"Law / Legal / Jurisprudence" Essays

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Rule of Law Today in China Research Paper

Research Paper  |  16 pages (4,898 words)
Bibliography Sources: 1+

SAMPLE TEXT:

China and the Rule of Law

A kind of democratic transformation is underway in Communist China, and that is thanks in no small part to China's race toward modernity. Such modernity, however, is highly dependent upon China's ability to operate according to a respectable rule of law. Therefore, everywhere in China the rule of law is touted as the center… [read more]


1950s, Attempts to Integrate Fundamental Term Paper

Term Paper  |  4 pages (1,296 words)
Bibliography Sources: 4

SAMPLE TEXT:

One year later in 1970, the ECJ quickly elaborated and expanded upon its Stauder decision in the case Internationale Handelsgesellschafi. In this case, a German court ruled that EU regulations breached the German constitution. The importance of the ECJ's decision was that though EU regulations and law could not remain consistent and in-line with member-state constitutions, it held that fundamental rights form an "integral part of general principles of . . . [EU] law." Further, the ECJ held that if a member-state's constitution or law flowing from the same is inconsistent with or violates an EU fundamental right, then the violation could provide the foundation for a successful challenge to a member-state's law. With this decision, the European high-court had effectually created a doctrine whereby they had the potential authority to determine a body of unwritten rights (or if you will, a "penumbra") which are binding upon member states. The ECJ's argument in Internationale Handelsgesellschafi solidified and clarified its view hinted at in Stauder.

The next major development in the ECJ's ability to determine and protect European fundamental rights is found in the case Nold v Commission in 1974. In this case, the ECJ reaffirmed that fundamental rights do in fact form a part of EU general principles and law, however, the Court found two additional sources for the determination of that law. First, in Nold, the ECJ drew upon the constitutional traditions of member states by stating "it cannot . . . uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those states," and as a result the effect was to draw upon the constitutional and interpretative doctrines of member state constitutions. Secondly and uniquely, the Court also found inspiration for determination of fundamental rights in the treaties and conventions signed by member states. It held that such conventions such as the Convention for the Protection of Human Rights, the Geneva Convention, etc. To which member states are signatories can "supply guidelines which should be followed within the framework of Community Law." Thus, the ECJ found additional foundations for rights determinations.

One fundamental right recognized and protected by the ECJ is the right to freedom of expression. This right has a long history and is European -- primarily Anglo -- in origin (1729's Cato's Letters is considered one of the first and strongest theoretical statements of this right). The ECJ reaffirmed this right in the 2001 case Bernard Connolly v Commission of the European Communities. In this case, an EU commission official wrote a "tell all" book in which he detailed potential corruption within the EU, and since he was in office at the time of the text's publishing, he was "relieved of duties," so to speak. Mr. Connolly then brought charges before the ECJ for having his fundamental right to freedom of expression violated. In particular, the plaintiff argued that his Article 6(2) (European Convention for Human Rights protection) had been violated. The expressive right he claimed is found in Article 10… [read more]


Legal Book Review: The Buffalo Term Paper

Term Paper  |  2 pages (716 words)
Bibliography Sources: 1

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Pittston used the defense that the flooding was caused by an 'Act of God.' However, Stern points out that it was not an Act of God that Pittston never engaged in basic safety precautions. It piled more water in the dam that it was designed to hold and had utilized no safety mechanisms or disaster planning. Furthermore, another case, decided in 1926, in which a coal company had constructed a similarly faulty structure, had found a company's behavior of "piling the waste material so as to obstruct a natural watercourse" to be negligence (Stern 63). Pittston's original offers to the plaintiffs were outrageously low -- $4,000 to cover a six-room home (Stern 53). The most surprising and heartening aspect of Stern's fight was that he pressed on, even though the plaintiffs he represented were mostly poor, and he could expect little financial restitution on a personal level from the case, compared with the more lucrative work he could have obtained in his regular work as a lawyer. Stern was ruthless in the manner in which he brought his case to trial and had the victims to relive their testimony in transcripts, to expose to the world what occurred as the result of Pittston's negligence. His single-minded actions were necessary to bring about the eventual settlement. Often pathos is necessary to ensure that a fair settlement is achieved in a civil action, particularly when small and powerless plaintiffs are attacking a large corporation with massive assets and political support.

Today, a company like Pittston would likely not have fought so assiduously against the interests of poor, sympathetic defendants. In the age of the Internet, the outrage and the suffering caused by the disaster would have become publicized and dramatized far more quickly, much like the negligence shown regarding the evacuation of the Ninth Ward during Hurricane Katrina or the fallout from the BP oil spill was broadcast around the world. Admitting blame and offering a larger initial settlement seems sensible in retrospect, but Pittston was arrogant because of the power it had amassed in the state.

Work Cited

Stern,…… [read more]


China the Current State Term Paper

Term Paper  |  2 pages (665 words)
Bibliography Sources: 1+

SAMPLE TEXT:

Decisions begin and end with the Communist Party. There is no ethic that suggests a judiciary should be independent of the government; such an ethic must be created if China's fledgling judiciary is to succeed.

The pressures put upon China to change its judicial model are mounting. Issues like intellectual property are rising to the top in a country that hosts significant amounts of foreign direct investment. Disputes ranging from corporate embezzlement to breach of contract end up being settled outside of court: without due process of law. There are increasing numbers of Chinese law students, but still, the country lacks a significant enough number of attorneys to properly represent people when the need to take legal action does arise.

Mediation and other alternatives to the courtroom have been championed in China for thousands of years. Individuals or companies may lodge complaints, but those complaints will rarely be heard in a fair manner. Because the government has the final say, it will rule in ways that favor the perpetuation of government policy rather than what is just.

Moreover, Chinese criminal law is problematic. There is no presumption of innocence. There is a presumption of guilt, and the burden of proof falls upon the defendant. Of course, defendants are rarely capable of proving their innocence. Without a lawyer, proving innocence is difficult enough. Without a lawyer and also without any standard system of trial, a person can be accused and convicted of a crime in one fell swoop. China seems committed to overhauling the system, but the changes are bound to happen slowly.

References

"The Legal System in China." World Savvy Monitor. June 2008. Retrieved online: http://worldsavvy.org/monitor/index.php?option=com_content&view=article&id=113&Itemid=176

"The People's Court." PBS Wide Angle. 11 July 2011. Retrieved online: http://www.pbs.org/wnet/wideangle/episodes/the-peoples-court/introduction/162/… [read more]


Law Represented in Inherit the Wind Essay

Essay  |  2 pages (725 words)
Bibliography Sources: 2

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Inherit the Wind

The play by Jerome Lawrence and Robert Lee, "Inherit the Wind," was based on the infamous trial held in Tennessee (in 1925) over a teacher's right to teach Darwinism in a public school. A few years later movie director Stanley Kramer produced a film with the same title. It is ironic that today, 87 years later, a similar argument is being made in conservative Southern states like Texas, Mississippi, Alabama, to name a few. The controversy today exists because the religious right insists on placing the Biblical story of "Creation" (or a similar theory) in the same science books that explain evolution, which is frankly absurd, mixing science and religion; but the American society is fractured and polarized vis-a-vis religion, politics, and science.

The Plot of the Play

Meanwhile, the plot of "Inherit the Wind" begins as teacher Bert Cates is arrested for teaching evolution to his sophomore science class. He's in jail and his girlfriend, Rachel Brown, happens to be the daughter of the preacher Reverend Brown (who is vigorously opposed to the idea of evolution), so she is torn between her father and her boyfriend, Cates. The prosecuting attorney is a former presidential candidate (Matthew Harrison Brady, playing the part of William Jennings Bryan), which frightens Cates because of the notoriety surrounding Brady. But a famous defense attorney, Henry Drummond (playing the role of Clarence Darrow), takes Cates' case and though Cates loses in court, and is fined $100, Drummond destroys Brady's credibility by putting him on the stand and exposing the fact that Brady doesn't interpret the Bible literally.

The Legal Issue

In the real case, John Thomas Scopes was never put in jail but he did break the law because in March, 1925, Tennessee Governor Austin Peay signs the Butler bill into law, the first law in the U.S. "…to ban the teaching of evolution" (www.npr.org). Looking at that law now, it was not fiction, it was real. This law (Butler bill) reflects several things about Southern society in 1925. The South was still segregated (African-Americans couldn't vote in many instances; their children were sent to schools that were clearly not on a par with…… [read more]


Copying the Quote Essay

Essay  |  8 pages (2,991 words)
Bibliography Sources: 8

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¶ … copying the quote or paraphrase and the quote and outline how you will structure the essay, and add the thesis statement.

"IT and the Internet have provided stiff competition for the phone, the ledger, the library, and the filing cabinet, but the substantive work of lawyers has yet to be reconfigured" (R Susskind, the End of Lawyers? (OUP… [read more]


Blm - Bureau of Land Case Study

Case Study  |  5 pages (1,766 words)
Bibliography Sources: 3

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O. No. 13,175. The interlocutors, in my opinion, failed in their responsibility to find a better and more amicable solution, which would have prevented the courts from having a dilemma on the judgment.

2) It is a travesty of life that, these lands, which originally, belonged to the Indian tribes, are now categorized as the property of the Federal Government. Moreover, "meaningful consultation," which was a term connoted by the past presidents of the U.S.A. actually meant serious discussion, especially with regard to extractive industries like mining, but that seemed to have had little effect on the outcome. It is a pity that the actual forefathers of the land are given no part in decision-making and are treated badly to boot. I also consider it a shame that a Federal agency like the Bureau of Land management, with over 250 million acres of land under its control and over 7000 million acres of mining rights, could not found it fit to administer a mere 6700 acres in Nevada to the satisfaction of the original occupations of the land.

3) The Indian tribes attached great significance to their prayers and burial grounds. They could have been allowed to keep whatever tract of land they wanted specifically for their prayers.

References

FindLaw, (n.d.), Law Article: United States Court of Appeals, Ninth Circuit, Retrieved from http://caselaw. findlaw.com/us-9th-circuit/1498619.html.

Akilah, J.K. (2011), Indigenous Consent: Rethinking U.S. Consultation Policies In Light Of the U.N. Declaration on the…… [read more]


Conflict of Laws Essay

Essay  |  9 pages (2,854 words)
Style: APA  |  Bibliography Sources: 0

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Domicile is the method by which the courts in the United States connect a person to a particular place for purposes of litigation. Generally, domicile will become an issue by virtue of two legal determinations: 1) it will appear as a result of a question of jurisdiction, that is, whether or not a defendant is domiciled within a particular location… [read more]


British Bill of Rights to Replace Essay

Essay  |  7 pages (2,236 words)
Bibliography Sources: 10

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¶ … British Bill of Rights to replace the Human Rights Act of 1998. It is the opinion of this author that without formally enshrining many of our traditional British liberties formally in such a document permanent document, it is too tempting for politicians to overlook those rights. The real issue seems to be making sure that our most precious… [read more]


Civil Law Essay

Essay  |  2 pages (619 words)
Bibliography Sources: 0

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Civil Law

There will be cases wherein one party will feel having been wronged by another either intentionally or unintentionally. In the case of Sara Andrews vs. John Smith, the latter throwing a baseball on the street and causing damage to the former's car is unfortunate and unintentional. However, the injured party should never be the one who will have to pay for the damage she did not caused herself. Thus, having the right to file a lawsuit protects her from being left out and pay for the damages to her car and the treatment to the physical problems she has had thereafter. Surely John Smith would say that what occurred was an accident. But examining the matter further, it would be obvious that the street is where various vehicles and pedestrians come and go, and when someone throws a baseball on the street, more than likely someone will get hit and may get hurt as in Ms. Andrews case. Hence, even if Mr. Smith had no intention of causing harm to Ms. Andrews, his irresponsible act has caused damage and Ms. Andrews suing him is basically making sure that she will not have to pay for the damages that she never caused in the first place.

