As a theory in law, Jurisprudence involves varying philosophical perceptions about the purposes of law, the legal system and the institutions developed to regulate law. In an effort to understand the basic, fundamental reasoning for law and of legal systems, legal scholars have developed theoretical frameworks within the umbra of jurisprudence. For the purposes of this paper, jurisprudential philosophies will include natural law, legal positivism and constructivist theories of law.
Aristotle, credited as the "father" of natural law, suggested that there exists a natural law, a natural justice in law. Advocating a "golden mean," Aristotle describes the origin, the genesis of morality and a method of virtuous living to achieve happiness. Such hapiness is not generated or maintained by possession of material wealth or by pursuit of carnal pleasures. Instead, according to Aristotle, happiness is a noble pursuit that enables people to live their lives well, despite inevitable hardships…… [Read More]
but, according to all other fuqah?', it should be transferred to the public treasury, because it belongs to the Muslims. According to Sh-fi
), the Muslims inherit it on the grounds of their being members of the same group (alta s-b); Ab? Han-fa agrees, on the basis of one of the two traditions reported by him (which includes Sh-fi's opinion), although the other tradition grounds it on friendship (muw-l-t), not membership (Abdulhussein Sachedina, 1998, p. 261)."
That al-Shafi'i's legal interpretation - call it Hadith or biography - has withstood the test of time to continue to direct and impact the lives of Muslims, regardless of whether or not the body of legalese was promulgated by Shafi'i or those contemporaries dedicated to his expressions of Hadith, suggests that al-Shafi'i is indeed the most influential jurist in Islamic law since the Prophet Muhammad.
Cooperson, M. (2000). Classical Arabic Biography: The Heirs…… [Read More]
Johnson v Transportation Agency (1986)
The two above cases both resulted in a broadening of the scopes and protections of the Civil ights Act via jurisprudence. In Johnson v Transportation Agency (1986), a very different result was reached that shows the changing nature and understanding of discrimination and how it work in society. The difference in this case is also directly and explicitly related to the differences in the original plaintiffs in each of these cases. Willie Griggs and Mechelle Vinson were both representatives of groups that traditionally experienced unfavorable discrimination, and both of their cases revolved around contemporary instances of this discrimination. Paul Johnson, however, was not a member of such a group, and this changed the very nature of his suit in the Court's opinion.
Johnson and a female coworker, Diane Joyce, were both employed at the Santa Clara Transportation Agency, and both qualified for promotions to the…… [Read More]
Upon becoming a paralegal, I may then begin to make use of the administrative and organizational skills I already possess to enhance my knowledge of the law.
Further, other than my many years of experience in administrative positions, I have the advantage of many years in the military in general. Essentially, the law is a vast set of rules to be applied evenly and fairly across varying cultures. The military acts in many ways the same. In this case, however, soldiers from varying cultures must conform to strict sets of rules to ensure their own safety as well as the safety of other soldiers and civilians, and to protect and defend the very Constitution upon which our Democracy is based. Many years of living by these rules has ingrained in me a respect and understanding of rules and laws that many will never understand or appreciate.
I chose George Washington…… [Read More]
The rule of law entails the practical manifestation of our social and philosophical ideals: the rule of law is ideals in action. The rule of law allows public standards to be applied to personal behaviors. The rule of law also requires the proper exercise of power by a governing body. The government enforces the law, but no individual is above the law.
The principles of law include the following. The government must itself ascribe to the law; the governing body is itself subject to the law and must therefore operate with in the parameters of the law. Second, the government's objective is to create and maintain social order and peace through applying rule of law. However, the government must act fairly when enforcing the law. No individual should be punished if he or she is unaware of the rules. Thus, the third principle entails that rule of law…… [Read More]
One criticism is that the corporate and business world is more concerned with self-interest rather then ethics and human rights. "Corporate America, upon which much of the burden of economic growth depends, does what is good for itself. Such self-interest has had the effect of barring women from most executive suites and maintaining status quo gender roles...." (Gibelman, 2003. p 22) This is an aspect which, in combination with issues pertaining to reproductive rights and gender equality, has to be addressed in contemporary society.
Bryson, Lyman, Louis Finkelstein, and .M. MacIver, eds.(1947) Conflicts of Power in Modern Culture: Seventh Symposium. New York: Harper & Brothers Publishers.
Civil ights Act of 1964. etrieved October 29, 2006, at http://en.wikipedia.org/wiki/Civil_ights_Act_of_1964
Devine, C., & Hansen, C.. (1999). Human ights: The Essential eference.
