History and victim logy

 Introduction

Police misconduct is studied widely in the United States as a wide topic in institutions. Police misconduct is divided in to major topics which are physical or psychological abuse and corruption. The misconduct may be group organized or individual organized. This shows that most police officers have neglected their duties and gone against the ethics, laws and regulations of the police force. Police officers have various responsibilities to guard the people and thus have authority in maintaining law and order in the country. Many police officers abuse these powers and authority and end up harassing and mistreating innocent people. Police officers are authorized to maintain order in various places including streets and on the highways thus they should follow the outlined job ethics. Police officers are entitled to apply or use force where necessary and thus they should only use it where it deserves. Police have in many cases been judged morally and this has made the police force to maintain a negative image to the public who should put their trust in the police officers.

Examples of police misconducts

Police corruption

This is one form of unethical behavior police portray to the masses. Traffic police officers are involved in many corrupt cases especially in drug trafficking where they take bribes from drug traffickers which is unethical according to the police laws (Kane, & White, 2012). They are seen to steal money from the sale of drugs. Police officers who involve themselves in misconducts are gladly protected by their fellows who are not involved which is so unethical in the society. Police officers are known to make false and unfair arrests and also in various robbery and kidnapping attempts (Palmiotto, 1999). Police officers are involved in accusing people of drug trafficking whereas they are the same ones who are implanting the drugs on innocent people. Public money used for public purposes is said to be mishandled by police men who get themselves involved in a number of scandals thus damaging their image to the public. Police officers are involved in cases of murder according to judicial report (Palmiotto, 1999). The judicial report suggests that the police misconduct themselves since the National Police Unit is reluctant on such matters and is weak to handle the misconduct cases thus encouraging police officers to remain reluctant in their duties.

Physical abuse

This is seen as an example of police misconduct where they physically cause damages to innocent or even guilty people. Physical abuse by police officers is in terms of beatings, sexual abuse and different physical assaults (Commonwealth Human Rights Initiative, 2006). Police officers are seen to harass people especially motorists by falsely accusing them of violating physical rules and regulations and later injuring them physically. Sexual abuse is commonly seen as misconduct where police officers molest young ladies in attempt to intimidate and threaten them. This is observed to be so unfair since everybody is authorized to their own rights (Palmiotto, 1999). Police officers are involved in various physical beatings and brutality acts which are either supported by their superiors or the police men are rascal officers.

Racial profiling and psychological traumas

Racial profiling is discussed as discrimination whereby the enforcers of the law mostly the police officers uses the culture background or race as the key reason in order to suspect that the person has disrespected the law. This happened when several African drivers complained that the traffic police harass them for no apparent reason rather than their race, ethnicity and their backgrounds. For example it is clearly noted that even Arab Americans undergo racial profiling especially on the attacks of September eleventh attacks by terrorists. Since the terror attackers were said to be Arabs the Arabs in America complained that they were harassed at the airports and other given locations while the Americans were just given right and proper treatments (Champion, 2001). This is described as racial profiling and it causes traumas and damages to the people imposed to it.this are one form of police misconduct which causes emotional and mental trauma.

Mechanisms put in place to deal with police misconduct cases

The mechanisms to minimize police misconduct cases can be discussed in terms of legal measures which will be put in place in order to reduce the misconduct cases.

Providing training to police officers

Police officers should be given training on various virtues such as loyalty and truthfulness. This training should encourage officers to attend community programs and recognize those officers so as to improve the relationship between officers and the public. Officers who are excellent in their jobs should be rewarded while the disloyal ones punished as a lesson for future officers (Barker, 2011). The office department should give disloyal policemen strong and hard disciplines which will enable them together with the rest respect the given laws. Police officers should take an oath of office which they should strictly follow and failure to that, consequences suffered should also be very strong and hard (Barker, 2011). This will reduce the misconduct cases since police officers must follow and respect the oath taken.

Handling senior staffs in the police management

Supervisors should always be held responsible for the misconduct of their junior staffs. This will enable the seniors to work diligently and responsible thus reducing cases of seniors supporting juniors in the misconduct exercise. Supervisors should maintain respect between them and the juniors and should perform their duties with loyalty (Barker, 2011). Seniors who support the juniors in misconduct cases should be punished severely and given the discipline they deserve. Seniors should ensure that the rights of management are followed to the letter (Champion, 2001). There should be no negotiations in wrong doing and thus those officers deserving to be disciplined should not be hesitated to do so. This will enable police officers realize the importance of maintaining good and standard ethics in their jobs (Barker, 2011). Police officers who are diligent in their jobs should be rewarded and recognized and thus motivating them in their carriers.

Leaders taking part in preventing the misconduct

Police officers should be made to understand that lying is not one of the ethics in policing. Those policemen caught lying should be properly disciplined (Champion, 2001). Honesty should be of value to the police force as one of the measurers to reduce the image damage to the public on police officers (Barker, 2011). Police leaders should act as good role models for the juniors to follow and thus encouraging good morals in the police force. Investigations should be properly done to make sure that the undisciplined police officers are punished accordingly.