The right to file lawsuit in a civil case as in any law or legal proceeding will always be open for abuse especially if there are those malicious enough to use it to their advantage. One abuse that is apparent is when people are making false claims that they have been wronged by another party. In addition, some of the claims will demand for outrageous sums that if ever the complainant wins, the defendant might find himself on the streets because the civil lawsuit has caused him to be economically downtrodden. Other abuse can take the form of simply congesting the already…… [read more]


Health Service Managers and the Law Discussion and Results Chapter

Discussion and Results Chapter  |  2 pages (753 words)
Style: APA  |  Bibliography Sources: 5

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¶ … starting point of this analysis is a determination as to whether or not the advertisement in the "Trading Post" by the seller of the cabinet constituted a legitimate and enforceable offer. As the beginning point of any contractual relationship is the offer, the integrity of the negotiating process between Steven (the potential purchaser) and Susan (the seller) is paramount to any further discussion. It has been black letter law in the Australian legal system that advertisements contained in publications available to the general public such as the "Trading Post" can be considered as valid offers and, unless clearly withdrawn, subject to acceptance (Carlill v. Carbolic Smoke Ball Co., 1893). As the facts of the case indicate clearly that Steven conveyed his acceptance of the terms of the advertisement, Steven has a strong argument that he has an enforceable legal contract with Susan for the purchase of the cabinet for the advertised price of $8,000 (Empirnall Holdings Pty. Ltd. v. Machon Paull Partners Pty. Ltd., 1988). The fact that Susan responded to Steven's initial acceptance by now offering the cabinet for sale for one week at the new price of $10,000 is clear evidence that she received Steven's acceptance at the $8,000 offering price. Arguably, the case should have been terminated at this point and the transaction closed, however, Steven's failure to enforce the original terms and to proceed to again agree to accept Susan's new offer to sell at $10,000 complicates the matter further and, from the standpoint of Steven, needlessly.

Steven's failure to enforce the original terms of a valid contract and to subsequently enter into extended negotiations with Susan on the new terms may be construed as a withdrawal of his original intent to be bound by the $8,000 agreement. Such position is tenuous but necessary in light of the fact that Steven is ultimately denied the right to purchase the cabinet because of the subsequent actions of Susan. The facts in the case do not clearly indicate on what date Steven conveyed his new acceptance to Susan and this omission may affect the validity of Steven acceptance on the second offer. Susan's new offer was open for one week from June 1st. Under the postal rule, Steven would have been provided…… [read more]


Tort Law Vicarious Liability Essay

Essay  |  3 pages (1,002 words)
Bibliography Sources: 3

SAMPLE TEXT:

Tort Law -- Vicarious Liability

The legal concept of tort -- the basic bottom line idea -- is a wrongful act, an illegal act, according to FindLaw.com. It is a "wrongful act other than a breach of contract that injures another" and it is an act for which the law enforces a "civil liability" (FindLaw.com). Another aspect of tort is that it is a clear violation of one's "duty" -- which differentiates it from a breach of contract. The Stanford Encyclopedia of Philosophy (SEP) relates that there are several branches of private law and tort is but one of them. The other branches of private law are contract law, property law, and restitution (also known as "unjust enrichment").

What's important to know about tort law is the judgment does not result in punishment through incarceration; but rather, when a victim of a scam sues the individual who perpetrated the scam through tort law -- and the plaintiff wins the suit -- the scammer may be obliged to pay "compensatory damages" (SEP). In some cases the plaintiff can be awarded "punitive damages" as well (in excess of compensatory relief).

Is there sufficient evidence to suggest this was an intentional tort? Yes there is an enormous amount of evidence in the Robert Courtney case to prove intentional tort on his part. In a case of intentional tort, the perpetrator fully intends to bring about a very specific result. In this case the intentional diluting of cancer-fighting drugs was done to bring about an obvious result and consequence: Courtney profited handsomely resulting from his intentional tampering and adulterating the chemotherapy drugs. It is possible to argue that Courtney did not commit intentional tort because in the strictest definition of the term it means that someone has intentionally physically injured a person or interfered with a person's property. But that is splitting hairs in this case.

Intentional interference with a person suggests that the perpetrator has committed an offence (brought harm to a person) that was intended, not just reckless or careless. "The classic intentional tort in medical practice is forcing unwanted medical care on a patient," according to the Louisiana State University Law Center. In this particular instance the patients of Courtney were receiving (unbeknownst to them) "unwanted" medical care. They wanted honest, medically sound care and they were expecting to get what they paid for -- the full dose of very expensive medicines. But because they were tricked, they were not getting what they wanted (or needed).

A desperate defense attorney in a case like Courtney's could make an argument that Courtney did not "force" the medication on the patients, that they willingly ordered the medications, paid for them in good faith, and used them. But a sharp prosecutor could shoot down that point. In fact asking people to accept something that is fraudulent -- under the false impression that it is genuine -- is forcing it on them. The Encarta World English Dictionary defines "force": "to use superior strength, violence, or… [read more]


Forensics, Law, &amp Psychology: False Research Paper

Research Paper  |  3 pages (1,096 words)
Bibliography Sources: 3

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Following cases of a similar kind, particularly that of Miranda v. Arizona (1966), the Supreme Court ruled that coerced confessions were inadmissible in court unless the defendant had previously been allowed to consult with an attorney and advised of his rights to remain silent. Nonetheless, as shown, false confessions remain a regularity of the forensic scene and this is due to the fact that numerous elements involve themselves in prompting such a confession. Unless these factors are known too many innocent people will continue to be convicted wrongfully. The only way to prevent this is to conduct reliable and insistent research into the factors that prompt false confessions. Disallowing coerced confessions is insufficient. As shown earlier, Bedau and Radelet (1987) discovered 350 cases of false confessions in the United States alone. In 49 of these cases, coercive strategies were used to elicit the confession. That this situation exists and continues may be primarily due to the Arizona v. Fulminante (1991) where the Supreme Court ruled in reversal to its former decision that convictions based on coerced confession need no longer be automatically reversed. Other evidence needs to be accumulated to show that the conviction was wrongful. In other words, the confession may have been coerced, but significant evidence nonetheless exists to convict the defendant. In this case, the prosecutors may continue with their judgment and the sentence stands.

This latest ruling by the Supreme Court is changing and has changed methodological research in this field for no longer is it exclusively and conclusively accepted that coercive strategies are unwelcome and forbidden, and that, if they occur, they annul the conviction with recurrence of the case having to occur, but now researchers are focusing on the possibility that coercive strategies actually do occur and, this being so, methodologies come into focus on how to recognize these coercive confessions. Furthermore, related research also attempts to distinguish between coercive confessions that have elicited deserved sentencing and those that have sentenced an innocent person to undeserved consequences. Researchers in the convergence of psychology, law, and forensics provide various reasons as to the recent trend in coerced confessions. Some provide psychodynamic rationale (Conti, 1996), whereas Zimardo (1967) posits police incompetence. The tendency has become for police interrogators to resort to outright lies (Conti, 1996), and more than one recent textbook presents step-by-step methods whereby interrogators can elicit a forced confession from a suspect (ibid.). From disallowing coerced confession to allowing it under certain conditions -- this has become a situation that is convenient for the police and has changed the environment of forensic law in convergence with psychology. In return, social psychologists now focus their methods to examining the why's and wherefores of coerced confessions as compared to a time -- not too long ago -- when coerced confession was disallowed and, therefore, methodological research on the subject was non-existent.

References

Brandon, R., & Davies, C. (1973). Wrongful imprisonment. London, England: Allen and Unwin

Brothers Ltd.

Conti, R.P. (1999) The Psychology of False Confessions. The… [read more]


Law Complies With the Equal Protection Clause? Essay

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

SAMPLE TEXT:

¶ … law complies with the equal protection clause?

There are three levels of review in determining whether a law complies with the equal protection clause: a) Rational basis; b) intermediate scrutiny; c) strict scrutiny. The rational basis review asks whether there is some rational relationship between disparity of treatment and some legitimate governmental purpose. The intermediate scrutiny test is the newest adopted by the courts. Intermediate scrutiny involves a statutory classification that is related to an important governmental objective. The final test is strict scrutiny. This test is far more stringent than either rational basis or intermediate scrutiny. This standard is to be applied in situations where suspect classifications or fundamental rights are at stake.

Explain the concept of preemption.

This concept arises from the Supremacy Clause of the U.S. Constitution. Under this concept certain legal matters are considered to be of such national importance that federal laws take priority over state laws. Preemption, thereby, prohibits any state to pass any law that proves to be inconsistent with the federal law. The same concept can also be applied in relation to state laws vs. local laws or ordinances where the state law would preempt the local laws.

3. What is the significance of the commerce clause?

The Commerce Clause's significance arises from its empowering Congress to possess exclusive power over trade among the states and foreign countries and Indian tribes. Trade exclusively within the borders of an individual state is outside the…… [read more]


Gilbert's Summaries Contracts the Law Essay

Essay  |  18 pages (5,347 words)
Bibliography Sources: 0

SAMPLE TEXT:

Gilbert's Summaries

Contracts

The law of contracts represents society's attempt to formalize promises between parties. Promises are agreements between parties that are supported by consideration. Historically, consideration was described as a benefit received by one promisor or as detriment incurred by the opposing promisor. Modern legal theorists, however, describe consideration as being equivalent to a bargain, that is, an exchange… [read more]


Wills Outline of Gilbert Law Summaries Essay

Essay  |  10 pages (3,832 words)
Bibliography Sources: 0

SAMPLE TEXT:

¶ … Wills

Outline of Gilbert Law Summaries -- Wills

Intestate Succession

Patterns of intestate distribution. Rules vary from jurisdiction to jurisdiction, but generally in those cases where the decedent did not leave a will or the will does not provide for complete distribution, the pattern of distribution is typically the spouse (who receives one-half or one-third if there are… [read more]


Due Process in the American Legal System Essay

Essay  |  3 pages (1,054 words)
Bibliography Sources: 5

SAMPLE TEXT:

¶ … Due Process in the American Legal System

The United States is the country of laws. The country was established in opposition to what was perceived as the lawlessness of the British colonial rule in America. The framers of the Constitution of the United States -- as well as those who added important Amendments later -- worked hard to make sure that the rights of all citizens are protected. It was enshrined in the Constitution that no person, agency, or institution, including the government can violate inalienable rights of any citizens. Even criminal proceedings should follow due process of law. For example, the Fourteenth Amendment states that "No state shall . . . deprive any person of life, liberty, or property, without due process of law" (Lewis 8). The Constitution, however, is subject to interpretation and many of its provisions have been historically applied in different manners. One judicial institution in the United States that deals with the interpretation of the Constitution in pertaining to the rights of persons is the Supreme Court. In the last century, the Supreme Court made important rulings regarding due process that protects suspected criminals from unfair trials. In several important rulings, the Court highlighted the importance of legal representation for persons accused of crimes and the importance of due process the police must follow in prosecuting and detaining crime suspects.

The Supreme Court normally deals with issues related to federal law. However, there are circumstances when a ruling made by a state court may be brought to the Supreme Court and overruled. For instance, if a person believes that he/she was tried in a court without "due process of law," then the person may bring the case to the Supreme Court (Lewis 15). This was the case of Clarence Earl Gideon who appealed to the Supreme Court in 1962 after the state court of Florida had denied his request to have an attorney appointed by the Court. Gideon asserted that it was his Constitutional right to have an attorney appointed by the Court. The Florida Court claimed that the Fourteenth Amendment did not grant Gideon the right to a counsel, citing 1942 Betts v. Brady Supreme Court ruling, which said that only defenders accused of serious crimes were entitled to a free counsel and that each case should be reviewed by the court in a case-by-case scenario.

