered a philosophical foundation for both the American and French revolutions. Thomas Jefferson utilized the natural law theory in order to validate his idea of inalienable rights which were confirmed in the United States Declaration of Independence (Dolhenty, 2003).

Throughout the 19th century natural law theory lost authority as utilitarianism, materialism, positivism, and the historical school of jurisprudence became prevailing. In the 20th century, on the other hand, natural law theory has established new awareness, partially in response to the increase of totalitarianism and an augmented attention in human rights all through the world (Dolhenty, 2003).

Natural law theory is a philosophical and legal conviction that all people are ruled… [read more]


Legal Value of the Universal Declaration of Human Rights Essay

Essay  |  5 pages (1,649 words)
Bibliography Sources: 3

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Legal Value of the Universal Declaration of Human Rights

Human rights may have varied definitions but all those definitions revolve around a similar idea; necessary and inalienable rights that belong to all humans without which humans can neither enjoy freedom and nor maintain life that is considered quality and reasonable. When a right is referred to as 'inalienable' then the… [read more]


Trace the Development of Law Essay

Essay  |  5 pages (1,643 words)
Bibliography Sources: 3

SAMPLE TEXT:

¶ … Trace the development of law from the Babylonian Code of Hammurabi to the Romans. Include in your discussion the Judaic concept of law and how it differed from both Babylon and Rome.

Although legal codes apparently date from the third millennium B.C., the code of Hammurabi, written during his reign in the 1792-1750 B.C. time period, is the… [read more]


Legal Process There Are Several Federal Laws Research Paper

Research Paper  |  3 pages (1,069 words)
Bibliography Sources: 3

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Legal Process

There are several federal laws that prohibit employment-related discrimination on the basis of a disability. Violations often include things related to hiring, reasonable accommodations, training, advancement, benefits, or dismissal, or a range of other employment-related matters. People who think that they have been discriminated against should evaluate their situations and then take actions that are deemed appropriate. The first step is to look at the laws that forbid employment-related discrimination on the foundation of disability. The primary law is: Title I of the Americans with Disabilities Act (ADA) prohibits private sector employers and state and local government agencies that employ 15 or more individuals from discriminating against qualified individuals with disabilities in all aspects of employment (What to Do If You Think You Have Been Discriminated Against, 2002).

The second step is to attempt to resolve the problem at the lowest level possible. Current employees should talk about the situation with their own supervisors and with upper level management. One should try to figure out whether the employer has a policy for resolving these conflicts internally. Many companies have put into place an official Alternate Dispute Resolution (ADR) procedure. This means that the parties concerned agree to follow specific guidelines in an attempt to avoid costly, time-consuming legal battle. Section 513 of the ADA encourages the use of ADR, naming settlement negotiations, conciliation, facilitation, mediation, fact-finding, materials, and arbitration as examples. The rules implementing WIA Section 188 require that covered entities provide ADR as an option for resolving discrimination grievances. The third step if the problem remains unresolved, the individual may consider filing a complaint with the appropriate government agency or seeking legal advice (What to Do If You Think You Have Been Discriminated Against, 2002).

Mediation is a casual and confidential way for people to determine disputes with the help of a neutral mediator who is trained to help people discuss their problems. The mediator does not come to a decision about who is right or wrong or issue a decision. As an alternative, the mediator helps the parties come to their own solutions. One of the best benefits of mediation is that it lets people to resolve problems in a friendly way and in a way that meets their own unique desires. A dispute can be resolved faster through mediation than any other method. It usually takes about three months to resolve a problem through mediation. It can take 6 months or longer for an incident to be investigated. Mediation is fair, proficient and can help the parties avoid a lengthy investigation that often leads to litigation (Mediation, n.d.).