Conclusion

From the above discussion it is clear to state conclude that police misconduct is a serious case in many countries all over the world. Police officers are seen to be brutal and harassing innocent people thus damaging their image. Leaders should work together in the fight against police misconduct and should in deed act as good role models. The diligent police officers should be rewarded while the ones conducting the misconduct punished. Police officers should therefore conduct themselves in accordance with the stated work ethics and thus they should respect the oaths of office taken. Failure to respecting the oaths, serious punishments should accompany them. This is one ways of reducing the cases of misconduct which many countries are applying and which is becoming effective. Police misconduct should be therefore stopped.

References

Barker, T. (2011). Police ethics: Crisis in law enforcement. Springfield, Ill: Chares C. Thomas.

Champion, D. J. (2001). Police misconduct in America: A reference handbook. Santa Barbara, Calif: ABC-CLIO.

Commonwealth Human Rights Initiative. (2006). The police, the people, the politics: Police accountability in Uganda. New Delhi, India: Commonwealth Human Rights Initiative.

Kane, R. J., & White, M. D. (2012). Jammed up: Bad cops, police misconduct, and the New York City Police Department. New York: New York University Press.

Palmiotto, M. (1999). Community policing: A policing strategy for the 21st century. Gaithersburg, Md: Aspen.

 The Tort of Professional Negligence

Introduction

            Professional negligence however has a higher threshold than normal negligence under common law. This is because in this case, the defendant presents themselves as having above average skills or ability concerning the subject matter. Under normal tort, the general rule is to establish whether there was a duty of care owed and if in fact that duty of care was breached. The standard rule applicable in determining a breach is whether a reasonable person would have done so under similar conditions. Professionals on the other hand hold an all together different mantle owing to the services they provide for as professionals, they do hold more than average abilities in their professions which translates to their gaining a certain amount of increased faith from their clients.

            Common law has determined this ability and has thus determined that the standard of care cannot generally go down. However, where an individual show cases either expressly or impliedly a certain amount of excessive skill or ability than that which an average person would, then the standard of care in this case would increase to a certain degree (Weir, 2002). Common law has also acknowledged the fact that while this standard of care is raised, these people are still also ordinary persons prone to mistakes. Thus, professional negligence comes in to mediate this dilemma.

Professional negligence test

            Common law has determined that unfortunately, even the best in the processional field are prone to mistakes. These mistakes can prove disastrous to their clients who have a certain degree of increased faith in them. Thus, the courts have determined that professionals in fields such as medicine, legal, accounting and financing and others shall be judged based on the standards of other professionals claiming to have similar abilities and skills (Harlow, 2005).

            This type of test referred to as the Bolam test, was first established under the common law medical negligence case of Bolam v Friern Hospital (1957) 1 WLR 583. This case determined the threshold on which a professional owed his client the duty of care in their capacity as a professional. However, this test had some technical problems as far as some professions were concerned such as in the legal field or financial field where often than not statements uttered by the profession would lead to losses (Lunney & Oliphant, 2008). Common law however created precedence in this case by adding the ‘reasonable reliance’ rule. This was established in Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 case. In this case, Lord Morris of Borth-Y-Gest and other four judges found that "Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise." The precedence in this case was mostly applicable in professions where the giving of advice was a requirement such as in the legal of financial profession. But making professionals liable merely for their statements meant that this was a wide area with which professionals would seek to omit certain statements or act negligently (City Law School, 2010). The courts thus narrowed down the duty of care where the giving of advice was concerned.

            The courts then established the ‘Caparo’ test in Caparo Industries plc. v Dickman (1990) 2 AC 605. In this case, Lord Bridge of Harwich established that “that the necessary relationship between the maker of a statement or giver of advice (the adviser) and the recipient who acts in reliance on it (the advisee) may typically be held to exist where (1) the advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given, (2) the adviser knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose, (3) it is known, either actually or inferentially, that the advice so communicated is likely to be acted on by the advisee for that purpose without independent inquiry and (4) it is so acted on by the advisee to his detriment."  

            The courts added another restriction James McNaughton Papers Group Ltd. v Hicks Anderson & Co. (1991) 1 AER 134 by focusing on the statement made by the profession and their actual knowledge on that particular subject as well as the purpose for which the statement was made. The courts would then examine if the advisee blindly relied on this advice. This would then determine the threshold of the professionals duty of care.

Conclusion

            Common law has over the years determined and acknowledged that negligence performed by professionals had to have a different judgment threshold as compared to other negligence torts. Through case law, common law has been able to create standards that have been able to benefit the complainants whose duty of care was breached but also the professionals. For, while they may have above average knowledge in their respective fields, are still prone to human error.

References

City Law School (London, England). (2010). Professional negligence litigation in practice. Oxford, Oxford University Press.

Harlow, C. (2005). Understanding tort law. London, Sweet & Maxwell.

Lunney, M., & Oliphant, K. (2008). Tort law: text and materials. Oxford, Oxford University Press.

Weir, T. (2002). Tort law. Oxford [u.a.], Oxford Univ. Press.

 CBC's The Fifth Estate: Behind the Wall

Introduction

            Humanity is an element that since time in memorial sought to keep the human race in check and to a larger extend distinguish humans as the superior species on the planet. Yet, every so often, an isolated event occurs that then rips off this fabric and leads to the question of whether indeed humanity still does exist. Yet, to keep society in order, a system has been placed in order whereby the criminally liable in society can be held accountable for there actions. However, how does society treat these people? In most cases, there is a justifiable reason as to why human behavior. This is by examining the actions committed by criminal individuals whether intentionally or unintentionally and if in fact to a larger extend whether they were influenced or not. This was the case in CBC's The Fifth Estate: Behind the Wall.