The Supreme Court overruled Betts v. Brady in 1963 by declaring that Gideon had the right to a counsel in line with the Sixth Amendment to the Constitution. The Court granted Gideon the right to have a counsel because the court accepted and agreed with Gideon's suggestion that "a citizen of the state of Florida cannot get a just and fair trial without the aid of counsel," and that a counsel is required to avoid "such things as hearsay, perjury or Bill of attainer against him" (Lewis 40). There is no guarantee that a legal representation can ensure fair trial, but at least an attorney defending… [read more]


Under What Circumstances if Any Is it Appropriate to Depart From the Rule of Law Essay

Essay  |  10 pages (3,689 words)
Style: Harvard  |  Bibliography Sources: 15

SAMPLE TEXT:

¶ … depart from the rule of law?

Rule of Law

As Waldron (2009) emphasizes, the rule of law is considered to be "… one of the most important political ideals of our time."

He provides the following example of the rule of law in an international setting.

As a November 2007 New York Times editorial states, when President Musharaff… [read more]


Arizona Immigration Law SB1070 Term Paper

Term Paper  |  6 pages (2,391 words)
Bibliography Sources: 8

SAMPLE TEXT:

The U.S. Chamber of Congress is reported to have sued the state because its "Legal Arizona Workers Act (LAWA) violated the federal Immigration Reform and Control Act (IRCA), which prohibits states from enforcing federal immigration laws with civil or criminal penalties. The Supreme Court upheld several minor court decisions that found LAWA, which was passed in 2007, did not violate… [read more]


Prevailing Legal Theory Research Paper

Research Paper  |  2 pages (802 words)
Bibliography Sources: 5

SAMPLE TEXT:

It should be noted that the term 'judicial activism 'is often used as an epithet to characterize the acts of justices who strike down laws or reinterpret laws in a manner that is seen as 'adding' to the laws of the U.S. Constitution. However, "what is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches" such as segregation (Sollum 2009). Protecting the rights of citizens rather than narrowly adhering to conventional interpretations of existing law is prioritized by so-called judicial activists. For example, in 1965, in Griswald v. Connecticut, the Warren Court declared that the state's current birth control laws unconstitutional because they made it "a crime for anyone to give out information or instructions on the use of birth control devices" which "intruded upon notions of privacy surrounding the ideas of marital privilege and reproductive rights" (Stephens 2003).

A final, common popular legal theory is that of postmodern legal theory. This theory stresses the socially and historically-constructed nature of concepts such as 'truth' and 'justice.' Rather than seeing justices attempting to achieve the same ends, but interpreting the Constitution in a different manner, postmodern theorists stress that the idea of what the Constitution 'literally' means or even implies is based upon a subjective, rather than objective impression (Carmona 1999). The reason that African-Americans have been treated as property in the 19th century, were declared 'separate but equal' even after the end of slavery, and were only formally accorded full rights to integrated education in Brown is due to social and perceptual changes, not because justices and politicians have finally arrived at the 'correct' interpretation of amendment to the Constitution.

References

Carmona, Ana Julia Bozo. (1999). Toward a postmodern theory of law. Paideia project.

Retrieved May 24, 2011 at http://www.bu.edu/wcp/Papers/Law/LawBozo.htm

Jones, Jeffrey. (2009). Americans in agreement with Supreme Court on gun rights. Gallup.

Retrieved May 24, 2011 at http://www.gallup.com/poll/108394/Americans-Agreement-Supreme-Court-Gun-Rights.aspx

Sollum, Lawrence. (2009). Legal theory lexicon: Strict construction and judicial activism.

Legal Theory. Retrieved May 24, 2011 at http://lsolum.typepad.com/legaltheory/2009/11/legal-theory-lexicon-strict-construction-and-judicial-activism.html

Stephens, Mark. (2003). Right of privacy. California State University.

Retrieved May 24, 2011 at http://faculty.ncwc.edu/mstevens/410/410lect16.htm

Supreme Court OKs corporate campaign contributions. (2010, January 21). PBS.

Retrieved May 24, 2011 at http://www.pbs.org/newshour/bb/law/jan-june10/supremecourt_01-21.html… [read more]


U.S. Legal System United States Reaction Paper

Reaction Paper  |  2 pages (580 words)
Bibliography Sources: 2

SAMPLE TEXT:

U.S. Legal System

United States Legal System

Sources of Law -- The United States Constitution is the "supreme law of the land." The Constitution divides the federal government into three branches, each of which has an impact on the legal system.

Legislative -- The legislative branch, consisting of the Senate and House of Representatives, passes legislation which becomes law.

Executive -- The executive branch of government consists of the President, the Vice President, and 15 cabinet-level departments. Each of these departments may contain many organizations. The President has the power to sign into law or veto any legislation passed by the legislative branch. Additionally, Congress delegates law-making power to various cabinet organizations such as the Environment Protection Agency and the Food and Drug Administration.

c. Judicial -- The judicial branch of the federal government is the branch that the Constitution empowers with settling disputes involving federal law or between citizens of two different states. Additionally, the judicial branch determines whether or not a statute (federal or state) violates the U.S. Constitution. The judicial branch is where the federal court system resides.

II. Types of Court Cases -- There are generally two types of cases which may be heard by courts. These include civil cases, which are disputes between two parties, and criminal cases, which involve an action that is harmful to society as a whole.

a. Criminal -- When a person is formally accused of a crime, they receive an indictment (for felonies) or information (for misdemeanors). Criminal cases involving federal laws are prosecuted by the United States Attorney's Office. Criminal cases involving state laws are prosecuted according to the procedures of each state. Once a court determines that the individual committed the crime, he or she is sentenced. Sentencing…… [read more]


Is International Law Really Law? Term Paper

Term Paper  |  7 pages (1,902 words)
Bibliography Sources: 5

SAMPLE TEXT:

¶ … Enforcement of International Law

The argument against international law

International law that is defined as the body of law that is used to effectively govern the legal relationship among or between sovereign states and nations has attracted a protracted debate on whether it is really law. International law has also been noted to consist of rules as well… [read more]


Changes Essay

Essay  |  8 pages (2,320 words)
Bibliography Sources: 8

SAMPLE TEXT:

This is a change from s 70 (1) (g) and was made with the idea that it is often very difficult for buyers to discover the existence of an intermediate landlord simply from an inspection of the property.

The new law maintains the exception that a beneficiary under a settlement under the Settled Land Act 1925 is excluded from overriding… [read more]


Legal Case Analyses and Application Bilateral (Mutual) Essay

Essay  |  3 pages (1,060 words)
Bibliography Sources: 3

SAMPLE TEXT:

Legal Case Analyses and Application

Bilateral (Mutual) Mistake -- Inkel v. Pride Chevrolet-Pontiac Inc.

In this case, the buyer relied to his substantial detriment on a mistake in calculations made by the seller with respect to the total price of the sale of a motor vehicle. Specifically, Pride miscalculated the allowable trade-in value of the used vehicle offered by Inkel toward the price of a new vehicle purchased from Pride. Subsequent to the conclusion of negotiations and payment for the vehicle, Pride demanded a substantial additional sum of money relying on a provision in its contract holding the buyer responsible for any mistake in connection with the transaction as well as on the legal doctrine that a bilateral (mutual) mistake of facts or circumstances between the parties to a contract is justification for nonperformance and rescission of the contract.

The court held that a mistake made by one party alone could not support a justification for nonperformance or rescission by the party responsible for the mistake. Moreover, the fact that the other party might have benefited from or taken advantage of the mistake was insufficient to support the contention that the mistake was mutual. The mistaken party cannot seek to rescind the contract without extraordinary circumstances such as an active role on the part of the non-mistaken party to conceal or facilitate the mistake.

This is an important concept, particularly in used car sales, because sellers could otherwise take advantage of their superior knowledge by purposely undervaluing trade-ins. If mere knowledge of the mistake by the other party were sufficient to render such mistakes "mutual" dealerships would be able to use the mileage clause in the original lease to support the mutuality of mistake theory for this purpose routinely.

Substantial Performance and Materiality of Breach -- Jacob & Youngs Inc. v. Kent

In this case, the plaintiff sought final payment for a dwelling constructed on behalf of the defendant. The defendant had refused to pay because he discovered that the plaintiff had used a different brand of piping than that specified in their contract. Through his architect-agent, the defendant had insisted that the plaintiff redo the work to replace the piping to conform to the contract. The court held that the demand was unreasonable because the difference in piping quality was nominal or negligible in the first place. Meanwhile, the costs associated with ripping apart the construction to replace the piping far exceeded the value of the difference in piping, particularly in light of the tremendous cost of the work that would entail.

This concept is important because otherwise, a party to a contract could complain, in bad-faith, anytime an immaterial fact deviated one iota from the literal content of a contract. The purpose of contractual specificity is to enable parties to reach a mutual understanding about agreements and to support good-faith claims based on breaches that are material and reasonable. Deviations from specified contractual terms are not intended to permit recoveries that grossly exaggerate the material effect of inconsequential… [read more]


Law of Torts Assessment

Assessment  |  2 pages (697 words)
Bibliography Sources: 15

SAMPLE TEXT:

Reform of Tort Laws in Australia

Efforts have been underway in recent years to reform the tort laws in Australia in order to ensure that legal mechanisms are in place that will restore plaintiffs to their original condition prior to the tort to the maximum extent possible as well as to ensure that their future condition is equally balanced by the reparations made by the tort feasor. In the overwhelming majority of tort cases, this restoration is based on monetary remunerations for lost wages and medical expenses that occurred prior to the tort as well as such projected expenses in the future (Wells v Wells [1999] AC 345). The assessment of future damages, though, is more problematic and typically involves some type of actuarial analysis based on the plaintiff's prior wage earnings, the extent of the damages caused by the tort and the reasonableness of such awards in view of public policy and precedential case law.

According to the editors of Defense Counsel Journal, tort law reform efforts in Australia have been in response to "a combination of the collapse of a major insurance company and a medical indemnity insurer and by spiralling premiums. While some states already have enacted legislation, the federal government's response was to set up an inquiry looking at a wholesale reform of tort law" (Tort Law Reform Steaming in Australia 2002, p. 406). The Australian federal government responded to these events by rapidly establishing a committee to conduct a comprehensive analysis of the Review of the Law of Negligence and the committee provided its recommendations in series of reports just a few months later (Clark & Harris 2005). According to Clark and Harris, "The review received evidence that the absence of insurance, or the availability of insurance only at unaffordable rates, adversely affected many aspects of community life" (2005, p. 16). In its reports, the committee emphasized the existing unpredictability of tort laws and the relative ease with which plaintiffs were able to prevail in the majority of torts cases; likewise, the committee stressed the generous awards being handed down by the courts…… [read more]


Client-Lawyer Relationship and Financial Assistance Essay

Essay  |  6 pages (1,842 words)
Bibliography Sources: 3

SAMPLE TEXT:

Kippi works for Legal Aid, a free legal clinic, and has given one of the clients, an unwed pregnant teenager, money to pay for the delivery of her baby and to buy some necessities.

Does Kippi's payment to the client create an ethical problem for Kippi?

Does Kippi's payment create an ethical problem for Legal Aid?