Phoenix: Oryx Press
Feminist jurisprudence: Cornell law School. etrieved October 29, 2006, at http://www.law.cornell.edu/wex/index.php/Feminist_jurisprudence http://www.questia.com/PM.qst?a=o&d=5000646995
Gibelman, M. (2003). So How Far…… [Read More]
ole of Judges in Human ights Jurisprudence
esearch shows that there is some criticism when it comes to The United Kingdom's Human ights Act 1998 (HA), which combined the European Convention on Human ights into domestic law which was put together to make better the human rights defense for British citizens at home. Previous to the representation of the HA 1998, UK citizens pursued human privileges defense from the European Court of Human ights. (Emberland, 2002). The procedure of engaging to the European Convention on Human ights was both time consuming and expensive (Berger, 2009). It is uncommon for a section of an Act of Parliament to provoke as much anger as s2 does, or for it to be inquired to show such different roles by numerous critics. S2 HA offers that a high court or court of law "determining a question that has ascended in linking with a Convention…… [Read More]
Moral and Legal Questions of Stem Cell Research
Stem cell research is an experimental, and research-based study as to methods of repairing the human body. y introducing stem cells into a damaged, or degenerating area of the body, the medical profession hopes to prompt the body to regrow healthy tissue, and repair the damage. Degenerative diseases, such as Parkinson's disease, or macular degeneration of a patient's eye retina are conditions in which the healthy tissues cease to function properly. There is no overt damage. There is not a disease which has physically destroyed the affected body part. ut for varying reasons, such as old age, wear and tear, or reasons medical science does not yet understand, the affected body part simply ceases to function properly. Stem cells are the type of cells, which are more numerous in, but not limited to, human embryos. They are the building blocks of the…… [Read More]
Constitutionality of a Postcard-Only Mail Policy
Postcard-Only Prison Mail Policy
Constitutionality of a Prison Postcard-Only Mail Policy
The Constitutionality of a Prison Postcard-Only Mail Policy
The state Department of Corrections (DOC) has requested a legal opinion of its postcard-only mail policy covering all incoming and outgoing letters and packages. The DOC is facing several lawsuits alleging the restrictive mail policy is violating the Constitutional rights of inmates, as well as external parties wishing to communicate with inmates through the mail. The following opinion represents a review of the applicable case law and whether the mail policy could withstand Constitutional challenges.
The lawsuits that have been filed against the DOC for implementing a postcard-only mail policy allege violations of free speech protected by the First Amendment, privacy violations under the Fourth Amendment, and procedural due process rights under the Fourteenth Amendment of the U.S. Constitution.
Based on considerable…… [Read More]
MacCormick expresses a similar argument, although in different terms. According to MacCormick, the law has no natural existence, no set form and no fixed ontology. In fact, according to this line of reasoning, "the law has no natural role because the law is not a brute fact."
Instead, the law is what MacCormick calls a "thought object," similar to the concept of Love presented in the other article. According to MacCormick's thought object, the law only exists because humans believe in it. In other words, the law does not pre-exist our observation but is instead is constituted in that original decision to designate a specific law. As MacCormick states, "Law is constituted as an object of observation by the very act of observation itself."
Since the law exist because of an observation, or a decision that a law is needed, MacCormick essentially agrees with the concept of Love in…… [Read More]
difficult conflicts anyone in the legal profession can experience is a conflict between ethics and the obligation to zealously represent one's client. No where is this tension more apparent than in a situation where one obtains privileged information belonging to the opposing party. here are three options facing a legal professional confronted with such a situation; using the privileged information without notifying the opposing party how it was obtained, notifying the court and opposing counsel that privileged information has been obtained and that one intends to use it, or not using the privileged information. None of the solutions is perfect, but only one solution allows a paralegal to reconcile ethical obligations with the duty to zealously represent the client; informing the court that privileged information has been obtained and will be used.
If a paralegal uses the privileged information without informing the opposing party of their mistake, the paralegal has…… [Read More]
According to the court's judgment in favor of the plaintiff, no further evidence as to the source of the muscle atrophy in his shoulder and arm, because "the thing itself speaks" when all three components of res ipsa loquitur are satisfied, as they were in the case of Ybarra vs. Spangard. The plaintiff's claim for negligence against his doctors was ultimately successful because (1) arm injuries do not ordinarily occur in an appendectomy operation absent negligent action by the physicians, surgeons, or nurses in attendance during the procedure, (2) the injuries were caused by an agency or instrumentality within the exclusive control of the defendant, as the plaintiff was rendered unconscious during the surgery's preparation period, and (3) the plaintiff never volunteered or submitted to the possibility of her arm being injured when they elected to undergo a surgery in their abdominal region. One of the most interesting aspects of…… [Read More]
Origins and Characteristics of the Law and Legal Systems in the U.S.
The Origins and Characteristics of the Law
and Legal Systems in the United States
The origins and characteristics of the law and legal systems of the United States
It is a commonplace observation to state that the Declaration of Independence and The Constitution of the U.S. are the origin of and provide the characteristics of the legal systems of the U.S. But in order to truly understand the ideas behind these landmark legal documents one must delve deeper into history. What of the texts that influenced America's Founding Fathers? Most may know that the Magna Charta, the English charter from the year 1215, was an influence. But the English weren't the only influential opinion-makers for revolutionary Americans. The Scottish and the French were too. The Scottish Declaration of Arbroath, for example, has been linked by scholars as an…… [Read More]
The reference to Montesquieu (as well as to Smith) in that part of the 'Dissertation' which deals with the 'Progress of Philosophy during the Seventeenth Century' was made just as a digression, and the further development of Jurisprudence by writers on Political Economy as well as 'the mighty influence which his [Montesquieu's] writings have had on the subsequent history of Scottish literature' (Stewart, 1854) were to be explained in the third Part of the 'Dissertation', which was never to be published.