            Ashley Smith’s story not only outlines the serious flaws that can be found in a loose justice system but also clearly outlines the stereotypical thinking that is in most of societies that often than not end up hurting those in the criminal justice system. This particular documentary also clearly outlines criminal behavior in humans, and how society in most ways influences, to a larger extend, that particular behavior through action taken (Williams & McShane, 1998). Over the years, criminological theories have existed that have sought to explain criminal behavior and what Influences the actions taken by societies criminals.

Criminological theories

            There are a number of very evident criminological theories that outline themselves in ‘The Fifth Estate: Behind the Wall’ documentary. These theories to a larger extend not only seek to explain the actions taken by Ashley Smith once inside the justice system by also what may have led to her criminal behavior in the first place (Vito & Maahs, 2012).

In Ashley Smith’s case, there is an element of the positivist theory that can be examined at two stages of her ‘criminal life’. Before the final arrest, this girl had been in trouble for committing minor felonies. There was a noted behavioral change that shifted towards criminal behavior that her parents had noted. This particular theory propagates that biological deficiency as well as psychological and sociological factors determine whether an individual causes a crime or not (Cullen & Agnew, 2003). In Ashley’s case, it was determined that she was mentally unsound but only after she had showcased multiple criminal characteristics.

            Initially, the crime committed by Ashley were seen as an antique to be able to gain attention since she was foster care system, however, further cases revealed that she was suffering from ADHD, learning disorder, borderline personality disorder and narcissistic personality traits. All of these diagnoses more often than not are linked with criminal behavior that is in most cases disruptive. What is sad however is the fact that this particular individual had already showcased signs of disruptive behavior not only in school but also in society, however, it had taken a great number of crime committing for the system to acknowledge that there was a problem that bordered on the psychological as far as Ashley was concerned. There are studies that have effectively linked crime committing with children that are in the fostering system. By examining, the environment as well as the psychological factors that surrounded that particular girl, then one would understand why she was likely to gravitate towards crime (Siegel, 2013).

            The social disorganization theory is also evident in this particular documentary. This particular theory propagates that crime is caused by the existence of disorganized communities. This is because of the informal social controls that break down leading to the emergence of criminal culture (Rafter, 2008). Social disorganization is viewed in the way society and the criminal system handle Ashley’s case. It was only after she had committed a number of misdemeanor felonies that she had been taken for psychological assessment which had come out clean in the first instance. Further commission of crime was what had revealed that she was mentally unsound.

            The criminal justice system can also be faulted to a larger extend. This is because of turning a simple 30 day sentence into a four year process. Without a doubt, this would have left a mark on the life on the child with a disturbed past who was then being exposed to a process that was likely to leave a dent in her life, thus her last resort. Clearly, whilst the correctional system has been put in place, the system was flawed enough not only not to notice a potential problem but slow enough to take Acton when it was needed. Similarly, there is a mention of the fact that the deceased was a time transferred to 17 different facilities in a single year. This leaves a sense of uncertainty as well as unrest to any individual who has to be constantly moved from one facility to the other with a short spurn of time (Cullen et.al, 2006). It can be argued that the delay in justice ‘social disorder’ led to the demise of Ms Ashley Smith.

            Crime can be learnt through association. This was the case as far as Ashley was concerned. The Differential Association Theory suggests that an individual is mostly able to learn certain behaviors through their interactions with other individuals with those characters. This can best be termed as influences. Like most teenagers her age, Ashley was clearly undergoing a rebellious phase that needed to be handled. There is a high probability that interaction with antisocial peers is likely to lead to crime (Lilly et.al, 2010). However, the handling of that phase is what kept her going back to crime. It was clear that prior to the main sentence, the girl had been in and out of court on several occasions and seemed not to e learning anything. Fact is that her influence and the company she was keeping clearly were not helping her. This exposure to the criminal system for that period of time meant that she also got to interact with other like her in the correctional facilities. Thus, rather than learning a lesson from the mistakes she had committed, she was further influenced down the wrong path. Towards, her suicide, she was more stubborn and committed self injury. In fact the correctional staff stated that she often advised them that she could afford to do dangerous things to herself and other for she knew that it was the staffs’ job to protect her. This dangerous yet cocky culture is one that she would have likely picked up in her interactions with other inmates in the different reactions. Thus instead of softening her, the system only served to harden her resolve.

            The above theory then takes one back to the labeling theory. This particular theory outlines the fact that individuals are likely to stabilize in criminal roles that have been created for them (Champion, 2011). This leads to this individuals creating criminal characters for themselves and if not heard or understood are likely to be taken to prison which effectively eliminates them from other conventional roles. Initially, Ashley was incarcerated for bad behavior, through out her sentence; there is a clear defiance that might depict the fact that she is trying to continue to depict her ‘bad behavior’ role. There is a clear stigmatization on the part of her handlers for they stop interacting and evening dealing with her. This stigmatization continues for they watch as she commits suicide having been given the orders not to touch her until she draws her last breath. This type of treatment not only fires up her criminal behavior but also manages to drive her to her own death.

