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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]


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]


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]


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]


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]


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]


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]


Rule of Law Legitimate? Term Paper

Term Paper  |  5 pages (2,254 words)
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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]


Positive Philosophy in Law Thomas Essay

Essay  |  2 pages (901 words)
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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]


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]


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)
Style: MLA  |  Bibliography Sources: 3

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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]


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]


Damages the Law Term Paper

Term Paper  |  9 pages (2,998 words)
Bibliography Sources: 0

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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]


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]


Parens Patriae Four Alleged Juvenile Article Review

Article Review  |  2 pages (580 words)
Bibliography Sources: 2

SAMPLE TEXT:

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

Term Paper  |  4 pages (1,225 words)
Style: APA  |  Bibliography Sources: 1

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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]


Justice and Good Term Paper

Term Paper  |  5 pages (1,420 words)
Bibliography Sources: 1+

SAMPLE TEXT:

" (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]


Stare Decisis, From the Latin Term Paper

Term Paper  |  12 pages (3,955 words)
Bibliography Sources: 1+

SAMPLE TEXT:

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]


Courting Disaster Book Review

Book Review  |  4 pages (1,272 words)
Bibliography Sources: 4

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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]


Freedom of Speech Morse v. Frederick Term Paper

Term Paper  |  4 pages (1,461 words)
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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]


Islamic Criminal Justice System Term Paper

Term Paper  |  10 pages (3,747 words)
Bibliography Sources: 0

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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]


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)
Bibliography Sources: 3

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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)
Bibliography Sources: 10

SAMPLE TEXT:

" (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 &amp Due Process Essay

Essay  |  4 pages (1,472 words)
Bibliography Sources: 0

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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]


English Legal System the Sources of Law Essay

Essay  |  5 pages (1,401 words)
Style: Harvard  |  Bibliography Sources: 3

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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

Thesis  |  5 pages (1,593 words)
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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)
Style: APA  |  Bibliography Sources: 3

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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]


Moral and Legal Questions Term Paper

Term Paper  |  10 pages (3,247 words)
Bibliography Sources: 1+

SAMPLE TEXT:

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]


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]


Harvard College's "Oncomouse Term Paper

Term Paper  |  5 pages (1,633 words)
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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

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]


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]


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]


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: Arbitration Agreements Research Paper

Research Paper  |  6 pages (1,931 words)
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" (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

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

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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]


Sports Law Essay

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Style: Harvard  |  Bibliography Sources: 5

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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

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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

SAMPLE TEXT:

¶ … 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

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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]


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]


Politics of Administrative Law Term Paper

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

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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

Research Paper  |  5 pages (1,307 words)
Bibliography Sources: 4

SAMPLE TEXT:

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]


Forensic Psychologist's Legal Responsibilities and Rights Research Paper

Research Paper  |  9 pages (3,466 words)
Bibliography Sources: 9

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Legal Rights and Responsibilities in Forensic Psychology

The forensic field has expanded and broadened during the last fifty years or so. Since forensic psychology differs from conventional psychology, special attention has been given in developing ethical and legal rights and responsibilities. This paper summarizes the legal rights and responsibilities of a forensic psychologist in light of the guidelines developed and… [read more]


Legal Issues in Cremation Annotated Research Paper

Research Paper  |  2 pages (615 words)
Bibliography Sources: 5

SAMPLE TEXT:

____. (2014). Burial Rights, Corpse. Retrieved http://legaldictionary.thefreedictionary.com/Burial+Rights

This resource is useful in that it sums up common law and statute in general for issues related to the burial, particularly for situations involving negligence of some kind. For instance, it is a misdemeanor to possess a body and refuse or neglect to bury of dispose of a corpse indecently. Permitting a body to be taken from a person who agrees to properly bury a corpse subjects that person to lawsuit. At common law, and often under state statute, it is an offense to neglect to bury or cremate a body within a reasonable period of time after death. Putting several corpses in the same crematorium during a single burn cycle. Results in the commingling of ashes, which is viewed as an act that undermines the respect due a dead person.

Morton v. Maricopa County, 865 P.2d 808 (Ariz App. 1993).

Retreived http://www.aele.org/law/Digests/civil123.html

When the remains of a murder victim were incinerated due to space needs, the victim's parents had cause of action against medical examiner, as they had a statutory right to receive body for interment or cremation. This legal summary is useful because it points to the duty of care of the medical examiner, and of workers at the crematoria.

Goldwasser, J.W. (Rabbi (2014). How can a Jewish cemetery permit the burial of cremated ashes on sacred ground? About.com.

This is an informative article on cremation under Jewish law. Most traditional authorities forbid the burial of ashes in a Jewish cemetery because it encourages the practice of cremation. Some traditional authorities do allow ashes to be interned because to deny burial would itself be a violation of the command to bury.

[Type text]… [read more]


Wills Can Be Invalidated Essay

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¶ … WILLS can be invalidated using Florida case law.