Not long after an allegation is filed with the EEOC, they will contact both the employee and employer to see if they are interested in participating in mediation. The choice to mediate is totally voluntary. If either party turns down mediation, the allegation will be sent to an investigator. If both parties agree to undergo mediation, it will be scheduled and conducted by a skilled and knowledgeable… [read more]


Legal Management the Legal Issues Book Review

Book Review  |  4 pages (1,230 words)
Bibliography Sources: 1+

SAMPLE TEXT:

Legal Management

The Legal Issues of Management: Case Scenarios

Chapter 2-Case #1: The scenario described by the case in question offers a clear-cut case of sexual harassment. An individual who has succeeded on the strength of her professional merits is here being objectified and exploited on the basis of her own desire for advancement. This is a particularly inappropriate gesture insofar as it pins Bancroft's ambition for professional growth to her willingness to be objectified thusly. This creates a working atmosphere in which Bancroft must defend her professional integrity at the risk of her own career. That she has been placed in this position is particularly troubling as little can be done on her behalf to avoid confrontation short of simply complying with the unreasonable requests of her superior.

As the confrontation has already been created, it seems that Bancroft has little recourse but to seek mediation through the Human Resources department. Indeed, her only option in this scenario is to politely refuse her employer's requests on the grounds that the request has made her uncomfortable. Thereafter, a formal complaint must be filed which outlines the nature of the request and her personal perception on how this has created an inherently hostile working environment.

With respect to the role of Human Resources, any HR personnel which might have been in earshot of this conversation would have a responsibility both of confronting the offending party and of using this as an opportunity to engage a process of formal sensitivity and ethics training. Further, investigation should be conducted to determine if other members of the firm have been made to feel uncomfortable in the ways that confronted Bancroft and, if a pattern or culture of sexual hostility can be established, dismissal of critical personnel such as the subject of Bancroft's complaint might be appropriate.

Chapter 3-Case #5:

Boomer's case is a useful reference point for consumers who would desire to know their rights with respect to service contracts with major corporate service providers. Here, the customer and litigant individual has accepted the terms of a contract with at&T through his own inaction. According to the case scenario, Boomer had been provided with terms that were clearly stated indicating that his long-distance rates would be going up and that he had the right to contest these changes in his terms. Moreover, Boomer has been explicitly presented with the claim that any such contest would be resolved by a legally binding arbitrator rather than through a full-fledged process of civil litigation.

As we review the language used in a legal precedent invoking Boomer's case, that of Ragan and Mangiariacino v. at&T, it becomes clear that Boomer is in all regards subject to compliance with the terminology used in this statement. As the statement had been issued in direct correspondence with already agreed upon terms which had brought him into contract with the service in question, the precedent here cited denotes that Boomer's legal rights are shaped by these terms. Accordingly, the case cited here… [read more]


Employment Discrimination Research Proposal

Research Proposal  |  8 pages (2,256 words)
Style: APA  |  Bibliography Sources: 3

SAMPLE TEXT:

Workplace Discrimination

Jurisprudence in Workplace Discrimination: Defining Discrimination in Griggs v. Duke and Beyond

Laws are seldom as finite and concrete as they are often perceived by the public and portrayed in the media. They are often somewhat ambiguous, even purposefully so, in order to achieve greater justice. This might at first seem counter-intuitive; the greater the ambiguity in the… [read more]


Problem of International Law and Its Enforcement Essay

Essay  |  8 pages (3,184 words)
Style: Harvard  |  Bibliography Sources: 9

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¶ … International

Law And Its Enforcement

ABBRIEVIATIONS

CIL:

Customary International Law (Kontorovich 2006, ¶ 1).

CISG:

Contracts for International Sale of Goods (Cuniberti 2006, ¶ 1).

FDI:

Foreign Direct Investment (Thomas 2006, ¶ 1).

GATT:

General Agreement on Tariffs and Trade (Reed 2006, ¶ 1).

IL:

International law (Kontorovich 2006, Introduction section, ¶ 2).