            The final theory that was clearly visible in the behind the wall documentary was the social bond/social control theory (Buss, 2012). This theory suggests that there are particular social bonds that are formed that between an individual and the society around them that are likely to influence that individual either in a positive or negative way. It requires that an individual participates in the norms of the society they live in or risk being anti social. These norms include growing up in a family that loves and supports that individual as well as participating in activities such as making friends or attending school. Therefore it is important for these bonds with society to be strengthened. On the flip side, where these bonds are weakened, there is likelihood that that particular person will commit crime (Caplan et.al, 2011).    According to the research of Travis Hirschi, insecure attachment is synonymous with a greater susceptibility to mental disorders in adult life. This was witnessed in Ashley’s case. There were a few problems that emanated from the fact that she was adopted and thus she felt out of place. Later, she was found to have been suffering from typical disorders that are more often associated with lack of social bonding suicide being the last disorder (Hoeve et.al, 2012). Reports also indicate that she had been suspended from school on multiple occasions because of her disruptive behavior. This meant that her participation in the social norm that is referred to as education and attendance of school was reduced. In most societies, school served as a forum where children get to interact with other as well as learn. The fact that there was less interaction meant that had ‘bad behavior was likely to increase. The situation was worsened with the fact that the bonds would not even be created in the correctional institutions because the staff sort to avoid her on one hand while on the other, she kept on being transferred from one institution to the other leaving her vulnerable and probably scared, thus the outbursts.

Conclusion

            This particular documentary is based on a true story of a young girl whose wrong choices and lack of understanding from society ultimately paid a dear price. What is sad is the fact that criminology theories exist that that if applied would have helped save Ashley Smith. Indeed, instead of ignoring this child’s pleas for attention, society labeled as a nuisance. This ultimately sentenced her to a short life of misery that would have been avoided, had efforts been made to understand her criminal behavior. However, this comes as an important factor that outlines the importance of the application of criminology and the logic of trying to understand criminal behavior in society before sentencing these individuals.

Works Cited

Buss, D. M. (2012). The evolutionary psychology of crime. Journal of Theoretical and Philosophical Criminology, 1(1), 90-98.

Caplan, J. M., Kennedy, L. W., & Miller, J. (2011). Risk terrain modeling: brokering criminological theory and GIS methods for crime forecasting. Justice Quarterly, 28(2), 360-381.

Champion, D. R. (2011). An Integral Model of Criminality: Aspects of Criminal Behavior. Insights to a Changing World Journal, (4).

Cullen, F. T., & Agnew, R. (2003). Criminological theory: Past to present : essential readings. Los Angeles (Calif.: Roxbury Park.

Cullen, F. T., Wright, J. P., & Blevins, K. R. (2006). Taking stock: The status of criminological  theory. New Brunswick, NJ: Transaction Publishers.

Hoeve, M., Stams, G. J. J., Van Der Put, C. E., Dubas, J. S., van der Laan, P. H., & Gerris, J. R. (2012). A meta-analysis of attachment to parents and delinquency. Journal of abnormal  child psychology, 40(5), 771-785.

Lilly, J. R., Cullen, F. T., & Ball, R. A. (2010). Criminological theory: Context and consequences. Sage.

Rafter, N. H. (2008). The criminal brain: Understanding biological theories of crime. New York: New York University Press.

Siegel, L. J. (2013). Criminology: Theories, patterns, and typologies. Belmont, CA: Thomson/Wadsworth.

Vito, G. F., & Maahs, J. R. (2012). Criminology: Theory, research, and policy. Sudbury, Mass: Jones & Bartlett Learning.

Williams, I. I. I. F. P., & McShane, M. D. (1998). Criminology Theory: Selected Classic Readings. Burlington: Elsevier Science.

BUSINESS LAWS

SECTION A

This particular legislation can be interpreted in a number of ways. Direct translation would mean that the rule only applies to vehicles that were purchased in the last three years. Thus any vehicle purchased before that specific period of time is safe. This means that the company’s vehicles are exempted from the rule. Then there is the plain interpretation of statute. This means that the interpretation follows the real meaning that was set out by the drafters while drafting the statute. In this case, the statute outlines the rules that would apply to commercial large goods vehicles which in this case must weight a minimum of 3.5 tones. However, the company has no large commercial vehicle what they have is vans that are unlikely to carry goods that would reach 3.5 tones. One the flip side however, the statute has provision also apply to any other vehicles that belong to commercial companies that have to comply with the use of recycled bio-fuel.

The company may choose to assume the fact that if the item is not mentioned in the statute then there is no way the regulation is applicable to their case. In this case, the company could assume that the statute mentioned commercial large goods vehicles whilst in their case they have vans which have not been expressly mentioned (Eskridge et.al, 2006, p. 321). On the other hand, commercial large goods vehicles can be interpreted to comprise vehicles that carry goods regardless of their size. Therefore as much as the fact that it has been cited that there is a specific weight requirement does not exclude any vehicle that may fall in this category.

The company should also consider that in trying to interpret the statute, they should consider that in cases where a single word of the statute is likely to be vague, the other part of the statute is likely to further explain that particular word. In this case the fact that the particular minimum amount of load that the heavy commercial goods vehicles depicts the categories that are likely to fall under that category. In this case however, Billy is unlikely to incur any costs. On the other hand the company can determine by examining other legislations that link the word van to commercial large goods vehicles. If there exists such a statute then automatically the same will be applicable in the interpretation of this particular statute (Sullivan, 2007, p.123). Alternatively it can be interpreted that the statute by mentioning or using the word vehicle encompassed all subjects that fall within that particular category up to and including vans. This would mean that the company would have to comply with the legislation as far as the mentioning of the vehicles is concerned, but would also mean that they get a lee way as far as the time limit is concerned.