Invalidating a WILL using Florida Law

The primary objective of this analysis is to establish the ways of invalidating wills, or trust documents as outlined by the Florida case law. Although it may seem that the testator has the final say, even after death, the law may revoke the will… [read more]


Ethics and the Law Term Paper

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It has some of the best businesses, and an eager crop on entrepreneurs. It has the best hospitals and some of the most efficient production faculties in the world. These benefits are not infinite, nor are they permanent. America must continue to grow and develop in order to become greater. It cannot simply rest on its laurels and hope for… [read more]


Contract Law in Modern Society Term Paper

Term Paper  |  2 pages (642 words)
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This is because these agreements are enforceable for a specific length of time. It is dependent upon both parties fulfilling their obligations. When this happens, it means that they are compelled to meet these conditions. For some people, this is challenging, with their lives are constantly changing. As a result, they need to consider the impact it will have on them and if this is something they are prepared to follow. (Easton, 2007) (Andrews, 2011) (McKendrick, 2012)

Identify ethical issues that exist in your example, if any. If your scenario did not present any ethical issues, provide support to indicate this.

In a life insurance contract there are several ethical issues. For instance, the insured is having their beneficiaries receive a monetary benefit when something happens to them. This is problematic, as the basic concept is enabling them to take advantage of the death of the policy owner. Yet, at the same time, it is also providing the beneficiaries with protection against this kind of uncertainty. In this case, a moral challenge exists, based upon the financial reward from the unexpected death of the policy owner by the beneficiary. While at the same time, the insurance company will realize a profit due to the premiums that were paid each year for coverage. (Easton, 2007) (Andrews, 2011) (McKendrick, 2012)

Conclusion

Clearly, contracts are used to provide some kind of guarantee from one party to the other. It is based upon each side's ability to meet these obligations under specific circumstances. As a result, this is something that they must consider, to determine the other party's capacity to follow these provisions and if this is an agreement they willing to enter into.

References

Andrews, N. (2011). Contract Law. New York, NY: Cambridge University Press.…… [read more]


Business Law in 1960 Essay

Essay  |  2 pages (663 words)
Bibliography Sources: 3

SAMPLE TEXT:

The legal bias in this case was the court ruled that the first and fourteen amendments usually require a public official who is suing for defamation to prove that the defamatory comments alleged were made with actual malice (Hrcr.org, 2009). This means that with knowledge that it was not true or with reckless disregard of whether it was not true or true. Otherwise the reasoning of the court was that public debates on issues of importance would be made less. Citizens have the right to criticize officials holding public offices. This is without any protection provided for errors arising from public debates; people will get engaged in self-censorship as opposed to speaking out important public issues as they will fear of getting a libel suit.Therefore when this case is considered against a background of profound national commitment to the principle that any debate on public issues should wide-open, robust and uninhibited and that It might include sharp attacks on public officials and government.

Supreme Court of the United States

Chief Justice; John Roberts

Associate judges by order of seniority

1. Antonin Scalia

2. Anthony Kennedy

3. Clarence Thomas

4. Ruth Bader Ginsburg

5. Stephen Breyer

6. Samuel Alito

7. Sonia Sotomayor

8. Elena Kagan

Retired Associate Justices

a. John Paul Stevens

b. Sandra Day O'Connor

c. David Souter

New York Court of Appeals

The Chief Judge; Jonathan Lippman

The Associate Judges of the

1. Victoria A.Graffeo

2. Susan Phillips Read

3. Robert S. Smith

4. Eugene F.Pigott Jr.

5. Jenny Rivera

6. Sheila Abdus-Salaam

References

Pearson Education. (2013). Current U.S. Supreme Court Members. Retrieved September 16, 2013 from http://www.infoplease.com/us/supreme-court/supreme-court-members.html

Hall, K. L & Urofsky, M.I.(2011). New York Times v. Sullivan. Retrieved September 16, 2013 from http://www.kansaspress.ku.edu/halnew.html

Hrcr.org.(2009). The New York Times v. Sullivan "Actual Malice" Rule. Retrieved September 16, 2013 from http://www.hrcr.org/safrica/expression/nytimes_sullivan.html… [read more]


Volition and Contract Law Research Paper

Research Paper  |  10 pages (2,739 words)
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Such a person is still under the jurisdiction and care of the guardian, and as such, they may not commit to any action or event that makes them liable for their personal actions. The legal writings refer to the persons under the age of eighteen as minors or infants. However, voluntariness is about a person of sound mind committing to… [read more]


Law Tradition Essay

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Bibliography Sources: 1+

SAMPLE TEXT:

berkeley.edu).

What is the importance of precedent to the judicial decision-making process?

An example of how common law crept into civil law (through precedent) in the United States, the Berkeley article mentions the 1925 Supreme Court case, United States v. Robbins. In that case the concept of "community property" was first adjudicated by the High Court, and the decision was rendered based on precedent from the "…legal customs of Visigothic Spain," which dates all the way back to the fifth century CE (law-berkeley.edu). So California inherited its current law on community property based not on English common law, but on precedents going back thousands of years.

