178 results for “Judicial Precedent”.
Judicial precedent basically means the process with which judges follow previously decided cases whose fact are of adequate similarity. As a practice of the court, the doctrine of judicial precedent provides direction to judges when they are applying case precedents. Moreover, this practice provides clarity, certainty and consistency in the application of case precedents by judges. In practice, judicial precedent is used as a source for future decision making since it's considered as a rule for judges to decide on like cases in a similar manner. As a result, the doctrine of judicial precedent provides predictability in the law (Tufal, n.d.).
Principles of Judicial Precedent:
As a practice in the courts, the doctrine of judicial precedent involves two major principles which are
As the first principle of judicial precedent, stare decisis means to stand by what is decided implying that lower courts are bound to follow the legal…
"Advantages and Disadvantages of the Doctrine of Judicial Precedent." Sixth Form Law.
Retrieved April 30, 2011, from http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/08_precedent_advantages_dis.htm
Bovington, L. (2010, April). Dr. Peter Jepsons. Retrieved April 30, 2011, from http://www.peterjepson.com/law/LAS-8%20Bovington.pdf
"In Practice the Doctrine of Precedent Does Not Contain Judicial Decision Making." (n.d.). The
Bush's Judicial Appointments
An Examination of President George W. Bush's Judicial Appointments
During the eight years of his presidency George W. Bush appointed two Supreme Court justices, 61 Appeals Court judges, and 261 Federal District Court judges. Judicial appointments can be one of a president's longest lasting legacies. The people President Bush named to the judiciary will be making decisions and affecting policy long after he leaves office. Courts today, especially the Supreme Court and appeals courts, make policy that has just as much of an impact on Americans' lives as do the laws that Congress passes. President Bush recognized this fact and took his power to appoint judges very seriously.
According to Christopher Miles (2010) it is hard to know exactly how the nomination process worked in the White House because those involved in the process have remained relatively silent; however some details have come to light.…
American University (2009, July 10) George W. Bush's appointments emphasized ideology over diversity. Newswise. Retrieved August 16, 2011, from http://www.newswise.com/articles/george-w-bushs-court-appointments-emphasized-ideology-over-diversity
Biskupic, J. (2008, March 14). Bush's conservatism to live long in the U.S. courts. USA Today. USATODAY.com. Retrieved August 16, 2011, from http://www.usatoday.com/news/washington/2008-03-13-judges_N.htm
Eggen, D. (2008, October 7). Bush stresses judicial nominations. The Washington post. Washingtonpost.com. Retrieved August 16, 2011, from http://www.washingtonpost.com/wpdyn/content/article/2008/10/06/AR2008100602851.html
Miles, C. (2010). Cases and controversies: George W. Bush's appeals court nominations. Student pulse academic journal. 2.06. Retrieved August 16, 2011, from http://www.studentpulse.com/articles/255/cases-and-controversies-george-w-bushs-appeals-court-nominations
Judicial Interpretation Theory
Judges draft no legislation, but they create law nevertheless, through their powers of judicial interpretation. Judges determine the outcome of particular cases by interpreting the meaning of a single phrase, and sometimes, a single word within the applicable statute. By creating legal precedents, jurists sometimes decide entire lines of future cases merely by how they choose to interpret a single word, or to resolve a singe apparent ambiguity in the language of a statute.
American judges have developed numerous "canons" of jurisprudence that are supposed to operate as rules against arbitrary interpretation, such as:
The expression of one thing constitutes the exclusion of others."
Statutes that change the common law must be strictly construed."
Penal statutes must be construed narrowly to protect the accused."
Legislative intent in penal law must be found in the language actually used in the statutes."(Carter p.67)
egardless of any rules or principles…
Carter, L.H. Reason in Law (1979) Little Brown & Co.
Haskell, P.G. Why Lawyers Behave as They Do (1998) Westview Press
Kutler, S.I. The Supreme Court and The Constitution: Readings in American
Constitutional History (1984) W.W. Norton & Co.
Blackstone initially set the precedent, so to speak, for English common law. English common law became the foundation for American common law, which values judicial precedent over statutes. Many European countries in fact use statutes over legal precedents as the means by which to determine legality, distinguishing the Anglo-American system from others. Blackstone indicated, “that precedents and rules be followed, unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times,” something that has become so entrenched in American judicial practices that it is sometimes taken for granted. Courts of final appeal, like the Supreme Court and the supreme courts of states, will tend towards upholding status quo unless there is a clear and decisive reason why a new precedent should be established. Their decisions will be based on several factors: the merits of the…
Judicial Philosophy of the Supreme Court
Judicial philosophy is a concept that refers to the way judges understand and interpret the law in relation to the specific cases they are handling. This concept emerges from the fact that while laws are universal and broad, they need to be applied to specific cases based on the judge's understanding and interpretation of the law as well as the unique circumstances surrounding the case. The two most common judicial philosophies of the Supreme Court are judicial activism and judicial restraint, which have influenced various cases including Gore vs. Bush (2000) and Obergefell vs. Hodges (2015). Judicial activism refers to a philosophy in which judges depart from conventional precedents to adopt new, progressive social policies whereas judicial restraint is a philosophy in which judges limit the exercise of their own authority (Bendor, 2011).
Judicial activism of the Supreme Court influenced cases like Gore vs.…
As the leader of the free world, the United States remains in the limelight as the rest of the world keeps a keen eye on how they conduct their affairs. As it appertains to constitutional interpretation, the U.S. has a sound philosophy dubbed 'living constitutionalism.' In the American constitutional dispensation, as in other countries, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous,…
Alstyne, William Van. 2010. "Clashing Visions of a "Living" Constitution: Of Opportunists and Obligationists." Cato Supreme Court Review 13-26.
Balkin, Jack M. 2012. "Panelist Papers: The Roots of the Living Constitution." Boston University Law Review 92, 4:1129-1160.
Denning, Brannon P. 2011. "Common Law Constitutional Interpretation: A Critique." Constitutional Commentary 27, 3:621-645.
Dodson, Scott. 2008. "A Darwinist View of the Living Constitution." Vanderbilt Law Review 61, 5:1319-1347.
As Waldron (2009) emphasizes in an article entitled, The Concept of the Rule of law, the rule of law
... is invoked whenever we criticize governments that are trying to get their way by arbitrary and oppressive action or by short-circuiting the procedures laid down in a country's laws or constitution. Interfering with the courts, jailing someone without legal justification, detaining people without due process, manipulating the constitution for partisan advantage -- all these actions are seen as abuses of the Rule of Law.
In other words, the rule of law provides the normative structure that gives stability to the society. Therefore, deviations from the norms of the rule of law threaten the structure of a democratic society. Consequently, such deviations are only appropriate in the most exceptional of circumstances.
As the author of the above article states,
The Rule of Law is violated...when the norms that are applied by…
Sykes A 2002, The 'Rule Of Law' As An Australian Constitutionalist Promise, viewed May 31, 2011, < http://www.murdoch.edu.au/elaw/issues/v9n1/sykes91.html >
Sykes A 2002, The 'Rule Of Law' As An Australian Constitutionalist Promise, viewed May 31, 2011, <
History Of Discrimination From Legislation to the Present Day
There are various form of discrimination that have been in existence over the decades, racism is just one of the oldest and most prevailing kind of discrimination. acism is the belief that a race of people is inferior to another. Various practices in the U.S. are seen to be motivated by racism and these include the slave trade where humans are treated as property that is disposable, without any rights and privileges. It was mainly practiced in southern U.S. until the civil war when it was outlawed by the 13th amendment. Job discrimination is also widespread and involves exclusion of people from jobs due to their race which was outlawed on a national level in 1964.segregaton in public places, schools, sports and other places was also in existence but was outlawed in 1964. Denial of voting rights like literacy tests, poll…
NSW Business Chamber.(2012). Vicarious Liability. Retrieved February 12, 2014 from http://www.workplaceinfo.com.au/resources/employment-topics-a-z/vicarious-liability
Naomi, A, L.(2009).Motivational strategies and their impact on productivity. Retrieved February 12,2014 from http://dspace.knust.edu.gh:8080/jspui/bitstream/123456789/4257/1/Aryeetey%20Loretta%20Naomi.pdf
Fair work Ombudsman.(2012).Types of Discrimination. Retrieved February 12, 2014 from http://www.fairwork.gov.au/employment/discrimination/pages/types-of-discrimination.aspx
For example, the Parliament passed the "Year and a Day ule" Act in 1996 that changed the previous murder and manslaughter law that specified that a person could be charged with murder or manslaughter if the victim died within a year and a day of receiving his injuries. The change was made to reflect modern development in medical science, which enabled injured people to remain alive for longer periods.