SECTION B

Small claims courts have been over the years been developed with the sole aim of listening to small civil claims between private litigants. However, unlike major courts, this particular court has a limited jurisdiction. In the UK, these courts are deal with non-personal injury cases and listen to cases that range to ten thousand pounds. In the UK, these courts were first introduced in 1973 and had the jurisdiction to listen to cases up to 75 pounds. The courts and the processes involved were based on the fact that judges had the statutory power to arbitrate cases. The maximum case figure has been rising over the years and as of the year 2011, the figure had gone up to 15,000 pounds in a case. What happens in this case is that the judge listens to both sides and decides on the basis of law who was on the right or wrong.

A district judge in a less formal environment usually hears these claims. This means that unlike in the formal court setting where there are lawyers and strict following of legal procedures, these courts exercise less strict legal measures. In fact a usual guiding rule in these courts is that individuals should to be able to carry out their own cases and represent themselves without lawyers. The rules in this case are relaxed but not disregarded. Expensive court procedure that include examinations and cross examinations are not included in these court procedures (Wolfe, 1980, p.47).

Once any plaintiff decides to take the case to a small claims court they should be ready to waive the right to claim more than the amount that the court will award them. Similarly, the plaintiff is not allowed to reduce the claim. To bring the case to small-claims court, the plaintiff must prove that actual damages are within the court's jurisdiction.

As far as the ruling is concerned, once a judgment has been made, then it is the duty of the parties to honor the judgment. In some cases, where the defendant fails to show up then the judgment is made in favor of the plaintiff (Jasper, 2005, p.16). Billy should understand that winning a case in a small claims court does not automatically mean that they will get paid immediately.

However, where the defendant is willing to pay, the payment may be collected in either wage garnishments or liens. It should be noted that before an individual can file a suit, the judges will encourage the parties to seek alternative dispute resolution. It is also important to note that most cases taken to small claims courts can be appealed to courts with higher jurisdictions

PART 2

The treaty of the functioning of the European Union also applies in a case such as this where a government seeks to ban an item it believes is bad for health. These are provided for under articles 34 and 35 where the law states that quantitative restrictions on imports and exports are prohibited between member states (Chalmers et.al, 2010, p.357). The treaty on one hand describes the prohibition of quantitative restrictions on one hand but fails to describe the Measures having Equivalent effect to a Quantitative Restriction (MEQRs). However case law does explain the instance where the restrictions placed a state as far as the trade of particular items is concerned.

In Procureur du Roi v Dassonville 8/74 [1974] ECR 837, the court described MEQRs as "all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade" which it then went ahead to find was illegal under treaty law (Craig, & De Búrca, 2008, p. 666). This was the courts position also in Commission v Ireland 249/81 [1982] ECR 4005 as well as Commission v UK 207/83 [1985] ECR 1201 cases (Horspool, 2006, p.59).

The court sort to expound on the definition of quantitative restrictions in the case of Geddo v Ente 2/73 [1973] ECR 865 by determined that quantitative restrictions are "measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit."

However, article 36 provides an exemption where states can impose restrictions on goods either imported or exported outside the country. Under this article Quantitative Restriction are justified under the grounds of "public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property". However, even if this is the case, the article goes ahead and outlines that the states must ensure that the restrictions do not "constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States". The courts position on the matter was outlined in Cassis de Dijon 120/78 [1979] ECR 649. Here the court determined that there is a presumption that the standards applicable in one member state were mutually recognized by the other member states. Thus, the court found that “Once goods have been lawfully produced and marketed in one member state, they should be free to be marketed in any other member state without restriction.”

In this case the rule is that goods produced and accepted in one country have to be accepted in the other country. This means that it would be unfair for the UK to ban products from Germany while maintaining similar products in their country. Thus, the move by the UK regarding the partial banning of the pesticide products was unfair. On the flip side, the fact that UK banned certain plastics that had also been banned in their country means that they are generally concerned about the environment and the health of their citizens.

References

Chalmers, D., Davies, G. T., & Monti, G. (2010). European Union law: cases and materials. Cambridge, UK, Cambridge University Press.

Craig, P. P., & De Búrca, G. (2008). EU law: text, cases, and materials. Oxford, Oxford University Press.

Eskridge, W. N., Frickey, P. P., & Garrett, E. (2006). Legislation and statutory interpretation. New York, Foundation Press.

Horspool, M. (2006). European Union law. Oxford, Oxford University Press.

Jasper, M. C. (2005). Small claims courts. Dobbs Ferry, N.Y., Oceana Publications.

Sullivan, R. (2007). Statutory interpretation. Toronto, Irwin Law.

Wolfe, R. P. (1980). Small claims courts: records management and case processing. [Williamsburg, Va.], National Center for State Courts.

Law Case Study

Introduction

English land and property law has had many years to be developed. The law now tends to focus more on the needs of the tenants more or less equally as those of the property owners. Thus, any person that feels that their was any kind of unfairness towards their rights may see redress either through common law or equity.