What are equitable and legal remedies? What's the difference?

According to FindLaw.com, a legal remedy means the plaintiff -- after arguing his or her case before the court -- seeks compensation for losses. And if the plaintiff wins the case, the judge typically awards "damages" to the plaintiff to reimburse him or her for injury or loss (FindLaw.com). In equitable claims, the plaintiff is usually asking for "relief" from certain actions; the plaintiff may be asking the court for an "injunction" preventing the party being sued to refrain from "…doing a certain act." A city council may re-zone an area of the city for adult entertainment but the neighbors may bring litigation asking for an equitable claim -- preventing the city from going through with the rezoning. So the difference is: in legal remedies, the court normally awards in the form of monetary compensation; but in equitable claims the court may order someone or a business to cease what it is doing.

Works Cited

FindLaw.com. (2009). What is the Difference Between a Legal and Equitable Claim? Retrieved

May 12, 2013, from http://litigation.findlaw.com.

University of California / Berkeley. (2010). The Common Law and Civil Law Traditions.

Retrieved May 12, 2013, from http://www.law.berkeley.edu.… [read more]


Effects of World Trade Organizations Dispute Settlement System on International Law Research Paper

Research Paper  |  3 pages (865 words)
Style: Chicago  |  Bibliography Sources: 5

SAMPLE TEXT:

WTO Law

WTO and International Law Qs

The World Trade Organization impacts international law in both direct and indirect manners, and strangely it provides strength to international law even in ways that might on the surface appear to weaken it. First, and most directly, the WTO is far more centralized than most other bodies and systems of international law, which adds a great deal of strength to the legal workings of the international community within the WTO (Pauwelyn, 2001). The rules and hierarchies established by the WTO provide clear guidance with direct and transparent means for appeal and redressing grievances, making the organization a far more effective, decisive, and objective body for international arbitration and rule-setting than other international and/or intergovernmental organizations (Pauwelyn, 2001; Pauwelyn, 2003). This has ked to a direct strengthening of international law, as all areas governed by the WTO (though this governance is not sovereign or exclusive) have a centralized authority they can appeal to which wields direct, even, and transparent power in settling disputes and setting rules (Pauwelyn, 2001; Pauwelyn, 2003).

At the same time, the strength of the WTO -- which is, ultimately, a non-governmental body -- could be seen as delegitimizing both international and national governments. An inspection of the WTO's own governing rules belies this notion, however; the construction and wording of the various articles shows the clear deference to international law embedded in the very fabric of the WTO (Pauwelyn, 2003). In this manner, the WTO adds legitimacy to existing governments and intergovernmental partnerships and unions, further strengthening international law by lending its support to bodies of international law and the various organizations that determine and enforce international agreements conduct between nations.

2)

It goes without saying that relationships between states will improve when there is a clear, established, authoritative, and effective body in place to handle disputes, set rules, and otherwise manage interstate relationships, and this is precisely what the WTO provides (Petersmann, 1997; Pauwelyn, 2001; Pauwelyn, 2003). The specific manner in which the WTO goes about influencing and assisting interstate relationships is another substantial strength of the organization, however, and the detailed dispute resolution process the WTO enforces covers all manner of violation-based disputes as well as non-violation-based complaints between states (Petersmann, 1997). Having a dedicated, specific, and detailed means of addressing and resolving conflicts greatly improves relationships between states not only through the concrete instances of dispute resolution but also by more effectively compartmentalizing issues of dispute (Petersmann, 1997). By providing an effective means for resolving trade-related disputes and conflicts, that is, the WTO helps to keep such issues from…… [read more]


Tort Law and Trident Diving Term Paper

Term Paper  |  2 pages (948 words)
Bibliography Sources: 1

SAMPLE TEXT:

In this instance, the materials used were less expensive and were of a lower quality as opposed to the materials used by competing diving equipment manufactures. The lower quality material and substandard craftsmanship employed by Trident's executive management resulted in a faulty product that could easily cause death to users through accidental drowning. Naturally, the manufacturer could defend these claims through proof of testing, proper warning labels and the company's overall due diligence, provided Trident actually engaged in these precautionary practices. However, they must maintain that they did use a reasonable standard of care when producing the product.

The most relevant consumer protection statute that relates to the above case is the Fair Packaging and Labeling Act of 1967, which was enacted to provide comprehensive federal regulation of product labeling procedures. This legislation directs the CPSC to issue regulatory statutes requiring that all consumer commodities disclose net contents, identity of commodity, and name and place of business of the product's manufacturer, packer, or distributor. In addition, the Act authorizes additional regulations when necessary to prevent cases of outright consumer deception. In the instance of the above recall, as the manufacturer of a product previously known to be faulty in its design and construction, Trident Diving Equipment must have in place adequate labeling in order to educate the consumer regarding the product's safety, where it came from, and its proper use and application. The justification for the strict labeling regulations mandated by the Act can be found in the CPSC's recall order. By informing the public of the danger posed by Triden's faulty hoses, the CPSC was able to provide a detailed description of the labeling on the hoses in question. By announcing that all scuba hoses with a label reading "Scuba Diving High Pressure hose I.D. 3/16 (4.76 mm) W.P. 5000 PSI Exceeds SAE 100RT braid with Kevlar fiber from Dupont" printed in white lettering on the hose's outer covering, the CPSC ensures that there can be no confusion regarding the product being recalled. Simply announcing that Trident scuba hoses have been recalled is an insufficient motivator of consumer action, because many thousands of divers own hoses and gear manufactured by Trident. By referencing this specific label, however, regulators can target only those consumers who may be diving with the specific make and model of hose known to leak. The nationwide recall of Trident Diving Equipment's line of faulty High-Pressure Scuba Diving Air Hoses demonstrates the effectiveness of the Fair Packaging and Labeling Act, which was enacted more than half a century ago.

