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Contract Law Under the UCC Term Paper

… References

Contracts I - Professor Rose 1999 at http://tufte.net/jerod/law/outlines/JT-Contracts.htm

Quasi-contract from Wikinfo, an Internet encyclopedia available at http://www.internet-encyclopedia.org/wiki.phtml?title=Quasi-contract

3. Under contract law, a contract comes into existence when there is an offer made and the offer is accepted. Furthermore, the offer has to be explicit and communicated to the offeree. Once the offeree accepts the offer, the contract becomes binding and is effective. In Morrison's case when Morrison decided to make an offer to Thoelke through a letter, his offer had been explicit and has been communicated to the offeree. Thoelke in turn receives the letter and communicates to Morrison of his acceptance of the price and terms quoted in the initial letter. The contract between Morrison and Thoelke becomes binding (No. 97: Irving Sonnenschein, et al. v. Douglas Elliman-Gibbons & Ives, & c., et al. 2001)

There is no doubt that the letter Thoelke sent to Morrison as acceptance to the offer is a valid and it binds Morrison before he revokes the sale contract because under contract law, revocation cannot take place unless it is communicated to the offeree. A revocation in the mind/thought cannot take effect, as it cannot be considered as communication and therefore the acceptance by Thoelke is effective and binding as indicated by the law: "A state of mind not notified cannot be regarded in dealings between man and man; and that an uncommunicated revocation is for all practical purposes and in point of law no revocation at all." Communication through behavior and non-verbal act is considered to be binding but in the thought is not valid. Thus in the case of Morrison vs. Thoelke the sale contract becomes effective as soon as Thoelke accepts and communicates to Morrison through the same letter.

Reference

Contract Law: Part 4: Offer & Acceptance available at http://www.duhaime.org/contract/ca-con4.htm

4. An offer becomes binding to sale when there is an acceptance expressed to the offeror. This can take the form of verbal, non-verbal or written communication. It is clear from the case above that the acceptance in the case of the Wholesale Coal Company has been through silence. However, had the acceptance been at the terms and stipulation in the original document that of twenty-five carloads, then it would have taken effect and become binding. Under contract law, Guyan is obligated to provide the twenty-five carloads if the company agreed to the initial offer (U.C.C. Section 2-401).

When the Guyan Company wrote back and stipulated that they only have 7 caseloads, it has communicated a counter offer, which is different from the original offer. Wholesale Coal Company never mentioned any kind of terms that require Guyan to deliver the seven carloads and therefore has not accepted the counter offer. In not communicating to Guyan, it has indicated that it did not accept the offer made by Guyan. Therefore the counter offer contract is not binding to sale.

When Wholesale Coal company demand the delivery of the rest of the eighteen carloads it had been justified in doing so because… [read more]


Commercial Use of Michigan Groundwater Term Paper

… Kellog (1874), Schenk v. Ann

Arbor (1916), Hoover v. Crane (1960), and Maerz v. U.S. Steel Corp. (1982).(2)

Ultimately, Judge Root ruled that the Michigan DEQ had violated public trust doctrine in failing to protect the public's interest against private diminishment of valuable state resources by granting commercial use, or "diversion" of Michigan groundwater for private use that was devoid of benefit to the residents of Michigan.

Similarly, Judge Root characterized the Michigan DEQ decision to grant drilling rights as violative of the Michigan Environmental Protection Act (MEPA), which applies in a broad sense, giving rights to the Attorney General (and any other

Michigan resident) to protect the state's natural resources from "pollution, impairment or destruction."(3) Similarly, the judge criticized the Michigan DEQ for failing to invoke protections granted under the Inland Lakes And Streams Act (ISLA), the Wetland Protection Act (WPA), and the Great Lakes Preservation Act (GLPA).

Recommendations:

Significant reform to the laws regulating natural resources in Michigan is necessary to protect the public interests against private diversion for commercial use that is without benefit or compensation to the general public. Michigan's Natural

Resource and Environmental Protection Act (NREPA), authored in 1994, deals only with the regulation of uses impacting the quality of Michigan's water supply. It strictly controls industrial practices' contamination of water through waste management and chemical recycling, while ignoring the issue of removing the state's water resources for commercial sale, elsewhere.(3)

According to the Michigan Land Use Institute, what is required is a legislative definition and restriction of commercial water "transfers" from the Great Lakes basin and public hearings on the matter of granting any future exceptions to legislative restrictions. Likewise, the MLUI recommends statutory recognition of fresh groundwater as a precious resource intimately interconnected to the quality and quantity of fresh surface water, along with appropriate guidelines for measuring, restoring, and securing compensation for any commercial use or removal, in the manner demonstrated by the Minnesota legislature.(3)

Bibliography

1. Howlett, D., Water Battle Dredges Up Acrimony; USA Today (June 22, 2003)

Accessed at http://www.greatlakesdirectory.org/mi/062203_great_lakes.htm

2. Michigan Citizens for Water Conservation v. Nestle Waters North America Inc.

49th Judicial Circuit Mecosta County Circuit Court Opinion (Nov 25, 2003) Accessed at http://www.envlaw.com/decisions/MCWC2.txt

3. Michigan Land Use Institute Special Report (October, 2001)

Liquid Gold Rush: Citizens Call for Legislative Action Accessed at http://www.mlui.org/pubs/specialreports/waterdiversion/waterdiversion.pdf.

4. Smith, C., Opportunity to Reform Michigan's Water Management Laws Accessed at http://www.mecprotects.org/MER/JUN03/water.html… [read more]


UCC and Nsf Checks L Term Paper

… Here, it is important to note, that the damages rendered in this case, $20, need not indicate that damages in every similar case be equal to the same amount, even in the state of Connecticut. This is because, Article 2 of the UCC in the state of Connecticut states that if the buyer does not pay the price of a purchase when it is due (i.e. when the check is presented at the time of sale), the seller, or the "person in the position of the seller," such as a check endorsement company, or collection agency that purchases the check from the original merchant, may collect "incidental damages" (42a-2-710) as well as the price of the original purchase. These damages may, according to Conn. Gen. Stat. 42a-2-709, amount to "any commercially reasonable charges, expenses or commissions resulting from the breach." This need not be limited to a particular amount except as determined by law.

Further, it is important to note that the crime of fraud is another topic altogether. The crime of fraud in passing bad checks in Connecticut is punishable with a fine of up to $1,000, or one year in jail, or both. A NSF check can be the result of insufficient knowledge or error regarding the availability of funds within an account (a condition that, nonetheless, still carries liability under the above statutes and UCC articles). However, a fraudulent situation occurs when a person uses a check with knowledge that there are insufficient funds within an account to cover the purchase or service, and payment is refused when the payee presents it to the bank. This type of "bad check" is dealt with the criminal code of the state in question, and not the UCC.

The Universal Commercial Code in itself, and as adopted by various states is an extremely powerful tool in clarifying the rights and responsibilities of commercial trade and business. However, its application, like all legal applications, can be quite complex, as is shown in Tuttle vs. Equifax. Further, it should be remembered that, although the UCC is, in name, Universal, different states can determine which of its provisions they want to adopt, and they may also amend those provisions. For this reason, Connecticut law can differ significantly from the law governing similar non-sufficient funds issues in other states. http://www.mdbankruptcylaw.com/lawguide/repayingdebts/bouncedchecks.asp www.lectlaw.com/def2/u004.htm. http://www.crdcs.org/rosett2.htm.

A www.lectlaw.com/def4/u021.htm. http://www.law.cornell.edu/ucc/3/3-104.html

http://www.cga.state.ct.us/2003/pub/Title42a.htm

http://csmail.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/98-9462.op www.state.ct.us/dob/pages/bchecks.htm.… [read more]


Attend the University of Hong Term Paper

… Since I would like to someday practice in Hong Kong, your coursework in Hong Kong law would be a benefit to my long-term career goals. I also share many of your admissions requirement, including, as I have noted, analytical and critical thinking, and a sound understanding of English oral and written language skills. My command of English has grown along with my education in the United States, and I feel I am well prepared for your admissions requirements. In addition, I have an intense interest in the law, which is one reason I sought out law firms in California and Hong Kong to work with during my college years in the United States. I always hoped to return home and complete my education at the University of Hong Kong, and I have been attempting to prepare for that possibility as long as possible. I feel my educational and career goals all focus on the University of Hong Kong, which is another compelling reason why I hope to attend the university.