Does the fact that… [read more]


International Law Research Paper

Research Paper  |  6 pages (1,866 words)
Bibliography Sources: 10

SAMPLE TEXT:

" (Hathaway, 2005)

Conclusion

This work has examined the issue of the legitimacy of international law and the enforcement authority of international law and has found that the state is ultimately the political power and actor that determines whether international law is enforceable and as well is the authority with the power to actually enforce international law. However, the political factors that are entangled with such decisions requires that more in-depth future study be applied in this area of research.

References

Besson. S. And Tasioulas, J. (2010) The Philosophy of International Law. Oxford University Press. 2010.

Cassels, A. (1996) Ideology and International Relations in the Modern World. London and New York. Retrieved from; http://m.friendfeed-media.com/16091f1cfb5c64ee8145abc0116d37a065575b7d

Coleman, Katharina P. (2007) International Organizations and Peace Enforcement Operations: The Politics of International Legitimacy. Cambridge University Press 2007. Retrieved from: http://www.au.af.mil/au/ssq/bookreviews/coleman.pdfBrunnee, Jutta (2005) Enforcement Mechanisms in International Law and International Environmental Law. Ulrich Beyerlin et al., eds. Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue Between Practitioners and Academia (2005) Environmental Law Network International Review 3-14]. Retrieved from: http://www.law.utoronto.ca/documents/brunnee/BrunneeEnforcementMechanismsInt_lLaw.pdf

Hathaway, Oona A. (2005) Between Power and Principle: An Integrated Theory of International Law. Chicago Law Review 2005.

Henderson, James (Sakej) Youngblood (nd) The Context of the State of Nature. Retrieved from: http://www.ubcpress.ca/books/pdf/chapters/reclaimingind/chap1.pdf

Kosjkenniemi, Martti (2005) Global Legal Pluralism: Multiple Regimes and Multiple Modes of Though. 5 Mar 2005. Retrieved from: http://www.helsinki.fi/eci/Publications/Koskenniemi/MKPluralism-Harvard-05d[1].pdf

Mullerson, R.A. (2000) Ordering Anarchy: International Law in International Society. Martinus Nijhoff Publishers. 2000.

Norton, Joseph Jude (1987) Public International Law and the Future World order. Wm. S. Hein Publishing, 1987.

Schachter, O. (1991) International Law in theory and practice. Martinus NIjhoff Publishers, 1991.

Shaw, Malcolm, N. (2008) International…… [read more]


Law of Contract Essay

Essay  |  12 pages (3,399 words)
Bibliography Sources: 7

SAMPLE TEXT:

Consequently if one party to the contract has performed his obligations under the contract and other has yet to then in such a case a unilateral discharge is necessary and since there is no release by the non-performing party then such a discharge to be effective it must be under seal.

Upon the breach of contract by one party then… [read more]


Multivalent Nature of Legal Traditions 4a Comparison Assessment

Assessment  |  8 pages (2,137 words)
Bibliography Sources: 15

SAMPLE TEXT:

¶ … Multivalent Nature of Legal Traditions

4A comparison of the bivalent logic and the multivalent logic

The need for multivalence for a legal tradition's stability

How to sustain diversity

In this paper, we present an analysis of the multivalent nature of legal traditions with a view of exposing the underlining principles of the concept. The relevance and significance of… [read more]


Why Are Judges in International Law Not Empowered to Make New International Law? Term Paper

Term Paper  |  3 pages (1,151 words)
Bibliography Sources: 8

SAMPLE TEXT:

International Judges

The Legal Neutrality of International Judges

This discussion proceeds from the R.Y. Jennings (1996) prompt which asserts that according to the terms of Article 38 of the Statute of the International Court of Justice, international judges are expected to use the resources available to them in existing international law when rendering decisions. At no point is it considered appropriate for a judge to author a new law by effectively establishing a precedent which has not otherwise been set through practice, pattern and collective acceptance. (Muller et al., p. 368)

As Ford (1995) explains, "judges doubtless spend most of their time applying well-established law to disputed circumstances of fact, but while there is judgment and discernment involved in such endeavors, such activities do not involve the articulation of new legal norms." (p. 35) This is a subject which is deeply complicated by the imposition of many conflicting cultural, philosophical and political conceptions of that which is lawful or unlawful. However, according to the Law Library of the University of California-Berkeley (2007), there are myriad established codes of international law to which international judges may generally refer. The Law Library (LL) identifies these as Peremptory Laws and indicates that these refer generally to acts of unprovoked aggression between states, crimes against humanity, acts of genocide, the engagement of slavery, international piracy and a host of other behaviors that have achieved widespread repudiation by the global community.

According to Shaw (2009), such peremptory laws can be traced to 'customary laws' shared amongst nations. Shaw reports for instance that "as the International Court noted in the Libya/Malta case, the substance of customary law must be 'looked for primarily in the actual practice of opinio juris of states.'" (p. 70) the collective acceptance of certain conditions as unlawful contributes to what Law Library describes as a set of essentially 'customary' laws by which precedent is availed to international judges.

Accordingly, LL indicates that "customary international law develops from the practice of States. To international lawyers, the practice of states' means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern." (LL, 1) Here, we recognize that legal terms are often bound only by commitment to international contracts and treaties such as, for instance, that relating to Dispute Settlement through the WTO. Here, "in the words of Article 38(1)(a), the rules of the DSU 'are expressly recognized by the contesting states' that are parties to WTO dispute settlement procedures." (Pelmeter & Mavroidis, p. 398)

Law Library goes on to indicate that the International Law Commission would in 1950 compile a formal collection of internationally achieved agreements in order to create documented international legal precedent. Here, the source denotes that according to Y.B. Int'l L. Comm'n 367, U.N. Doc. a/CN.4/Ser.A/1950/Add.1 (1957), a number of precedents established through the interaction of the international community… [read more]


Health Care Law Relating to Psychiatry Article Critique

Article Critique  |  3 pages (917 words)
Bibliography Sources: 1

SAMPLE TEXT:

Health Care Law Relating to Psychiatry

Drug-Associated Psychoses and Criminal Responsibility

Andrew Carroll and Bernadette McSherry

Behavioral Sciences & the Law, Sep/Oct2008, Vol. 26 Issue 5,

The insanity defense exists in a variety of forms across Anglo-American jurisdictions.

Many jurisdictions follow a version of the established M'Naghten Rules (M'Naghten's Case, 1843), which refers to a fault of cause coming from an illness of the mind. For many years, the law has struggled with how to allocate criminal accountability to those affected by drugs. An intricate system of rules relating to voluntary and involuntary intoxication and crimes of specific and general intent has come about. The law draws a difference when conveying criminal responsibility to those who commit crimes while experiencing psychotic signs. If the symptoms are thought to come about because of ingesting drugs, which is an external cause, the criminal is usually convicted of the crime. If the symptoms arise from a mental illness, which is an internal cause, the offender may be afforded a defense of insanity. In reality, making such a distinction can often be difficult. There are difficulties in determining criminal accountability when the use of drugs is followed by the appearance of a psychotic illness procedure that then persists to have a sovereign existence even in the lack of the ongoing substance use.

There is a mounting amount of case law that deals with conveying accountability to those suffering from such disorders of mental state that has led to varied results. Even though a wide variety of advances have been accepted in various jurisdictions, there are three extensive approaches to the issue that can be distinguished. These are liberal, conservative, and intermediate. The major purpose of this article was to look at the key concerns for the law, expert witnesses, and policy makers that follow from these approaches. It endeavors to tease out the questions arising from the liberal, conservative, and intermediate approaches to drug-linked psychoses in order to explain the effects that each approach may have in practice. It is thought that it might be impossible for the law in this field considers present clinical doubts, but having a general idea of likely advances that the law may take will likely move the debate forward.

Evaluation

Any criminal defense brings with it issues of proof. The question as to whether there is sufficient evidence for a defense of insanity to be determined by the jury is an inquiry for the trial judge to decide. This question is generally thought to be in the absence of the jury prior to the commencement of the trial. The party raising the defense must produce sufficient evidence the evidential burden to permit the defense to be left to the jury for consideration. The burden does not…… [read more]


Acquisition Law on the Motorways Research Paper

Research Paper  |  2 pages (667 words)
Bibliography Sources: 1

SAMPLE TEXT:

The use of consideration within modern UCC law vs. The earlier common law provision has advanced the idea that "good faith" is constituent to the rule where the arbitrary will of the Offeror or seller may be in question by the Buyer, and "quantity" in goods and their requested price is the point of complaint (Perillo and Bender, 2007). In general, acceptance of the offer regards consideration as inherent to the existence of a contract. If mutual assent is present, then Buyer complaint must entail evidence that detriment is caused by misrepresentation of those goods or their price.

An agreement constituted of a final writing in accordance the statute of frauds, which permeates UCC rules regarding fair and legal trade, will likely be the basis to performance on the bill of sale to the transaction of the Corvette. Imputable meaning offers foundation to verified contract agreement (Perillo, 2003). In cases of merchant-to-merchant sale, where two merchants are involved, conditions to contract include additional stipulations on trade under the UCC, and signatory on contract is almost always deemed definite regarding transfer of title, and assumed responsibility of detriment.

Writings that do not create a contract may be the result of inexplicit statements regarding the conformity of goods must be upheld, unless the Buyer is otherwise notified; and continuance of the agreement as a valid contract may only be accommodated by the Buyer. Where there is not requisite notice to performance, or implied terms are not accommodated by the Buyer, then complaint of contract breach may be sustained based on inadequate articulation to the agreement.

References

Perillo, J.M. (2003). Contracts Hornbook, 5th Edition. Eagan, MN: West.…… [read more]


Contract Law / Australia Essay

Essay  |  10 pages (3,019 words)
Bibliography Sources: 4

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Contract Law / Australia

The term "Contract Law" has the ability to almost immediately make someone thing of lawsuits and litigation. For the most part, contracts are thought of as being very formal documents written up with language that is difficult for the average person to read and much less understand. However we may feel about contracts, we must not… [read more]


Legal Research, Writing, &amp Analysis Chapter Essay

Essay  |  6 pages (1,611 words)
Bibliography Sources: 0

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Legal Research, Writing, & Analysis

Chapter 1 deals with general definitions that would be used in the book, including the difference between civil and criminal law, the particularities of substance and procedure, with examples as to what might fall under each category, as well as definitions of notions such as common law and equity. The chapter details on the role… [read more]


Employment Law Case Study

Case Study  |  5 pages (1,882 words)
Bibliography Sources: 0

SAMPLE TEXT:

Business

Employment Law

Hernandez v. Hillsides Inc., 47 Cal.4th 272 (2009)

Facts: In September 2003, the plaintiffs Hernandez and Lopez filed a suit against defendants Hillsides and Hitchcock over the use of video surveillance equipment in plaintiffs' office. The complaint consisted of three related causes of action, and sought compensatory and punitive damages. The first cause of action claimed an… [read more]


Mediation Qualification Law Term Paper

Term Paper  |  5 pages (1,749 words)
Bibliography Sources: 3

SAMPLE TEXT:

Mediation Law and North Carolina

Mediation Law

Mediation Qualification Law and North Carolina

The state of North Carolina has defined mediation in its legislation as an unofficial process facilitated by a mediator whose goal it is to help all parties voluntarily reach a mutually acceptable resolution to their dispute (Clark, Ellen, McCormick, 1996). Mediators are intended to play the role… [read more]


Organizational Law Essay

Essay  |  2 pages (540 words)
Bibliography Sources: 0

SAMPLE TEXT:

Organizational Law

The first source of law is the House of Representatives. Bills are written by congresspersons or senators and then after debate these bills may be passed into law, after being signed by the President. Similar processes exist at the state and civic levels as well. The other source of law is through court rulings. The judicial system is responsible for interpreting the laws passed by the legislative branch and these interpretations form a guide as to how other courts will implement the law.