Changes in the UK laws have also reflected the growing strength of the egalitarian ideal over the last two centuries. It has led to changes in laws that have encouraged the gradual emancipation of married women and the prohibition of discrimination based on race or sex. For instance, an old law applicable until recently did not allow married women to refuse sex with her husband. However, in . v (1991), the House of Lords decided that if a wife did not…
Atiyah, P.S. (1995). Law and Modern Society (2nd ed.). Oxford, UK: Oxford University Press
Harris, P. (2007). An Introduction to Law (7th ed.). Cambridge, UK: Cambridge University Press
Martin, J (2005). The English Legal System (4th ed.). London, UK: Hodder Arnold
Lord Justice Coke described customs as "one of the main triangles of the laws of England" (Martin, 14). Others dispute this theory and contend most of the "customs" were in fact invented by the judges themselves.
The text by Neville & Lokuge (2006) reports to the evolving status of this question since the rash of birth defects caused in the 1970s by the Thalidomide drug. These events would give way to what Neville & Lokuge call a 'novel' legal question. Its novelty, the article suggests, may be the primary reason that courts of have decided with inconsistency how best to address 'wrongful life' and 'wrongful birth' cases. Accordingly, the article reports that "courts have endeavoured to be careful in recognising and awarding damages in novel areas of law, such as "wrongful birth" and "wrongful life." The High Court of Australia has recently given judgment in both kinds of action: in 2003 allowing a claim for wrongful birth (Cattanach v Melchior), but in May 2006 disallowing two separate claims for wrongful life (Harriton v Stephens and aller v James/aller v Hoolahan)." (Neville & Lokuge, 559)
Blake, R. (2002). Abortions and Actions for Wrongful Life. University of the South Pacific.
Caldwell, J. (2004). The Legal Status of Abortion in Australia. Australian Reproductive Health Alliance.
Case Notes. (2002). Edwards v Blomeley; Harriton v Stephens; Waller v James: Wrongful Life Actions in Australia. Melbourne University Law Review, 37.
Neville, W.J. & Lokuge, B. (2006). Wrongful life claims: dignity, disability and "a line in the sand." Medicine and the Law, 185(10), 558-560.
adults have an episode or two from their youth of which they are not extremely proud. Perhaps it involved sneaking a beer (or several beers) at a social function, or lying about one's plans for the evening to get permission to attend a questionable event. Most kids have learned the hard way on at least a few experiences -- speeding, missing curfew, or cheating on a test. Younger children are taught that taking a pack of gum from the store without paying for it is wrong, and that there are certain words on television that they shouldn't repeat in school. e accept these facts of life fairly easily; minors aren't mentally or socially equipped to know how they should behave all of the time. Children have to be taught about social mores, and teenagers test authority without considering the consequences in a way that most adults would. Lawbreaking -- whether…
Atkins v. Virginia, 2004, 536 U.S. 304
Case 12-285, Inter-American Court on Human Rights Rep. No 3/87 (1987)
Domingues v. State, 961 P. 2d 1279,1280, Nev. 1989
They also had the power to decide the merits of evidence and arguments. In the 19th century, judges gained greater control over juries and the role of juries became what it is currently; hearing evidence presented on both sides and determining the guilt or innocence of the accused.
The advantages of the jury system lie in the foundational elements articulated and supported by amendments and the Supreme Court. The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" (Landsman & Hastings 1992). A speedy trial was emphasized to avoid the accused languishing in prison for extended periods of time prior to a trial, or have the accused fate put off for an indeterminate amount of time. Further, the Sixth Amendment guarantees every citizens right to an impartial jury. The intent is that the prospective juries not enter into the…
Ackerman, B. (1993). Neo-federalism? Constitutionalism and Democracy, Cambridge:
Allan, T. (2001). Constitutional justice: A liberal theory of the rule of law, Oxford: Oxford University Press.
Decent, E. (2010). Democratizing common law constitutionalism, McGill Law Journal, 55(3), 511-535.
Hogue, A. (1986). Origins of the common law. Indianapolis: Liberty Press.
How does a court system cope with a “changing of the guard” when a new administration is elected and key executives and managers are replaced, and/or when policy changes direction as a new political party assumes power?
The best coping technique is instituting a system characterized by power separation. Accountability may be attained within the domain of administrative rulemaking by means of various institutional plans and practices. One may perceive bureaucratic accountability to be a classic agent-principal issue. Governmental cabinets, rather than parliaments, form the main bureaucratic controllers, being ideally positioned, owing to their central location in administration as well as legislative politics, to guarantee that implementation will be governed by the very political agenda that drives lawmaking. Ministerial workers are answerable, via a hierarchical command chain, to the Prime Minister, other ministers, the cabinet, and a coalition or the majority party. Thus, whilst drafting regulations, the very politicians responsible…
The Da Costa ruling, however, determined that any ruling of the European Court of Justice must necessarily apply to all national courts when interpreting Community Law (Craig 2001). In this way, the law is guaranteed to be applied evenly in and in the same manner in all member nation courts when deciding Community Law issues, whereas prior to this ruling differing interpretations of the same facets of Community Law could be applied to the same issue.
It is important to note that this ruling does not affect the various national courts of the member nations of the European Union when interpreting national law, and in fact the European Union and its various courts, including the European Court of Justice, have no sway over such interpretations, as the European Union is not a true federal entity (Craig 2001). In this way, while ensuring the equitable interpretation of Community Law in all…
Craig, P. (2001). "The jurisdiction of the community courts reconsidered." In the European Court of justice, de Burca & Weiler, eds. New York: Oxford University Press.
Freestone, D. & Davidson, S. (1988). The institutional framework of the European Communities. new York: Oxford University Press.
Slapper, G. & Kelly, D. (2006). The English legal system. New York: Routledge.
We should not confuse 'multiple' choices with 'independent' choices. For example, we now have 'multiple' sources of news and information offered by NC -- the national broadcast network, CNC, and MSNC -- which is all to the good. However, by contrast, 'independent' choices are available to viewers by the emergence of competitors to CNN -- MSNC and Fox News (as cited in Ann, 2003)."
While, on the other hand, Commissioner Michael Powell (Republican) paid attention to the intangible, manifold proposes and implications of variety:
In all likelihood, however, the pivotal issues in this proceeding are likely to revolve around diversity. While competitive concerns are traditionally evaluated using well-established analytical standards, diversity is a much more visceral matter -- bathed in difficult subjective judgments and debated in amorphous terms. It has always been difficult to articulate clearly the government's interest in 'diversity', and it has become even more difficult to do…
Ann L.P. (2003). Proposed Changes in Media Ownership Rules: A Study in Ventriloquism? Communications and the Law. 25, 2.
Ownership of the media of mass communication
Global Criminology: Similarities and Differences Between Adversarial and Inquisitorial Justice Systems
Similarities and Differences between Adversarial and Inquisitorial Justice Systems: Global Criminology
Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. The effectiveness of any legal system is assessed based on how well it facilitates truth-finding, efficiency, and fairness. This text assesses the effectiveness of adversarial and inquisitorial justice systems to determine which one would be more effective in fighting global crime.
