Gilbert's Summaries Contracts the Law Essay

  • Length: 18 pages
  • Subject: Business - Law
  • Type: Essay
  • Paper: #78221030

Excerpt from Essay :

Not all offense levels are entitled to a jury trial and each jurisdiction has its own standard in this regard. As a general rule, however, any offense involving the possibility of incarceration as a sanction is entitled to the benefit of a jury trial. This same standard is applicable, as well, to the right of every defendant to be represented by counsel. In all cases, regardless of the seriousness of the offense, the rules of criminal procedure grant the defendant the right to confront any and all witnesses involved in the formation of the charges against him. This right includes the right to cross-examine all such witnesses and to require their attendance at trial through the use of a subpoena.

The distinguishing factor that separates criminal trials from civil ones is the burden of proof. Criminal Procedure in all U.S. jurisdictions requires that guilt in the criminal court is based on a finding that is beyond a reasonable doubt. This means that all jury verdicts must be unanimous.

Criminal Procedure also sets forth the requirements of punishment in the American legal system. This area is governed by the dictates of the Eight Amendment's ban against the use of cruel and unusual punishment and most of the case law in this area has centered over the use and application of capital punishment. This remains an acrimonious issue in the American courts and is ever changing area. Criminal Procedure also addresses the issue of pleas and their effects. In general form, there are three basic forms of pleas: not guilty, guilty, and no contest. In some jurisdictions, and in the federal system, there is fourth hybrid plea known as a Alford plea that, stated simplistically, combines elements of a no contest plea with that of a guilty plea. Once a pleas is entered or rendered in a criminal case there remain procedures set forth relative to sentencing and post-conviction relief that are governed by the rules of criminal procedure and the corresponding common law. These provisions govern sentencing requirements, appeals, and post-conviction relief such as habeas corpus requests. These provisions tend to be specific to each particular jurisdiction but are still governed by the dictates of the Fourteenth Amendment and its Due Process requirements.

Torts

The law of torts governs the area of the law that involves the civil wrongs committed by individuals against fellow member of society. Distinguished from criminal wrongs, most torts are not defined by statute and do not involve any level of criminal culpability. Instead, torts are divided into two specific types of civil offenses: intentional and negligent torts.

Intentional torts involve acts that are done with knowledge that a wrong is being done. Intentional torts may be a wrong being perfected against another person individually or against another person's property. Examples of intentional torts against a person include battery, assault, false imprisonment, and intentional infliction of emotional distress. Intentional torts against property include trespass and conversion. In order to establish that an intentional tort has been committed and that the person is liable for the tort it must be shown that the individual intended the action and that arising from such action an injury occurred and that such injury caused damages. In certain circumstances there are defenses available to intentional torts. The available defenses include consent, self-defense, the defense of others or land, the privilege of arrest in the case of law enforcement officials, and the right of discipline in the case of parents and guardians. These defenses are all affirmative defenses and must be proven by the person or institution asserting them. Once the presence of the defense is established the burden shifts back to the person arguing that a tort has been committed to demonstrate that the defense does not apply. The burden of proof in intentional tort actions varies from jurisdiction but is usually by the preponderance.

The other area of tort law is negligence. This is the area that most individuals who find themselves involved in this area of the law are most familiar. It involves accidental occurrences where the wrongdoer, the tortfeasor, has allowed his behavior to fall below a certain standard and, in the process, violated a duty of care toward the injured person. Simply stated, a negligent tort involves the breach of duty that causes injury and resulting damages. This area has seen a large increase in litigation in modern times due to the circumstances of everyday life where more machinery, improved means of transportation, and commercial products are being utilized. The increased use of insurance has also contributed to the growth in tort litigation.

The primary goal of tort law is to provide relief for those injured and to deter others from committing the same act. In this regard, injured parties are provided with the opportunity to sue for damages or to prevent others from committing the same tortious conduct. As to the damages, an injured party may recover, with the proper proof, loss of earnings, pain and suffering, and reasonable medical expenses. As to all these losses, the injured party may recover past, present and future losses.

Aside from the two major classifications of torts, negligent and intentional, a new classification has emerged. This new classification is the result of the growth of sophisticated technology and the increased involvement of the government in regulating such technology. This combination has resulted in a new category of tort known as strict liability. The theory behind strict liability is that there are certain activities that are inherently so dangerous as to deserve special consideration and that demand special treatment. Under strict liability doctrines, usually set by statute, liability can be established by the injured party without consideration as to either intent or negligence. The only proof necessary is that the defendant's actions involved a strict liability situation and that the injured party suffered harm as a result of the defendant's actions. Strict liability situations usually involve inherently dangerous situations. Once strict liability has proven by the injured party the party creating the inherently dangerous condition is generally held liable for any damages arising from injured party's condition. Most individuals and entities involved in inherently dangerous activities will attempt to buffer their liability through the use of waivers and disclaimers but such devices have been invalidated by the courts who view their use as being against public policy.

Tort laws are governed by strict statutes of limitations. Statutes of limitation set forth the time limitations during which an injured party must commence an action against the person or entity causing the injury. Statutes of limitation are, by definition, codified and not subject to the common law. The specifics of these statutes vary from jurisdiction to jurisdiction and according to the type of tort involved.

No other area of the law has attracted more attention in recent years than the law surrounding torts. Due to perceived large damage awards, particularly in the areas of professional negligence and products liability, there has been increased pressure to place restrictions on the availability of such causes of action and the limits on damages awards resulting from such litigation. The argument in support of such restrictions is that increased litigation in these areas and theoretically large damage awards are stifling business growth. Legislative involvement in this area has increased as significant political pressure has been applied in support of tort reform. Historically, tort law has developed primarily through the common law but as the pressure for tort reform increases the law of torts is becoming increasingly more statutory. The nature of torts will likely prevent from it ever becoming entirely statutory but the impact of tort law cannot be denied. Presently, practitioners in the area of torts must pay close attention to rapidly changing developments and those involved representing the interests of the injured must work diligently to protect the interests of their clients.

Property

Perhaps no area of the common law is more developed than that surrounding the ownership, sale, and use of property, both personal and public. The law of property has developed over time to reflect society's attitudes toward ownership of property and has adapted in accordance with those changes in attitude. From a time when private ownership was virtually unknown to the present where private ownership is widespread, property law has evolved to protect the relative interests of all concerned.

When considering property law most think of real property but the law addresses other types of property as well. These other types of property are classified as either tangible or intangible property. Tangible personal property includes any piece of property that can be moved, touched, or felt and that is not attached to land or real estate. Items such as furniture, jewelry, or household goods would represent tangible property. Intangible property is items that cannot be touched, felt or moved. Examples of such items would include negotiable instruments or securities.

The law of property has become diverse…

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