I have my family's complete support in attending the university, and I look forward to a successful completion of my LLB and PCLL at the university, so I can practice law and reach my short-term and long-term career goals. I believe my background, my education in the United States, and my enduring interest in the law will all serve me well as I move toward the future, and I believe my interest and background combine to make me an asset to your law school. I am involved in a number of extra-curricular activities in the U.S., and I would continue my involvement in new activities in Hong Kong. I feel I bring a well-rounded experience to my education, and that I can fulfill my goals in Hong Kong better than anywhere else. For these reasons, I hope to study at the University of Hong Kong law school, where I will successfully move along the path toward the next step in my career and educational goals. Thank you and I look forward to hearing from you soon regarding my admission to your…… [read more]


Thoreau Philosophy Applications Term Paper

… Rather than seeing American laws and rights as principles that are ultimately fulfilled, as does Douglass, or imperfect instruments that are subordinate to the inner moral leanings of moral men and women, Jefferson puts forth the idea of a loose governing structure that is responsive to the fluctuating will of the people, but ultimately must always be enforced and obeyed in a functional republic.

Jefferson was confronting a new society, however, where laws were not enshrined in a long-standing tradition. Although Thoreau, as he states in his essays upon the subject of civil disobedience, also underlined the newness of the republic, he had a certain amount of unstated historical comfort in knowing the governmental structure of law he had designed had stood, and enabled individuals to function in a limited and lawful manner, and thus had more freedom to condemn such strictures from his vantage point of a critic from a cell, held hostage to the law's excesses. To say: "But, if I deny the authority of the State when it presents its tax bill, it will soon take and waste all my property, and so harass me and my children without end," does not take into account what might occur if the mobs possessing racist or violent thoughts take control over the rule of law, however onerous the harassment of the government might seem.

However, the imperfect nature of legislation to truly codify a moral form of human behavior is perhaps best exemplified in the relationship of the United States government to the Native American nations within its fold. Here there is no rectification of injustice within he fabric or definition of citizenship, as there were for African-Americans. In Chief Joseph's famous concession speech to Sherman, he makes no argument against the American government on a rights-based basis, nor debates the relative injustice or just rule of law. Rather, he simply states his people's weariness and physical hunger and the harms done to them.

Works Cited

Douglass, Frederick. "Speech: 4th of July."

Jefferson, Thomas. "Excerpts from Notes on the State of Virginia."

Joseph, Chief. "Oration -- Concession Speech to Sherman."

Thoreau, Henry David. "Civil Disobedience." Parts One and Two.… [read more]


History of Habeas Corpus Term Paper

… "

Taney refused to abide with request and ordered the general to appear in court, escorted by a marshal. The marshal, however, was not allowed entrance to the fort and was told "that there was no answer to my card… [read more]


Features and Facts Term Paper

… This did not mean that citizens don't have these rights.

During the court argument numerous past cases were cited in which citizens had been granted such rights by the law. One such case was Meyer v. Nebraska [3] in which the plaintiff was granted the right to study German in a private school. This was because citizens have the right to freedom of speech which "not only the right to utter or to print, but the right to distribute, the right to receive, the right to read" [3].

Other similar past cases strengthened the case of Griswold against Connecticut.

Peoples' right to mingle or seek advice from whomever they desire is not explicitly mentioned in the Constitution or in the Bill of Rights [3]. However, a married couple's right to ask for counsel in personal matters was proven to be protected by the First Amendment to the Constitution, which gave people the "freedom to associate and privacy in one's associations," [1]. The Connecticut statute conflicted with the First Amendment when it denied married couples the right to seek advise on medical matters pertaining to birth control.

The rationale behind the Supreme Court's decision

Justice William O. Douglas's rendered a decision corroborated by a majority on the panel in which the Bill of Rights and the First, Third, Fourth, and Fifth Amendments to the Constitution established penumbras or degrees or zones of privacy which absorbed a couple's right to plan their family size, although this right was not explicitly mentioned in the Constitution, in the Bill of Right or in any amendment to the Constitution. The Fourth and Fifth Amendment gave the citizens the right to lead their life at home the way they wished to and that implicitly included deciding when and how many children married couples wanted to have. Based on the above arguments the decision against Griswold and Buxton was reversed. The Connecticut law was rendered unconstitutional.

Current application of the decision

The Griswold v Connecticut verdict rendered by the Supreme Court in favor of legalizing the use of contraceptives and therefore giving women the right to chose when and how many children to have, affected millions of lives positively. A Woman's right to undo the mistake if she became pregnant resulted from this trend-setting verdict. And so did the concept of safe sex, which has come to become a necessity in the last few years to prevent STDs (sexually transmitted diseases). [5]

References

1] - Accessed at http://www.thisnation.com/library/griswold.html. On October 3, 2003

2] - The Reader's companion of American History. Accessed at http://college.hmco.com/history/readerscomp/rcah/html/ah_039000_griswoldvcon.htm. On October 5, 2003

3] - Accessed at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=U.S.&vol=381&invol=479on October 5, 2003.

4] - Accessed from the World Wide Web at http://www.aclumontana.org/rights/griswold.html. On October 5, 2003

5] - Griswold v. Connecticut -- The Impact of Legal Birth Control and the Challenges that Remain Accessed at http://www.plannedparenthood.org/library/facts/griswolddone.html. On October 5, 2003… [read more]


Thomas Jefferson Term Paper

… They say that the importance of the concept of justice is best understood and appreciated by people who have suffered at the hands of injustice. Not only can I personally avouch for the aforesaid statement, I can add to it by stating that such personal experience results in a desire to procure justice both for oneself as well as for others. It is this very same desire that has, in my case, led to my seeking the necessary qualifications to actively participate and contribute to the carrying out of justice, particularly among the weaker sections of society.

Society views many professions as being a vocation that should be entered only by those who have a calling for it as in the desire, the skills and the necessary dedication to fulfill their responsibility. The law is one such profession. And this is true especially of the legal system in America, based as it is, on the principle that "...all men are created equal...certain unalienable Rights...Life, Liberty and the pursuit of Happiness...." believe that my years in Iran, along with my more positive exposure to life in a free country, has led to my developing such a calling for justice, and that, the law, for me is a vocation and not just a career. As such, it is my dream that I will be able to fulfill my calling by helping the victims of injustice, which I hope to do by either working as a District Attorney or a legal advisor in a non-profit organization.… [read more]


Neighboring Countries, the United States Term Paper

… These same ideals were employed for centuries to come, most particularly in the development of laws in both the United States and Canada. The important distinction however, is that the United States established new bodies of law (with the influence of common law), while Canada simply borrowed the original legal system, and adapted it to fit their modern day context (Canada E-book).

Canada also differs from the United States in the divide between its provinces and Quebec. Quebec is in many ways like a state in terms of autonomy, but the influences and origins of its laws are different (Canada Facts). Quebec abides by a civil law system separate from the common law system that is shared by the United States and the rest of Canada (in terms of the United States I am referring to influence rather than actual "law"). Quebec's civil law system originated in the Roman Empire, and reflects the ties shared by the province and the current day nation of France (Canada Facts). In many ways, Quebec is more like a separate country than a state within a federal system like America's.

In conclusion, neighboring countries, the United States and Canada, have legal systems with many similarities, yet some stark differences. Both abide by a Constitution, which enables all of the other systems of governments. Both have specifically protected civil rights and civil liberties inherent of today's modern day democracies. However, these countries differ greatly in terms of "specific" legal structure. While the United States employs a system known as "federalism," Canada relies solely on the traditional "common law," while its province of Quebec abides by a French-influenced "civil law."