U.N.:

United Nations (Cuniberti 2006,… [read more]


Law School Personal Statement Research Proposal

Research Proposal  |  3 pages (835 words)
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Law School Personal Statement

I have gone through enormous challenges in my lifetime, some brought about by external factors and numerous by my own indecisions and bad decisions in life. However, every time I have managed to come out on top and focusing on work seems to have always been the right instrument to pull my through a personal crisis. Despite my Bachelor Degree in Business Administration, obtained in the Fall of 2008, I have always felt that time and life challenges have never given me the appropriate time to spend with my academic career and with learning in general -- at least not to the degree that I wanted to allocate as much time as possible for this segment of my life.

With my career safely assured and with a dedicated course that included promotions in 11 years from quality manager to Director of Quality for three different divisions to Operations Manager for the Medical Division at my company and, eventually, to Operations Manager in charge of two different divisions, I would like to compensate for some of the missed time on my academic development.

This is obviously not the only reason why I would like to enroll in law school. While deciding what the best way to pursue my education would be, I weighed different the different options according to a framework that involved different factors. First of all, the academic challenge was important. I have managed to achieve a Bachelor Degree in Business Administration, as mentioned in the previous paragraphs, and this was certainly an intellectual challenge, not only because of the complexity of the subjects involved, but also because I was working at the time and had to manage my time wisely between school and work. Going to law school would bring similar challenges, the one I am most interested in being the intellectual challenge. The courses in law school will definitely be of a different type than what I have encountered in completing my BA in Business Administration and I definitely look forward to this new challenge.

On the other hand, ever since my childhood and adolescent days, when my challenging family environment allowed me to make my own decisions and meant that I received no appropriate guidance, I turned to reading and learning as an alternative to that. I read a lot in high school and I was able to accumulate knowledge and information. The brief stint in learning about engineering concepts and principles, in the Mechanical Engineering program that I…… [read more]


Aspect of Legal System in Democratic Republic of Congo Research Proposal

Research Proposal  |  5 pages (1,246 words)
Style: MLA  |  Bibliography Sources: 4

SAMPLE TEXT:

¶ … Legal System in Democratic Republic of Congo

Administrative Law

administrative law in the democratic republic of the congo

The Democratic Republic of Congo (DRC) was known previously as Zaire. This area is situated right on the equator in Central Africa. The Pygmies were the first inhabitants of this area of the world and were individuals that resided on the outer edge of the forest located on the Equator as well as other part of the Democratic Republic of Congo. The Democratic Republic of the Congo is a "nominally centralized republic with a population of approximately 60 million." (U.S. Department of State, 2009) Following two wars, the first from 1996-1997 and the second from 1998 to 2003, the Democratic Republic of Congo (DRC) organized its first elections which is "labeled as 'free, democratic and transparent' after more than 40 years." (Media Sustainability Index, 2006-2007) president was elected "...by universal franchise for a five-year term and a national assembly of 500 representatives, a Senate, provincial assemblies, and provincial governors were installed, thus inaugurating the era of the Third Republic." (Media Sustainability Index, 2006-2007) It is reported that there were some complications during the elections and a scandal occurred relating to the "seating of provincial governors. In some provinces, local electros who voted for provincial electros noticed discrepancies in the final results. Serious suspicious of massive corruption and faulty conscience hung over the presidential majority." (Media Sustainability Index, 2006-2007) It is reported that a panel was formed and indicators scored by the panelists. Arising from the panel was an agreement on the part of all participants that the 'greatest weakness in the DRC is generally the application of the laws and the impunity of the lawbreakers." (Media Sustainability Index, 2006-2007)

I. ADMINISTRATIVE LAW IN THE DRC

Administrative law in the DRC is the branch of law which provides the definition and regulation of public administrative law. The DRC Constitution, in Article 193 provides a definition for the administration as being comprised by the civil service and other organizations and services. Therefore, the administrative law is applicable to "among other areas, the management and delivery of public services, tenders, and the status of civil servants." (Zongwe, Butedi and Phebe, 2007) Additionally provided for in the DRC Constitution is that "the Congolese public administration is apolitical, neutral, and impartial." (Zongwe, Butedi and Phebe, 2007)