A major task of the state is thus to ensure that the conditions of economic freedom are in fact satisfied, so far as possible, by sweeping away all legal and institutional impediments to it. Generally speaking, these obstructions can be condensed to four main groups. First, there is the problem that, in all societies subject to a course of evolution, 'Laws frequently continue in force long after the…… [Read More]
Sandra Day was born on March 26, 1930 in El Paso, Texas to Harry and Ada Mae, owners of the Lazy--Cattle ranch in Southeastern Arizona, where Sandra grew up (United States Supreme Court 2003) as an only child until she was eight. In those early years, her family lived in isolation and with strained resources. The ranch did not have electricity and running water until she was seven years old and their nearest neighbors lived 25 miles away. Her loneliness forced her to make friends with the ranch's cowboys and pets. She read vigorously, learned to drive at seven, could fire rifles and rode horses well. ecause the hardiness of the ranch prevented her from attaining a formal education, her parents sent Sandra to her maternal grandmother in El Paso (U.S. Supreme Court). Her grandmother was Mamie Scott Wilkey.
She went to the Radford School for girls from…… [Read More]
Both of these perspectives are, from Hart's perspective, too extreme: he wants a legal theory which would be free from moral evaluations or moral commitments (unlike Finnis' approach), while remaining a descriptive theory of the practice rather than a participation in it (unlike Dworkin's approach). Hart was trying to keep a difficult middle position (Hacker, 1977-page 31). He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself (or, to put the matter differently, the theorist herself) need not, and should not, endorse the system (as one which is generally just or which creates binding moral obligations). In other words, the theory simultaneously:
(1) attempts to take into account the participant's perspective; and (2) manages to choose among possible participants' perspectives without having to make moral judgments; while
(3) keeping sufficient distance from the participants' perspective to allow…… [Read More]
Cousin Vinny and American Criminal Justice
The 1992 film My Cousin Vinny starring Joe Pesci and Marisa Tomei is a typical Hollywood foray into the realm of jurisprudence. So comical and seemingly realistic is the film (it takes place in the South -- where the unexpected nature of the backwoods setting gives the fish-out-of-water antics of Pesci's Gambini a convincing legitimacy) that one is willing to believe that it actually gives accurate representation of the criminal justice system and the court process in America. This paper will compare and contrast My Cousin Vinny with the actual American criminal justice system and court process, showing where the two meet and where (as in all Hollywood fare) they eventually depart.
The Film in eality
In reality, it may be noted that even the United States is using My Cousin Vinny as a guide when it comes to justice and jurisprudence -- at…… [Read More]
This is usually a low standard to achieve. As long as a person acts in a way which avails the person of the protection of the laws of that state, that person has subjected themselves to the jurisdiction of that state (International Shoe).
Next, the complaint will allege subject matter jurisdiction, i.e., that the lawsuit fulfill the requirements for this court to hear it? Pertinent requirements can include how much money haws plaintiff sued for or whether the case poses a question about a federal statute or the U.S. constitution. In many cases involving litigants from different states, the Plaintiff will allege that he is suing the Defendant for an amount greater than $75,000.00, which is the minimum monetary amount for federal subject matter jurisdiction (Title 28 U.S.C. § 1332(a)) and that the Plaintiff does not reside in the state in the same state as any defendant (Am Jur Pleading…… [Read More]
Gustav adbruch believed that positivistic theory renders both jurists and the normal person defenseless against our laws and legal system. He felt that no matter how arbitrary, cruel or criminal certain laws were, our legal process would make its ordinary citizens totally subservient to them. Morals would not alter precedence. This work will try to understand the works of H.L.A. Hart and some of his ideas that he held in response to Mr. adbruch's philosophies. It is important to try to understand if H.L.A. Hart actually provided adequate responses to the criticisms made of adbruch's philosophical ties. These questions, however, can only be asked, answered and understood if the reader first gets a full grasp of the underlying philosophies. What is positivism and how does it apply to the average person on the street. When discussed, is positivism the same as legal positivism? This report will try to address these…… [Read More]
However, the woman will have to get the promise in writing. Furthermore, the woman's remedy would not be to force the man to marry her, but to receive compensation for the monetary damages that she suffered as a result of the move.
hile the English Act for the Prevention of Frauds and Perjuries covered the type of agreement just described, it also covered other types of promises made in contemplation of marriage. Perhaps one of the most common of those scenarios was when a woman would allege that a man promised to marry her if they engaged in certain sexual activities. A man who made such a promise might later deny it.
The final type of contract involves those contracts that cannot be completed in less than a year. An example of that type of contract is a contract for a two-year gym membership. A typical contract would provide a…… [Read More]
Rape Case Law and Jurisprudence
Panichas[footnoteRef:2] discriminated between aggravated rape and lesser offenses in a review of Stephen Schulhofer's book Unwanted Sex: The Culture of Intimidation and the Failure of Law. When the use of violence or its threat is used to overcome a victim's lack of consent, immediately before the assault, and this is clearly demonstrated by the evidence presented in court, then aggravated rape has occurred. If, however, victim nonconsent is questionable and the immediate use or threat of force is absent or ambiguous, then a rape conviction will not survive appeal in most states. As Panichas notes, rape jurisprudence has historically relied on common law and appellate decisions when judging whether allegations of rape have any merit and three criteria are prominent: (1) actual/credible use or threat of force, (2) force must be physical, and (3) nonconsent in the absence of force is insufficient to support a…… [Read More]
Americans are aware that they are entitled to "their day in court" but may not fully understand the full range of due process protections that are contained in the Fifth and Fourteenth Amendments to the U.S. Constitution. To determine the facts, this paper reviews the relevant literature to provide a discussion concerning the meaning, history and importance of the constitutional concept of "due process" as contained in the Fifth and Fourteenth Amendments to the U.S. Constitution. A brief discussion analyzing the conflicting positions of Justices Hugo Black and Felix Frankfurter with respect to the incorporation of American citizens' rights under the due process clause of the Fourteenth Amendment, and how these Justices' positions helped develop the concept of due process is followed by a summary of the research and important findings concerning due process in the conclusion.