PART A

Possible claim of Mr. Jones

Mr. Jones had been granted the permission to walk through the 3 Bishop Close gardens by the previous owner, Mr. Seymour. The permission granted may have been oral or in writing. It may also be granted expressly or impliedly, there are no formalities required, R (Beresford) v Sunderland CC[1]. Common law allows an individual to use consent as a defense for trespass which is considered a tort.

In this case, Mr. Trudeau may file a suit against Jones for trespass on private property. Under tort law, trespass on land occurs when an individual goes onto land that belongs to another person without that person’s permission. In this case, permission/license implied or otherwise, was granted to Jones by the previous owner. In most cases, licenses are irrevocable unless there is a flaw in the agreement or the permission was granted by way of contract. Consent plays an important role in any trespass case. In this case, the license is viable unless the defendant violates the term of the license by exceeding the terms set out in the license. In most cases, the person who gave it in the first place is the only one that can withdraw consent. In this particular case, Mr. Seymour disappeared without saying anything to this effect. Furthermore, there was no contract between Mr. Trudeau and the seller of the property that stated anything to such an effect. The kind of license in this case can be described as a bare license. A bare license comes in where gratuitous permission is granted.

Trespass takes place where the consent granted by the owner of the piece of land is removed. Common law has been able to establish that bare license can be used as defense against trespass. In Goldsack v Shore (1950) 1 KB 708, the court determined that indeed when granted permission to enter into another persons property by that person then that does not amount to trespass. However, case law also establishes scenarios where a bare license amounts to trespass. In Hillen and Pettigrew v ICI (Alkali) Ltd[2], Lord Atkin stated that ‘So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.’ [3] This means that the court recognizes that at some point, permission can be granted for an individual to trespass, however, if the permission granted is taken advantage of, then it can be revoked. Similarly, case law has established that if an individual enters the place that they have granted permission to enter for other reasons other than those he was given permission to enter for in the first place, bare license would be revoked and the action would amount to trespass, R v Pratt[4]. Finally, the courts have set out one last condition that may negate a bare license situation. This was outlined in R v London CC, ex p Corrie[5]. In this case judge Darling, established that where it is known, or understood, that the occupier of the land would not have given permission then would amount to trespass.

In this case, all Mr. Jones has to prove to the court is that the previous owner, to be able to use the garden as a path, had indeed granted him permission. Once this has been established, he has to prove that he has been using the garden as a path and that he has not used it for any other purpose other than that spelt out in the agreement that he had with the previous owner. It is also his duty to prove that the previous owner had not revoked the consent.

PART B

Possible claim of Mr. Jefferson

Jefferson had an oral agreement with the previous owner Mr. Seymour. The agreement was that the previous owner would sell the property to him. In the first instance, Jefferson had made the offer to buy, but there had been no acceptance on the part of Seymour, who had not been ready to sell the property. In the second instance, four years later, Seymour had made an offer to sell the property to Jefferson. Jefferson had accepted the offer and stated that he had instructed his lawyer to complete the paperwork. This is in effect an oral contract between the two parties[6]. There is also the fact that Seymour indicated that the offer was valid for the next ten years.

Based on the facts provided, there is likelihood that Mr. Jefferson may take the legal action of applying for an estoppels order[7]. The fact that the agreement was that the offer was up for ten years means that there was an implied contract. In this case, the Estoppel likely to be relied upon is that of a promissory[8] nature. Under Equity law, promissory Estoppel arises when one party gave a promise and the other party relied upon the promise and acted upon it. Equity law considers Estoppel as a shield in law[9]. Thus, Jefferson could argue that the previous owner had made a promise to him and that that promise had not been fulfilled. Lord Denning set out the conditions in which estoppel way be applied in Central London Property Trust Ltd v High Trees House Ltd[10]. In this case, Denning established that promissory estoppel requires that 1) there was a promise made either by way of words or by way of actions, 2) that their was a change in the position of the promise because of the promise and finally that 3) it would be unfair if the promisor was to go back on their promise. In this situation, Jefferson would have to lose the house that he had really wanted. The law is clear as to the fact that promissory estoppel may in fact be considered in situations where a pre-contractual exist. Lord Denning in Brikom Investments Ltd v Carr [11]established that promissory estoppel may arise where promises were made in the midst of negotiating a contract[12].

Two factors have been put into consideration before one can be able use promissory estoppel in a court of law. The first is the fact that generally, estoppel is used as can only be used as a defense. The general doctrine is that promissory estoppel can only be used as a ‘shield not a sword’. Thus, the doctrine cannot be used to bring an action against a person in a court of law. Generally, estoppel is used in evidence to prevent the promisor from denying the truth of the existence of the promise that the promisee had relied on[13]. However, the court has changed this position in Evenden V. Guildford City AFC[14] where the court held that ‘promissory estoppel can be a cause of action’ in a court of law. The courts are fast in outlining the fact that whiles the promise need not be expressly made; there is need for the promise made to be precise and unambiguous. In this case, promissory estoppel is in order because of the fact that the house had been promised to Jefferson and an oral contract had been made, thus it can be concluded that there was a promise made in the cause of contract negotiations that was not fulfilled.

The second factor to determine before using promissory estoppel is the fact that it is a temporary measure which can stop at any given time. Estoppel does not extinguish the original rights of the parties involved in the suit. The position of the court on this matter was established in Tool Metal Manufacturing v Tungsten[15], where the court held that estoppel merely suspended the legal rights of the parties rather than extinguish them.