References

CPSC. U.S. Consumer Product Safety Commission, (2013). Trident diving equipment recalls high-pressure scuba diving air hoses due to drowning hazard (Recall date: APRIL 18, 2013 Recall number: 13-174). Retrieved from Government Printing Office website: http://www.cpsc.gov/en/Recalls/2013/Trident-Diving-Equipment-Recalls-High-Pressure- Scuba-Diving-Air-Hoses/… [read more]


Statutory Interpretation Is Indeed Essay

Essay  |  11 pages (3,253 words)
Style: Harvard  |  Bibliography Sources: 20

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In this case, a greater amount of illumination was rained down on the Employment Rights Act and was done so in a way which better protected workers.

"Another important development with respect to statutory interpretation in the UK is to be found in the Human Rights Act of 1998. This states in s.3(1) that so far 'as it is possible… [read more]


Law Term Paper

Term Paper  |  3 pages (1,044 words)
Bibliography Sources: 3

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Indiana v. Edwards, 554 U.S. 164 (2008), was a United States Supreme Court case which added to this precedent where the Court rules that the standard for competency to stand trial was not linked to the standard for competency to represent oneself.

Edwards suffers from schizophrenia and tried to steal a pair of shoes from a store. In defending himself he shot and wounded an innocent bystander. In 2000, he was deemed not competent to stand trial and was hospitalized. In 2002, his lawyers asked for another competency evaluation and in June 2005, Edwards finally stood trial. He asked for the right to represent himself, and this originally refused, was ultimately agreed with the U.S. Supreme Court dividing between issue of competency to stand trial and issue of competency to represent oneself. (Indiana v. Edwards | The Oyez Project at IIT Chicago-Kent College )

Procedural laws deal with the way that criminal laws (or laws in general) are carried out. Substantive laws deal with discussion of the substance of the law, such as in criminal law, discussion of how well rules deter, rehabilitate, or exact retribution.

A case involving a substantive criminal law issue is that of the 1970s case where they arrested Soliah who belonged to the Symbionese Liberation Army, a radical San Francisco group that kidnapped Patricia Hearst and tried to kill government officials. The case involves the controversial Alford pleas issues where defendants are allowed to plead guilty while simultaneously protesting their innocence

Soliah had changed her name to Sara Jane Olson, and her court procedure turned out to messy with some judges in some states allowing the nolo contendere plea (which is where individual may refuse to admit guilt but accept punishment as if guilty). And judges in other states allowing her to use the Alford system. In each case, the outcome was different and judges were confused finally prescribing her psychologically incompetent to stand trial. It was only then that Soliah admitted and announced that she was sorry for hurting others.

This case, bringing us back to the beginning, shows how the entire criminal justice system is premised on the legal recognition / theory that people are responsible for their acts and that, consequently, they cannot be penalized until they stand trial for their actions. The Edwards procedural act shows the debate on when a person is competent to reason for himself. The substantive case highlights the controversy of indeterminate sentencing where the statutory laws fall short and conviction finally depended on discretion of individual judge. In Soliah's case, law of Alfred varied from state to state.

Understanding of the statutory and case law is important to a criminal justice professional since it helps us see how the two are related and helps us better understand the reasons for specific cases and the history behind certain criminal justice actions.

Sources

Cliff's Notes Sentencing Statutes and Guidelines

http://www.cliffsnotes.com/study_guide/Sentencing-Statutes-and-Guidelines.topicArticleId-10065,articleId-10042.html

Schlatz, B. Classical Theories in Criminal Justice

http://www.ehow.com/list_7457240_classical-theories-criminal-justice.html

Indiana v. Edwards | The Oyez Project at IIT Chicago-Kent… [read more]


Constitutionality of a Postcard-Only Mail Essay

Essay  |  8 pages (2,487 words)
Bibliography Sources: 1+

SAMPLE TEXT:

Despite the lack of challenge to this policy, Judge Simon felt compelled to note that issues of Prison Legal News and a child's report card could not be considered disruptive. Regarding easy alternatives to a restrictive mail policy, Judge Simon pointed out that an additional 30 to 60 minutes of time spent screening would be exactly the kind of easy… [read more]