.eview and Discussion
According to Black's Law Dictionary, "due process of law" means…… [Read More]
Positive Discrimination -- Do We Need it?
For centuries, the global community has strived to eliminate discrimination against minority groups. For centuries, women had been emotionally and/or physically abused; they were prohibited from voting and working. Today, they are allowed to work outside the household, but they are still paid less than their male counterparts. Additionally, the responsibility of raising the children and completing the household chores remains heavily preponderant among the female categories.
The women represent one of the most obvious categories of people discriminated against; but they only represent a mere fraction of the overall population subjected to discrimination. And the grounds for the discrimination are multiple, to include anything and everything from gender, race, ethnicity, sexual orientation, political and religious appurtenance, age or disability.
The modern day society is making intense efforts to ensure that discrimination is eliminated -- or at least decreased to the minimum level…… [Read More]
Aristotle believed there should be guidelines governing the act of giving testimony (Kennedy, 2004, p. 227-228). For example, a jury member should place greater weight on the reputation and social standing of the witness, than on the content of the testimony given. If a person of good character is called to testify before a formal investigative body, a reasonable listener is therefore required to open their mind to anything the witness may claim. This process of 'reciprocation' requires reasonable jury members and judges to accept as trustworthy the testimony of a reputable person, even if the events described seem incredible and go beyond their own personal experiences.
Unfortunately, the days of small village tribunals where jury members knew most of the participants in a trial, and therefore the reputations and trustworthiness of witnesses, are generally a thing of the past in the United States and much of the world.…… [Read More]
S.B. 1070, ACA, AND FEDEAL PEEMPTION
1070, the ACA, and Federal Preemption
S.B. 1070, the ACA, and Federal Preemption
The Tenth Amendment was intended to limit the scope and power of the federal government, thereby preserving some measure of state autonomy (Lash, 2006). The Tenth Amendment accomplishes this by stating explicitly that the federal government can only exercise those powers enumerated within the U.S. Constitution. All other powers are left to the states. In James Madison's words, a Federalist, the "… powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." (p. 166). The Tenth Amendment therefore allows states to retain their freedom, sovereignty, and right to self-determination, as long as it does not conflict with the powers conferred to the federal government by the Constitution.
Madison, however, never viewed the…… [Read More]
During this Diaspora, the African Slave Trade transferred 9-12 million people from one continent to another with major repercussions on cultural and political traditions in the New World. There have been a number of modern Diasporas based on the post-Cold War world in which huge populations of refugees migrated from conflict, especially from developing countries (Southeast Asia, China, Afghanistan, Iran, Latin America, South American, Rwanda, etc.).
Part 1.2.1 - Civil Law is a legal system inspired by Ancient Roman law. In Civil law, laws are written into a codified collection that is a group of ideas and systems that work in tandem to help organize societies without the need for judicial interpretation. Overall, civil law is in place to formulate general principles and to distinguish substantive rules from procedural rules, and is based on the tenet that legislation is the primary source of law.
Conceptually, civil law is a group…… [Read More]
In principle, Dworkin argues that the truth is always knowable for any given factual circumstances; the difficulty is that the human intellect is imperfect. In the same way, there is a finite number of individual particles of sand on the earth at any moment in time. Human intellect and capabilities are incapable of determining that precise number; it would require a hypothetically limitless intellectual capacity. Judge Hercules possesses that infinite intelligence and also has the luxury of infinite time for contemplation. Dworkin suggests that Judge Hercules would always make the right decision and that the role of human judges is simply to aspire to be as Hercules-like as possible. Dworkin's Judge Hercules is very similar to John Rawls' allegory about the veil of ignorance that he uses to illustrate the meaning of objective justice.
Principle vs. Policy
To explain the importance of valuing principle over policy in the construct and…… [Read More]
Though six other Justices joined in overturning Staples' conviction, it was Justice Thomas who wrote the majority opinion, and he makes it clear that anything not explicitly allowed or made illegal by the law -- either in the Government's actions or in the actions of individual citizens -- is left to individual (or local, it is implied) discretion (Oyez 2009).