Litigation is a dispute mechanism by which the dispute is adjudicated in the court system. There are a number of alternative dispute mechanisms as well, including arbitration, mediation and negotiation. The use of ADMs is generally more affordable than the use of the court system, less risky because you have more control over the process and as well ADMs often lead to more creative and amicable solutions than legal rulings.

The five essential elements of a valid contract are offer and acceptance, mutual consent, mutual consideration, enforceability (legal subject) and competent parties.

An employee works for the company and is subject to all applicable employment law. An independent contractor is not an employee of the company, but is considered to be self-employed. Therefore, the contractor is not subject to employment law but rather to contract law.

An intentional tort is a harmful act that is deliberate in nature. A negligent act is one that causes harm, but that harm does not arise from a deliberate act but rather from a failure to take care or fulfill a duty owed.

A patent is legally established by…… [read more]


Jurisdiction and Applicable Law Essay

Essay  |  12 pages (3,519 words)
Bibliography Sources: 10

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The court pointed out that "[t]he result would have been different if the call at Hull had caused any appreciable harm to the cargo."

Here, we lack information about the nature and extent of the stay in Baltimore and how it contributed to the week-long delay in reaching Cadiz. It is hard to imagine how discharging a stowaway takes a… [read more]


Personal Statement for Law School Research Paper

Research Paper  |  2 pages (808 words)
Bibliography Sources: 0

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Personal Statement for Law School

In life there are a variety of paths that someone can choose to go down. Where, the decisions that we make will determine ultimately who we will become. This is why law school is so important in my case, as I believe that it will provide me with the opportunity to grow as a person and achieve a life long ambition. Where, studying the subject matter can help me to contribute positively; to those people who are in need of: the services of someone to accurately interpret the law for them. This and a desire to help people are the biggest reasons why I am choosing to go to law school.

However, unlike so many other candidates I have a number of different advantages that I bring with me to include: a determination to be successful, the ability to adapt to a variety of situations and life experiences. After going through a rigorous course of study throughout my school years, I have developed a determination to be successful at any cost. This means that no matter what happens, this ability can help me to be able to understand the most complicated of concepts. Where, I will continue to focus and work on something until I have mastered the concept, by telling you what it is about in my own words. In many ways, when you have such a determination to be successful, you have the ability to understand the most challenging concepts, based on the fact that you are going to be successful no matter what. In many ways, this is a characteristic that is common to some of the great legal minds. Where, they went on to brilliant careers, as they were willing to go the extra mile to achieve their objectives at all times. This is the kind of determination that has helped me to overcome some of the different challenges that I have faced in my educational career and in life.

My ability to adapt to a variety of situations helps me to be able to see the viewpoints of different people. In the study of law this is important, because one of the key principals is being able to make an accurate argument in favor of your client. The best legal minds are those people, who listen to the entire situation and then use the viewpoints of others, to be able to make effective counter…… [read more]


Food and Drug Law Biotechnology Term Paper

Term Paper  |  3 pages (1,015 words)
Bibliography Sources: 3

SAMPLE TEXT:

Food and Drug Law Biotechnology

Food and drug laws

What will be the likely outcome of this case and why?

According to the law, a corporation is a fictional 'person.' Shareholders and corporate officials are not responsible for the actions of such a fictional entity, under most circumstances, as they are officially employees of the company. An employer is legally responsible for the actions of its employees "if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when the incident took place" (Employer liability, 2010, Nolo). In this instance, the employees on the Board of Directors were not trying to intentionally commit fraud or deceive the public or the government, rather there were oversights committed at the factory that they did not correct before these oversights were noted.

If the CEO attempted to circumvent the law regarding appropriate food sanitation, and directed his subordinates to do so, he could be held liable. In this instance, it appears to be that the vice president had not yet corrected the problem, although he was in the process of doing so. Regardless, it is the company who is fined or held responsible as a whole for violations of the act, not the individuals in question. Unless he or she committed direct, personally-engineered violations of criminal law (such as tampering intentionally with the food) the CEO is not liable. Although it is within the FDA's power to instigate civil or criminal litigation against an individual for violating 301(k) of the Food and Cosmetics Act, under these circumstances the agency does not seem to have the grounds to do so.

Q2. Why did the Court hold differently in these two cases?

The Riegels alleged that a faulty Medtronic catheter "was designed, labeled, and manufactured in a manner that violated New York common law," but it was affirmed that the Medical Device Amendments of 1976 preempted state law, and the Riegels' claim was problematic because it did not state that Medtronic had violated federal law. The Riegels' suit rested on faulty legal grounds.

In Wyeth v. Levine, the issue in question was whether a state could have higher standards for labeling pharmaceuticals than the federal government. The plaintiff was a musician who had lost her hand due to gangrene after being injected with a drug. Injection, versus an IV drip, was a very risky way of administering the drug but this was not specified on the label. She won a jury verdict in Vermont, after contending that Wyeth did not properly label the medication with a warning about the dangers of injecting it into a patient. On a cost-benefit analysis, she stated, no one would have performed the injection, given the likely side effects (Wyeth, 2008, WSJ). Unlike the Riegel case, the MDA did not apply, as this was a prescription drug not subject to the provisions of the MDA. The U.S. Supreme Court found in favor of Levine, noting that federal law is supposed to… [read more]


Business Law Corporation Case Study

Case Study  |  2 pages (586 words)
Bibliography Sources: 0

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Business Law

a) Robert sold his shares to Susan, who had insider knowledge of the transaction. This transaction, being between two parties and not conducted through the stock exchange, is subject to contract law. Under contract law, a contract is enforceable even if the consideration is of poor value, which in this case it is at $2 per share for a $4 stock. However, the contract would be voidable if the contract was not negotiated in good faith. Susan not only had insider knowledge, but she misrepresented the condition of the asset that she was offering to buy. This would constitute a contract made in bad faith. As such, Robert's sale to Susan constitutes a voidable contract.

Howard's situation is more difficult. Howard sold to Foster, who had inside knowledge by way of Angela. Howard knew that the information he received from Angela was insider information that had not been disclosed. Under SEC rule 10b-5, Angela had a duty to the shareholders to abstain from misappropriating that information for trading purposes. This has been upheld by the Supreme Court in United States v. O'Hagan. In this case, however, the seller Foster had no fiduciary duty to the source of the information. The source of the information, Angela, could not have traded on the information. Foster could, a position upheld by the Supreme Court in Chiarella v. United States. Howard may have suffered from the actions of Foster, but unless the conversation including specific and deliberate fraudulent statements by Foster that contradicted his insider information, it is unlikely that Howard has any legal recourse.

b) Leo had a fiduciary duty to Hawke to protect the confidential information. Under 10b-5, he was obligated to abstain from misappropriating that information for trading purposes. Given that the…… [read more]


Case Note and CAE Law Case Study

Case Study  |  12 pages (3,545 words)
Bibliography Sources: 1+

SAMPLE TEXT:

¶ … international business law, there are a number of different issues that are constantly being wrestled with. To spell out the different terms and agreements that are made during the course of business, requires the use of various contracts. This has given rise to the study of contractual law, where various legal scholars, attorneys and judges will determine how… [read more]


Communication Law Invasion of Privacy and Libel Case Study

Case Study  |  5 pages (1,676 words)
Style: APA  |  Bibliography Sources: 1

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Communications

Which of the four privacy torts do you think are specifically involved with regard to this case? Is this Libel?

The privacy tort that is involved in this case is public disclosure of private facts. It is an evasion of privacy to publicize private information about a person's life if the publication of this information would be embarrassing to… [read more]


International Law V Torture in Post-War Iraq Thesis

Thesis  |  25 pages (7,379 words)
Bibliography Sources: 6

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International Law v Torture in Post-War Iraq and U.S.' Liability

International and U.S. Law Against Torture and Other Ill-treatment

International and U.S. law expressly forbids torture and other forms of ill-treatment of any person in custody and in all circumstances (Human Rights Watch 2004). This law is applies to the United States' territory and anywhere else it has control. It… [read more]


Sustainable Development All International Law Deals Thesis

Thesis  |  2 pages (606 words)
Style: MLA  |  Bibliography Sources: 2

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Sustainable Development

All international law deals with relations between two or more different nations. There are two main components of international law -- the laws of nations and agreements between nations. Laws of nations are comprised of those laws accepted by virtually all world nations. These include the Geneva Convention, laws banning slavery and honoring international boundaries. Agreements between nations are specific agreements between defined nations. These agreements are only expected to be upheld by those nations, not by all nations.

At present, international law pertaining to the environment typically comprises the latter category, where nations specifically agree to enact protections for certain components of the environment. Most laws of nations deal with the definition of the national entity or issues regarding human rights. The concept of environmental rights has not traditionally been included, necessitating the use of a complex system of individual agreements between nations.

Individual countries, in theory, are obligated to adhere to the basic principles of laws of nations. There has been no shortage of examples of failure to adhere to these laws in the past century. Agreements between countries tend to have stronger enforcement mechanisms. However, the strength of these mechanisms is heavily dependent on the relative strength of the countries involved. Each nation is obligated to adhere to the rules of the treaties and agreements that they sign.

Laws of nations are subject to inconsistent enforcement. This has ranged from declarations of war (as against Germany in 1939), United Nations peacekeeping involvement, to a shrug of the shoulders (China's invasion of Tibet). At times, there have been tribunals for violations by specific national leaders, for example for war crimes, but those are few and far between. With more specific and sophisticated mechanisms for enforcement, agreements between nations are subject to investigation, hearings and arbitration. While each agreement has…… [read more]


Letter From a Birmingham Jail Term Paper

Term Paper  |  2 pages (682 words)
Bibliography Sources: 1

SAMPLE TEXT:

Not all laws are just and true, and Aquinas recognizes this. It would seem that if Aquinas had lived in modern times, he probably would have sided with King and his non-violent opposition of these unjust (and certainly not Divine) laws. King and his followers certainly did not follow majority rule, they spoke out against it and demanded change. That is how you change unjust laws; you speak out against them and demand real change.

King means that unjust laws exist, and they are not rooted in natural or eternal laws, because they are unnatural and certainly have nothing to do with Divine law, which oversees the eternal laws. The laws King was protesting had nothing to do with what was right or natural. They were based on hatred, ignorance, and bigotry, which have no place in making rules and regulations, especially when they affect so many other people. Just laws are supportable and manageable, while unjust laws are not, it is simple as that. You can enforce just laws, while unjust laws are much more difficult to enforce. King knew that, and knew that he could tell the difference between just laws and unjust laws quite easily.

A just society creates just laws, while unruly societies often create laws that serve themselves, rather than the people they are supposed to serve. Both men knew this, and they knew the dangers of unjust laws. Aquinas had a more philosophical view of the laws, but he handed out good arguments to illustrate that he thoroughly understood the aspects of law, and that he had given them much thought. King, on the other hand, had direct experience with the laws, and especially with unjust laws. Putting their ideas together gives a new perspective on laws, how they are created, and who creates them, and it gives the reader a way to learn more about lawmaking, while thinking about their own views on laws and how they are created. It is a good exercise in legal and moral judgment.