The mandate of the state to "enact important legislation (loi organique) derives from the Constitution "...on the organization, function of national, provincial and decentralized administrative entities." (Zongwe, Butedi and Phebe, 2007) Presently public administration is being modernized by the government of the DRC and stated as the "most important and challenging reform" upon which the government has embarked is the decentralization of government in the DRC. Constitutional law and administrative law are stated to be very closely linked since the concern of administrative law is efficiency of the administration of law as well as "the respect by the Congolese administration of the citizens' fundamental rights, as provided for in… [read more]


Environmental Crime Tort Laws Are Designed Essay

Essay  |  6 pages (1,825 words)
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Environmental Crime

Tort laws are designed to protect individuals, groups or organizations against undue harm as a result of malice, negligence of willful recklessness. The key characteristics of tort concern the nature of the relationship between plaintiff and defendant, the degree of injury definable in the plaintiff and the liability of the defendant in the provocation or affliction of this… [read more]


Legal Formalism and Legal Realism Essay

Essay  |  4 pages (1,260 words)
Bibliography Sources: 2

SAMPLE TEXT:

Legal Formalism & Legal Realism

There has been a strong debate between the supporters of legal formalism and legal realism for years. The fact that the issue continues to remain an important topic for the public agenda suggests that, as the world changes, nothing becomes more simple, but rather the opposite.

One can not discuss ethics without bringing into discussion Aquinas' conception regarding natural law. According to him, the fundamental principle that should be at the core of all human actions is represented by the natural law. Since the law is natural, that is, deriving from nature, this implies that all the humans understand it and must obey it, pursuing good and avoiding evil.

Furthermore, it is suggested that it is known a priori if a fact is good or evil. In addition, there is a set of rules which guide the behaviour of people in the right direction. Therefore, there is a passage from the moral law to the civil one, that is, the eternal laws are translated into laws which can be applied to specific situations. It is important to underline that in Aquinas' conception, the moral law and the rational nature of humans are considered identical. If people are rational because this is their nature, then acting accordingly to their nature is that what one can define moral.

Another important relation of equality is the one between law and morality. Blackstone, just like Aquinas, believed that this universal law comes from God and therefore it has a divine character. The validity of the human laws derives from their respecting the divine law.

It is very interesting to interpret these concepts when analyzing the different approaches to the application of the law represented by legal formalism and legal realism. According to legal formalism, just like in Aquinas' opinion, it is known a priori whether an action is good or evil. The laws are made in order to be applied as they are, because they have been conceived and formulated in the most appropriate manner. As a consequence, the role of the judges is to merely apply the laws and not to interpret them. Interpreting them should mean imposing a personal view upon a situation which is best described by an already existing law.

If the laws derive from the human nature then the judges should not have any reason in order to modify them (they can not be outside their own nature). Nevertheless, taking into consideration the fact that their duty is to do their best in order to serve the Law, an initiative to interpret the laws might suggest that there is something worth changing or modifying in order to better apply the moral principle.

In addition, one might bring into discussion the relation between Law and Morality. If the works of Aquinas and Blackstone the two concepts could replace one another, it appears that in the contemporary world this synonymy is no longer possible. The truth is that the cases tend to be so different, despite… [read more]


Rules Rights and Justice Research Proposal

Research Proposal  |  6 pages (2,141 words)
Bibliography Sources: 2

SAMPLE TEXT:

¶ … English legal system:."... The law is never static, it is always changing, being reinterpreted or redefined, as regulators and judges strive with varying degrees of success to ensure that the law constantly reflects changes in society itself..." (Harris, 2007). While analyzing the above-mentioned quotation, I shall also outline in the paper the nature of UK law and its… [read more]


Real Estate Eminent Domain Thesis

Thesis  |  9 pages (2,921 words)
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Constitutional Law: Real Estate Eminent Domain in Los Angeles, California

The objective of this work is to find one legal case from which an eminent domain event occurred in Los Angeles, California, within the past five years. Furthermore, this work will locate two articles that are no more than one-year-old that directly relate to this topic. This work will critically… [read more]


Legal Writing Honigsberg's Compilation From the Gilbert Essay

Essay  |  1 pages (362 words)
Bibliography Sources: 1

SAMPLE TEXT:

Legal Writing

Honigsberg's compilation from the Gilbert Law Summaries is considered by many to be the definitive reference series for the current law student and a preferred primer for quick evaluation to the practicing lawyer. For the former user especially, the volume offers a practical sequence of building blocks contributing to an understanding of the principles, and thereafter the practices, of law. In the version entitled Legal Research, Writing & Analysis, this experience and track record are channeled to focus on legal writing instruction.