Legislative Ethical and Legal Regulatory Compliance Term Paper

Term Paper  |  5 pages (1,588 words)
Bibliography Sources: 5

SAMPLE TEXT:

Computer Science

Legislative, Ethical, and Legal Regulatory Compliance

Personal identifying information is frequently gathered by businesses and governments and is stored in a variety of formats such as digital and paper. Protecting this data has become a mounting issue for businesses and government entities around the country. There are several laws that have been enacted in order to facilitate the… [read more]


Antitrust Laws Are Case Study

Case Study  |  4 pages (1,187 words)
Bibliography Sources: 1+

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Such competitors allocate specific customers, product, or territories among themselves. Competitors may decide to sell to, or bid on contracts let by certain customers. Such competitors will not be expected to sell to, or bid contracts let by customers allocated to other competitors. Under certain circumstances, competitors can agree to sell only to customers that come from specific geographic locations and deliberately refuse to sell or quote exorbitant prices to customers that come from locations where their conspirator companies are situated (Anonymous, 2010).

Decisions that are made before court of law regarding whether a business organization has violated federal antitrust laws, four elements have to be taken into consideration namely: an agreement to concerted action, unreasonable restraint of trade by the agreement, interstate trade restraint, and a show of general intent. The court has to prove that the competitors actually conspired to unreasonably restraint trade. All that the courts want to establish is that there was some illegal agreement between the competitors to restraint trade. Courts hold competitors liable for having engaged in restraint of trade when they knowingly create monopoly, artificially maintain prices, restrict output, refuse to deal, or interfere with free play of market forces. The courts rely on three analytical approaches namely "per se" rule, "rule reason," and the intermediate "quick look" to determine whether an activity constitute an unreasonable restraint of trade (Lechter, Posner & Morris, 2002).

Intermediate quick look rule is at times abbreviated rule of reason standard. Quick look analysis is only applicable in agreements that are naked restrictions but having pro-competitive justifications. After the courts have established existence of a restriction the onus shifts to the defendant to assert pro-competitive justifications. After successful rebuttal of the presumption of anti-competitive effects by the defendant, the court then applies the rule of reason analysis to balance the costs of the restraint of trade against its benefits. Quick look analysis just like per se analysis heavily relies on the experience of the court. Courts that try antitrust law violators must have jurisdiction under the Act. Violators can only be charged if their activities stand to affect interstate commerce (Lechter, Posner & Morris, 2002). The activities of the competitors must involve a substantial volume of interstate activity. The activity has to also be an essential part of transaction. A defendant is found to be criminally liable for anti-trust violation if there is an agreement and that the defendant knowingly entered into the alleged conspiracy. This calls for no further inquiry to prove intent (Lechter, Posner & Morris, 2002).

Selling gasoline for less than cost does violate Sales-Below-Cost (SBC) laws that seek to protect small independent firms from predation by larger firms. Such an activity violates SBC laws because it injures other competitors as well as destroying competition. After rival companies have been driven out of business and potential entrants scared away, the company that lowered the gasoline prices below its costs will definitely raise the price of the gasoline to recoup the losses it initially incurred. This… [read more]


Corporate Civil Procedure &amp Constitutional Law Term Paper

Term Paper  |  32 pages (10,293 words)
Bibliography Sources: 1

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Gilbert Law Summaries: Constitutional Law by Jesse Choper

The United States Constitution is the foremost legal authority for laws created in the United States. Though the Constitution is a federal document, it applies to all laws at every level in the United States. Therefore, any law that fails to comport to constitutional standards is illegal. The Constitution specifically prohibits certain… [read more]


Hotel Sent the Security Guard Research Paper

Research Paper  |  3 pages (1,125 words)
Bibliography Sources: 0

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The court also found that the security staff had legal justification to detain the defendant for purposes of investigating the incident.

The presiding judge found that the plaintiff, Borgata, under the facts and circumstances of this case, owed no duty of care to the defendant. Moreover, the judge found a preponderance of the evidence clearly indicated that the plaintiff, Shannon Niland was subjected to non-consensual touching, and the defendant himself confirmed that. The judge further rejected the defendant's claim of negligence in failing to make a complete investigation before taking action. In addition, the presiding judge rejected Michael's claims of invasion of privacy by Borgata.

In conclusion, this case presents many factual disputes including the defendant's detention and his alleged touching of Ms. Niland. In essence, the judge's decision was in order .The statements of Ms. Niland to her co-employees were not actionable and hotel and that the security officers acted appropriately in response to Ms. Niland's report.

Defendants Actions

In Gonzalez's case, by having an altercation with the officers, he was handcuffed and arrested for criminal mischief as well as resisting arrest. Prior to this, he had failed to answer his hotel door after the hotel staff heard some commotion, which caused the police to take action. Once the police officers forcefully broke into Gonzalez's room, he became aggressive. Thus, the police officers had probable cause to arrest Gonzalez.