Works Cited

Facts on Canada." Communication Canada Website. Accessed 27 July 2003. http://www.llcc.cc.il.us/gtruitt/SCJ290spring2002/Canada%20Legal%20System.html.

Private Law in Canada." Canada E-Book Website. Accessed 27 July 2003. http://142.206.72.67/04/04b/04b_004_e.htm.… [read more]


Watson v. Fort Worth Bank Case Study

… As a minority female.

Issue:

In this case, the court had to decide if Fort Worth Bank & Trust's method of measuring qualifications of employees was discriminatory because it was disparate, i.e. because it was subjective and not strictly related to job performance. The court had to first decide if disparate impact theory or disparate treatment theory was applicable instead.

Answer:

In favor of D. And against the use of disparate treatment theory, in favor of using disparate impact theory instead.

Reasoning:

The district court disallowed P's claim under the disparate impact theory of Title VII. Instead, the court analyzed her claim under disparate treatment theory.

The court ruled that P. had made a prima facie case of discrimination but D. had a legitimate nondiscriminatory basis for not promoting her. The Fifth Circuit affirmed the holding and the Supreme Court granted certiorari.

Result:

This case was extremely helpful in terms of determining Title VII law regarding subjective promotion policies, that is policies that are not validated by external, scientific validation. The court's application of disparate treatment analysis as opposed to disparate impact analysis made it easier for employers to use subjective promotion policies. In other words, subjective promotional criteria and methods must be designed to intentionally discriminate, as opposed to simply having an unintentionally discriminatory effect, to be considered in violation of civil rights laws. After the Watson case, a plaintiff had to establish disparate impact discrimination in such a way to show that subjective promotion policies were designed to intentionally discriminate against employees, as opposed to unintentionally have that effect.

Work Referenced

Corley, Robert N., et al. The Legal and Regulatory Environment of Business.…… [read more]


U.S. v. O'hagan Case Facts Term Paper

… The Court of Appeals ruled that the SEC could not define fraud to include the misuse of inside information where there was no breach of fiduciary duty. The case was sent to the Supreme Court, which overruled the Court of Appeals' decision

Reasoning

The Supreme court overruled the decision of the Court of Appeals, saying that Rule 10b-5's prohibition against the use of deception in connection with a stock transaction is indeed violated when an outsider breaches a duty to someone who holds insider information, and buys stock based on that information (Corley, et al.).

This meant that D. was subject to prosecution for using inside information, even if he did not work for the company or owe any legal duty to it. D's conviction was reinstated.

Result

The U.S. v. O'Hagan case is considered one of the most important cases dealing with insider trading which the Supreme Court has decided in the last decade (Corley, et al.). The classic theory of insider trading did not apply to this case, as the trader did not have any legal or ethical ties to the company. However, the Supreme Court ruled that the Misappropriation Theory held D. liable for violating the securities laws.

Works Cited

Corley, R.N., Reed, O.L., Shedd, P.P., Morehead, J.W., The Legal & Regulatory Environment of Business, (2002) Irwin/McGraw-Hill.… [read more]


United States Is a Nation Term Paper

… That includes the ability to appeal convictions. To do this, they must have access to the courts, and our judicial system has specific procedures for appeal. Most prisoners knew that convictions could be appealed but were not lawyers and did not know how to navigate that part of the judicial system. Since they had already been convicted, they had to be able to convince a lawyer that they had believable grounds for an appeal.

As a result of an appellate ruling, which went to the Supreme Court, all prisons must now provide an adequately stocked law library for the use of prisoners in researching their cases. This policy has greatly increased the ability of prisoners to file appeals.

Sources

Lehmann, Vibeke. "Prisoners' Right of Access to the Courts:

Law Libraries in U.S. Prisons." 60th IFLA General Conference - Conference Proceedings - August 21-27, 1994. Accessed via the Internet 1/25/03. http://www.ifla.org/IV/ifla60/60-lehv.htm… [read more]


Domination According to Weber Term Paper

… Thus authority was exercised in equal amounts by both laborer and the purchaser of the labor. The purchaser of labor had a need, and this need was filled in a unique way by a laborer. This system is closest to what Weber describes as rational-legal authority, with perhaps some elements of charismatic authority. Power was shared in equal amounts by the laborer and the purchaser.

The problem arises with the advent of the machine. Labor power is no longer unique, and the value of labor has become obsolete. Value is entirely attached to machines, and the laborer is now dependent upon the purchaser. This is an unequal dependency, as the purchaser now has a wider variety of labor force to choose from.

The machine also includes women and children in the labor force, and the purchaser now has sole authority over the laborers. This is closest to the traditional form of domination. The purchaser holds domination over the laborer. Work hours and personnel employed depend upon the decision of the authority, whereas laborers, needing food on their tables, are obliged to comply with whatever laws are established. These laws are accepted, as the laborer finds that the world order leaves him or her no other choice.

Thus value is no longer attached to the uniqueness of the labor offered, but rather to labor time. Authority then is directly connected with the idea of labor time. Thus capitalism, according to Marx, takes power away from the laborer, placing it solely in the hands of the labor purchaser. This provides an unequal system, with power in the hands of only a few traditionally appointed, feudal leaders.

In this way Marx's theory is the opposite of that by Weber. According to Weber, the system of authority has changed from traditional to charismatic, where the laborer has more power than before. Marx's theory on the other hand claims that the invention of the machine has taken power away from the laborer. The system is thus reversed, from charismatic and rational-legal to traditional domination, where the worker cannot choose, and cannot complain about his or her circumstances. Marx thus calls for a reintroduction of the charismatic system, where a communist society shares in both wealth and responsibility… [read more]


Hernandez v. State of Texas Term Paper

… Reasons: The fundamental principle upheld in the appellate court's decision was that citizens must be treated as being equal to each other unless the state has a compelling reason not to do so. No such compelling reason was found there. "No significant difference can be seen between ordering a witness to submit to an attorney's imposition of a "relic of slavery" such as addressing blacks only by their first names, and ordering only female prospective jurors to announce their marital status and husbands' occupations which is likewise a relic of a bygone age when women were presumed incapable of independent thought. Both orders reinforce a stigma of inferiority and second-class citizenship" (http://login.findlaw.com/scripts/callaw).

Brooksbank v. Anderson

Facts: In 1984 Harlan Anderson, the appellant, and James Brooksbank formed a corporation (Total Mix Ration, Inc.) that produced and marketed a feed-mixing product. The original letter of intent was signed later amended. In 1995, Anderson requested the return of corporate funds from Brooksbank, but the courts found in Brooksbank's favot.

Issues: The lower court sided with Brooksbank on the grounds that his original "guarantee" of funds was in fact not a guarantee in the strict sense. "The district court concluded that these provisions constituted consideration because they created new or different obligations by respondent, which were not contained in earlier agreements" (http://www.lawlibrary.state.mn.us/archive/ctappub/9812/c298391.htm).The court ordered the respondent to pay over $86,000.

Reasons: The appellate court upheld some parts of the decision, rejected others, and remanded the case. Its major reason for doing so involved the relationship between the letter of intent and later amendments to it, arguing that "Consideration is not required if the contract to be modified is still executory and there has been no breach." In other words, an amended contract contains within it the intent of the original contract so long as that contract had not been breached, which in this case it had not.… [read more]


Bartnicki v. Vopper Introdcution Term Paper

… "

Justice Rehnquist authored the dissenting opinion and was joined by Justices Scalia and Thomas. In his dissent, Justice Rehnquist emphasized the fact that Bartnicki did not consent to the broadcasting of the conversation. According to Justice Rehnquist and the other dissenters, "the Constitution should not protect the involuntary broadcast of conversation." The protection of individual privacy was another point focused on in the dissenting opinion. As Justice Rehnquist and the other dissenters noted, "only by striking at all aspects of the problem can privacy be adequately protected."