Offering first a glossary of key terms to be used throughout the following sections, the volume shows a clear intention to arm the reader with the tools necessary to proceed with a fuller study on the subject. Therefore, this is followed by a largely theoretical section in which is reviewed the basic conceptual framework of American legal doctrine. This is a sensible segue into an examination of case law through several key decisions and, following that, a study on the application of this case law to our understanding and refinement of legislation and constitutional orientation.

The next…… [read more]


Criminal Law Civil Liberties & Issues Term Paper

Term Paper  |  4 pages (1,322 words)
Style: MLA  |  Bibliography Sources: 3

SAMPLE TEXT:

Criminal Law

Civil Liberties & Issues of National / Legal Interest

The three Websites that were selected for this paper are: The American Civil Liberties Union (ACLU) (www.aclu.org);LegalInformation Institute (LII) / Cornell University Law School (www.law.cornell.edu/);andFriends Committee on National Legislation (FCNL) (www.fcnl.org/indexhtm).

Answer (a): The Friends Committee on National Legislation site was found by typing "Civil Liberties" into Google; the ALCU site is saved on my "Bookmarks" list; and the Cornell University Law School site, Legal Information Institute (LII) was found through a Google search "Legal Websites."

Answer (b): The information on all three sites is very useful. The ACLU Web site is of particular interest because their lawyers and researchers dig out specific federal and international laws as they pertain to issues that are now before the citizens of the U.S. But of immediate interest is their far left hand column which always has updated information on issues like "Torture," which is of paramount concern to many Americans who don't believe the U.S. military should be engaging in torture tactics against prisoners. When the ALCU publishes an article about a controversial topic, it may be subjective and supportive of one particular viewpoint, but readers can be sure that it has been researched by lawyers or by paralegals that know and understand the law.

The LII site has a tremendous amount of data relating to recent court cases, current law under the Supreme Court, Federal rules, and directories to all laws in the U.S. The FCNL site is devoted to civil liberties but also to peace and the environment, Native American issues and the federal budget.

Answer -: All three sites are very well organized, easy to navigate, and user-friendly in all ways. Answer (d): I believe that the reliability of these three sources is very good.

AMERICAN CIVIL LIBERTIES UNION: On their home page the ACLU present a long list of links to issues like "Criminal Justice," "Death Penalty," "Disability Rights," "Police Practices," "Racial Justice" and much more, including "Voting Rights," "Human Rights," "Immigrants' Right," "Rights of the Poor," and "Women's Rights." But as mentioned, the hottest topic they have recently investigated is always on the upper left hand portion of the home page. In this case it is "Torture" - "Newly Released Government Documents show Special Forces Used Illegal Interrogation Techniques in Afghanistan."

In that document, obtained by the ACLU through the Freedom of Information Act (the ACLU had to sue the Department of Defense using the Freedom of Information Act) (printed easily thanks to "printer friendly" software on the ACLU site), it appears that the Special Operations officers in Gardez, Afghanistan, used illegal tactics on prisoners.