How Do You Get to the Supreme Court? estraint, estraint, estraint
In keeping with his generally conservative politics, Justice Thomas is also an advocate of judicial restraint. The Staples case demonstrates this quite clearly, as do other of his published rulings. In Archer et ux v. Warner (2002), Justice Thomas dissented form the majority opinion, which used what was considered the intent of a bankruptcy exemption for fraud to overturn the decisions of lower courts and demand that the Warners pay the Archers a previously agreed-upon settlement (Oyez 2009). In…… [Read More]
" For most this is generally seen as a reference to the Federal Judiciary. One thinks of the arren Court, and the great number of decisions concerning civil rights, voting rights, etc. It is often not realized, however, to what an extent state judges play ar ole in shaping these issues. In many state court systems, the state system was actually more liberal than the Federal:
First and foremost, state constitutions may be used not only to broaden rights but also to restrict them. They are far easier to amend than the U.S. Constitution. Therefore, forces within a state dissatisfied with liberal court interpretations of the fundamental state law may, without nearly the same effort required on the federal level, undo those rulings....In Florida... voters adopted an amendment to the state constitutional search and seizure provision, requiring the provision to be "be construed in conformity with the 4th Amendment to…… [Read More]
However, the point of mergence between the two theories has been given a name for itself and it is known as the Overlap Thesis. Overall, the natural law theory of law is used to refer to the analysis of legal systems and philosophical issues of law.
Among those who sought that natural law has no valid grounds is Leo Strauss who was convinced that it has to be refused on the premises of history and of the differences between facts and values. To most of those who oppose natural law, human knowledge and thought is characterized by the historical interpretation and history is time-bound and thus unable to encompass something which is eternal. Another reason natural law has been criticized is because of its ontological and epistemological suggestions. In regards to the former, it has been noted that no matter the way reality is perceived, whether from a theological point-of-view,…… [Read More]
Criminal Justice Agency
The American legal system is very systematic and works amazingly well. It's complicated given its intricacy as its framework is argumentative. The Supreme Court sometimes changes the law as it holds that authority. The Supreme Court decides which laws are to be upheld and which are to be altered. Learning the court system can be a tough ask but not an impossible one. In this research paper, the aim is to break down the American law into layman language. It will start from legal system of U.S. And shift to court systems. Then different kinds of courts will be examined whilst examining their separate duties.
The constitution is responsible for the entire American legal system. The American constitution is the ultimate law on American soil. The public is bound by this American constitution as it shapes their actions accordingly. The American public is answerable under the…… [Read More]
Combating Domestic Abuse in the United States
In the United States, intimate partner violence afflicted nearly 4 out of 1,000 persons aged 12 or older in 2010, down from 1 in 100 in 1994 (Catalano, 2012). This translates into 0.9 million victimizations for the most recent year in which data were available. Females are victimized more often than males, however, with one male victimized for every six females. The crimes include rape, robbery, and assault against spouses and girlfriends/boyfriends, current or former. Family violence victimization rates were similar, with about 2.1 victimizations per 1,000 citizens aged 12 years or over in 2002, the most recent year with for which data is available (Durose et al., 2005). To put this statistic in perspective, approximately one in ten violent victimizations within the U.S. is the result of family violence. The gradual decline in domestic violence rates could be due to…… [Read More]
Padilla v. Kentucky: Implications for U.S. Immigration
This paper provides a review of the relevant literature concerning the case, Padilla v. Kentucky,[footnoteef:1] discussing citizenship, and similar predicaments in other countries. It is this paper's thesis that the decision in Padilla has significant implications for defense lawyers who must now become familiar with the complexities of immigration law or retain counsel to assist them in this area. Established in Strickland v. Washington, the test for ineffective assistance of counsel is comprised of two parts: (1) defendants must first show that their counsel was constitutionally deficient and (2) show that the deficiency prejudiced the result of their case.[footnoteef:2] In addition, cases involving guilty pleas require defendants to demonstrate that in the absence of deficient counsel, they would have insisted on a trial.[footnoteef:3] Furthermore, defendants also enjoy the Due Process Clause protections that require judges and defendants to engage in a conversation concerning…… [Read More]
In addition to a lightened burden of proof and broader definition there were two additional changes resulting from the amendment which served to positively affect the impact and ultimate effectiveness of the legislation. This amendment clarified the fact that judges are not allowed to assess possible mitigating factors such as medication, corrective surgery, or specialized equipment in the determination of whether or not an individual is disabled. This change is directly related to the Sutton case. Further the amendments clarified the definition of major life activities. This amendment relates directly to the Williams case in which a judge deemed that Carpal Tunnel wasn't in fact a significant impairment to major life activities, it merely precluded her from successfully completing specific tasks in the work place. Though the language of the Act is still quite ambiguous, these changes help to clarify and protect the intention of the act.
Exceptions…… [Read More]
'" (Aspen, 1997, p.95).
The primary step is to change the mindset of lawyers. They have to stop believing that they run the show and instead focus them as members of a team along with the judge to ensure that the legal system works for the innocent people in the right direction. Its important that every lawyer strikes a balance between his or her obligations to the clients and the justice system.
As a supplement, more stringent laws should be implemented and the actions of the prosecution should come under closer scrutiny to ensure that they will abide by the ethics and professional code of conduct as laid down by the lawmakers.