IV. LEGAL BASIS FOR THE RULING; POLITICAL AND PRACTICAL EFFECTS OF THE COURT'S RULING

There are several legal reasons for the Court's ruling. First, "State action to punish the publication of truthful information seldom can satisfy constitutional concerns." Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). Privacy of communication is an important interest. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). Next, the right of privacy does not generally prohibit the publication of truthful information of material that is of public interest. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, (1890).

Third, the statute as a whole does not discriminate against speech because it singles out communications based on their source rather than the subject matter of the intercepted communications. However, the specific provision at issue directly regulates pure speech because it punishes disclosure. The government must show a compelling interest to punish truthful information about matters of public concern. The normal method of deterring illegal conduct is to punish the person who engages in the illegal conduct (the illegal interceptor). Here, the government failed to present sufficient evidence to show that punishing the discloser will dry up the market for the illegal interceptors of private communications. In balancing the competing constitutional concerns, the right of privacy should not trump the publication of truthful information about matters of public concern.

The ruling in Bartnicki v. Vopper has several political and practical effects. First, this ruling frees journalists from having to trace the legal pedigree of information given to them to see if it was legally obtained by their sources. Next, this ruling embraces "the right of the press to publish information of great public importance obtained from documents stolen by a third party." Another political and practical effect of this ruling is that it may arguably give journalists a "green light" to publish or otherwise disseminate information they may not have previously done so because of the manner in which such information was obtained.

While this ruling gives journalists more freedom to pursue and publish information of "public concern" without the fear of being sued, it also arguably infringes upon individuals' right to privacy. As Justice Stevens and the other members of the majority noted, the "fear of public disclosure of private conversations might well have a chilling effect on private speech." While public interest outweighed privacy concerns in Barnicki v. Vopper, in cases involving broadcast of "trade secrets or… [read more]


Invasion of Privacy Term Paper

… Kyllo vs. The United States:

In 2001, Kyllo was convicted for growing cannabis. The police had gone into his house and used infrared technology to trace out certain evidence that he was growing cannabis. On the basis of proving that he possessed certain technology that he used to grow the drug the police got a warrant for his arrest.

The case went on for some time and the judge said that equipment that the police used prior to getting the proof they required to obtain a warrant was illegal. Finally the judge resigned and the case went through, and Kyllo was convicted. Was this not a denial of privacy and rights? Another question that is worth asking is why did the judge suddenly resign from his position after being so rigid about the manner in which the evidence was obtained? And how come the case went through without any questions asked about the evidence when another judge stepped in (Erowid, 2002).

Conclusion:

We have seen that the 4th amendment is one that has been ignored or not properly practiced over the past thirty years. No matter how the states have tried to protect the rights of the people there has almost always been some interfering factors that have hampered the true practice of democracy. We all agree that there is a need to spot check but we must also realize that this cannot be done at the expense of the innocent people of society suffering because of the malpractice of a few.

In truth we can say that the people have been very concerned over how much privacy do they really have, and things have begun to improve after the last thirty years of intrusion of privacy.

Bibliography:

1. Erowid The 4th Amendment and Related Supreme Court Decisions, 2002 http://www.erowid.org/freedom/police/police_supreme4th.shtml

2. Author not available, Landmark Legal Opinions, 2002 http://www.questioneddocuments.com/legal.html

3. Author not available, Supreme Court Cases and Decisions, 2002 http://members.rotfl.com/accox/nbsuprem.html

4. Author not available, Knowles vs. Iowa, 2002 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=U.S.&vol=000&invol=97-7597… [read more]


Holder in Due Course Case Essay

… ¶ … decision reached in the Any Kind of Checks Cashed Inc. v. Talcott case. The paper will also decide upon whether Any Kind is a holder in due course (i.e. HDC) or not.

Case Background

The problem addressed here is whether check cashing stores like Any Kind qualify as HDCs, and whether they are entitled to collect on a 10,000 dollar check signed by a senior citizen who was induced, fraudulently, to issue it by the individual who cashed the check (ANY KIND CHECKS CASHED, INC. v. TALCOTT, 2002). This case is about a 93-year-old resident of Massachusetts, John G. Talcott, Jr. Talcott's financial advisor, D.J. Rivera, and an accomplice of Rivera's, Salvatore Guarino.

The Decision

The circumstances and event were sufficient for putting the service firm on notice of defenses. The situation, where one individual posing as broker received funds of 10,000 dollars, converting the check at a discount of $500, was enough to put the check-cashing store on notice of inquiry, required that some clarification or justification be given (Twomey & Jennings, 2009). The service ought to have dealt with a check worth $10,000 with extra caution- a FedEx envelope does not suffice as a confirmation- and ought to have verified with the check maker for preserving its HDC status. I am in agreement with the court ruling on this case. The events surrounding the case were certainly suspicious enough to warrant the court action that followed.

HDC

Uniform Commercial Code (UCC) Article 3 implements the holder in due course (HDC) doctrine, which governs checks, promissory notes and other negotiable financial instruments. The doctrine states that any party acquiring a negotiable instrument for value, in good faith, with no notice of some facts, and who meet some added requirements, takes it free of contesting ownership claims and most payment defenses (Maggs, 1998). Thus, this doctrine might relieve the party that acquires a note or check from qualms that anybody else holds ownership of the given instrument, or worry that the maker will, refuse to disburse it on certain legal grounds,.

For Instance

An individual acquiring a negotiable instrument as inheritance from a property is missing an HDC criterion, and does not give value.…… [read more]


United States Supreme Court: Federal Government Research Paper

… Supreme Court is the highest federal court in the land. It is embedded in Article III of the Constitution and serves two main functions - developing procedural laws for lower-level federal courts and interpreting laws for both federal and state… [read more]


Monique's Dilemma Essay

… Workplace Monique

Perhaps, the major clue to Monique's attitude towards her work comes from her father telling her that "even if we have an occasional recession, people are going to keep suing each other." We are told that she is happy to get her degree so that she can satisfy her "parents' demands" that she work in the legal field. Likewise, she observes that the paralegals do most of the work and the attorneys make most of the money, thus she sees herself as being exploited. Her parents have imparted in here a cynical outlook on life in general, on her station in life, and on her potential. She is a cog in a machine simply doing everything for someone else.

Monique's focus up to this point appears to have been satisfying other people such as her parents and now by her perception she is thrust in the same situation where she is simply satisfying the needs of attorneys. We are not directly informed regarding any other goals that she personally has or any interests that she has. She is simply doing what others have told her she should do; those have been her goals. As with most people who follow this path in life, eventually this leads to quite a bit of dissatisfaction with their perceived station in life. We can also infer from the description that she is responsible, that she does perform her duties capably and wants to do her work properly, and that she does have higher aspirations to make more money, gain status, and to be in control (from her statement that if she were closing on skyscrapers and making with the partners were earning she would be happy).

Perhaps Monique can learn to become more engaged in her work if she begins to view it as a means to an end as opposed to an end in itself and as opposed to an opportunity to be exploited by others. The first thing is for her to look at the big picture. She obviously has personal aspirations of being more than a paralegal; therefore, she should consider continuing school and…… [read more]


Criminal Justice Agency Organization and Function Essay

… S. president appoints the state attorney. However, once appointed and approved by congress, the State Attorney enjoys a security of tenure. Not even the president can dismiss the attorney at will. The delegated powers of the State Attorney are distributed to government. There is also a provision for the State Attorney to appoint or create other small offices that may be of help to the overall administration of the central office. The structure is maintained as simple and lean as possible to ensure that the functioning of the system is seamless (O'flaherty, 2011).

The functions of the Office of the State Attorney

The functions of this office are entirely legal issues. It serves the state in any issues tom do with litigation such as prosecuting offenders, interpreting the law, representing the state in court both locally and internationally. The aim is always to have a self-regulating legal system that can sufficiently stand for itself and act for the betterment of the American citizenry. The other major role that this office does is to coordinate the administration of Justice in the lower local justice departments headed by the district attorneys. They all derive their license to operate and the leeway to do the legal exploits from this office. There is also another function of the state department of justice co-shared with the State Attorney's office: it as the purpose of administering legal education in the country. Every student of law has to get approval for admission to the bar through the state attorney. Besides, the state attorney gives the government the good legal image by legally advising it accordingly on any actions it takes (O'flaherty, 2011).