The information obtained reveals that the Special Operations unit "beat, burned, and doused eight prisoners with cold water before sending them into freezing weather conditions" (ACLU, 2008). One of the eight prisoners died in March 2003; he was Jamal Naseer. A criminal investigation into Naseer's death (by the military) resulted in the military announcing that Naseer's death was due to "a… [read more]


Business - Law Business Law Issues Term Paper

Term Paper  |  1 pages (309 words)
Bibliography Sources: 0

SAMPLE TEXT:

Business - Law

Business LAW ISSUES

The Commerce Clause of Article One reserves to Congress the power to "regulate commerce...among the several states." The proposed rule cannot survive the exercise of Congressional authority opposing it. The Necessary and Proper Clause of Article One provides for congressional authority to "make all Laws which shall be necessary and proper for carrying into Execution...all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That power includes the authority to invalidate contradictory state laws. The Privileges and Immunity Clause of Article Four guarantees that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," which includes the right to travel freely among and between all individual states. The proposed law violates the Privileges and Immunities Clause.

"Employees at will" cannot sue for wrongful discharge if the reason for…… [read more]


Roman Civil Law Term Paper

Term Paper  |  8 pages (2,532 words)
Bibliography Sources: 1+

SAMPLE TEXT:

Roman Law

The Praetor is commonly described as the gatekeeper of common sense in the Roman legal system. Discuss. Was he effectively a legislator?

The position of praetor was developed to create a new, more flexible system of law that could be more responsive to the needs of a dynamic and increasingly complex Roman society. The praetor was a magistrate… [read more]


Legal Research Research Paper

Research Paper  |  2 pages (672 words)
Bibliography Sources: 2

SAMPLE TEXT:

Legal Research

There is a tendency in today's legal environment to over-emphasize the value of computer research and to ignore the traditional advantages offered by case books, legal journals, and legal treatises. Some in the profession are advocating the abandonment of all written materials and adopting computers and the internet as the exclusive source of legal research. Doing so, however, fails to recognize the inherent frailties of internet and computer research: the researcher must still be capable of developing concepts and analogies (Turley, 2010). Computers are incapable of developing either and it is still imperative that the person doing the research possess both abilities.

That being said the value of computers and the internet in the process of doing legal research cannot be overstated (Nolasco, 2010). For hundreds of years, legal research meant locking oneself in a library and meticulously working your way through volumes of case books using West key words until finding the legal support for the propositions of law that applied to the legal issue that you were researching. The nature of the law and its attendant ambiguities made this process laborious and the prevailing party in litigation too often became the party who was most patient or fortunate enough to find the needle in the haystack that was able to make the difference in a close case.

The beauty of a computer research is the speed at which results can be generated. Through the use of either Westlaw or Lexis a legal researcher with developed skills in the use of key words can avoid hours of paging through heavy piles of books. Lexis and Westlaw have both done an excellent job of preparing and uploading years of case history and made it available to the legal community. Today's modern law student has been raised using computers and is adept at utilizing key words to find the legal concepts and controlling law that supports the positions that they are attempting to defend. As indicated earlier, however, the ability to effectively use key words…… [read more]


Briefing Case Law Term Paper

Term Paper  |  2 pages (456 words)
Bibliography Sources: 0

SAMPLE TEXT:

¶ … Briefing Case Law

Case Brief

Case name and citation

1996 WL 681971 (VABCA), 97-1 BCA 28, 642, VABCA No.4661, November 25, 1996

Key Facts

The University of California San Francisco medical center appealed a lower court decision that had validated a claim made by the Veteran's Administration. The VA wished to be reimbursed for the excessive costs of anesthesiology services the VA had already paid. The VA claimed that the increase in costs at the medical center was not justified because the contractor (the UC medical center) failed to provide supporting certified cost and pricing information for its 27% increase in services. The VA sought to recover the difference between what was paid and UC's payroll records, stating that the original payment for the services had been mistakenly authorized.

Legal Issue(s) Presented before Court

The VA alleged that the amount they were charged was far more than the actual costs of the procedures could possibly be and the VA is prohibited by law as a government entity from paying for administrative or indirect costs. The VA believed these costs the source of the exorbitant fees. When the VA officer did pay the costs, he was acting inappropriately, thus the VA demanded restitution. The contract did require the hospital to submit certified cost and pricing information, which it did not. UCSF, the contracting entity, said that it…… [read more]

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