Plan for administrators
"Few problems can pose a greater threat to free, democratic societies than that of wrongful conviction -- the conviction of an innocent person. Yet relatively little attention has been paid to this problem, perhaps because…… [Read More]
In these instances, a state might claim that the international community has acted beyond its jurisdiction as limited in Article 38 by allowing some action. Such an action is exemplified by the dispute between the NAT and Yugoslavia regarding ethnic cleansing in Kosovo. Here, Yugoslavia filed an application for proceedings through the ICJ against the United States for its use of force in Kosovo, invoking Article 38. Accordingly, the ICJ reports that "as to Article 38, paragraph 5, of the Rules of Court, it provides that when a State files an application against another State which has not accepted the jurisdiction of the Court, the application is transmitted to that other State, but no action is taken in the proceedings unless and until that State has accepted the Court's jurisdiction for the purposes of the case." (ICJ, p. 1) the ICJ rejected this application on the grounds that it lacked…… [Read More]
The doctrine of good faith and fair dealing is like the idea of fairness, is simple to expressive but hard to relate with accuracy. Most lawyers know the policy in the circumstance of personal property sales for the reason that the Uniform Commercial Code is clear on that issue. The principle is frequently murky though in regards to other matters. The principle is additionally clouded when courts and critics merge it with ideas such as disclosure, misrepresentation and fraud. Causes of action based on contract law join with those founded in tort. With the ensuing mess of conflicting legal principles, it is not unexpected that courts take a fact exact move toward deciding cases and, in doing so, often reach conflicting conclusions (Walsh, n.d.).
There have been two significant efforts to establish the connotation of good faith and to figure out what kind of conduct the duty commands. Most…… [Read More]
" Only by purging it completely would Russia be pure enough for the clean sheet of the revolution (erth, 2008). The history of communism and fascism is replete with such nauseating disrespect for the common customs and mores of people that gird the very structures of society. e do not always see these microlaws, but they are there and have validity and society only invades upon them with great danger.
In addition to local common law, microlegal systems guide and gird international law as well. As defined by Philip Adott in the Concept of International Law, "micro-legal systems of treaties…are an integral part of a society's legal self-constituting, its self-ordering through law…the international legal system…contains a customary form of law, and treaties have a complex and subtle relationship to customary international law (Adott, 1999, pp. 42-33)." According to Adott, microlaw can potentially be international in its scope and can impact…… [Read More]
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…… [Read More]
The United States Supreme Court ruled in favor of Illinois and argued that the Fourteenth Amendment was designed to protect against race discrimination only…" Gibson, 2007, Background to Muller v. Oregon section ¶ 1). The Court ruled that the Fourteenth Amendment did not include the protection of women's rights.
The following depicts Justice Bradley's concurring opinion regarding Bradwell's
Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law…… [Read More]
The Fourteenth Amendment is specifically concerned with due process. Moreover, while due process may not be violated by allowing states to establish different guidelines for their criminal trials and procedures than those established in the federal system, the Court seems to recognize that if something has been established as a necessary minimum to guarantee due process in the federal system, it will also be the minimum in the states.
One thing about this case, and about most states' existing criminal systems, is that it differentiates between misdemeanors and felonies, by providing that those charged with felonies are entitled to an appointed attorney. However, the distinction between misdemeanors and felonies seems untenable; people charged with misdemeanors face the threat of the loss of liberty and property. If due process cannot be protected without an attorney, and the Court feels that this threat is the same regardless of the degree of punishment,…… [Read More]
" Her close attention to statutory detail (she once offered an amendment to a bill in order to insert an important missing comma) and complete mastery of facts is especially notable in light of her future judicial methodology. Anxious to return to law in 1974, O'Connor won a seat as a trial judge on the Maricopa Superior Court....In 1980 Babbit, who had been elected governor, appointed O'Connor to the Arizona Court of Appeals (an intermediate appellate court). (Friedman & Israel, 1997, p. 1761)
It is stated that when she was faced with particularly hard cases, she chose to seek out the most extreme views on each side and then find the moderate stand in the middle with the most logical demonstration of resolution. O'Connor is also said to have held that her nomination to the Supreme Court was "a classic example of being the right person in the right spot…… [Read More]
rime rates do not drop with restrictions on gun control because crimes have been shown to be intent driven rather than means driven. Which simply means that those who are interested in committing crimes will usually do so given any access or restrictions standards? It is evident from this analysis that guns have little impact upon crime rates. However, gun control advocacies use misinformation to present a dangerous position to the public.
Another important factor in media manipulation is the use of specific misinformation to influence public opinion to support severity within gun legislation. Popular gun control advocacies use strong statistics to influence the public into perceiving that gun control is not only needed, but that gun violence is an escalating crime that needs to provide greater security mandates. Oftentimes they use deceiving statistics as a means to manipulate public opinion on the prevalence of firearms. For instance, the Brady…… [Read More]
However, this Court also recognizes that mental illness oftentimes differs from other immutable characteristics, such as mental retardation and age, in that a defendant oftentimes has the ability to control mental illness through medical interventions. hile there is tremendous evidence of Panetti's deteriorated mental state, there is very little evidence to support Panetti's assertions that he was insane at the time of the murders. Though there are serious questions regarding Panetti's competency to stand trial, much less his competency to represent himself in that trial, there simply does not appear to be any evidence that he was insane at the time of the murders. Panetti engaged in preparations that were rationally aimed at accomplishing the murder of his in-laws, but was able to refrain from killing his wife and child. In addition, he engaged in a stand-off with police that resulted in him escaping the stand-off without being killed and…… [Read More]
Or, as Saletan points out, those three elements "by deduction, are the due process test" (2011).
But this ought to leave a bad taste in one's mouth because all three of these elements can be manipulated to violate one's due process right.