In the second case, regarding the defendants' claim of Intentional Infliction of Emotional Distress (IIED), the judge granted summary judgment partly because none of the plaintiffs had committed any intentional outrageous conduct. The plaintiff, Ms. Niland, was entitled to judgment as a matter of law on the defendant's false arrest and false imprisonment claims. The hotel's security staff had legal justification to detain the defendant for purposes of investigating the complaint of the plaintiff, non-consensual touching by the defendant.

Court Ruling

In both cases, no sufficient evidence was presented and this, largely, influenced the judges' decisions. In addition to this, especially in the first case, there was no legal basis for a criminal offence. Gonzalez had done nothing wrong other than resisting arrest, which was as a result of the police breaking into his room. In the second case, Niland seemed to have influenced her colleagues. She had no burden of proof; however, Michael presented a strong case against her.

Defendant Actions

The motivation behind both defendants action prior to arrest is unclear. However, during their encounter with the police, there could be some deduction. In the Gonzalez case, it appears as though, he least expected the police to break into his room. In addition, evidence suggests that there were broken beer bottles. The conclusion could be that he was caught unawares and most likely after a few drinks. The police action further provoked him to act that way. In the second case, the defendant most likely acted that way out of the belief that he was innocent and that he had been wrongly accused.

The only action from both… [read more]


Hla Hart and Modern Legal Case Study

Case Study  |  4 pages (1,385 words)
Bibliography Sources: 0

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Austin said that the coincidence between the law that is and the law that ought to be happens so often that people get confused and believe that law and morality are connected. Austin also said that there is human law and there is divine law and that if a human law conflicts with divine law, then the human law is not really a law and does not need to be obeyed. Austin believed that divine law was shown in utilitarian principles, which were about liberalism, reform and control of power. Using the example of the master's rights over his slaves, the rule of law that gives the master rights over his slaves conflicts with divine law (that we know by Utilitarian principles) and therefore it is not really a law and does not have to be obeyed. Bentham said basically the same thing with two large differences: Bentham used "utility" instead of God or the divine law; and Bentham believed that even a supreme legislative power can be legally restrained by a Constitution.

Hart seems to admire the simplicity of Austin and Bentham. For example, Hart mentions that Bentham claims that the issue in question is not whether slaves can reason but simply whether they suffer. In this way, Bentham does not fall into the trap of talking about the issue of whether a slave is naturally meant to serve other people. Even so, Hart criticizes Austin and Bentham because they are so severe about separating the law that is from the law that ought to be. Hart says that sometimes there is an intersection between laws and morals. Hart also criticizes their belief that law is essentially a command from a sovereign that is habitually obeyed because they can command obedience but do not need to obey. Hart says that the law does not work that way: legislators do not hold office long enough to be habitually obeyed sovereigns; and the laws passed by the legislature must still obey fundamental rules.

3. Conclusion

H.L.A. Hart is a famous legal thinker who examined Positivism and Utilitarianism. Hart is noted for thoughts that modernized the thinking of positivists and specifically utilitarians. The key concept of "Positivism and the Separation of Law and Morals" is that sometimes law intersects with morality. For example, until people become like giant land crabs with shells that cannot be penetrated and who can get their food from the air and not be harmed by others, there must be laws against violence and setting basic property rights. Hart believes that those laws "intersect" with morality and every legal system has laws like that. Hart believes that the old positivists, who saw law that is completely separate from law that ought to be, were mistaken.

Hart also specifically examined the Utilitarianism of Austin and Bentham. Austin and Bentham were both Utilitarians. They believed in no connection between the law that is and the law that ought to be and that it is only a coincidence if legal rights… [read more]


Law and Society the Nature Term Paper

Term Paper  |  3 pages (909 words)
Bibliography Sources: 0

SAMPLE TEXT:

Same-sex adoption is a matter of civic and possibly constitutional but not criminal law.

Social Control and Social Change -- Abortion

Abortion is one of those issues that is clearly related to social control, but which is rarely framed that way. The presentation raises the important question of "Should a parent be able to force a child to have an abortion?" Yet the presentation did not present the converse question, which is just as important if not more so: "Should a parent be able to prevent a child from having an abortion?" The answer to the latter question is more important because some states do have restrictions on abortion; some teenagers need parental consent. If the parents are opposed to abortion, they are essentially forcing their child to carry an unwanted child to term. An unwanted teen pregnancy dramatically alters a person's life in terms of access to education and career. Because the issue impacts females more than males, abortion is a matter of patriarchal social control of women: perpetuating the problems that plague women such as income disparity with men and other injustices. Changes to abortion law have led to social changes, and have also reflected those social changes.

The Law and Diversity -- Sharia Law

It is easy to take for granted the supremacy of one's own legal system. In fact, each country has a unique legal system that works in accordance with its political institutions, infrastructures, and social norms. Most modern and industrialized nations have a similar style of legal system, in which a suspect in a criminal case is presumed innocent. It is up to the state to prove the guilt of the suspect. However, the opposite is true in other nations. The diversity of the law, its interpretations, and its procedures needs to be understood in order to have a better understanding for the role that the law plays in human social and political affairs.