Alternatively, Jefferson may opt to sue for anticipatory/repudiated breach of contract. This kind of breach occurs where a promise was made then a party declares that it does not intend to fulfill their obligations under law. the courts have established that where a repudiated breach occurs, the performing party to the contract is usually excused from their obligations[16]. The courts position on the matter was first established in Hochster v De La Tour[17][18]. In this case, the court found that in the event that a contract is repudiated before the performance date, the offended part y may claim for damages immediately. Lord Campbell in this case stated that ‘If a man contracts to execute a lease on and from a future day for a certain term, and, before that day, executes a lease to another for the same term, he may be immediately sued for breaking the contract’[19]. Thus, the fact that there was a contract between the two parties and the previous owner negated on the promise made gives Jefferson the right to seek compensation from the courts for breach of contract.

PART C

Possible claim of Mr. Adam

Claims from Adam could arise from the fact that there existed a six year lease contract between him and the previous owner. Under English property law, the leaseholder owns holds the lease to the property of the freeholder. This is like renting the property for a given period. Under English common law, there are number of statutes that determine how leases are handled in the United Kingdom. These include; Landlord and Tenant Act 1954, Law of Property Act 1925 and Housing Act 1988. Recently, leases and their definition are created under Common hold and Leasehold Reform Act 2002 s 17. The law on leases is the same as any other contract law. This means that breach of any law is results in penalties for both parties. The law requires that all leases under seven years be written but not necessarily registered. In most cases, a lease divides property by time. It also seeks to protect the tenants and his interests. The Law of Property act 1925 outlines the terms that dictate that a tenant not be unfairly dismissed because in most cases the tenant has lower bargaining power than that of the owner. Case law sets out the conditions of required in determining the definition of leases. In Street v Mountford[20], the court determined what a lease is under common law and equity.

The fact that the lease is contract like any other, there are a number of considerations that have to be put in place. The first is that if the contract is terminated, then the client can sue for breach of contract by the owner. This is more so in a situation where the tenant has not been fore warned of the new developments or if they are not given adequate reason for the termination of their contract. However, the law does give the property owner lee way by providing them with the opportunity to apply for the forfeiture of the lease. In this case, the owner has the right to terminate lease where the lease holder has breached one of the terms of the contract. In this case, the lease had stated that the property would not be used for any business which Mr. Adam was violating by selling drugs. Under the Law of Property act 1925 s 146, once the tenant has breached a term of the contract the leaser must serve a notice to the tenant specifying the breach, expressing that the beach be remedied and asking for a fine for the breach.  However, there is the case that the house had shifted owners. In this case, the lease automatically transfers to the new owner who can be sued by the tenant. Thus, the tenant is likely to take a claim to court for breach of contract. The other likely remedy that he may seek is that an injunction that may be strengthened by application to be a tenant by estoppel. An application to be a tenant by estoppel may arise from the fact that there has been a contract that was being breached. This is because he was fulfilling his side of the bargain by paying the rent and that the contract had stipulated that he was to remain in the premise for six years yet he was being evacuated from the very same premises. Under lease law, prove of the existence of a lease does not have to include the existence of consideration which in this case is the rent. The courts have established that even without the rent and with the existence of Tenancy by estoppel will be able to give the tenant permission to stay in the residence until a solution has been found. Law of Property act 1925 s 146 also allows for a special notice that the tenant can apply for that will require that the property owner require a special court order to be able to use force in the eviction of the tenant. The tenant is likely to apply to court for an order that requires that the property owner give reason for the eviction, if the new owner decides to evict him.

Situation if the sale was in 2003

The situation would have been totally different if the sale were conducted in February 2003. This is because; there would have been no verbal agreement between Seymour and Jones. Thus, any attempt to use the garden as a path would have amounted to trespass. The verbal contract that was created between Seymour and Jefferson would not have taken place if the sale had been conducted in 2003. This is because there would be no offer or invitation to treat. Finally, a 2003 sale would ensure that there was no lease on the property to Adams. Thus, there would be no breach of the lease contract that may have been created between the two parties. This would also have averted the potential confrontation between all the parties.

Conclusion

Land law in the United Kingdom is governed by common law as well as equity and case law. Equity was created so that it can be able to mitigate the harshness of common law. Land law is therefore such that the interests of both parties can be fairly mitigated. In this case, it is clear the person with the most liability is Mr. Seymour. However, he is nowhere to be found. It is also clear that the property was transferred to Mr.Trudeau which shifted the burden to him. The law examines both sides of the coin; it looks at the position of both the accuser as well as the accused. Thus, while the law might seem as though it is on the side of the complainant, it will always examine the position of the accused.

References

Cartwright, John, and Martijn Willem Hesselink. Precontractual Liability in European Private Law. (Cambridge, UK: Cambridge University Press, 2008).

Clarke, Alison, and Paul Kohler. Property Law: Commentary and Materials. (Cambridge [u.a.]: Cambridge Univ. Press, 2005).

Cooke, Elizabeth. Land Law. (Oxford, U.K.: Oxford University Press, 2012).

Cullingworth, Barry, and Vincent Nadin. Town and Country Planning in the UK. (London [u.a.]: Routledge, 2006).

