Study "Law / Legal / Jurisprudence" Essays 1-55

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Natural Law Legal Jurisprudence Term Paper

… 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

… 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… [read more]


Rule of Law and Extra-Legal Term Paper

… 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… [read more]


Origins and Characteristics Essay

… 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… [read more]


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

… 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… [read more]


Legal Positivism and Australian Law Term Paper

… 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]


Jurisprudence as a Theory Term Paper

… 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]


Legal Jurisprudence Term Paper

… ¶ … 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]


Natural Law Essay

… ¶ … 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… [read more]


Rule of Law Legitimate? Term Paper

… (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… [read more]


Positive Philosophy in Law Thomas Essay

… 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]


Individual Rights for a Nation Term Paper

… 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… [read more]


Law Legal System Contracts Essay

… 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… [read more]


Law Legal System Dispute Resolution Essay

… ¶ … 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

… ¶ … 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… [read more]


Adoption (Family Law) by Kansas Term Paper

… 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,… [read more]


Damages the Law Term Paper

… 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… [read more]


Gustav Radbruch Believed That Positivistic Term Paper

… 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

… 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… [read more]


Criminal Justice Systems Term Paper

… 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… [read more]


Parens Patriae Four Alleged Juvenile Article Review

… 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]


US Supreme Court Case Term Paper

… 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… [read more]


Justice and Good Term Paper

… " (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… [read more]


Stare Decisis, From the Latin Term Paper

… 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… [read more]


Courting Disaster Book Review

… 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,… [read more]


Freedom of Speech Morse v. Frederick Term Paper

… 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… [read more]


Islamic Criminal Justice System Term Paper

… 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… [read more]


Soviet Law the Legal System Research Paper

… 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]


Procurement the Law Essay

… 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

… 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… [read more]


Legal Transplants Term Paper

… " (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 and Due Process Essay

… 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… [read more]


Lincoln Lawyer by Michael Connelly Book Report

… 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]


English Legal System the Sources of Law Essay

… 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… [read more]


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

… ¶ … 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… [read more]


Legal Traditions in American Law. Common Essay

… ¶ … 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]


Moral and Legal Questions Term Paper

… 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.… [read more]


Australia's Tort Law Term Paper

… 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… [read more]


Harvard College's "Oncomouse Term Paper

… 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]


Sarah's Legal Adviser Essay

… 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

… 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

… 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… [read more]


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

… ¶ … 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… [read more]


Business Law Final the Case Term Paper

… 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]


Florida Negligence Analysis Legal Claims Research Paper

… 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… [read more]


Business Law: Arbitration Agreements Research Paper

… " (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]


Shipping Law Working for Peanuts: A Case Term Paper

… 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… [read more]


Sports Law Essay

… 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]


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

… 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,… [read more]


Legal Issues in Miranda v. Arizona, 384 Term Paper

… ¶ … 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… [read more]


Legal Encounters Involving a Fictional Company Newcorp Research Proposal

… 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… [read more]


Legal Positivism Term Paper

… 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]


Legal System: Where Laws Term Paper

… 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]


Politics of Administrative Law Term Paper

… 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]


Healthcare Legal Research Paper

… Conclusion: Congress does not have the authority to determine what is best for a woman's body; especially in medical areas that are uncertain.

Other Opinions: The New England Journal of Medicine criticized the intrusion of politicians into medical decision-making, writing:

Until this opinion, the Court recognized the importance of not interfering with medical judgments made by physicians to protect a patient's interest. For the first time, the Court permits congressional judgment to replace medical judgment

2. Cobbs v.Grant (California Case)

Subject: COBBS v. GRANT

Name of the case, the court of jurisdiction, the justice writing the opinion and the court the case was appealed from. Following a reversal by the court of appeal, the California Supreme Court, in a unanimous decision written by Justice Mosk, concluded that there was insufficient evidence to support a verdict that Dr. Grant had been negligent in deciding to operate or in performing the surgery (Novack, 1973)

Facts: What is the major set of facts of the case?

Ralph Cobbs, troubled by a duodenal ulcer, consulted his family physician, Dr. Jerome Sands, who concluded surgery was indicated. Dr. Sands discussed the prospective surgery with Mr. Cobbs and advised him in general terms of the risks of undergoing a general anesthetic (Novack, 1973). Dr. Dudley P. Grant, a surgeon, was called in and concurred in the diagnosis, but failed to disclose any of the risks inherent in the surgery. Cobbs consented to the operation. During the operation, Cobbs' spleen was apparently injured, necessitating its removal in a second operation. Thereafter, Cobbs developed a gastric ulcer and, in a third operation,50% of his stomach was removed.

Statement of the Issue(s): The primary issue in this case is what constitutes informed consent. The doctors have the responsibility to inform their patients of the risks that they face with different treatment options and the risks that are inherently involved with each of the options.

Rule of Law: The resolution of the case involves a rule(s) of law. What is it?

A negligence action is predicated on showing that the doctor's duty of care required disclosure of the risk of the particular injury that resulted, that the patient would not have consented had he known of the risk, and that there was no privilege justifying a failure to disclose.

Application: The plaintiff must establish a causal relationship between the physician's failure to inform and the injury to the plaintiff.

Conclusion: The case has prompted a movement towards the standardization of consents that has been established by the medical community.

Other Opinions: There is a fine line between not enough information and too much information. The doctor should not worry the patient with many potential issues that are a low level risk. However, at the same time, the doctor must reach an adequate level of consent. Some have argued that since there was a five percent risk, that this risk was a major risk that should have been mentioned.

Final Thoughts: Do you agree or disagree with the decision? Why or… [read more]

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