Similarities and Differences between Adversarial and Inquisitorial justice systems
Every country uses fundamental rules and procedures to ensure fairness and justice in its legal system. Based on these rules, a country can be termed as either adversarial or inquisitorial. Experts have given diverse views on the effectiveness of either system in achieving the aims of a country's legal traditions. This insight is crucial for the interpretation of the Constitution, as well…
Ambos, K. (2003). International Criminal Procedure: Adversarial, Inquisitorial or Mixed? International Criminal Law Review, 3(1), 1-37.
Dakolias, M. (2014). Court Performance around the World: A Comparative Perspective. Yale Human Rights and Development Journal, 2(1), 87-144.
Dammer, H. R., Fairchild, E. & Albanese, S. J. (2006). Comparative Criminal Justice System. Belmont, CA: Wadsworth/Thompson Learning.
Doak, J., McGourlay, C. & Thomas, M. (2015). Evidence in Context (4th ed.). Third Avenue, NY: Routledge.
Legal Concept of elevant Evidence
Brady v. Maryland, 373 U.S. 83 (1963)
Facts: Defendants Brady and Boblit were convicted of murder by the state of Maryland, with Brady admitting participation in the crime but stating that Boblit committed the actual act of killing the victim. Boblit confirmed this fact in a written statement recording his personal confession, but during the criminal proceedings prosecutors elected to withhold Boblit's confession from the court, as well as from Brady and his attorney. Upon being convicted of the murder, Brady challenged the decision on the basis of potential violations of the Fourteenth Amendment, which guarantees those accused of criminal conduct the right to due process. The Maryland Court of Appeals affirmed Brady's conviction, but remanded the case for retrial to reassess the question of punishment.
Issues: The prosecution's choice to withhold Boblit's written confession irrevocably altered the sentencing process for Brady, as the court…
Brady v. Maryland, 373 U.S. 83 (1963)
With respect to sexual harassment claims of the quid pro quo nature, one of the most important elements of modern sexual harassment principles establishes specific vicarious liability on the part of employers for failure on the part of management to redress any complaints of sexual harassment by employees (Friedman, 2005).
In 2003, Courtney Price, an employee of the New York angers organization of the NHL sued the angers and their parent organization, Madison Square Garden, after she was fired for warning a fellow employee that a public relations executive within the organization had solicited her for sexual favors. In that case, the employer could have avoided liability by following up on the matter as soon as it came to light and disciplining the executive (Sandomir, 20071).
Instead, when the organization learned that the plaintiff had warned her coworkers to stay away from the executive in question and that her warning…
Crouse, K. (2007). Browne Sanders Is an Inspiration After Winning a Lawsuit. The New York Times; November 4, 2007. Dershowitz, a. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York: Little Brown & Co.
Finn, R. (2007). A Warrior in the Sexual Harassment Battle. The New York Times; October 26, 2007.
Friedman, L.M. (2005). A History of American Law. New York: Touchstone.
Halbert, T., Ingulli, E. (2008) Law & Ethics in the Business Environment. Cincinnati, OH: West Legal Studies.
John Marshall was the greatest Puritan of them all. Puritans emphasized an individual relationship with God, and rejected organized religion's dogmas. Certainly, Puritans have long been against slavery. In this context, John Marshall, a well-known opponent of slavery, and a proponent of individual rights can be said to be one of the greatest Puritans.
The Puritans emerged in the 18th Century, from the teachings of John Locke. They rejected the dogmas of the major religious denominations of Europe, and emphasized the idea of an individual relationship with God. Many Puritans came to American in order to avoid religious persecution at home.
Interestingly, a common misconception about Puritans is that they are highly intolerant, especially of other races and religions. While there have been specific incidents of religious and racial intolerance by Puritans, in general the Puritan religion is one of tolerance towards others. Specifically, the famous preacher Jonathan Edwards (who…
The question then becomes, not is there an Adolf Eichmann in each person, for undoubtedly there is. The question becomes, how well can people discern the difference between ideals with which they agree, and those things that are immoral; and perhaps most importantly, how effectively can people decide to do that which is morally correct even when faced with such unpopular consequences as standing out from the crowd and siding against a popular government (Alford)?
Those who held opinions that were opposed to Eichmann's trial in Israel did not wait to be heard. One notable contemporary in particular believed that the methods undertaken to achieve the trial were questionable at best. In 1961, Victor Gollancz published a pamphlet on the very trial in question. It was a plea to abstain from executing Eichmann, but it touched on issues related to the motives surrounding the trial. The Israeli Prime Minister wanted…
Alford, C. Fred. "The Organization of Evil." Political Psychology 11.1 (1990): 5 -- 27.
Web. 30 Mar. 2010.
"Argentina Uncovers Eichmann Pass." BBC News. 29 May 2007. Web. 12 April 2010.
Browning, Christopher. The Origins of the Final Solution: The Evolution of Nazi Jewish
The IRS may also impose a 10% excise tax or a maximum of $10,000 on an officer who knowingly entered into a transaction (Samuels and Shoretz).
When this happens, the official endeavors to enter a rebuttable presumption that the compensation and benefits are reasonable (Samuels and Shoretz 2002). The board of directors or trustees must approve the three criteria for the rebuttal. In the first, the board must be composed entirely of members unrelated to and not beholden to the officer in question. In the second, the board must possess reliable data, comparing its compensation level with those of other organizations in similar situations. This is intended to lead the board to make sure the officer's compensation has comparable fair-market value with others in the geographical area. The data may be secured form reputable and independent surveys and the third requires the adequate documentation of the fixed compensation as its…
Auld, H.M. (2002). Better salaries, master's degrees and competition. 2 pages. Library Administrator's Digest: BCPL Foundation. Retrieved on September 24, 2008 from http://findarticles.com/p/articles/mi_qa3850/is_200212/ai_n9154776?tag=content;col1
Dagan, D. (2005). Lawyers required in claims disputes. 3 pages. Central Penn Business
Journal: Journal Publications, Inc. Retrieved on September 24, 2008 from http://findarticles.com/p/articles/mi_qa5295/is_200502/ai_n24294898?tag=content;col1
DeCarlo D.T. (2001). Illegal employment. 2 pages. Risk Insurance: Axon Group.
International Sales Contract
Ross T. Smyth and Co. Vs. TD ailey Son & Co  All ER
This paper will examine and discuss the specific implications of Lord Wright's statement and how this related to the seller and buyer, specifically in the context of the c.i.f. And f.o.b. contractual meaning.
In the historical case Ross T. Smyth and Co Ltd. Vs. TD ailey, Son & Co.  3 All ER 60, Lord Wright, upon considering a dispute between the parties is said to have stated:
Now it is true that all these rules both under section 18 and section 19 are prima facie rules and depend on intention in this regarded by the parties is seldom or never capable of proof. It is to be ascertained, as already stated here, by having regard to the terms of the contract, the conduct of the parties, and the circumstances of the case.…
In the Supreme Court of Africa (1999) Highveld 7 Properties et al. v. Timothy Luke Bailes [Online] available at http://kiewiet.uovs.ac.za/facultieslaw appeals/31998.htm
Federal Court of Australia (1999) Westpac Banking Corp v. Stone Gemini  FCA 434 [Online] available at http://jusgments.fedcourt.gov.au/1999/j990434.yes.htm
Smyth Ross T. & Co. Vs. T.D. Bailey & Co. (1940) All ER 60 (HL)
Online] available at http://ourworld.compuserve.com/homepages/pntodd/cases/cases_s/smyth_t.htm
Traffic Stop Case
Did Officer Smith have reasonable suspicion to make the initial stop of this vehicle?