Work cited

O'flaherty, R. (2011). The Provision of Library and Research Services in the Office of the Attorney General -- a Law Office of the State. Legal…… [read more]


How the Miranda Rule Originated Term Paper

… After these rigorous interrogations, Westover signed two confessions, one for each of the alleged robberies in Kansas City and California. He was convicted and given 15 years in prison (uscourts.gov).

In California v. Stewart, the third case the High Court took under advisement in 1966, the suspect was involved in a purse-snatching case and was interrogated nine times while in a cell in Kansas City. In none of those nine interrogations was Steward advised he had the right to remain silent.

Taking ruling on these four cases together, the High Court asserted that "…there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves" (uscourts.gov). A defendant must be "warned prior to any questioning" that he has the right to be silent, the Court continued (uscourts.gov).

It is amazing, forty-five years after the Miranda ruling, to realize that the vote of the High Court was a split decision. In hindsight it seems very fair and just that a suspect should be notified of his rights. But the vote was 5-4, with Chief Justice Earl Warren (who wrote the majority opinion), and Justices Black, Douglas, Brennan and Fortas voting to insist on the rights of arrested individuals; Justices Harlan, Stewart, White and Clark dissented from the majority opinion.

In fact, years later the Court -- with Chief Justice Warren Burger and William Rehnquist urging that the Miranda decision be overturned -- upheld the Miranda decision. And in 2000 the Rehnquist Court "reaffirmed the original decision" and ruled that Congress could not overrule the original decision, which was the absolute right thing to do.

In conclusion, the Miranda case certainly changed the rules as far as what law enforcement can do when a suspect is taken into custody, or arrested in any circumstances. That said, according to the Columbia Electronic Encyclopedia, civil rights organizations still assert that "…police routinely omit Miranda warnings."

Works Cited

Columbia Electronic Encyclopedia. (2013). Miranda v. Arizona. Retrieved September 28,

2014, from http://www.cc.columbia.edu.

Shay, A. (2012). Tag Archive for 'Vignera v. New York.' Retrieved September 28, 2014,

From http://lcrm.lib.unc.edu.

US Courts. (2010). Facts and Case Summary. Retrieved September 28, 2014, from http://www.uscourts.gov.… [read more]


Court Cases Lbs Homework Sheet Research Paper

… Some of the earlier laws were intended to protect women. However, as the technology progressed, the procedures became much safer. In fact, in many cases the procedures could in fact save the life of the woman rather than pose any real risk. Therefore the reasoning decided to consider what rights the courts had to intervene in medical procedures.

What is the precedent or holding established by the court's ruling that will be followed in subsequent similar cases? Not just what the court does -- such as reverses the decision of the court below or awards damages to plaintiff -- but what is the proposition for which another party might cite the case?

There is an interest by the state to protect the life inside a woman's womb. However, the life must be life as opposed to only the potential of life. Therefore the closer a woman is to reaching full term the harder it is to make the case that she is entitled to privacy in her medical dealings. Later rulings would be restrictions on the timeframes that were allotted for women to perform such procedures.

Name of Case in Proper Legal Citation Format

McDonald v. Chicago, 561 U.S. 3025 (2010)

Who is/are the plaintiff(s) (i.e. consumer, company, employee, government) and what type of legal relief is/are the plaintiff(s) seeking?

Otis McDonald sued the state of Illinois and the City of Chicago to possess a firearm in his own personal home.

What legal question must the court decide, and what is the common law rule, constitutional provision or statute that the question will turn on?

The court must decide if the Constitutional amendment (2nd) to keep and bear arms or if the State has the authority to determine the local gun laws.

What is the court's reasoning? (Might include reliance on precedent, statutory interpretation and legislative history & societal considerations)

The court basically ruled that all amendments must be incorporated and that the right to defend oneself is a fundamental right. Self-defense is a basic right that has a historical basis in a citizen using whatever means necessary to protect themselves from harm.

What is the precedent or holding established by the court's ruling that will be followed in subsequent similar cases? Not just what the court does -- such as reverses the decision of the court below or awards damages to plaintiff -- but what is the proposition for which another party might cite the case?

The court upheld that the decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right.… [read more]


Case Briefs Related to Terrorism Research Paper

… Therefore, the arrest was based on individualized suspicion pursuant to warrant provided under the federal material-witness statute. Actually, material witnesses apprehended under this statute have similar constitutional right to pre-trial release as other government detainees. The release can be granted… [read more]


Pros and Cons of Plea Bargaining Term Paper

… In this regard, Neubauer and Fradella (2011) note that the defense attorney's decision-making process involves three stages: (a) evaluate the potential costs of delay vs. The probable outcome of a trial with respect to the offer a guilty plea; (b) negotiate for a better deal; and (c) provide recommendations to their client who may or may not accept the terms of the agreement. Not surprisingly, not all defendants agree to the terms of a negotiated plea bargain, and even the best defense attorneys may not be able to secure an adequate resolution from prosecutors when defendants are in fact innocent and maintain their innocence throughout the process.

Despite these constraints to the plea bargain process, all of the authorities reviewed agreed that it is the most efficient -- indeed, the only viable alternative that is available to the nation's criminal justice system which provides an approximation of justice in the vast majority of criminal cases. Nevertheless, it is clear that given the enormous numbers of criminal cases that are being plea bargained, some innocent people are going to prison and some guilty people are literally getting away with murder. In sum, plea bargaining in the United States represents a legitimate but sometimes-flawed approach to criminal justice.

Conclusion

The research showed that plea bargaining is the process by which a disposition to a criminal case is reached through negotiations between prosecutors and defense attorneys. The research also showed that plea bargaining first emerged following the Civil War and became an entrenched part of the American criminal justice system by the end of the 20th century. Plea bargaining provides defendants with the ability to gain reductions in the charges, the number of charges and the sentence imposed for these charges. Conversely, plea bargaining provides prosecutors with a certain outcome (in most cases) that provides some degree of punishment for criminal offenders. In the final analysis, it is reasonable to conclude that no one benefit from plea bargaining except the bad guys because it drains scarce resources from the criminal justice system but it is a necessary evil as it is impossible -- and even undesirable -- to try every criminal case.

References

Black's law dictionary. (1990). St. Paul, MN: West Publishing Co.

Dervan, L.E. & Edkins, V.A. (2013). The innocent defendant's dilemma: An innovative

empirical study of plea bargaining's innocence problem. The Journal of Criminal Law

and…… [read more]


Political Convention Scenario Research Paper

… Unless there is a way to secure the entrance and exits to the area and conduct searches on bags and bulky articles coming in or out, it would be a security headache to be sure. To lawfully pat and search anyone, they would probably either have to search everyone no matter what or only pat search based on reasonable suspicion/probable cause or clear examples of criminal behavior. In other words, they need a warrant (not going to happen in the field), probable cause or they need exigent circumstances other than normal probable cause such as a purse snatching in progress or some other felony that is clearly happening in front of police. If the mall is privately owned and operated, then perhaps the mall owners could quash the protest. Another way to quash the protest would be to cite the public safety aspects as well as the general idea of people loitering and protesting in an area that is not designed or meant for such activity as it is a shopping area. It would be akin to people trying to live in a business like it is a residence and that is something a lot of cities actively and intentionally forbid. That would be a much easier road to hoe than allowing the protest and basically begging for a bomb along the lines of the Boston Marathon bombing (in a pressure cooker in a bag) and pat searching for anything other than probable cause is going to cause legal headaches galore (Hutchinson, 2013). In short, Greenpeace should NOT be allowed to protest in the mall. If they choose a better venue, then it should be considered on the merits but with public safety and security in mind.