In some Muslim countries, there are two legal systems that overlap with one another. One will be the realm of civic law and the other: Sharia law. Sharia law may be used as the primary means of settling disputes and criminal cases as well, especially in theocratic societies. The presentation focusing on Saudi Arabia outlines how Sharia law works: who its magistrates are, what jurisdiction they have (which is extensive in Saudi Arabia), and what legal topics they address. Learning about Sharia law and other types of legal system raises fundamental questions about the assumptions, values, and beliefs that underlie both legislation and the procedures used to enforce it. Disputes are settled in ways that would be considered unconventional outside of their culture: often outside of the courtroom.… [read more]


Liability the Case With Virginia Pollard Case Study

Case Study  |  3 pages (1,331 words)
Bibliography Sources: 3

SAMPLE TEXT:

Liability

The case with Virginia Pollard is showing how Teddy's Supplies is facing major legal challenges from the sexual harassment lawsuit. This is in spite of the New Jersey Supreme Court overturning the award. To fully understand the firm's legal options requires examining the company's liabilities. This will be accomplished by looking at: the different laws / case precedent (with a possible settlement), defining sexual harassment, studying the quid pro quo defense, if Pollard was mistreated, the current legal defense of Teddy's, providing specific recommendations to the CEO and the impact of this case on any replacement that is a female. Together, these elements will provide the greatest insights as to the strategy the firm can take in settling the claims made against them out of court.

Is Teddy's Supplies Exposed to a Liability Claim?

Obviously, Teddy's Supplies is exposed to major liability claims. Evidence of this can be seen with applicable laws and case precedent. In the case of regulations, Title VII of the Civil Rights Act of 1964 prohibits sexual discrimination in the workplace. This is showing how Teddy's Supplies is in violation of the law by allowing this to occur.

The case precedent that is supporting specific provisions of preventing sexual harassment include: Williams v. Saxby, Barnes v. Costle and Harris v. Forklift Systems. Williams v. Saxby is when the Supreme Court ruled that sexual harassment is occurring when there are unwanted advances made by a supervisor or other employees / coworkers. Barnes v. Costle is based on U.S. Court of Appeals ruling that found if a female employee is treated differently for rejecting some kind of advances. The firm is in violation of Title VII. Harris v. Forklift Systems found that sexual harassment claims can be brought against an employer without showing psychological harm. This is provided that the case meets predetermined criteria to include: the frequency of conduct, the severity of an offense, if the conduct is threatening or humiliating and if it creates a negative work environment for the individual. These laws and cases, are illustrating how the company is exposed to large amounts of potential civil litigation (based on the incident with Virginia). ("Development of Sexual Harassment Law," 2010)

As a result, there should be a settlement provided of at least $6 million with a private apology offered for these events. This is because, she can claim that she was physically abused and that her supervisor allows this kind of behavior to occur. Out of fear for her safety and employment, she reluctantly engaged in certain actions. Moreover, management made no attempt to investigate and/or deal with any kind of complaints (other than their website that does not work).

Define sexual harassment, including both quid pro quo and hostile environment harassment. Which type(s) do you feel Pollard was a victim of (if either)? Provide law or a case to support your position.

Sexual harassment is when a person is subject to unwanted sexual advances from: a coworker, supervisor, student, third party or any… [read more]


Resolution of Legal Dispute Essay

Essay  |  2 pages (680 words)
Bibliography Sources: 2

SAMPLE TEXT:

BSI promised to ship the equipment that included a 1000-Kilo Watts FM stereo transmitter and a 50-meter RF cable as soon as it received payment from Touch FM. The agreed amount was 3500 Euros for the transmitter, 500 Euros for the RF cable and additional 1000 Euros for insurance and shipping from Nice, France to Nairobi Kenya; Touch FM made the payment promptly. The payments were done electronically to BSI Electronics bank account and receipt of payment was confirmed.

The consignment arrived in Nairobi a week later, but the RF cable was missing. Dispute arose between BSI Electronics, Touch FM and the shipping company. Touch FM claimed that the full shipment did not arrive; BSI Electronics was firm and reiterated that they shipped the full package, while the shipping company maintained that the cable was not submitted for shipping. In addition, Touch FM claimed that they ordered for a stereo transmitter, but what they got was a mono transmitter. Touch FM felt short changed and established grounds for compensation from BSI Electronics. The firm took legal action by engaging lawyers to take legal action. However, BSI Electronics went quiet over the issue and did not respond to calls or emails from the lawyers, it totally disregarded the calls to attend to the issue.

Touch FM later approached the French Economic Mission (FEM) based in Nairobi Kenya, to help in resolving the dispute. The FEM established contacts, but failed to negotiate successfully with BSI Electronics leading to blacklisting of BSI Electronics. BSI Electronic stood their ground blaming Touch FM of mischief and remained quiet over the issue. None of the parties involved has ever resolved the issue.