As we examine this case and more confrontational moments occur between the officer and the suspect, all events remain in question largely on the basis of this initial question. This is because ultimately, it was revealed by due process that the basic cause for the traffic stop was a suspected broken taillight which was ultimately in proper working order. This denotes that probable cause may not have existed to justify the encounter between the officer and the suspect. That said, 'probable cause' is a higher standard than that required for a routine traffic stop absent the intent for a search of the suspect or vehicle. Here, reasonable suspicion is sufficient, though given the working condition of the taillight, it is not certain that this necessary existed either. According to Tennessee v Brother (2010),…
Baker Associates (BA). (2010). State Supreme Court to Look at Traffic Stop Issue. Tennessee Criminal Lawyer Blog.
Flex Your Rights. (2010). Stop & Frisk: Terry v. Ohio. Flexyourrights.org.
Stuckey, G., Roberson, C., & Wallace, H. (2006). Procedures in the justice system (8th ed.). Upper Saddle River, NJ: Pearson/Prentice Hall.
WEEK 1 CHAPTE EVIEW JOUNAL BLWeek 1 Chapter eview Journal BLQuestion 1In 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…
ReferencesBest, A. & Barnes, D.W. (2007). Basic Tort Law: Cases, Statutes, and Problems. Wolters Kluwer. Petersen, N. (2017). Proportionality and Judicial Activism. Cambridge University Press.
students opportunity discuss a key political science concept, show a basic understanding academic research reporting skills.
Define "loose construction" and "strict construction" methods of constitutional interpretation, and describe how each perspective aligns with formal vs. informal methods of change.
The 'strict construction' view of the Constitution has traditionally been aligned with conservatives such as Robert Bork who argue that "a judge interpreting the Constitution" should only consider "the words used in the Constitution [as] would have been understood at the time [of enactment]" (Linder, citing Posner, "Theories"). In contrast, the 'loose construction' view (traditionally aligned with more liberal politics) stresses the need to interpret the Constitution in a manner beyond the letter of the law. There are a number of factors which justices traditionally consider when making constitutional interpretations, including the text itself; likely intentions of the founders; precedents; consequences of the decision in the 'real world;' and so-called 'natural…
Chemerinsky, Erwin. "Conservatives embrace judicial activism in campaign finance ruling."
The L.A. Times. 2010 Jan 22. [2014 Apr 6]
Griswold v. Connecticut (1965). Exploring Constitutional Law. [2014 Apr 6]
Stare decisis, from the Latin meaning "to stand by that which is decided," is a judicial doctrine, which provides that precedent decisions are to be followed by the courts ('Lectric). The doctrine of stare decisis has developed in common-law legal systems, which enable judges to create law through judicial interpretation. In contrast, jurisdictions with a civil-law legal system reject the doctrine of stare decisis, because civil-law systems require a stricter separation between the legislative and judicial branches. The United States' legal system developed from a common-law base and embraces the doctrine of stare decisis.
Although the doctrine of stare decisis appears, at first blush, to give great power to the judicial branch, it is actually a judicial discretion constraining device. If the legislature is unhappy with a high court's interpretation of a law, it can change the law to reflect the actual legislative intent. However, if the legislature is content…
Amar, Akhil R., and Vikram Amar. "Precedent on the High Court: More On." FindLaw. 2002.
FindLaw. 28 Feb. 2005 .
Lessner, Richard. "Staring Down Stare Decisis." National Review. 2003. National Review. 28
Feb. 2005 .
Legal Precedent and the Legal System
The principle of stare decisis is a legal principle that suggests that courts rule consistently with case precedent or cases that have been previously decided. The doctrine originated from the common law in England and was purposed to promote uniformity in the justice system. Courts are not always bound to rule according to previous decisions, especially if these decisions are from districts outside of the sitting court, and increasingly many courts have declined to follow precedent in its rulings. However, the United States Supreme Court, as the highest Court in the land, sets the precedent for the courts of the country on constitutional issues. If a lower court fails to follow a Supreme Court decision, its decision will be overruled in the event of an appeal. Stare decisis, although instituted for a beneficial purpose, has not been without controversy. The Supreme Court…
Briggs v. Elliott, 342 U.S. 350 (1952).
Del Carmen, R. (2007). Criminal procedure: law and practice 7th Ed. Belmont, California:
Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
Tribe refers to what Ronald Dworkin says later in the book. Dworkin holds that everyone is an originalist now but that they are not seeking what the lawmakers expected but what they meant to say in their law, suggesting perhaps that they may not be writing laws as clearly as could be or that the vagaries of language often make it difficult to do so without some form of originalist mind set. Tribe points out that what both originalists and textual critics are doing is to try to determine what is intended over what is expected, meaning that a law could be written to say one thing but would have unintended consequences just the same. here Tribe differs is in the fact that he does not believe it is possible to discover which provisions are which by a close reading of the text or by legislative history. Tribe also does…
Brennan, William. "Construing the Constitution." 19 University of California-Davis Law Review 2 (1985).
Rehnquist, William H. The Supreme Court. New York: Vintage, 2001.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, New Jersey: Princeton University Press, 1997.
Judiciary Branch of Government in the United Kingdom
The Judiciary Branch of Government
Structure of the U.S. And UK Judiciary Branch
A Comparative Case Study
The structure of the judiciary branch of the government in the United States and the United Kingdom are quite different and the student which studies judiciary structure will readily agree with the statement of fact that textbooks in relation to the American government and politics pay substantial attention to the role of the judiciary; many textbooks on the government and politics of the United Kingdom have -- at least until recently -- virtually ignored the role of judges in the UK which leaves one asking exactly why that this is the case. . The purpose of this work is to research and examine the lack of information and attention to the role and function of the judicial branch of the UK government and to compare…
Stevens, Robert (1979) Law and Politics: The House of Lords as a Judicial Body Weidenfeld and Nicolson, 1979
Countries of the World (1991) Embassy of the United Kingdom: Civil Courts [Online] at Highbeam Research.
Wise, D. & Cummings, M. Jr. (1981) Democracy under Pressure: An Introduction to the American Political System 4th ed. (1981) Harcourt Brace Jovanovich, Inc. ISBN: 0-15-517343-X. Lib. Congress No. 81-80036.
Civil law refers to offenses that are not of a heinous nature generally referring to white collar or non-violent crimes, or crimes that do not involve drugs or bodily harm to another individual.
Panetti has not challenged those factual findings on appeal."
Panetti could not be considered incompetent to stand execution based on Ford v. Wainwright. Similar to Panetti, Ford did not initially argue mental illness, but during the trial he developed a severe form of mental disorder, leading to his unawareness of the crimes he had committed and of the reasons for his capital punishment.
The involved parties were both counting on Justice Powell's previous expertise in the Ford v. Wainwright case and were hoping that the judge would be better able to understand both sides.
The dismissal of the second issue of the case, that of the habeas relief motion, is based on the argument that Ford only "requires an opportunity for the petitioner to be heard and an impartial tribunal - both of which Panetti received." Other requests of Panetti's were dismissed. "ecause the state-court procedures were adequate under Ford,…
Supreme Court of the United States, Syllabus, Panetti v. Quarterman,
Panetti, Scot v. Quarterman, Nathaniel, Northwestern University, Medill Journalism, January 9, 2007, http://docket.medill.northwestern.edu/archives/004241.php, last accessed on October 11, 2007
Scot Louis Panetti v. Nathaniel Quarterman: Brief for Respondednt, No. 06-6407 in the Supreme Court of the United States
Tim Birnbaum, Panetti v. Quarterman (06-6407): Death Penalty, Mental Illness, Factual Awareness Standard, Eight Amendment, Retribution, Cornell University Law School, http://www.law.cornell.edu/supct/cert/06-6407.html , last accessed on October 12, 2007
8. State the "law of the case" of each of the following: (10) a) Gonzales v. Raisch: ffirmed Oregon statute allowing doctors to prescribe controlled substances in assisted suicide and invalidated ttorney General's statutory interpretation that assisted suicide does not constitute practicing medicine..
b) First National Bank v. Bellotti: Invalidated Massachusetts law criminalizing corporate use of corporate funds to promote political agenda as a violation of corporations right to Free Speech under the 1st mendment..
c) Kelo v. New London: State power of eminent domain properly used even though taking of property inured to benefit of one private entity over another, because its effect was beneficial to the community..
d) darand v. Pina: Overturned Metro v FCC and decided that any type of racial classification used by any government agency triggers strict scrutiny.
e) Cole v. Burns International Security Systems: Employers may require employees to waive their right to litigate…
A b) Cole v. Burns International Security Company: D.C. District Court applies SCOTUS ruling in Gilmer, to uphold pre-employment arbitration agreements that meet the 5 elements of fairness articulated in Gilmer.