Conclusion

There is always a give and take between personal liberty and keeping security. However, some people that are in this debate are not playing fair (and/or with a full deck) and will protest and try to prevent even reasonable attempts to keep people safe including elected politicians, the general public and protestors. The fact that the port and the convention itself could be affected by a protest gone awry and the fact that security measures that are sufficient yet not obtrusive are not really possible in some of the situations and environment sin question due to proximity and the overall environment in question. As such, permits should indeed be used or denied based on that and the same can be said of less lethal techniques to disperse crowds and stop threats.

References

Granick, J. (2014, March 20). Obama Press Attacks Degrade the First Amendment In The Name of Security. Forbes. Retrieved June 26, 2014, from http://www.forbes.com/sites/jennifergranick/2014/03/20/obama-press-attacks-degrade-the-first-amendment-in-the-name-of-security/

Hutchinson, B. (2013, April 16). Boston Marathon bomb devices were pressure cookers filled with nails, ball bearings: report. NY Daily News. Retrieved June 26, 2014, from http://www.nydailynews.com/news/national/boston-marathon-bomb-devices-made-pressure-cookers-filled-nails-ball-bearings-report-article-1.1318278

Stephens, A. (2012, July 24). A Closer Look at Less-than-Lethal Weapons Fired at Anaheim Residents on Saturday Afternoon. Navel Gazing. Retrieved June 26, 2014, from http://blogs.ocweekly.com/navelgazing/2012/07/naui_huitzilopochtli.php… [read more]


Supreme Court: Due Process Research Paper

… The Supreme Court ordered a new trial, based on Brady and the 14th Amendment, noting that during the first trial, there was insufficient disclosure that Taliento had received immunity from prosecution. As a result, the trial in which Giglio was convicted was a violation of due process -- it needed to be disclosed that the reason Taliento was giving testimony is because he had received a deal in exchange for that testimony. It is worth noting that, as an extenuating circumstance in this case, Taliento's testimony comprised the majority of the evidence presented at Giglio's trial. With Taliento, there was likely not have been an indictment much less a conviction of Giglio. Taliento's credibility, therefore, was an important issue in this case, and the jury needed to know everything in order to make its assessment about Taliento's credibility.

The third case, United States v. Agurs, 427 U.S. 97 (1976), is a further clarification on key issues of witness credibility. In this case, Agurs had been convicted of second-degree murder. In the case, the Agurs defense would note that Sewell had a criminal record, and that this was material. In the first trial, this criminal record had not been noted, but the argument was that this criminal record was material to Agurs' claim of self-defense in Sewell's death by stabbing.

The court found that due process was not violated in the failure to disclose Sewell's criminal record. The criminal record of the victim was therefore not found to be material in the question of whether or not Agurs was guilty. The finding of the Supreme Court seems to be based on this case specifically, because it still allowed for Sewell's character to be an issue in the trial, but accepted that the criminal record did not change the impression of Sewell's character. This case does not seem to address the issue of what might happen should a criminal record be something unpredictable about the victim -- does the victim's reputation matter? The Agurs case seems to have the most limited relevance of the three cases because the decision seems specifically based on the circumstances of this case, and might not be widely applicable. The idea that the victim's character is irrelevant is one that has remained in the justice system, however. The prosecutor is under no obligation to reveal such information about the victim because it is not material; other information that might affect the trustworthiness of witnesses or evidence, however, is material and therefore must be disclosed. The three cases combined set the boundaries of due process under law.

References

Brady v. Maryland - 373 U.S. 83 (1963). Retrieved June 6, 2014 from https://supreme.justia.com/cases/federal/us/373/83/case.html

Giglio v. United States - 405 U.S. 150 (1972). Retrieved June 6, 2014 from http://supreme.justia.com/cases/federal/us/405/150/case.html

United States v. Agurs - 427 U.S. 97 (1976). Retrieved June 6, 2014 from http://supreme.justia.com/cases/federal/us/427/97/… [read more]


Padilla v. Rumsfeld Term Paper

… The decree, at the time, is that at any time a habeas petitioner pursues to challenge his present physical charge within the United States, he should name his keeper as defendant and make the correct means to start filing the… [read more]


Ethics Essay

… d.). For one, the courts are taking a stance because it is important that all attorneys remain cognizant of Krogh's wrongdoing. To readmit Krogh would be sending the wrong message. Second, the courts acknowledge that Krogh's reputation had previously been unsullied and that it is a tragedy that one so well educated and accomplished would fall so low. After admitting the fact, the courts note that prior reputation does not excuse one from any immoral activity, especially felony activity. Third, the courts stress the importance of the oath attorneys take when they are admitted to the bar. Attorneys at law are responsible literally for the lives of those they represent and serve. Attorneys working for the White House have an even greater and graver responsibility. Krogh acted willfully against the law, when he should have worked harder to promote justice. A person who practices law cannot break the law and still be considered professionally viable, even when it was the President of the United States who delivered the orders to unlawfully retrieve evidence.

The reasons Egil Krogh believed, and likely still believes, he should not be disbarred from the disciplinary board of the State of California include the following. First, Krogh claims that he was innocent and righteous prior to the involvement in the surveillance and Plumber scandals. He claims that his supervisors unduly pressured him, and that he should not suffer for problems that were far greater than he was. Krogh believes that anyone in his position would have acted similarly, given the nature of the position and the fact that the President of the United States is not a force to be reckoned with in any way. Termination of employment is not the issue; the issue is of broader reputation and the ability to conduct business. Essentially, had Krogh resigned, he might not found gainful employment but had he blown the whistle, then he might have suffered far worse consequences. As Leddy (2007) puts it, Krogh claims he has "learned his lessons," (p. 1).

Overall, Krogh's self-defense is weak and baseless. He is trying to shirk responsibility for his own immoral actions by claiming to have been swept up in a culture of ineptitude. Even if a culture of ineptitude existed, as it surely did, he was a highly educated, intelligent person capable fully of making his own moral decisions. Resigning from a position of power is difficult; as one sacrifices great money, power, and prestige: elements that were fought for hard during the course of one's career. To give up everything one fought for is not something anyone wants to do, especially when it is a high level White House position that most attorneys would want. Koch is a sympathetic fall guy, but he is certainly not exempt from the higher ethical codes that demand personal responsibility.

References

Leddy, C. (2007). Egil Krogh tells his story in "Integrity" Christian Science Monitor. Retrieved online: http://www.csmonitor.com/2007/1211/p17s01-bogn.html

"Thinking Critically About Relevant Legal Issues." (n.d.).… [read more]


Psychologists in the Courtroom Essay

… This determination is based on the Dusky vs. United States decision, which held that the ability of a defendant to consult with an attorney about his case must take place "reasonable degree of rational understanding." Defendants have been known to feign mental illness in order to avoid lawful prosecution. In this case, a forensic psychologist is engaged by the court to assess the mental status -- and often the intelligence -- of the defendant with respect to competency. Consideration of a defendant's state of mind at the time a crime was committed includes evaluation to identify the presence of mental delusion or some other form of "temporary insanity" that would preclude normal judgment about right and wrong and inhibition. Should a defendant be found competent to stand trial and considered to be sane during commission of the crime, the court is likely to still have questions about the psychological and environmental origins of the defendant's offense, which are related to risk of reoffending. In this situation, a forensic psychologist is likely to interview family, friends, neighbors, and co-workers about the defendant in order to identify mitigating circumstances, such as child abuse or intimate partner violence. In a capital offense, a forensic psychologist may also conduct examinations to analyze the likelihood of the criminal to re-offend, and also identifies other co-morbid conditions that contribute to risk.

References

American Board of Forensic Psychology (ABFP). (2009) Forensic psychology. Found online at http://www.abfp.com/brochure.asp

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469, (U.S. Jun 28, 1993) (NO. 92-102)

Dixon, Lloyd, and Brian Gill. (2001). Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision. Santa Monica, Calif.: Rand Corporation.