"hich leaves us with an awkward bottom line. If the target is a suspected terrorist, "imminence" can be redefined to justify killing him. If the weapon is a drone, feasibility of arrest has already been ruled out -- that's why the drone has been sent to do the job. So in any drone strike on a U.S. citizen suspected of terrorism, only one of the three questions we supposedly apply to such cases is really open: Has he been fighting alongside al-Qaida? If he has, we can kill him. That's the same rule we apply to foreigners. In effect, citizenship doesn't matter. The "due process" test is empty"…… [Read More]
Decisions of ehnquist & Warren
The field of constitutional law, at least in the area of criminal procedure, has been an interesting study for the past fifty years. Unlike other areas of the law, the study of criminal procedure has undergone major transformations as a result of the decisions of the last three courts, the Warren, Burger and ehnquist courts. These three courts have changed the legal landscape in the cases involving criminal procedure and, in the process; have created a great deal of controversy (Bloom, 2010).
The application of the Bill or ights to the states has been an acrimonious issue in the U.S. Supreme Court for a number of years. It all began when the Warren Court began applying the Fourth, Fifth, and Sixth Amendments directly against the states, under a doctrine that became to be known as selective incorporation. The Warren Court used the selective incorporation method…… [Read More]
It is difficult to say whom the Supremacy Clause affects in particular, and why, because it has the potential to impact all Americans. For example, many of the ground-breaking Supreme Court decisions in recent time are based in some way on the Supremacy Clause. For example, the famous Civil ights Supreme Court decisions such as Loving v. Virginia, 388 U.S. 1 (1967) and Brown v. Board of Education, 347 U.S. 483 (1954) base their decisions on the Fourteenth Amendment's Equal Protection Clause. However, it is important to realize that they can only do so based on the fact that the states do not have the power to deprive citizens of their constitutionally protected rights. Those decisions have had a significant wide-ranging impact on all Americans; while the U.S. has yet to achieve full equality; it is fair to suggest that, without them, much of America would still be in Jim…… [Read More]
Reform from within the EU does not seem possible, either. It is so structured as to prevent changes in member states' minority status and other modifications from becoming attainable. Attempts by any government to amend the Community laws are considered doomed to failure, because Parliament has almost no part in European law-making (Andrews).
Common and civil law systems are inherently opposed, although their shared goal is to conduct a just, speedy and most inexpensive settling of conflicts (Messitte 1999). American courts have increasingly acknowledged the need to continuously evaluate and modify their processes and altogether improve the quality of justice. Efforts cover many other aspects of court activity, ranging from dispute resolution mechanisms, such as arbitration and mediation, to procedures, such as default and summary judgment used I the early stage of a trial without needing to proceed to a formal trial (Messitte).
Jury trial has disappeared in the…… [Read More]
Indeed, this understanding of the Marshall court comes full circle: The Court is the most cutting edge front of American legal society, casting decisions that are years ahead of what the general populace often wants, according to Armstrong and Woodward, but the Court is also a conservative vestige of administrations past because of lifetime tenure.
That is why the most influential Courts are those in which an appointed justice does not conform to the expectations of his presidential appointer, but rather strikes out on his or her own with a body of decisions that counter the president's and former administration's ideas.
The viewpoint of Armstrong and Woodward as presented in "The Brethren" is a much more forgiving look at the Court's influence than the viewpoint presented in our text. However, "The Brethren" looks at the Court with its own jaded eyes as well. The book understands that justices are…… [Read More]
Rule of Law and Extra-Legal Doctrines
The rule of law does not need to be supported or expanded by "extra-legal" doctrines of morality. The laws as they exist today in this country are based upon a system of morality that has evolved over thousands of years. Our laws embody this system of morality and do not need to be supported by other doctrines of morality. Moral notions of good and bad laws exist to prevent the government from abusing the rights of its citizens. In order for the rule of law to allow a government to exercise power, governments should not execute laws in arbitrary fashion. Those who make and enforce the law are themselves bound to adhere to it. "The legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the…… [Read More]
M. Lin's release from MCF has had the effect of rendering his lawsuit moot. In this case, M. Lin was incarcerated at the time the lawsuit was filed, but not at the time it is being decided. Thus, M. Lin's cause of action fails on the issue of mootness. Additionally, of the six members whom were denied visitation privileges, five of them have had sons which whom were formerly incarcerated at MCF, but now have been released. The son of the sixth MOM member asserting denial of visitation privileges died after his release from MCF. Thus, all of the six members of MOM claims will fail as a result of mootness.
The controversy must be ripe for decision; ripeness bars consideration of claims before they have fully developed. A case may be dismissed as unripe where a statute has never been enforced and there is no real…… [Read More]
Positive Philosophy in Law
Thomas Aquinas and Hans Kelsen held that the law enforced by human courts is indeed a positive law. Legal philosophers have since come up with a flurry of arguments claiming that positive law must have its source and content. These philosophers were and are of contention that the court's core mandate should be that of harmonizing heterogeneous sources of law into a coherent body of law for ease of administration of justice. Sources of law can be drawn from the ancient oman law, legislation, custom, precedent and equity, raw materials processed by courts into genuine law, statutes, precedents, and opinions of experts. With regard to content, law should be enforced to administer justice (Murphy, 2005).
