Court Systems and Operations

WEEK 1 CHAPTER REVIEW JOURNAL BL

Week 1 Chapter Review Journal BL

Question 1

In my opinion, if the Court were to hear a new flag burning case, it should follow precedent and find that setting the American flag ablaze essentially constitutes free speech and is secured by the U.S. constitution. This is more so the case given that in some scenarios, this may be the only powerful way to protest against certain ills or inefficiencies attributable to the government. For instance, when the government of the day has an ineffective or poorly implemented foreign policy, or when the government engages in brutal acts against the very people who elected it to power, mere street protests may not be sufficient to express displeasure. Protesters ought to be permitted to engage in an expressive form of symbolic speech in such a case – and owing to the fact that the flag is essentially the country’s formal or official emblem, burning it could be perceived as the most appropriate form of symbolic speech.

It would also be prudent to note that although following a precedent could in some instances be sensible, there are some scenarios whereby decisions of higher courts ought to be adapted to reflect changing circumstances, i.e. at the societal level.

Question 2

There are a number of instances whereby a business ought to be held responsible (from a legal perspective) for the safety of customers. These will be explored below:

A business should keep customers safe from its own employees: Yes, a business could in some instances be held responsible for any harm occasioned by any of its employees upon a customer. This is particularly the case under a particular legal doctrine – christened ‘respondeat superior’ (Best and Barnes, 2007). There are, however, exceptions, i.e. in scenarios whereby the actions of the employee were purely independent.

A business should keep customers safe from other customers: This is largely dependent upon the context. From a general perspective, a business has a responsibility to act in a responsible and reasonable manner to protect customers from harm or injury. Thus, for instance, an enterprise in the hotel industry could be deemed to have breached its duty of care if it installs faulty locks in cottages and a customer gains entry and sexually assaults another customer.

A business should keep customers safe from themselves. (Example: an intoxicated customer who can no longer walk straight.): In my opinion, a claim against a business on this front could only see light of day if it is proven that a business was negligent in some way or another. On this front, there are a total of four elements that, as Best and Barnes (2007) point out, must be satisfied. The said elements are: “a duty of care, a breach of that duty, causation and damages” (Best and Barnes, 2007, p. 311). Thus, in the example highlighted above, a business cannot be held responsible for the customer’s own actions – unless it is proven that the intoxicated customer was injured as a consequence of the business’ failure to provide a safe environment.

A business should keep people outside its own establishment safe if it is reasonable to do so: A business cannot be held legally responsible for the safety of persons who are not within its establishment, i.e. persons who are a block away, even in those instances where it would be reasonable to do so.

Question 3

In reference to Stendhal’s assertion, it would be prudent to note that I am of the considered opinion that legal positivism is of greater relevance. This is more so the case given that it is a fact that human existence has been territorial since time immemorial. Thus, what applies to a specific culture could largely be impractical in some other settings. For this reason, we cannot have universal laws, i.e. within the confines of natural law. Laws ought to be alive to jurisdictional differences. Further, in modern societies, change happens to be the only constant. For this reason, we ought to have in place a legal system that is open to amendment. While this is possible in the realm of legal positivism, it does not apply with natural laws as they are not only constant, but also eternal. In the final analysis, therefore, it is clear that I am more of a legal positivist than a legal realist.

Question 4

In comparison to criminal cases, the burden of proof happens to be lower in civil litigation – for prosecutors and plaintiffs respectively. I am of the opinion that the setup is reasonable at present, i.e. whereby a plaintiff collects 100% of damages if he is only 51% convincing. This is more so the case given that in a civil case, the plaintiff happens to be the one bearing the burden of proof. As a matter of fact, there is nothing that the defendant is required to prove to duck an adverse jury finding. It therefore follows that even if he presents no defense, the defendant could still prevail if the plaintiff is unable to present a compelling case. Thus, all that the defendant has to do, if not interested in an affirmative defense, is focus on poking holes into the case presented by the plaintiff.

Question 5

In basic terms, higher courts have what is referred to as appellate jurisdiction over the decisions of lower courts. This essentially means that they can either modify or reverse the decisions of the said lower courts. However, in some instances, higher courts appear reluctant to either modify or reverse the decisions of lower courts. In my opinion, this is the proper move if they are satisfied that the lower courts did not err in terms of the decisions arrived at, or the procedures followed in arriving at the said decisions. It therefore follows that the only issues that the appellate courts should be interested in are the fairness of proceedings in lower courts and the correct application of the law in the said courts.

Question 6

I happen to be a firm believer in judicial activism. This is more so the case given that as Petersen (2017) points out, judicial activism happens to be largely focused on the “assertion of the power of the judicial review to set aside government acts” (p. 102). In my opinion, judicial activism has a bigger role towards the advancement of the wellbeing of the society than judicial restraint. To a large extent, ordinary politics cannot be trusted to solve some government acts that are unfair, extralegal, or unjust. Thus, judicial activism is instrumental in efforts to check the excesses of the government of the day. It also makes it possible for the judiciary to function in a robust and empowering framework.