References

Aquinas, St.…… [read more]


Justice Clarence Thomas Essay

Essay  |  5 pages (1,450 words)
Style: MLA  |  Bibliography Sources: 6

SAMPLE TEXT:

Clarence Thomas: Personhood and Politics

For those old enough to remember the extreme controversy surrounding his nomination process in the early 1990s, Clarence Thomas is undoubtedly one of the most well-known Justices currently sitting on the Supreme Court, though perhaps not for the best reasons. His fame -- or infamy -- has certainly diminished in the nearly two decades he… [read more]


Contract Law Research Proposal

Research Proposal  |  5 pages (1,543 words)
Style: APA  |  Bibliography Sources: 5

SAMPLE TEXT:

¶ … Contract Law Principles and Definitions

The Elements of Contract:

Under American law, contracts must satisfy certain specific criteria in order to be enforceable at law. They must represent a genuine meeting of the minds in which the parties to the contract all understand their respective rights, benefits, and obligations under the contract (Freidman, 2005; Halbert & Ingulli, 2007).… [read more]


Business Law - 6 Case Briefs Buckeye Research Proposal

Research Proposal  |  6 pages (1,743 words)
Style: MLA  |  Bibliography Sources: 1

SAMPLE TEXT:

Business Law - 6 Case Briefs

BUCKEYE CHECK CASHING, INC. Vs. CARDEGNA (546 U.S. 440)

Procedural History:

Buckeye v. Cardegna was a decision issued by the U.S. Supreme Court in 2006 based on a Florida Fourth District Court of Appeals decision that had been reversed on appeal by the Florida State Supreme Court before being heard by the Supreme Court.… [read more]


Law School? I Was Born in India Research Proposal

Research Proposal  |  3 pages (950 words)
Bibliography Sources: 0

SAMPLE TEXT:

¶ … law school?

I was born in India although I moved to New York with my step-mother when I was twelve. My father is a high ranking police officer in India. He is an honest and hardworking law enforcer in a country which, like most developing countries, is known for poverty and corrupt government officials. It was through him that I developed a respect for the law and realized its importance for progress in society. Since I had moved to the U.S., it was only a few years back that I was able to return to India for a visit. It was with new awareness and level of maturity that I viewed the everyday scenes on the streets of my country that I used to simply take for granted.

During my visit to India, I saw the rich people with their large cars and fancy houses and the poor in their small huts by the side of the roads. I saw the restaurant chains throwing away their extra food while many people were literally starving on the streets. It was as if I was seeing the poverty for the first time and realizing the gaping difference between the rich elite and the poor masses. I saw the lack of obedience to authority, the lack of discipline. I noticed many people littering the streets and refusing to follow road rules. I saw bribes exchanged as a matter of course. I saw how authority took advantage of the innocent and the poor and ignorant.

I saw how laws that were made to improve the lives of people were constantly disregarded. I saw how those who were tasked to enforce the law abused the power it granted them and preyed on those who the law should most have protected. It was the many things that I saw on my last trip to India which made me realize the urgent need for change in my country and have made me decide to finally take up law.

I believe that knowledge of the law is empowering. During my trip to India I realized that before I can affect any concrete and long-term changes, I must be in a position of some control over the matters and situations I want to change. I also realized that it is through the power brought by the knowledge of the law and the authority brought about by knowing how to protect people's rights and the pursuing justice that I wish to make the changes that urgently need to be made in my home country. This is why I want to go to law school.

It is in law school where I believe that I will learn how government and legal systems enforce justice and bring about social reforms through law enforcement and the courts. I believe that the practice of law is the…… [read more]


Case in International Business Law Research Proposal

Research Proposal  |  3 pages (1,110 words)
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International Business Law

EnergyTech, Sonatrach, and others wish to enter into a joint venture (Sonaventure) for the construction of a pipeline that will transport liquefied natural gas from Sonatrach's refineries in Algeria through Tunisia, Libya, Egypt, and Jordan into Syria. Sonaventure will contract with local construction firms to assemble the sections of the pipeline.

EnergyTech's contribution will be a license of the Technology to Sonaventure, and EnergyTech will receive 10% of Sonaventure's annual profits, rather than a royalty. Preliminary negotiations will cover the establishment and terms of the JV as well as the licensing of the Technology.

The primary risk that is being taken by EnergyTech is the concern that its technology will be taken and used by another party. The use of subcontractors exacerbates that risk, because it increases the number of entities who will have access to the Technology, while, at the same time, decreasing the likelihood of a successful recovery from any one source if the technology was misappropriated. Therefore, the licensing agreement must look at the following factors: the definition of the use of the IPR under the license, whether such use is exclusive or non-exclusive, geographic limitations, application, quantity, confidentiality concerns, and derivate works or improvements. Another issue is that EnergyTech will not be taking a royalty, but will instead be entitled to a share of annual profits, which can make EnergyTech vulnerable to questionable accounting practices. An additional concern is that there are so many different countries involved in the transaction, which means that the laws of each of these different countries could potentially apply to any issues that may arise. Because the countries involved are in a terrorist-heavy area of the world and the agreement involves oil and gas, there also needs to be an awareness of possible terrorist interference in the project. Finally, there needs to be an awareness of possible application of Title VII to Sonaventure employees.

Reasoning/Analysis/Conclusions: The license must be narrowly construed to only allow the joint venture to use it for the construction of the pipeline in question and to prohibit any member of the JV from using it for their own purposes, moreover because most of the involved countries are not members of WTO, EnergyTech needs to take substantial steps to protect its IP before entering into the agreement. Local laws can prevent, restrict, or alter licensing agreements, therefore EnergyTech needs to engage local counsel in each country to determine licensing rights, as well as insert a provision that Sonaventure is responsible for any licensing breaches, whether committed by Sonaventure or one of its subcontractors.

To protect EnergyTech's profit-sharing, the agreement would have to require the company to submit to International Accounting Standards, and to allow EnergyTech to hire an accountant to audit the books on a regular basis. This would prevent Sonaventure from creative accounting practices that would demonstrate no profit, thus depriving EnergyTech of its benefit of the bargain.

Choice of law and choice of forum provisions will be crucial parts of the contract, because… [read more]


Legal Services for the Elderly Thesis

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Legal Services

The elderly population is one of the most vulnerable segments of the population in any society. This segment of the population also has special needs, including legal services. The purpose of this discussion is to examine legal service designed for the specific purposes of assisting the elderly.

Legal assistance for the elderly

According to the book Community Resources for Older Adults, there are many reasons why the elderly may require legal services. These reasons include changes in health conditions, family situations and work. As a result of these conditions many elderly people need legal assistance in handling their affairs.

The federal government recognizes that the elderly population in America often requires legal assistance and as such Title III of the Older American's Act specifies that each state is required to provide the elderly with legal assistance. These legal services are free of charge for the elderly. These programs are specifically for individuals over the age of sixty. In most cases there is no income limits associated with these nation wide programs but they are geared towards elderly with lower incomes. According to an article entitled "Legal help for senior citizens,"

Title III providers generally receive inadequate funding to assist all older persons in need of help. They therefore develop ways to determine which clients to accept. The Act's regulations prohibit use of a "means test" to limit receipt of services, yet mandate that preference be given to serving those in the greatest social or economic need. To resolve this dilemma, legal providers usually establish a case acceptance policy that serves those areas of law that most affect persons in greatest economic or social need (such as public benefits, housing, and healthcare) ("Legal help for senior citizens")."

The legal services offered through this program often differ from state to state but in general the types of services provided included assistance with other governmental programs such as Medicare, social security and Medicaid ("Legal help for senior citizens"). In addition the services can assist the elderly with issues associated with age discrimination, elder abuse, fraud, nursing homes and conservatorships ("Legal help for senior citizens"). All of these issues are often unique to the elderly population and as such the state legal aid programs are geared toward assisting older Americans in dealing with these issues.

In addition to the aforementioned legal program, there are also pro bono programs that the elderly can access ("Legal help for senior citizens"). These programs are designed for the elderly that have higher incomes but do not have enough income to pay for legal problems that may arise. The federal government recognizes that there is often a gap between the need that exist and the people who can qualify for the…… [read more]


Civil Law the Right to File Term Paper

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Civil Law

The right to file a lawsuit protects people because it gives them a forum for redress of wrongs that do not rise to the level of crimes. Without the right to file a civil lawsuit, victims would have to depend upon other forms of social coercion to seek redress. However, many wrongdoers do not respond to social pressures, so that system would leave victims helpless. Making all transgressions crimes would provide an unworkable solution, because it would minimize the social stigma of truly egregious behavior and would clog the criminal justice system in such a way as to render it relatively useless. Finally, civil lawsuits address situations where damages of some sort can make a party whole, which is frequently not the case in a criminal context.

Unfortunately, the civil law process can be abused because the parties are individuals, which removes the social control that exists in the criminal legal process. Individuals can file frivolous or harassing lawsuits, knowing that a party might choose to settle, rather than incur the expense of going to trial. The civil law is also complicated, which gives people with access to lawyers- generally people for higher socio-economic groups, an advantage in lawsuits.

3. Without knowing what type of malpractice…… [read more]


Antitrust Laws Term Paper

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Antitrust Laws in the United States

United States can be considered unique in its formulation and enforcement of antitrust laws. This is because no other country has equivalent body of laws dealing specifically with monopolies and restrictive business practices with the possible exception of Canada. The reason lies in the fact that America has a very dominant, influential and vibrant… [read more]


Business Contract Law Term Paper

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¶ … contracts have existed to help maintain order in our society. The contract terms that will be discussed in this writing are: 1.

Escalation Clause - this particular clause is described as a provision of a contract which calls for an increase in price in the event of an increase in certain costs. For example, an escalation clause may specify that rent due will increase with inflation. As previously mentioned this clause is often used in rental agreements, loan agreements and other monetary contracts. This clause helps to secure the loan company, landlord, etc. from incurring additional cost in situations where inflation, cost of living increase could in fact cause them to come out of pocket. This provision insures that any additional fees will not have to be paid by the bank, landlord etc., fees fall on the contract signer.

Arbitration Clause - a business contract, lease or other written contract may contain an arbitration clause. By using such a clause, the parties to the contract agree to arbitrate any future disputes. As with any clause, all parties must agree to it's use in the contract before the contract is signed. The following arbitration clause language may be modified to suit the needs of the parties or used "as is" in order to utilize the services of an affiliated United States Arbitration & Mediation office, if arbitration is ever needed. This is used in a contract to help keep down legal fees for the contract originator. In the case of an arbitration agreement both parties are unable to bring legal suit without going through the proper arbitrational channels. This clause can in some instances decrease the legal responsibilities of some parties entering into a contract.

3. Mediation Clause - this clause is hand and hand with that of the arbitration agreement. Often the two terms are loosely intermingled. In fact mediation is often used in the event that arbitration was not effective. This is utilized as a second step in the event arbitration did not help the involved parties reach a resolution. A business contract, lease or other written contract may contain a mediation clause. By using such a clause, the parties to the contract agree to mediate any future disputes. As with any clause, all parties must agree to it, and the following sample mediation clauses do not have to be used "as is" in order to access the services of said company.

Choice of Law Clause- a provision in a contract in which the parties stipulate that any dispute between them arising from the contract shall be determined in accordance with the law of a particular jurisdiction. If the dispute is litigated, the choice is not binding, but is normally honored, by the court hearing the lawsuit. The choice is binding if the dispute is arbitrated. This clause helps to determine what state litigation will take place in, the advantage of using such a clause allows a contract originator to pick a state…… [read more]


Personal Statement for Law School the Lawyer Term Paper

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Personal Statement for Law School

The lawyer career has always represented a great interest for me, both from the point-of-view of the professional life, as well as from a personal perspective. Despite the fact that I do not consider determination to be the most important aspect of a motivation I think that I have sufficient personal commitment to this career to someday become a lawyer.