10. Respond to a colleague who asserts that we need to get rid of these liberal activist judges and replace them with conservative judges who interpret the law and do not make the law. (5)
The 2000 SCOTUS decision terminating the by-hand vote count then underway in Florida is a perfect example that "conservative" justices with no prior history of "liberal" statutory interpretation, in fact, make law, as evidenced in the way five "conservative" Republican justices effectively awarded the presidency to George W. Bush by their whim under the color of "judicial interpretation."
As such, any valid arbitration agreement will be accordingly handled and implemented by the arbitrators on the case.
4) What specific steps can be taken effectively to change this legal outcome in future cases?
In the case of Clinton Cole vs. urns International Security Services, the Court decided against the plaintiff's request to render void the arbitration agreement signed by employee on the 5th of August 1991. In order to change the outcome of future similar legal cases, the employees need better arguments as to why the arbitration agreement should be considered null by the Court. Also, to convince the Court to rescind the agreement, the plaintiffs and their lawyers should focus on the issues that are not covered by the arbitration agreement.
For instance, employees could point out how the agreement refers to the "recruitment, employment and termination of employment by the Company; including, but not limited to, claims…
Clinton Cole vs. Burns International Security Services, 105 F.3d 1465 (D.C.1997)
NASD Arbitration, the Banks Law Office, http://www.bankslawoffice.com/nasd-arbitration.php , last accessed on October 3, 2007
Edwards, Chief Judge, Summary of Opinion
Background of the Case
Stand your ground: Constitutionality
'Stand your ground' is not a new doctrine, according to the laws of the land. Its strongest support can be found in the case of Beard v. United States (1895). In the case of Beard, the court found that a "man assailed on his own grounds, without provocation, by a person armed with a deadly weapon and apparently seeking his life is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control; and so long as there is no intent on his part to kill his antagonist, and no purpose of doing anything beyond what is necessary to save his own life, [he] is not guilty of murder or manslaughter if death results to his antagonist from a blow given him under such circumstance" (Beard v. United States, Justia).
In the Beard case, during a dispute…
Beard v. United States (1895). Find Law. [30 May 2012]
Beard v. United States (1895). Justia. [30 May 2012]
1st Amendment Issues
A highly controversial decision rendered on January 21st of this year by the Supreme Court, affirming the right of corporations and other organizations to enjoy consideration as "persons" and the 1st amendment protections afforded by that status, threatens to undermine the foundation of this country's democratic process. With their closely contested 5-4 decision in the case of Citizens United v. FEC, the high court's conservative members have effectively shattered existing precedent regarding the ability of corporations to channel shareholder funds to political campaigns. In their effort to protect the duly granted right of individuals to contribute money as a form of political speech and expression, the justices in the majority have effectively opened a Pandora's box of unintended consequences. By extending the rights held by individual citizens of this nation to corporate conglomerates and multinational entities, the Roberts court has redefined the menace of judicial activism once…
Employee Privacy Torts
Issues relating to employee privacy have been at the forefront of businesses for many years. This has been fuelled by the dynamic workplace which changes constantly and also by employees and employers being more litigation-conscious. Technology has also spurred on employee privacy issues with e-mail and the internet being related to heightened concerns about vulnerability of employers to litigation. Many employers have thus exacerbated their concerns relating to employee privacy and especially monitoring of employee behavior. Employee privacy is respected in many of the large corporations. However, there still exist some breaches in employee privacy. Small business owners are at most risk as a result of their increased monitoring practices and close employer-employee interaction.
oberson v. ochester Folding Box Company
One of the major cases that brought employee privacy to the limelight was oberson v. ochester Folding Box Company
Franklin Mills Co. decided to appeal…
Anderson v. City of Philadelphia, 845 F. 2d 1216 (1988).
Borse v. Piece Goods Shop, 963 F.2d 611 (1991).
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1988).
City of Ontario v. Quon, 130 S.Ct. 2619, 560 U.S. (2010).
The basic structure of the United States legal system comes from the Constitution. Constitutions are living documents that lay down principles and rules, as well as overall functions of how law should be used within society. Constitutions tend to be macro in scope, in that they define responsibilities between the three organs of U.S. Government (Judicial, Legislature and Executive). Laws are individual (micro) edicts that are made to define specific issues under the Constitution. The Constitution is the basic framework, or the strategic direction of law; defining relationships and allowing for reasons that are fundamental to other laws (e.g. privacy, search, etc.). Laws are the manner in which the tactics of the legal system and/or philosophy are carried out and used within society. A Constitution defines the theoretical basis of law, while laws incorporate the process of law and allow the government and its officers to use the…
Neubauer, D., et al., (2010). America's Courts and the Criminal Justice System. Belmont,
Plunkett, T. (2001). A Concise History of the Common Law. Clark, NJ: The Lawbook
Marbury, the president of the United States appointed him a justice of peace... And that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years...he [Marbury] has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy" (Marshall 1803). However, "the authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution," so Marshall stated the U.S. Supreme Court had no direct authority to issue the writ under the Judiciary…
Grossman, Joel. "The 200th Anniversary of Marbury v. Madison:
The reasons we should still care about the decision, and the lingering questions it left behind." Findlaw. February 24, 2003. March 15, 2009. http://writ.news.findlaw.com/commentary/20030224_grossman.html
Marshall, John. Marbury v. Madison (1803). Landmark cases. March 15, 2009. http://www.landmarkcases.org/marbury/majority.html
Using documents to decide the outcome: The Constitution and the Judiciary Act of 1789."
The State is just taking back its rightful property under the contractual obligations of the agreement signed between the host State and the foreign investor who' assets are being seized in the expropriation. Another cause for direct expropriation is the concept that the State will in some way gain financially, socially, or economically from the expropriate assets beyond their value of compensation. If a particular investment can generate more positive results in the hands of the State, it is legal to file expropriation proceedings if the full value of compensation is covered as determine by an international tribunal.
In the European Union, direct expropriations are most common. Based on a common peace and favorable diplomatic relations between the countries within the European Union, there is little need for many investors to worry about unlawful and forceful expropriation, as seen in developing or communist nations. Some investors may invest within a…
Dolzer, Rudolf & Schruer, Cristoph. (2008). Principles of International Investment Law. Oxford University Press.
Edsall, Rachel D. (2007). Indirect expropriation under NAFTA and DRCAFTA: potential inconsistencies in the treatment of state public welfare regulations. Boston University Law Review. Vol 86:931-962.
Hober, Kaj. (2007). Investment Arbitration in Eastern Europe: In Search of a Definition of Expropriation. Juris Publishing Inc.
Merriam-Webster. (1998). Collegiate Dictionary. 1 oth ed. Merriam Webster Publishing.
counter-majoritarian difficulty is what some refer to as the most well-known issue in constitutional theory. A phrase created by Alexander Bickel, the Yale Professor introduced it in his book titled The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Although it is not certain what Bickel meant by making that phrase, it grew to have a life of its own. Essentially now it means when unelected judges nullify the actions of legislators/electedexcutives through utilization of the power of judicial review, acting contrary to the will of the majority as conveyed by representative institutions.