References

Barlow, J.P. (1996, Feb 9). A Declaration of the Independence of Cyberspace. Retrieved March

19, 2012, from www.eff.org: http://www.eff.org/~barlow

Federal Communications Commission. (1996). The Telecommunications Act of 1996. Retrieved

March 19, 2012, from www.fcc.gov: http://www.fcc.gov/Reports/tcom1996.pdf

International Chamber of Commerce. (2001, June 6). Jurisdiction and Applicable Law in Electronic Commerce. Retrieved March 19, 2012, from www.iccwbo.org: http://www.iccwbo.org/id478/index.html… [read more]


Employment Law &amp ADA Discrimination Term Paper

Term Paper  |  8 pages (2,468 words)
Bibliography Sources: 12

SAMPLE TEXT:

[footnoteRef:18] Anecdotally, friends from Korea often state that eyelid surgery in Asia has become incredibly popular and widely adapted as a competitive edge in the workplace. Those Asians who do not receive the surgery often find themselves discriminated against on the basis of stereotypes. It is not difficult to imagine, that likewise, there may emerge a time when it is… [read more]


Law and Legal Significance of Brad Meltzer's the Tenth Justice Book Report

Book Report  |  3 pages (960 words)
Bibliography Sources: 1

SAMPLE TEXT:

Tenth Justice

Influence of the Law in the Tenth Justice

Brad Melzer's debut novel the Tenth Justice is a fast-paced legal thriller that follows the misadventures of recent Yale Law School graduate Ben Addison during his year -- or part of a year, ultimately -- as a United States Supreme Court law clerk. As Addison and the reader learns right at the start of the novel, law clerks in the Supreme Court (at least in Melzer's fictional world) have an inordinate amount of power in the shaping of Supreme Court decisions and thus the establishment and development of law at the federal level, and on a very lasting basis. While it is far from certain that the situation as presented and described by Melzer is truly representative of reality, the position of influence that Addison finds himself provides the impetus for the action of the book, when he accidentally leaks a decision he is working on to someone with plans for underhanded financial gain. The fix is in, the blackmail begins, and Addison must spend the rest of the novel trying to beat his new nemesis at his own game, out-conning the con and staying ahead of the authority of the Court, who suspects he has been leaking information, and his roommates, one of whom might be in league with the unsavory investor now blackmailing Ben.

Many of the characters in the novel seem to be motivated not by the law, which the Supreme Court and the "tenth justice" are supposed to uphold, but rather by the ability to bend or break the law. That is, it is in the complexities and intricacies of the legal system and the ability to which these complexities can be manipulated that the characters and the reader ultimately finds enjoyment. Addison breaks the spirit of the law if not the letter, whether intentionally or not, when he leaks information to the shady investor Rick, and he continues to talk to his roommates about goings-on at the Court in a manner that is far more loose and open than is wise or warranted -- he is motivated by his involvement with and manipulation of the law, and indeed by his status outside the law, not by the law itself. If he were truly interested in upholding the law, the novel would have progress with Addison admitting his mistake early on and working with authorities to correct the problem and bring the more purposeful wrongdoers to justice (and the novel likely wouldn't have been publishable). The same basic motivation can be applied to Rick, as well. Though there is definitely an element of greed driving Rick's actions, there is also the sense that derives real pleasure from his status above or outside the law, where he is able make decisions based on information he is not supposed to have, and to pull strings in order to…… [read more]


International Labour Law Term Paper

Term Paper  |  6 pages (1,905 words)
Style: Harvard  |  Bibliography Sources: 6

SAMPLE TEXT:

¶ … Professor Alston on the 'core labor standards' of the International Labour Organization (ILO), a review of how the Declaration goes against the original intent of the 1919 ILO tradition (ilo.org 2012). Pointing out that the intent of the ILO was to serve as a globally represented oversight in setting standards for International labor laws through use of conventions.… [read more]


Obtaining a Degree in Jurisprudence Term Paper

Term Paper  |  2 pages (497 words)
Bibliography Sources: 0

SAMPLE TEXT:

¶ … obtaining a degree in jurisprudence and becoming a practicing international attorney are longtime dreams of mine. To attain this goal, I intend to begin studying law by next year. Becoming a paralegal is, in my view, a tool to learn the intricacies and practical applications of the law, thereby affording me a greater understanding than the average law student and, thus placing me at an advantage in a highly competitive field of study.

I first became interested in the law upon joining the military. It is not a stretch to have a strong desire to defend our country turn into a passion for the laws that govern our freedoms, rights, and obligations. Further, it is imperative that our country be represented internationally by professionals who have had the opportunity to engage with diverse cultures and backgrounds. Although everyday law may be simply finding the rule and applying it, overall the law is subject to change and interpretation both intra and internationally. Rules and laws may be interpreted differently based upon ones cultural norms, therefore it is important to have a fundamental understanding of legal principles.

Although my background has primarily consisted of administrative duties and not the law, I feel that a great deal of the paralegals' responsibilities center around the administrative aspects of the law. By becoming a paralegal, I will be utilizing both my organizational and administrative background and skills. And, it is precisely these skills which make me an ideal candidate as a…… [read more]

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