This choice of career was made out of personal conviction and as a result of my personal background. I come from a region of the world where injustices and bad treatment of people is not uncommon. South Korea is one of the most democratic countries in the region; nonetheless, there are sufficient cases in which the innocent and the vulnerable are subject to an unfair treatment. This is why I consider that a career in law would, to a certain extent, enable me the opportunity to use the noblest tool existing in society, the law, in defense of others who are subject to abuses, whether they are done by the state, or by other people.

I do not consider myself to be a dreamer. Indeed, as any human being I have high aspirations that my activity in the law area will contribute to the improvement of the situations of people facing legal issues and problems. However, I am also aware of the fact that despite the theoretical aspects of being a lawyer, one must also be pragmatic and in touch with the realities of the world we live in. This conclusion is in fact the result of my personal background and the difficult childhood and early adulthood I had to overcome. Despite the fact that I lost my father in my childhood and my mother did not offer me the care a child needs in his early teens, I realized that each and every one of us is subject to mistake, such as my mother, but is also entitled to the defense of his rights, no matter the case…… [read more]


International Law in the Modern World Term Paper

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International Law in the Modern World

The role of international law has become more imperative and important in our world than ever before. Possibly one of the most prominent issues and the greatest threat to world peace today is the problem of nuclear proliferation. This is one of the areas of particular concern for International law and international legal institutions. In an article entitled Building Global Peace in the Nuclear Age by David Krieger (2006), the author correctly states that, "The Nuclear Age has made peace an imperative. If we fail to achieve and maintain global peace, the future of humanity will remain at risk" (Krieger). The maintenance of global peace is the fundamental task and challenge of internationals legal institutions

However, this is not the only aspect that is of concern for international law. There are many other issues and problems in the modern, globalized and interconnected world. One of these is the issue is human rights. In this regard, the problem gender rights and the horrors of genocide have become a particularly worrying concern internationally.

The modern world is characterized by greater contact and interaction between nations. However, at the same time the contemporary world is also a place of greater complexity and competition for scarce resources, as well as increasing conflict. This in effect means that international law must face extremely difficult and complex situations in maintaining the ideals of peace and order. One needs only to mention modern concerns such as the increase in terrorism to substantiate this view.

The phrase international law was coined as early as 1789 by Jeremy Bentham. (Horton) the idealist view of international law was to develop after the Second World War and in the many department of the United Nations. In essence, international lawyers felt that they ".... were part of a cosmopolitan project that had a long pedigree sometimes derived from Enlightenment philosophy..." (Koskenniemi). The central aims of international law is to act as support for the Untied Nations and various human rights frameworks as well as supporting "...special rules for trade law, environmental law and work for a proliferating number of international institutions since the 1950's..." (Koskenniemi).

The central point is that, in this context, International law can be described as the system of law that brings nations together in legally binding agreements. This also requires shared and agreed upon values and standards. "International Law" can refer to a number of legal disciplines. These include public international law, which relates to issues surrounding the United Nations and the Geneva conventions; private international law or conflict of laws and a category known as supranational law. Supranational, as the name implies, is defined as,

Extending beyond or transcending established borders or spheres of influence held by separate nations" (Supranational).

However, many of these high ideals have not yet been accomplished in the present century. In fact, international law has failed to a certain extent, particularly in the area of international conflict. One of the central problems that International law faces… [read more]


International Law Traditionally Term Paper

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International Law

Traditionally, International Law was defined as "the body of law that governs the legal relations between or among states or nations." ("The Free Dictionary"). In this definition, the state or a nation is assumed to be sovereign, have its distinct territory, a population, and a government. Hence, if we strictly follow this definition, international law would only apply… [read more]


International Law Consists of Customs, Principles Term Paper

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International Law consists of customs, principles and rules legally binding upon sovereign states and other participating international entities (Joyner 2002). It derives from treaties and international conventions, customs and customary use, and generally accepted principles of law and equity as the three main sources. Judicial decisions made by international tribunals and domestic courts form part of the law-making process. Examples… [read more]


Conflict Resolution or ADR Legal Psychological Term Paper

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Resolution

ALTERNATIVE DISPUTE RESOLUTION: LEGAL and PSYCHOLOGICAL

ASPECTS

The objective of this work is to examine the legal and psychological aspects of the different forms of alternative dispute resolution (ADR): negotiation, arbitration, mediation, summary jury trial. This work will answer the question of which types of cases this is best suited for and which cases are viewed as the best… [read more]


Business Law Which Type of Contract Term Paper

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Business Law

Which type of contract, bilateral or unilateral, is more common in business? Why? Under what circumstance would someone prefer one or the other? What are the advantages of each type for the offeror? For the offeree?

A bilateral contract is one wherein each party who has promised something has a duty to perform the same. For instance, in… [read more]


Running Successful Business Term Paper

Term Paper  |  5 pages (1,620 words)
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Business Law - Issues in Contract Law and Agency Law

Business Law - Analyses of Issues

Jose always admired successful entrepreneurs who have started their own businesses and then expanded them successfully. Among those ventures that he most wanted to emulate is Starbucks Coffee; it seemed to Jose that a new Starbucks opened up every week in the community where… [read more]


Environmental Law Term Paper

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Nissan v. Maryland Shipbuilding

In the last several decades as industry has increased throughout the United States, there have been several court cases regarding industrial chemicals, their use, and the liability of those using potentially hazardous materials. From personal property cases to cases between industries, the court systems have struggled to determine criteria for negligence, trespassing, liability, and other aspects… [read more]


Clinton Cole v. Burns International Security Services Case Report Term Paper

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CLINTON COLE v. BURNS INTERNATIONAL SECURITY SERVICES Case Report

How did the Court apply Gilmer to determine the enforceability of this agreement?

The stated agreement points out employees' consented renunciation to take their employer to court, in front of jury, and in stead their agreement for all company related issues to be resolved by an arbitrary party. The precedent case of Gilmer vs. Interstate/Johnson Lane Corp. concluded that such an agreement is not enforceable in all cases, only in those that meet the established standards. "We read Gilmer as requiring the enforcement of arbitration agreements that do not undermine the relevant statutory scheme. The agreement in this case meets that standard." The required standard of an arbitration agreement is its validity in regard to the EEOC and NLRB regulations and also the arbitrators' ability to enforce the laws that protect workers. Meeting all the requested criteria, the Cole - Burns Security arbitration agreement was considered valid and enforceable.

2) How did the Court resolve whether only the employer should pay all arbitrator expenses?

All the expenses adherent to the previous cases arbitrated law have been paid by the employer. But the case of Clinton Cole vs. Burns International Security Services raised the question of having the employee meet the costs, entirely or at least partially. In response to the employer's request to only pay part of the fee, the Court analyzed the arbitration agreement and found it to be ambiguous. The Court responded that the ambiguity should be eliminated and based on the contract signed between employee and employer, ordered Burns Security to pay the entire fee.

Furthermore, since the Court's aim is to resolve the dispute between the two parties by protecting their rights, they felt the employee is not to be charged for the judiciary services. "Because public law confers both substantive rights and a reasonable right of access to a neutral forum in which those rights can be vindicated, we find that employees cannot be required to pay for the services of a "judge" in order to pursue their statutory rights." In addition, the Court stated that the only way for an arbitration agreement to be considered valid is for the employer to assume all arousing expenses.

3) How did the Court resolve the issue of the scope of judicial review of an arbitration award?

In his attempt to dismiss the enforceability of the arbitration agreement, Clinton Cole stated his opinion that the decisions made by the arbitrators did not have a judiciary support and therefore might not be enforced. But the court felt differently. All ruling of arbitrators are based on rigorous judiciary procedures which are in full accordance with the statutory laws. "In this context, the Supreme Court has assumed that arbitration awards are subject to judicial review sufficiently rigorous to ensure compliance with statutory law."

Furthermore, all arbitration procedures and decisions are being checked by the Supreme Court…… [read more]


School Law: Dawson v. East Side Union Term Paper

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School Law: Dawson v. East Side Union High School District

Could the court reasonably have construed the authority of the state board more liberally to arrive at a contrary result?

The issue of the case revolved around the question of Channel One (produced by Whittle Communications), a for-profit student educational television network production that contained advertising as well as informative news content. The appeals court ruled that while the school board that had approved the 10 minute instructional content/2 minutes of commercial content of the Channel One broadcast as reasonable had primary jurisdiction over local policy matters, the courts could intervene in terms of egregious abuses of the instructional purpose of public education. The appeals court ruled contrary to the trial court that the channel was in violation of the school's mission of fulfilling of a valid educational purpose. The appeals court stated that the commercial content disseminated by Channel was not incidental to the non-curricular broadcast. The question of what was "incidental" was the main issue of the case. The plaintiff (the State Superintendent of Public Instruction) agreed that it was acceptable for students to be exposed to noncurricular matter with a valid educational purpose (otherwise, a museum trip or a taped TV version of a play a teacher thought was relevant to the syllabus without advertisements would be illegal, since such an excursion or material, strictly speaking would be noncurricular).

The plaintiff argued that a school cannot display video advertising to students as a matter of law and the trial court disputed this notion. The appeals court confirmed the findings of the trial court regarding this matter, and also disputed the plaintiff's argument that advertising was just as dangerous as students being exposed to a one-sided political campaign. The appeals court only agreed that advertisements on Channel One glorified consumption and were not accurate or objective and were inconsistent with the stated statutory purposes of California public education and State School Board policies.

What is so extraordinary about the ruling is that it did not prohibit video advertising to students, but specifically prohibited the type of advertising embodied by the media of Channel One that…… [read more]


Criminal Justice System: How Laws Term Paper

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Criminal Justice System: How Laws Are Made and Changed

CRIMINAL JUSTICE SYSTEM

The objective of this work is to describe the factors that have influence upon the conceptualization and development of new criminal law and the alteration of existing criminal law. Included will be the specific roles of the political lobbyist, the media, citizen groups and the individual citizens and the criminal justice system in this process.

The making and changing of laws in the United States is according to a very specific process. The work of Charles W. Johnson, Parliamentarian of the U.S. House of Representatives entitled: "How Our Laws Are Made" states: "...one of the most practical safeguards of the American democratic way of life..." is the legislative process in the United States. The legislative process in the Untied States demands that a proposal cannot become a law without consideration and approval by 'both' Houses of Congress." (2003) Johnson states that this is: "...an outstanding virtue of our bicameral legislative system." (Johnson, 2003)

I. Sources of Legislation

The making of law begins with the U.S. Congress. Article I and Section 1 of the United States Constitution provides that: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Johnson, 2003) There are 100 members of the U.S. senate with two coming from each of the U.S. states and which is not based on population or area of the states. The two members of senate are elected by the people of each state "in accordance with the 17th Amendment to the Constitution." (Johnson, 2003) AU.S. Senator is required to be at least 30 years of age and a resident of the state from which that senator is elected. Senators serve six years. The sources of "ideas for legislation are unlimited and proposed drafts of bills originate in many diverse quarters." (Johnson, 2003)

The primary source for proposed drafts of bills are those "conceived by a Member." (Johnson, 2003) Additionally, constituents of a Member, "...either as individuals or through citizen groups, may avail themselves of the right to petition and transmit their proposals to a Member." (Johnson, 2003) This right is guaranteed by the First Amendment to the U.S. Constitution. Additionally state legislatures may "memorialize Congress to enact specified federal laws…… [read more]


Panetti v. Quarterman Supreme Court Case Term Paper

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United States Supreme Court Decision Brief

SCOTT LOUIS PANETTI, Petitioner-Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT of CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

UNITED STATES SUPREME COURT

PRIOR HISTORY: Appeal from the United States Court of Appeals for the Fifth Circuit, 448 F. 3D 815.