Those that consider democratic majoritarianism of great political value may see this aspect of judicial review as challenging. However, in the days when civil rights were nonexistent and people were having their personal rights violated, this aspect of judicial review provided the push to change laws, and inevitably, change society. Therefore, a majority of…
Baum, L. (2016). The Supreme Court (12th ed.). SAGE/CQ Press.
Kraft, M. & Furlong, S. (2012). Public Policy: Politics, Analysis, and Alternatives, 4th Edition (4th ed.). CQ Press.
Rosenbloom, D. & O'Leary, R. (1997). Public administration and law. New York: M. Dekker.
Rosenbloom, D., O'Leary, R., & Chanin, J. (2010). Public administration and law. BocaRaton, Fla.: CRC Press.
Never the twain shall meet would be an appropriate descriptive. The prime example of this form of federalism is the U.S. government during the late 1700s through the early 1900s. With "dual" federalism, both separate and shared powers are present.
Marble-cake (or co-operative) federalism is "one big happy family" federalism. Co-operation between state and federal government is its signature. The two levels of government are actually one big government, interwoven and pursuing the same goals together. Crime reduction, better education for our children, and global warming are issues that both state and federal levels would be working on together with the same sense of accomplishment. Co-operative federalism became prominent in government between roughly 1930-1960.
s a matter of fact, under the original dual federalism during the early years of our country, each state that came into the Union was offered a "partnership" with the federal government. Every state knew what…
As a matter of fact, under the original dual federalism during the early years of our country, each state that came into the Union was offered a "partnership" with the federal government. Every state knew what they were getting into. The federal government could declare war, coin money, control immigration, sign treaties, appoint ambassadors, interpret laws, and control interstate commerce. These powers were granted to the federal government by the Constitution, Articles I-IV, and Article VI. Powers granted to the states consisted of passing laws within their territories, controlling health, police, education, marriage, voting requirements, and even trash collection. These were granted by Article IV and the Tenth Amendment. Shared powers were to levy taxes, create courts, and to create laws for the general welfare. These joint powers were based in the Tenth Amendment.
After the Civil War, the federal government began to exercise its own rights separate from the states with its newly gained momentum and responsibilities gained from winning the war. The layered-cake form of dual federalism came forth with both federal government and states operating independently but the federal government trying to retain control. This increasingly layered-federalism held until 1930, when, with FDR and the New Deal, brought us out of the Depression through the use of numerous federal programs that he delivered to the states for employment. It was an era of cooperation. With WWII and the Korean War, that era of cooperation continued.
Today, in the U.S. we are closer to dual -- modified layered cake -- federalism. However, for now, it is a devolving fiscal federalism as well. That is, the federal and state powers are separate as spelled out above. However, more fiscal responsibility is being "devolved" or delegated back to the states which are closer to the economic problems they face. The federal government is giving billions of dollars back to the states to cover programs and budget deficits.
It is also argued that the insurance mandate is not constitutional since the government does not have the right to tell the United States citizens what products to purchase, even when these products are beneficial for them, and even less when the socio-economic impact of purchasing the respective items is questionable (Savage, 2009).
Arguments against changing the direction of the policy
Once again delaying any measures to restructure and resolve the two impending problems in the health care system (raising costs and insufficient coverage) does not constitute a constructive approach to resolving the impending problems
Aside the socio-economic problems it raises, the mandatory health insurance would ensure that all the U.S. citizens benefit at least from the basic health care services and this does not put tremendous strains on the federal budgets.
5. ationale of the suggestion to change the direction
Despite the benefits the mandatory health insurance would generate…
Barnett, R., 2009, Is health insurance mandate constitutional? last accessed on June 18, 2010
Berger, J., 2009, a health insurance mandate that works like auto insurance? Think again, http://www.foxnews.com/politics/2009/09/14/health-insurance-mandate-works-like-auto-insurance-think / last accessed on June 18, 2010
Bihari, M., 2010, Mandated benefits -- understanding mandated health insurance benefits, http://healthinsurance.about.com/od/reform/a/mandated_benefits_overview.htm last accessed on June 18, 2010
Cowen, T., 2009, How an insurance mandate could leave many worse off, http://www.nytimes.com/2009/10/25/health/policy/25view.html last accessed on June 18, 2010
U.S. And Supreme Court
Contrast the U.S. Circuit Courts with the U.S. Supreme Court in terms of their authority to strike down an act of congress or of the states?
The United State Supreme Court is the highest judicial body of the U.S. The Circuit Courts on the other hand are the intermediate courts which make rulings before an issue reaches the Supreme Court. There are nine circuits which divide the country. Each state belongs to one of those nine circuits.
hereas the United States Supreme Court has the ability to review any law brought before them, the circuits can only review laws which affect the states under their jurisdiction. A circuit court may rule a law unconstitutional-based either on the constitution of the state or based on the national constitution. Both bodies have the ability to review any legislation created to check its lawfulness.
However, a decision made by…
"Roe v. Wade" (1972). 410 U.S. 113.
interventionism from the perspective of realism vs. idealism. Realism is defined in relationship to states national interests whereas idealism is defined in relation to the UNs Responsibility to Protect doctrine -- a doctrine heavily influenced by Western rhetoric over the past decade. By addressing the question of interventionism from this standpoint, by way of a case study of Libya and Syria, a picture of the realistic implications of "humanitarian intervention" becomes clear. Idealistically, humanitarian interventionism is a process that stops atrocities and establishes peace and prosperity. Realistically, interventionism allows Western businesses to reap the spoils of destabilization -- as has been seen in Libya with the Libyan oil fields being claimed by Western oil companies -- and as is being seen in Syria, with the threat of invasion bound to have detrimental effects on the construction of a new pipeline that bypasses the Turkey-Israel pipeline. Syria also presents itself as…
'Violent chaos': Libya in deep crisis 2 years since rebels took over', 2013, RT, 26 Aug.
Available from . [24 Aug 2013].
Weiner, T 2008, Legacy of Ashes, Anchor Books, NY.
The American President is said to be the most powerful man in the world, but it is also said that the President has limited influence over domestic policy. Even if the President is relatively weak in terms of domestic policy, he still has tremendous power, more than just about anyone else. This paper will analyze the different formal and informal ways in which the President exerts influence over domestic policy. The paper will then examine the question of whether or not the President's authority on domestic affairs is relatively weak. This is an interesting question because it is a question of relativity in which the comparable matters. Compared with the President's powers on foreign affairs, Presidential powers in the realm of domestic affairs are relatively weak. Compared with anybody else's powers, the powers of the President in the realm of domestic affairs is strong; nobody else has as…
Taft speaking for the court found that the above statute was an invasion of executive power (Myers v. United States). Therefore Myers could not get compensation.