Forensic Science and Standards Act (July 12, 2012). House Bill 6106. Retreived http://aafs.org/sites/default/files/pdf/Forensic_Science_and_Standards_Act_2012.pdf

Huss, M.T. (2001) What is forensic psychology? It's not silence…… [read more]


Gregory v. Helvering: Case and Source Analysis Research Paper

… Gregory v. Halvering

Gregory v. Helvering, 55. Ct. 266 (1935)

I accessed the case of Gregory v. Helvering, 55. Ct. 266 (1935) via www.justia.com. Before briefing the said case, it would be prudent to first comment on the authoritative weight of the source.

Justia's Authoritative Weight:

Justia, as the company points out on its website, "provides Internet users with free case law, codes, regulations, legal articles and legal blog and twitterer databases, as well as additional community resources" (Justia, 2013). Its mission, as it further points out, is to ensure that the society benefits from the advancement, as well as availability, of legal resources. Currently, the company's headquarters are located in Mountain View, CI. Essentially, Justia's authoritative weight could be evaluated on three key fronts, i.e. its key partners, top leadership, and reputation.

With regard to its key partners, the company points out that to ensure that the online community has free access to legal information, it partners with "educational, public interest and other socially focused organizations" (Justia, 2013). By dint of working with such organizations, especially educational organizations, Justia can be regarded an authoritative source of legal information.

When it comes to the company's top leadership, it is important to note that two of its topmost leaders are accomplished legal professionals. In addition to being members of the State Bar of California, both the Chief Executive Officer and the President have vast experience in law practice. On this front, one could conclude that Justia has the best legal brains at the helm to advance its agenda.

On its reputation, Justia is regarded an authoritative source of legal information by most independent commentators and experts. For instance, as Elias and the editors of Nolo (2009) point out, "Justia is a very comprehensive, free site…" As they further point out, it has many useful resources that could come in handy for any individual…… [read more]


Davis V Dona ANA County Term Paper

… ¶ … Davis v. The Board of Commissioners of Dona Ana County. This case is from New Mexico in 1999. At the heart of the case is an alleged sexual assault by a medical practitioner at a psychiatric facility. The hospital had hired the physician in question in part on the basis of a favorable recommendation from his previous employer, the County. The physician's employer had given strong recommendations that did not mention his reprimands for sexual assault. The case has bearing on the issue of giving employer recommendations. Despite their value to human resource departments, there is cause in light of this case to curtail the practice because of the legal exposure it could cause.

Legal Issue

The legal issue at the heart of this case is the matter of employer recommendations. An employee of the Country, Frank Steele, had authored a recommendation for Joseph Herrera. The letter did not mention that Mr. Herrera had been reprimanded for sexual misconduct during the course of his two years at the County. Mr. Steele was aware of this, and had at one point suspended Herrera without pay and demoted him. Mr. Herrera was facing a disciplinary hearing when he resigned. Just six days later, Mr. Steele authored the glowing recommendation that made no mention of Mr. Herrera's disciplinary issues. Mesilla Valley Hospital hired Herrera in part on this recommendation, and it was at that point that Herrera committed sexual assault against Mariah Davis, the plaintiff. At issue is the extent of the duty of care that Mr. Steele owed to Mesilla Valley Hospital with respect to the letter of recommendation that he wrote on behalf of Mr. Herrera.

Negligent Referral

Following the assaults on Ms. Davis, it came to light that Mr. Herrera had faced disciplinary action for sexual misconduct at his previous position. It was held by the Courts of Appeals of the State of New Mexico that the County and Mr. Steele did owe a duty of care to MVH. They were obligated to provide a full and honest record of Mr. Herrera's employment, including his disciplinary actions. There is a balance in law between negligent referral and defamation -- companies are concerned that if they reveal anything negative about the former employee that they might face suit from that former employee. Such a scenario would involve Mr. Herrera claiming that disclosing records of his discipline the County was defaming him and in effect rendering him unemployable.

Negligent referral, however, involves almost the opposite -- failing to reveal material information. The Davis v Dona Ana County case was preceded by a decision in 1997…… [read more]


Hearsay Rule Term Paper

… What are the four main dangers of hearsay? Explain in detail

Research has indicated that the four main danger of hearsay are ambiguity, insincerity, inaccuracy, and perception. Ambiguity is a situation where something could be understood in many ways, and the intended meaning is not clear. Insincerity meaning hypocritical does not demonstrate the truth of the matter. It is not easy to establish if the witness providing the hearsay is sincere or not, especially if the person been quoted is not available. Inaccuracy of the witness's memory could result in errors of presentation of false information. Perception involves the determination of a statement. This means establishing if the communication been presented is a statement. The person who made the initial statement is not available in court, therefore, the court relies on circumstantial evidence in regards to the declarant's intent.

What are the hearsay exceptions? Explain

The exceptions to hearsay are excited utterance, which are statements made when the declarant was over excited because of a condition or event Orenstein, 1997.

Present sense impression implies that the statement is explaining a circumstance or incident immediately after it occurred. A record made when the witness was of sound memory, but they now have inadequate memory, which denies the witness an opportunity to fully testify. Business records are exceptions of the hearsay rule, and public records that pertain to reports, proceedings or statements of any form.

Are there any hearsay exceptions that you disagree with? Why or why not? Explain

The United States court system is not devoid of imperfection, but it works. This indicates that there is no justification for disagreeing with the hearsay rule. The definitions provided for the hearsay rule are necessary to ensure that the court system remains fair. Fairness provides the prosecution and the defense an opportunity to present and question the witnesses. Fairness in the trials is guaranteed by interpreting and applying laws correctly. Hearsay exceptions ensure that statements are presented in a manner that does not unfairly affect a case.

References

Morgan, E.M. (1920). Admissions as an Exception to the Hearsay Rule. Yale LJ, 30, 355.

Orenstein, A. (1997). " MY GOD!": A Feminist Critique of the Excited Utterance Exception to…… [read more]


When Is the Miranda Warning Required? Essay

… findlaw.com). To wit, being handcuffed is certainly being in police custody, and the Ohio Bar Association restates the police custody issue: it becomes a "formal" arrest when a suspect "is not free to leave."

Moreover, if police have a suspect in custody, and they do not make that suspect aware of his Miranda rights, "…nothing said in response to a custodial interrogation can be used against you; in addition, any evidence that is derived from that improper interrogations is also inadmissible" (www.findlaw.com). However, there is a qualification to the evidence of the weapon in the trunk; that is, Officer Jones could argue that he would have found the hat and the weapon with or without John's statement that the gun was in the trunk. Hence, John could be charged with grand theft auto.

So, as to the question of what charges should be brought against John, the prosecuting attorney (sometimes the District Attorney) can charge him with grand theft auto, and see how well that goes. But this could get interesting because if I were the defense attorney, I would argue that while in custody and being questioned, John was not read his Miranda rights. So his admission that he stole the car could not be used in court, I would argue were I his defense attorney.

If I were the prosecuting attorney, however I could also consider charging him with being part of an illegal street gang. John made that statement freely and without questioning or coercion that he was a gang member. The Ohio Bar Association explains that "offhand remarks" that were not solicited by the officer -- even if "is an admission of guilt" -- can be used in court against the suspect. Many states have laws against membership in gangs, hence, John could be charged under that law as well.

Works Cited

Findlaw.com. "Miranda Warnings and Police Questioning." Retrieved March 12, 2014, from http://criminal.findlaw.com. 2012.

Ohio Bar Association. "Police Must Give Miranda Warnings." Retrieved March 12, 2014, from http://www.ohiobar.org.… [read more]


Appellate Court Process Term Paper

… When this happens, the individual files a "writ of certiorari," to ask the Supreme Court to review the case. The Supreme Court of the United States will hear the case if federal principles are clearly at stake, or if the appellate courts recommend that the case be reviewed due to their being dissenting opinions among justices.