COUNSEL: For SCOTT LOUIS PANETTI, Petitioner - Appellant: Keith S. Hampton, Hampton Law Office, Austin,… [read more]


Good Samaritan Law: Its Concept and Implications Term Paper

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¶ … Good Samaritan Law: Its Concept and Implications to Health Care

The Good Samaritan Law stipulates that Any person who, in good faith, renders emergency medical care or assistance to an injured person at the scene of an accident or other emergency without the expectation of receiving or intending to receive compensation from such injured person for such service, shall not be liable in civil damages for any act or omission, not constituting gross negligence, in the course of such care or assistance." (Barton, 2004, Good Samaritan Laws and AEDs, par.11)

It encourages individuals to come to the aid of those who need assistance during emergency situations without doubting if there are legal implications of their actions. During the Legislative Assembly of Manitoba, Ms. Bonnie Korzeniowski argued that the purpose of the Bill 214 or the Good Samaritan Protection Act is to encourage rescuers to assist the victims because the act removes some of the risks of liability. She stated that the intention is to keep people from being so reluctant to help a stranger in need of fear of legal repercussions if they make some mistake in the rescue attempt or in the treatment. The idea is that, by providing some coverage with liability, we will encourage people to come forward and help others." (Legislative Assembly of Manitoba, Second Reading, Public Bills, par. 25)

The website of Massachusetts Law about Health Care specifies individuals who are immune from civil liability for providing emergency care. Based on Section 12V of Chapter 112 of the General Laws of Massachusetts, "any person who is trained according to the standards and guidelines of the American Heart Association or the American National Red Cross in cardiopulmonary resuscitation or the use of semi-automatic or automatic external defibrillators or any person who has successfully met the training requirements of a course in basic cardiac life support, conducted according to the standards established by the American Heart Association is exempted from civil liability." Moreover, in Section 21, Chapter IIIC, certified emergency medical technicians will not be held liable if they render service during emergency. It should be noted that the scope and limitations of the Good Samaritan Law vary from each state. In West Virginia, the Good Samaritan Law applies to medical and non-medical trained people who render emergency care to the victim provided that he/she did not charge the victim and that it is rendered in good faith. In Pennsylvania, the law does not apply to non-medically trained individual who rendered emergency service. In the District of Columbia, individuals who do not have a medical license to assist during emergency is immune from civil liability if they handover the victim to a licensed medical person. Both the physician and the paramedic are not held liable during emergency situation unless it is proven that negligence in handling the victim was committed and that they charge the patient for their service. Although the scope and limitations of the law vary from each state, it is noted that… [read more]


Contract Theories Term Paper

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Contract Theory: Contract Theory: Are Contracts Required for an Efficient Marketplace?

Contract Theory: Are Contracts Required for an Efficient Marketplace?

The primary business document that is used in the United States and most other countries of the world today is the contract. Contract law generally attempts to consider questions such as whether an enforceable contract actually exists, what the true… [read more]


Morality and the Need to Disobey the Law Term Paper

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DISOBEYING the LAW have always been against nuclear empowerment of countries. After what happened to people in variety of nuclear-related incidents, I feel that countries have an obligation toward their people to abandon further plans in this connection. We can imagine the horrors and the havoc that nuclear devices would create if a war breaks out between two nuclear powers.… [read more]


Law and the Legal System Term Paper

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¶ … lex fori approach, the state law of Ohio would govern, but the court would be free to introduce aspects of laws from Michigan, Ohio, Illinois, New York, or Delaware if doing so would be in the interests of justice. Under the lex loci contractus approach, the court would have two choices of state law. First, it could choose Illinois, because the contract was negotiated in Chicago. Second, it could choose New York because the contract was signed in New York. Which states laws the court would actually apply would come down to the court's determination of where the parties actually entered into the contract. If one party could establish offer and acceptance in Illinois, then Illinois law would apply. Otherwise, New York law would apply. Under the lex loci solutionis approach, Michigan law would apply because the subject of the parties' contract was a building in Michigan, meaning that Michigan was most closely connected to the substance of the contract.

Attorney Duffus is incorrect. A state can acquire personal jurisdiction over a party if that party engages in behavior that make it reasonably likely that he is aware he is availing himself of the benefits of that state. By indicating to Klump that he could file a lawsuit in Illinois, Duffus engaged in the practice of law in Illinois. Therefore, even if he never personally appeared within the state, he did business within the state and was subject to personal jurisdiction in Illinois for any causes arising from that representation.

6. According to the doctrine of stare decisis, a court will generally adhere to its own previous rulings and will also follow the rulings of higher courts. However, the doctrine of stare decisis generally refers to a court's interpretation and application of laws or other legal…… [read more]


Labor Law and the Railway Labor Act Term Paper

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Collective Bargaining

Labor relations in America have undergone many changes, with the development of unions giving the workers a voice and a degree of power so as to use their solidarity as a bargaining tool. The union movement came into being after a long and difficult series of battles both with business and with the government.

In the nineteenth century,… [read more]


Hispanics to Study Law Essay

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¶ … Hispanics to Study Law

One of the most remarkable things about law is that law has the ability to create social change. When one changes a society's laws, one does not merely change written word, but a living, breathing entity, which reflects the values and mores of a society at large. Indeed, one of the most important and noble goals to which a lawyer can aspire, as any fan of Harper Lee can attest, is to change those laws that encourage or permit discrimination by those with power against those without power. Unfortunately, human nature being what it is, it is up to those who do not have power, whether that power be financial or political, to affect such change. Today Hispanics are in a position where they have the power in numbers, but have yet to use those numbers to develop correlative political and financial power. For those reasons, it is imperative that Hispanics study the law.

One need only look back a few decades in American history to see how powerful an agent of social change the law can be. In Plessy v. Ferguson, the Supreme Court determined that separate but equal facilities did not violate the spirit of the Fourteenth Amendment to the U.S. Constitution. However, the NAACP, not satisfied that African-Americans were actually receiving equal treatment, searched for another suit in which they could challenge the separate but equal doctrine established in Plessy. In Brown v. Board of Education, the NAACP looked to the spirit of the Plessy decision and determined what evidence would be needed to overcome the presumption of equality. It then did so by providing evidence of the disparity in the quality of education that was being offered to white and African-American children. By proving that separate was inherently not equal, the NAACP was able to secure a favorable decision in Brown. Of course, the legal decision did not end racism in America; in fact, the National Guard was called out to protect those African-American students who…… [read more]


Contract Law Term Paper

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Contract Law in Norway

Norwegian contract law is considered a part of the Scandinavian legal family, a legal family that incorporates elements of both Anglo-American and continental legal theory. Unified codes regarding contracts have been enacted in Scandinavia since the end of the last century, such as the "Law of Contracts of 1918," although legal stipulations regarding contractual elements are not as specific as in the United States, and are left more open to judicial interpretations. Some legal scholars consider the entire Scandinavian legal systems as subgroup of continental law. Other scholars argue that it must be classified between the two systems. Regardless, justice towards all parties rather than the letter of the contract more important in the interpretations of the Scandinavian system. Like the continental system of law judicial proceedings regarding disputes are informative rather than adversarial. (Lillebakken, 1997) number of differences exist between the Norwegian contract system of law and the American system. For example, a the University of Oslo's legal school delineates the difference between American law, such as the presence of typical "boiler-plate"…… [read more]


Search and Seizure Law Term Paper

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Search and Seizure Law, known currently in the United States as law under the Fourth Amendment to the Constitution, has been in existence in one form or another since biblical times. Those wishing to protect their property and privacy against unreasonable search and seizure have often battled governments, courts, employers, secular groups, and even one another in a struggle between… [read more]


Appellant Term Paper

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Appellant Brief - Prisoners' First Amendment Rights in United States District Court

SOUTHERN DISTRICT OF FLORIDA

11TH Circuit

MOTHERS OF M. MEN & )

PRISONER M.LIN

Plaintiffs,) v.) Case No. 02-510-CIV-Miller

SHELDON Y, as SUPERINTENDANT of)

CORRECTIONAL FACILITY (MCF))

Defendant,)

APPELLANT BRIEF

STATEMENT OF JURISTICTION

This Court's jurisdiction in this action arises under the United States Constitution, particularly under the… [read more]


International Criminal Law Term Paper

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International Crime Law

The objective of this work is to Interpret Article 41 of the Vienna Convention on Consular Relations as it relates to the United States and other countries. Included will be a brief history of Article 41 of the VCCR and the courts ruling prior to Article 41. Also inclusive will be coverage of issues that have arisen… [read more]


Employment Law Hypothetical Case: John Term Paper

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In case EEOC decides not to sue, it will issue a notice closing the case and give the charging party 90 days to file a lawsuit. (Ibid)

Lawsuit for Employment Discrimination

After receiving a notice of a "right to sue" from EEOC, the complainant may file a lawsuit in a federal court within 90 days. Under Title VII of the Civil Rights Act and the American Disabilities Act (ADA), the complainant can also request a notice of "right to sue" from EEOC 180 days after the charge was first filed with the Commission. Under the Age Discrimination Employment Act (ADEA), a suit may be filed at any time 60 days after filing a charge with EEOC, but not later than 90 days after EEOC gives notice that it has completed action on the charge. Under the Equal Pay Act (EPA) a lawsuit must be filed within two years (or within three years in case of willful violations) of the discriminatory act. (Ibid.)

The U.S. District Court:

The first "port of call" for the litigant is the United States district court -- the trial court of the U.S. federal court system. There are 94 federal judicial districts in the United States, including at least one district in each state, the District of Columbia and Puerto Rico and the complainant would file his lawsuit in the district court of the judicial district where he is located. The district court hears and decides a lawsuit on merit as per the U.S. law after hearing both sides of the issue. ("U.S. District Court" 2002)

United States Courts of Appeal:

Either party has the right of appeal if it is not satisfied with the decision of the federal district court in the employment discrimination lawsuit. The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit. ("U.S. Court of Appeals")

The U.S. Supreme Court

The United States Supreme Court consisting of the Chief Justice of the United States and eight associate justices is the apex court of the land. Decisions of the U.S. Court of Appeals can be challenged in the Supreme Court. However, the Supreme Court hears a limited number of the cases that involve important questions about the Constitution or federal law. ("U.S. Supreme Court" 2002)

Relief and Remedies Available

The relief or remedies available to John for employment discrimination, include back pay, hiring, promotion, or reinstatement. The EEOC or the Courts may also allow payment of attorneys' fees, expert witness fees, and court costs if discrimination is proved. Compensatory and punitive damages also may be awarded in case intentional discrimination is found. ("EEOC's Charge Processing Procedures" 2003)

References

"California Information for Employees, and Applicants for Employment." (n.d.) Eeolaw.org. Retrieved on September 8, 2005 from http://www.eeolaw.org/ee-guide-ca.html

'Discrimination Complaint Process -29 CFR 1614." (n.d.) U.S. Department of Health and Human Services. Retrieved on September 8, 2005 from http://www.ihs.gov/AdminMngrResources/eeo/download/1614.pdf

'EEOC's Charge… [read more]


International Trade Law Term Paper

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International Trade Law

In the case of Owusu vs. Jackson, of 1 March 2005, case number C-281/02, trading as 'Villa Holidays Bal Inn Villas', the judgment of the Court was that the English Courts must pay the costs. The decision, made in this particular case, leaves the English courts vulnerable to try any case, even though the Court may believe… [read more]


Adversarial vs. Inquisitorial Legal Systems Term Paper

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¶ … surgical options for post-Larengectomy patients and how they affect the voice quality.

SURGICAL OPTIONS

Surgical options for post-laryngectomy voice restoration

The Adversarial vs. Inquisitional Systems

The adversarial system of law

The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates… [read more]

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