In the case of Humpreys Executor v. U.S. The deceased plaintiff in the case also brought a suit to the Court of Claims against the United States. The plaintiff was a Federal Trade Commissioner "nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate." He was given a seven-year term that was supposed to end in September of 1938. However after working for a short time in July of 1933 President Roosevelt asked the decease plaintiff to resign his position (Humphrey's Executor v. United States).." The request of the President was brought about because the president believed that the "aims and purposes of the Administration with respect to the work…
Myers v. United States. http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=U.S.&vol=272&invol=52
Humphrey's Executor v. United States [*] (No. 637). http://www.law.cornell.edu/supct/html/historics/USSC_CR_0295_0602_ZS.html
A d) the theoretical approach to legal reasoning that casts the most helpful light on judicial reasoning in determining whether or not evidence derived from torture should be admissible is legal positivism, as developed by H.L.A. Hart. Hart's approach to legal positivism focused strongly on the relationship between the law and morality. One would be hard pressed to describe an area where the relationship between moral behavior and the law is more at issue than in a question involving torture. The question is especially salient when a country may not have any influence over interrogation procedures, such as when the United Kingdom is relying upon interrogations performed in other countries. However, Hart's rule of recognition articulates the point-of-view that social norms should not always be legal norms. There is no question that the prohibition against torture is a widespread social norm, as reflected by the common law, informal international law,…
Had the court applied consistency in their different rulings to local hate crimes, this case would have been settled in the lower court. As the previous decisions that Mitchell was using to justify his words; were clearly in appropriate decisions made by the court that did not protect free speech. Instead, it enabled someone to be a racist, because they could hide behind the First Amendment. It is through examining the Supreme Court case Wisconsin vs. Mitchell; in this light that highlights the overall complexity faced by various municipalities in regards to hate crimes ordinances.
arclay vs. Florida. U.S. Supreme Court Justice Center. 2010. 28 Feb. 2010
Dawson vs. Delaware. Cornell Law. 2010. 28 Feb. 2010
Haupt vs. United States. Find Law. 2020. 28 Feb. 2010
New York vs. Ferber. C. 2009. 28 Feb. 2010
R.A.V. Vs. St. Paul. Cornell Law. 2010. 28 Feb. 2010
Wisconsin vs. Mitchell. Cornell…
Barclay vs. Florida. U.S. Supreme Court Justice Center. 2010. 28 Feb. 2010
Dawson vs. Delaware. Cornell Law. 2010. 28 Feb. 2010
Haupt vs. United States. Find Law. 2020. 28 Feb. 2010
New York vs. Ferber. BC. 2009. 28 Feb. 2010
entrapment' and 'outrageous Governmental conduct'. Entrapment is usually permitted within confines of the law even though it contradicts the fourth and fifth amendments. It refers to entrapping the suspect into a situation where it is clearly seen that he was willing and ready to violate the law. 'Outrageous Government conduct,' on the other hand, refers to cases when the Government's conduct was so egregious that it provoked the accused into committing the transgression. Usually conducted out of undue zeal, particular Government official(s) can be egregious in their 'entrapment' conduct and generally, although not always, consequent in running afoul of the law.
The distinction between 'entrapment' and 'outrageous government conduct' is illustrated by the following fictitious case history, "Alabama vs. Billy Bob," where, on the grounds of 'Outrageous Governmental conduct', I appeal to the Judge to exonerate Mr. Bob.
There is no doubt in my mind that, firstly, Mr.…
Bardhan, P. (1997). Corruption and Development: A Review of Issues Journal of Economic Literature, 3. pp. 1320-1346.
Coleman, Stephen (2004). When Police Should Say "No!" To Gratuities. Criminal Justice Ethics, p. 33-50.
Any allegations of individualized injury is superfluous, they alleged, on the theory that this was a "public" action involving questions as to the use of natural resources.
The Holding was that a person has standing to seek judicial review under the Administrative Procedure Act only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. In this case, where petitioner asserted no individualized harm to itself or its members, it lacked standing to maintain the action. Sierra Club relies on 10 of the Administrative Procedure Act, which accords judicial review to a "person suffering legal wrong because of agency action, or [who is] adversely affected or aggrieved by agency action within the meaning of a relevant statute."
On the theory that this was a "public" action involving questions as to the use of natural resources, the District Court granted a preliminary injunction. The…
jonsmom2 the New Haven Firefighters Affirmative Action received kind attention a lo
Diversity in the Workplace
There are several factors to consider when discussing the prudence of the decision of the city of New Haven, Connecticut, to dismiss the results of two promotional exams for its fire department on the grounds that its results would leave the city open to litigation based upon racial bias. In a case as morally and legally ambiguous as this particular one, the complexities among the various bureaucratic decisions regarding the judicial appeals and partisan lobbying are virtually interminable, and perhaps even distracting from the managerial process of determining whether or not the city was justified in rejecting its test results on the grounds that they would leave it liable for a disparate impact law suit. Particular attention, then, must be directed to the implicit and explicit intentions of the city in its rejection of…
Totenberg, N. (2009). Supreme Court Hears Firefighter Promotion Case. NPR. Retrieved from http://www.npr.org/templates/story/story.php?storyId=103289178
Dorf, M.C. (2009). The Supreme Court Decides the New Haven Firefighter Case. FindLaw. Retrieved from http://writ.news.findlaw.com/dorf/20090701.html
Presidential power is thus a matter of persuasion of the public and the other branches and actors within the government. Today in particular, because of the ability of the President to invoke the information of the intelligence agencies, information which the President has special authority over, he can persuade members Congress that if they do not do his bidding, they are jeopardizing America. hen the presidential office was first created, the federal army and navy were far smaller than today -- and only Congress has the power to declare war. Yet many undeclared wars have been waged subsequently, and Congress has ceded some of its powers of controlling these institutions, from the Gulf of Tonkin resolution during Vietnam, to being persuaded by faulty intelligence it is assured it is true, as in Iraq. Presidents like Gerald Ford have limited the prosecutorial abilities of the nation by bestowing pardons, even changed…
Neustadt, Richard E. Presidential Power and the Modern President. New York: Free Press,
Many conservatives believe that the Anti-
Establishment Clause prohibits only the actual establishment of a national religion in the manner of the English Crown. To them, the right to freedom of religion is all that the First Amendment guarantees, not the right to be free from religion (Dershowitz, p. 202).
Luckily for those who consider themselves atheists and agnostics, the Supreme
Court has interpreted the First Amendment to include the separation of church and state much more broadly, because under the conservative interpretation, the government might, in principle, be able to require some religious affiliation of its citizens provided it did not specify any particular religious faith. That issue has arisen numerous times and in many different forms over the years, including whether or not public schools may require recitation of the Pledge of Allegiance with the words "under God" or "moments of private reflection" intended for prayer during school…
Dershowitz, a.M. (2002) Shouting Fire: Civil Liberties in a Turbulent Age. New York: Little Brown.
Friedman, L.M. (2005) a History of American Law. New York: Touchstone. Haynes, C., Chaltain, S., Glisson (2006) First Freedoms: A Documentary History of First Amendment Rights in America. London: Oxford University Press
Americans have been gathering together to make laws since the colonial times. This process is continued today in order to maintain a well-regulated society. Even though specific procedures for creating law have developed over time, democratic law-making remains marked by a necessitate to have the approval of the people, a system of checks and balances, and public policy elasticity matched to the problems of time and place (Bakken, n.d.).
This everyday law-making process is part of a historical development that is English in origin. When English colonists in colonial America put into practice the law-making heritage that they brought with them, they made definite changes to suit their new surroundings. The King of England granted charters to individual landowners and joint stock companies of entrepreneurs for the various colonies affording varying degrees of law-making power, but all English colonists had law without current charters and colonial statutes. They…
Bakken, G.M. (n.d.). The Creation of Law in a Democratic Society. Retrieved from http://www.ait.org.tw/infousa/zhtw/DOCS/Demopaper/dmpaper5.html
Common Law. (2012). Retrieved from http://www.answers.com/topic/common-law
Description and History of Common Law. (n.d.). Retrieved from http://www.radford.edu/~junnever/law/commonlaw.htm
Tax esearch Memorandum
From: Tax Accountant, CPA
You incurred $15,000 of educational expenses over the past year in pursuit of your MBA, part of your professional development as a practicing egistered Nurse and nursing administrator. Your employer does not offer an educational expense reimbursement program, and you wish to claim these educational expenses as business expenses in order to claim greater tax deductions. You have worked in numerous administrative positions in your capacity as a nurse, and feel that the pursuit of an MBA was a clear part of your career development.
The only issue is whether or not the education you received at the expense of $15,000 can be deemed work-related education as defined and applied by the IS, which recognizes such expenses as business expenses for employees. If the education can be deemed work-related according to IS rules and definitions, the deduction of the…
IRS. (2011). Tax Benefits for Work-Related Education. Accessed 25 March 2012.