This paper seeks to list some factors that a judge in a state's criminal court system would consider before sentencing burglary/theft offenders, people suspected to have committed aggravated battery, or those…… [Read More]
setting background presented set main tenets major legal systems explain select preferred forum resolving legal disputes business, . This assignment intended demonstrate basic understanding legal system adopted United States identifying main tenets comparing contrasting main tenets major legal system.
The United States of America is currently the largest economy of the globe, and the source of most technological innovations and social advancements. Aside from these accomplishments, the U.S. is also reputable for its approach to people, given that it implements a legal system protecting the rights of the people, rather than seeking to stifle them, as it happens in other regions of the globe.
The legal system in the U.S. then is centered on the people and their well-being, and the laws and legislations are created based on the Anglo-American common law system. At this level then, the focus of the current project falls on the assessment of…… [Read More]
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…… [Read More]
Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2D 955
Jesse Montejo and Jerry Moore were interrupted during a burglary by the owner of the residence, Lewis Ferrari (U.S. Supreme Court, 2009). Montejo was picked up for questioning the next day and after waiving his rights under Miranda v. Arizona (384 U.S. 436, 1966), admitted to shooting and killing Lewis Ferrari during the burglary. When Montejo was arraigned two days later in court, he stood mute as the court appointed counsel.
A few hours after the arraignment, police detectives visited Montejo at the jail (U.S. Supreme Court, 2009). During the end of the ensuing discussion, Montejo waved his Miranda rights and agreed to take them to the murder weapon. During the trip to locate the murder weapon, Montejo wrote a letter of apology to the victim's widow.
The defense attempted to suppress the letter of…… [Read More]
Centralia 1947 Mine Explosion
Throughout the annals of the American industrialized age, countless tragedies have occurred within the workplace and these incidents have forced the public at large to consider the weighty issue of applying moral precepts to the realm of public administration. While the tomes of American jurisprudence are littered with examples of corporate enterprises and bureaucratic entities failing to uphold their basic responsibilities, perhaps no case has demonstrated the capacity to generate both outrage and activism as readily as The Blast in Centralia No. 5: A Mine Disaster No One Stopped. Authored by John Bartlow Martin, this seminal case study examines the unique confluence of internal and external circumstances which eventually resulted in the 1947 explosion of Centralia Mine No. 5, a catastrophe which claimed the lives of 111 coal miners. By carefully retracing the series of events preceding the actual explosion, including a history of the Centralia…… [Read More]
Bill of ights defines the protections afforded individual citizens under the Constitution against excessive government intrusions into private lives and arbitrary prosecutions. These rights are contained in the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Since these Amendments were first adopted by the ratifying states the courts have interpreted the intent of each and created rules that attempt to keep the government from running roughshod over these rights. In 1944, the Federal ules of Criminal Procedures were generated by the Supreme Court and Congress turned them into law (LII, 2010).
One of the most important rights is to be free from unreasonable searches and seizures under the Fourth Amendment (LII, 2010). A warrant issued by a magistrate or judge is typically required before a police officer can enter a private citizen's residence or other property and conduct a search. In addition, the focus…… [Read More]
Four alleged juvenile delinquents in the Marion County Juvenile Court were tested for competency under the adult competency statute, were found to be incompetent and were ultimately ordered to the mental health division of Indiana. The mental health division unsuccessfully moved to vacate that order, and then appealed to the Indiana Court of Appeals. The Indiana Court of Appeals upheld the lower court's order. However, the Indiana Supreme Court reversed the order and remanded the case(s) for further proceedings. The two lower courts did not affectively apply Parens Patriae but the Supreme Court effectively applied the Doctrine.
Summary of In Re K.G.
was a 12?year-old boy accused of sexual battery, D.G. was a 10?year-old boy accused of child molesting, D.C.B. was an 11?year-old boy accused of arson and J.J.S. was a 13?year-old girl accused of burglary and theft. All four alleged juvenile delinquents: were in the Marion County…… [Read More]
The objective of this study is to discuss and compare two legal transplants with reference to at least one African or Asian legal system. For the purpose of this work, Turkey and legal transplants will be examined.
The work of Orucu (2008) states that Chiba (1986) relates the "concept of legal pluralism…as an effective attack on the common sense of orthodox jurisprudence by rejecting the 'oneness of state law as law or university of western law." (p.1) Chiba is reported to proffer a model of official law "as always intersecting with unofficial law and legal postulates, and never existing in isolation." (Orucu, 2008, p.1) It is the expectation that the state laws will in cohesion with "society and its normative orders, and religion and worldviews…work together to achieve a balanced and sustainable legal order." (Orucu, 2008, p.1-2) However, according to Orucu "legal centralism reflects the ambition of the…… [Read More]
U.S. Justice System vs. India's Justice System
This paper compares the system of justice in India with the system of justice in the United States. Although they are both democracies -- in fact India is the biggest democratic country in the world -- the two countries are quite different in their approach to formal justice. Moreover, the system of justice in India has been the subject of a great deal of criticism in recent years due to the corruption that has been found in the system.
Comparing the U.S. And Indian Justice Systems
The legal system in India is backed by the Indian Constitution and is a mix of "adversarial and accusatorial," according to the Loyola University in Chicago (LU). There is an attempt to respect both Hindu and Muslim jurisprudence and to "preserve the timeworn tenets of both" (LU). In rural areas of India, an informal system of justice…… [Read More]