Very rarely will appeals bypass the appellate courts and go straight to the Supreme Judicial Courts. In some states, like Massachusetts, first-degree murder appeals are heard first by the Supreme Judicial Court to ensure expediency (Massachusetts Judicial Branch, 2014). Supreme Judicial Courts in some states also have the power to automatically hear cases brought before the appellate courts. This may be done to avoid redundancy in the system, because "the process minimizes the number of cases that must be decided by both the Appeals Court and the Supreme Judicial Court," (Massachusetts Judicial Branch, 2014).

The appellate process affirms a citizen's right to a fair trial, as protected by the constitution of the United States. If a trial is believed to be unfair, the individual may compile a legal brief outlining the evidence presented in the court records, showing why the judge's decision did not reflect the merits of the case. The appellate courts are obliged to hear appeals that indicate a trial judge made a mistake. After hearing oral arguments, the court of appeals rules either that the original decision is upheld, or the original decision is to be reversed.

References

"Appellate Procedure," (n.d.). Cornell Law. Retrieved online: http://www.law.cornell.edu/wex/appellate_procedure

Mahacek, J.P. (n.d.). How does the appellate process work? Retrieved online: http://appellatelawyercalifornia.com/id70.html

Massachusetts Judicial Branch (2014). An overview of the appellate process. Retrieved online: http://www.mass.gov/courts/sjc/overview-of-appellate-process.html

United States Courts (2014). The appeals process. Retrieved online: http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/HowCourtsWork/TheAppealsProcess.aspx… [read more]


Grand Jury: Needed or Not? Term Paper

… Critics argue that the jurors do not represent a sampling of the community and they are also not qualified for the jury service. This claims imply that they do not posses an ability tat is satisfying when it comes to asking pertinent questions, or do not sufficiently understand the local government and concept of the due process. Grand jurors are not screened to dispel any bias or improper factors. Secondly, grand jurors have a limited constitutional right the prosecutor is not obliged to make presentations of evidence that will favor those that are under investigation. The people who are subject to the grand jury proceedings lack a sixth amendment constitutional right when it comes to counseling within the grand jury room .They also lack a sixth amendment right to cross-examine or confront a witness. Grand juries have also been accused of using intimidation tactics. They have been accused of being used for purposes of intimidation and persecution mechanism especially when it comes to whistleblowers that have been accused of stealing classified information (Farlex, 2014).

These criticisms are a clear indication that the grand jury system requires some reforms .these reforms are such as better instructions from jurors or judges concerning the powers of the grand jury as well as making it independent from prosecutors. There should be increased grand jury transcripts for the suspects that will be indicted eventually. There should be an increased safeguard against abuse of eth witnesses which included being educated on their rights and the presence of their attorneys. The appearances by investigators targets should be made optional and not mandatory. The requirement of prosecutors presenting defense evidence should be put to an end and replaced with a requirement of grand jurors being informed incase the defense is not represented in the hearing.

References

Leipold, A.D., (2005). Why grand juries do not (and cannot) protect the accused. Retrieved February 21, 2014 from http://www.freedomlaw.com/archives/oldsite/GRANDJRY.html

Farlex, Inc., (2014). Grand Jury. Retrieved February 21, 2014 from http://legal-dictionary.thefreedictionary.com/Grand+jury… [read more]


Protective Function Privilege -- Definition Essay

… In conclusion, Lane's viewpoint may be somewhat skewed because The New Republic is a left-leaning publication -- and Starr was a well-known Republican who did not hide his contempt for President Clinton -- but the bottom line is that a precedent has been set, and agents of the Secret Service can in the future be called to testify in matters involving the President. Whether good or bad, pro-or con, this is how the government works: alleged wrongdoing is investigated and special prosecutors use whatever legal tools they have to bring justice to the situation. The process is of course political, and of course there are inherent biases, but this is how the concept of protective function privilege was defeated in a politically charged chapter of U.S. history.

Works Cited

Johnson, N.H. (1998). From U.S. District Judge's Holloway's Order.

Kennedy, M.N. (2005). Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process

Privilege. Northwestern University Law Review, 99(4), 1769-1782.

Lane, C. (1998). Unprotected. The New Republic, page 6.

Lacayo, R., Carney, J., Duffy, M., Novak, V., and Shannon, E. (1998). Strictly…… [read more]


Prosecutors' Duties Prosecutors Are Governed Term Paper

… The Constitution entitles a person to certain inherent individual rights prior to, and after arrest, regardless of the crime under investigation (Kurcias, 2000). The fourth amendment grants a person the right to enjoy a quiet life, free from unreasonable searches, and unwarranted seizures (Kurcias, 2000). This implies that the legal system ought to use the proper channels in obtaining any proof or information regarding a suspect (Kurcias, 2000). Moreover, there is the Presumption of Innocence, which considers a person legally innocent until their guilt has been proven (Kurcias, 2000). These rights have to be observed, because the failure to do so grants the defendant strong grounds for filing a motion to dismiss (Sands et al., n.d.).

During jury selection, each prospective juror undergoes questioning and vetting to ascertain his/her ability to be truthful (Kurcias, 2000). The 'voir dire oath' is administered to each one, after which the defense and prosecution counsels are given an opportunity to challenge them. The suitable jurors are then selected from the pool of potentials, and instructed with regard to the case at hand. In the most serious of cases, the jury may be sequestered, and prevented from interacting with the outside world (Kurcias, 2000).

During trial, the jury weighs the evidence presented against the crime committed, judges the accused either guilty or innocent, and recommends sentencing, if the former is the case (Kurcias 2000). The judge only adjusts, and then applies the sentence (Kurcias, 2000).

Conclusion

The Constitution grants an accused person the right to fair and equitable treatment. The jury trial may have its share of flaws, but is undisputedly better than a single-judge system, which could be marred with bias and prejudice. These are less likely to take effect in the case of a jury trial.

References

Kurcias, L.M. (2000). Prosecutor's Duty to Disclose Exculpatory Evidence." Fordham Law Review, 69(3), 1205-1229.

Sands, J., Miles, C. Kalar, S., Davids, P., Hansen, G. & Katchen, J. (n.d.). Prosecutorial Misconduct. FD. Retrieved…… [read more]


Justice in Film the Aftermath Film Review

… ¶ … Justice in Film

The aftermath of World War II is the backdrop for a courtroom drama titled Judgment at Nuremberg which deals with the concept of how judges are responsible for the administration of justice. The film is based on a real-life military tribunal which took place in 1947 and brought to justice four former Nazi judges. But the main issue the film deals with is whether or not judges should seek justice in their courts or simply enforce the law, however immoral it may be. As the prosecution stated, the four judges in the film are being charged not with the violation of civil or constitutional rights, but for "murder, brutalities, torture, [and] atrocities…," which were the result of their failure to administer justice. (Kramer, 1961, 15:00)

The prosecution began by presenting evidence of the many atrocities committed by the Nazis during the war, especially the millions killed in the numerous concentration camps. But as an example of how the defendants in the film held personal responsibility for their failure to administer justice, a case brought before one of the defendants, Ernst Janning, was presented. Janning had been a famous jurist before the Nazis came to power but cooperated with them during their anti-Jewish prosecutions. The case in which Janning presided involved a Jewish man who was found guilty of having relations with a German girl; and was based on a real-life case. Even knowing that the girl was being forced to falsely testify against the innocent Jewish man, Janning, the presiding judge, still allowed the prosecution and the eventual death sentence to take place. Anti-Jewish laws had been passed by the Nazis and Janning operated his court based on those laws. In effect the character of Janning followed the letter of the law, even though it was immoral, and allowed an innocent man to be put to death. This was the moral question that Janning and the other judges had to grapple with. In the end Janning came to realize that a judge is supposed to seek justice, not mechanically enforce laws, especially if they are immoral. He accepted the responsibility for his inability to separate justice from the law as well as the horrific results that came about as a result.

Part 2

The film titled A Civil Action, involves a common case: a wrongful death lawsuit. However, while the type of case may be more familiar to the viewer, the film actually…… [read more]

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