Tax Court. (2009). T.C. Summary Opinion 2009-182. Accessed 25 March 2012.
" And perhaps points to a key deficiency within the public school milieu. After all, just because a particular educational principle is not carefully scripted into the classroom plan or even school year does not mean that its unexpected inclusion is an interruption of learning. In fact, I would submit that any discussion concerning the "protected nature" of the student's speech, as well as the issues surrounding it would, in itself, constitute "education" if of an unscheduled kind. urther, I would also submit that the ability of individual teachers to on occasion "roll with the events" and use them as a teaching opportunity would point directly to principles of quality education, rather than an excessive reliance on pre-scripted or scheduled lesson plans provided by affluent text-book publishing companies.
Whether the student's disciplinary action was founded is another matter. I, for one would tend to err on the side of the…
Fretzin, Leonard. Kelsey, Yvette. Loschen, Darren. "Internet and E-Mail Policy." 2004. Retrieved from Web site on October 3, 2004 http://students.ed.uiuc.edu/ykelsey/eol469/internet_emailuse.htm
UMKC. University of Missouri, Kansas City. "Bethel School District v. Fraser." Retrieved from Web site on October 3, 2004 http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/indecentspeech.htm
United States Supreme Court. "BETHEL SCHOOL DIST. NO. 403 v. FRASER, 478 U.S. 675." 1986.
But when it just recently occurred in 2004 at a store in Jonquiere, British Columbia, the reader must appreciate that a real battle had been won. The original efforts of that particular store for example had the local labor Commission reject certification by a margin of 74 to 65. When the union announced that it won the coveted certification at Quebec, it was quite a blow to the retailer. The Quebec Labour elations Commission issued the order certifying the United Food and Commercial Workers Union (UFCW) as the bargaining agent of employees in Wal-Mart's store in Jonquiere. As noted, the reason a victory of this magnitude is huge is because of the policies and tactics used by Wal-Mart. The retailer works diligently to prevent its workforce from engaging in any collective action and they have consistently shown that they are willing to cross the line to guarantee their position.
Baek, Seung Wook. (2000.) "The Changing Trade Unions in China." Journal of Contemporary Asia: March.
Budd, John W. (1994). "The Effect of Multinational Institutions on Strike Activity in Canada." Industrial and Labor Relations Review.
Corbett, Brian (2002). "Southern hospitality." Ward's Auto World, August.
Delsohn, Gary. (1997.) "UPS Strike May Revive American Labor Movement." Knight Ridder/Tribune Business News: Sept.
" (Social Services Policy Center - Britain, 2005)
Further stated is that "Most offenders in the UK are dealt with by non-custodial sentences. Custodial sentences for indictable offences by adults account for less than one sentence in five, while fines cover more than a third of all offences. About a fifth are given intermediate sentences like probation or community service. The Probation Service (in England and Wales) administers supervision in the community, social work in prisons and after-care: their duty is to 'advise, assist and befriend' offenders. Scotland's equivalent is social work with criminal justice, but currently there are moves to pass this responsibility to the Scottish Prison Service." One problem exists in the fact that "the age of criminal responsibility is not uniform throughout the UK; in England and Wales, it is a mere '10' years of age.
Custodial-based options are:
1) Detention centers;
2) Attendance centers; and 3)…
Phillips, C. et al. (2005) World Factbook of Criminal Justice Systems: England and Wales Online available at http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjeng.txt .
Agnes, Hochman (2005) Scarf and Scales: Variations on Probation Order in the History of Juvenile Penal Law Online available at http://www.koed.hu/medit/agnes.pdf .
King, Peter (2004) The Development of Informal Reformatory Sentences for Juvenile Offenders in the Late Eighteenth and Early Nineteenth Centurie. Center for the Study of Law and Society Jurisprudence and Social Policy Program Papers Presented in the Center for the Study of Law and Society Bag Lunch Speaker Series (University of California, Berkeley) 2004 Paper 21 The Open University, United Kingdom This paper is posted at the eScholarship Repository, University of California. Online available at http://repositories.cdlib.org/csls/lss/21 .
Response to the Young Offenders Act Provincial Review (1994) John Howard Society of Alberta Online available at http://www.crimeinfo.org.uk/dictionary/index.jsp.
Criminal laws in the United States are largely and totally considered as the result of the constitutional authority and legislative bodies that enact them. The American constitution normally provides the basis for the development of legislative agencies that are empowered to criminal and other legislations. For instance, the country's constitution has established the Congress and provides it with the power to make laws. The importance of the Constitution to the substantive criminal law is evident from the fact that it establishes limits on the definitions of crime. In most cases, the criminal laws of specific states and federal governments as well as the definition of crimes and their respective penalties are found in the penal codes of every jurisdiction. The establishment of criminal legislations in the United States has evolved through the years and is based on several fundamental principles.
Creation of Laws in the United States:
Most of the…
"History of American Law." (n.d.). Historyoflaw.info. Retrieved March 19, 2012, from http://www.historyoflaw.info/history-of-american-law.html
Kelly, M. (n.d.). Early Development of the United States Court System. Retrieved March 19,
2012, from http://americanhistory.about.com/od/judicialbranch/a/Early-Development-Of-The-United-States-Court-System.htm
"Lawmaking in the United States." (n.d.). UIC -- University Library. Retrieved from University
Curious Case of Gary McKinnon
There is much controversy with regard to information in the digital age and Gary Mckinnon's case is especially intriguing when considering this discussion. The Scottish hacker is charged of having hacked into a U.S. database containing information stored on around one hundred computers owned by the U.S. military and by NASA. Mckinnon committed these activities between 2001 and 2002 and faced over ten years of judicial battles against extradition until 2013. In addition to the problematic implications of his crime, the case was even more difficult to address because of the U.K.'s reluctance to extradite the hacker.
hen discussing this case, it is essential to consider the gravity of the situation, taking into account that McKinnon willingly acted against the U.S. military and NASA at the time when he accessed and stole files from the two institutions. Such an act is a direct affront to…
Bassiouni, M.C. (2014). "International Extradition: United States Law and Practice." Oxford University Press.
Curtis, G. (2011). "The Law of Cybercrimes and Their Investigations." CRC Press.
Slack, J., & Semark, M. "Spotlight falls on Starmer: Will Director of Public Prosecutions now order Gary McKinnon to face UK court on hacking charge?." Retrieved January 30, 2014, from http://www.dailymail.co.uk/news/article-2218872/Gary-McKinnon-extradition-U.S.-outrage-hacker-wont-American-authorities.html
Wall, D. (2007). "Cybercrime: The Transformation of Crime in the Information Age." Polity.
Shackford & Gooch, Inc. et al. v. The Town of Kennebunk et al.  Supreme Judicial Court of Maine.
The case of Shackford & Gooch, Inc. et al. v. The Town of Kennebunk et al. revolves on two distinct impasses. The first is the disagreement at the heart of the case, between the Shackford & Gooch fish market and the abutting Bartleby's Dockside Restaurant. This disagreement concerns the decision by the latter to construct a rooftop deck without a permit and the zoning objection of the former. But a second disagreement, that which gives significance to the case, is that between the Zoning Board of the Town of Kennebunk and the original ruling of the Superior Court. The ruling by the Supreme Judicial Court of Maine will be aimed at resolving both the appeal to the original decision by Shackford & Gooch and the cross-appeal by Dockside.
Glassman, J. (1984). Shackford & Gooch, Inc. et al. v. The Town of Kennebunk et al. Supreme Judicial Court of Maine.
Hinkel, D.F. (2011). Essentials of Practical Real Estate Law, 5th Edition. Cengage Learning.
Saufley, C.J. (2002). Salisbury v. Town of Bar Harbor. Supreme Judicial Court of Maine.
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