Furmston, M. P., G. C. Cheshire, and C. H. S. Fifoot. Cheshire, Fifoot and Furmston's Law of Contract. (Oxford, N.Y.: Oxford University Press, 2006).

Gray, Kevin J., and Susan Francis Gray. Elements of Land Law. (Oxford: Oxford University Press, 2009).

Gray, Kevin J., and Susan Francis Gray. Land Law. (Oxford: Oxford University Press, 2007).

Hogg, Martin. Promises and Contract Law: Comparative Perspectives. (Cambridge: Cambridge University Press, 2011).

Holdsworth, William Searle. A history of English law. (1922) Vol. 1. Methuen,.

Le Sueur, Andrew. Building the UK's New Supreme Court: National and Comparative Perspectives. (Oxford [u.a.]: Oxford Univ. Press, 2004).

MacKenzie, Judith-Anne, and Mary Phillips. Textbook on Land Law. (Oxford: Oxford University Press, 2012).

McFarlane, Ben, Nicholas S. Hopkins, and Sarah Nield. Land Law: Text, Cases, and Materials. (Oxford, U.K.: Oxford University Press, 2012)

Reid, Kenneth G. C. The Law of Property in Scotland. (Edinburgh: Butterwoth Law, 1996).

Sexton, Roger, and Barbara Bogusz. Land Law: Text, Cases, and Materials. (Oxford: Oxford University Press, 2011).

Simpson, Alfred William Brian. "An Introduction to the history of the land law." An Introduction to the history of the land law. (1961).

Stuckenschmidt, Heiner, Erik Stubkjær, and Christoph Schlieder. The Ontology and Modelling of Real Estate Transactions. (Burlington, VT: Ashgate, 2003).

[1] (2004) 1 AC 889

[2] (1936) AC 65 HL(E)

[3] Also cited in British Railways Board -v- Herrington [1971] 1 All ER 749, and, Tomlinson -v- Congleton Borough Council and others [2003] 3 All ER 1122

[4] (1855) 119 ER 319 at 321

[5] (1918) 1 KB 68 at 73

[6] Any contract needs to satisfy three conditions to be able to be deemed valid. These are an offer made, acceptance as well as consideration. The fact that Seymour made an offer to sell the house for a specific amount of money to Mr. Jefferson who accepted the offer meant that an oral contract existed between the two

[7] Estoppel arises under common law where an individual causes another party to act on an assumption as part of a relationship. Estoppel compels that individual not to depart from the agreement.

[8] The doctrine of promissory Estoppel was first established in Hughes v Metropolitan Railway Co (1876-77) LR 2 App Cas 439 UKHL 1 and was later developed by Lord Denning in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

[9] Combe v Combe [1951] 2 KB 215 CA

[10] [1947] KB 130

[11] [1979] 2 All ER 753 CA

[12] The courts held similar positions in Durham Fancy Goods V. Michael Jackson (1969) 2 QB 839

[13] Lord Denning in Combe v Combe [1951] 2 KB 215 CA said that “The principle does not create new causes of action where none existed before. It only prevents a party from insisting on his strict legal rights when it would be unjust to allow him to enforce them”.

[14] (1975) QB 917

[15] [1955] 1 WLR 761 HL

[16] The promising party can retract the repudiation so long as there has been no material change in the position of the performing party in the interim. Thus, a retraction of the repudiation restores the performer's obligation to perform on the contract

[17] [1853] EWHC QB J72

[18] Subsequent cases on the matter include Vitol SA v. Norelf Ltd or The Santa Clara) [1996] A.C. 800; [1996] 3 W.L.R. 105; [1996] 3 All E.R. 193

[19] Ford v. Tiley, 6 B. & C. 325

[20] [1985] 2 WLR 877

The state of Nevada’s Assembly Bill #6

Introduction

The Bill proposes that anybody who has been convicted by a court of law should be required to install an ignition interlocker device, at their own expense, in his or her vehicle or any vehicle they intend to drive. Only after complying with this order should these people be allowed to drive. The ignition interlocker device is a mechanism that once installed in the vehicle requires that the driver blow into it to determine the level of alcohol in their body. The legislation then outlines the period that the convicted person must use the device depending on the number of times that that individual has been convicted of the crime of driving under influence. The amount of time required to use the device may also be affected by some other factors that the judge has the desecration to determine.

Ignition interlocker legislation

Currently, the state of Nevada relied on §484.3943(1) and (2) when it came to the use of ignition interlocker devices. This particular law only outlined the length of time a convicted would use the device as well as gives the judge the power of discretion when determining when one can use the device. The law also points out the fact that the court may demand the installment of the device as a condition for the reinstatement of driving privileges (NCSL website).

The difference between the bill and the law that the state of Nevada had previously adopted and is still using is the fact that the bill addresses the expense of the installation of the device. The bill recognizes that the installation of the device may be an expensive venture thus for the state as well as the individual. Thus, the bill places the expense of buying and installing the device on the defendant. It also puts into consideration the fact that the defendant may not be able to afford the expense of the device and provides an alternative for the defendant.

Many other states have legislation that is either similar to this bill or has provisions that generally point towards the use of ignition interlocker devices. In fact, fifteen states have legislations that have ignition interlocker provisions as mandatory. For other states, while the installation of the lock is not mandatory in after the first conviction, there are stronger inclinations in subsequent conviction (Jasper, 1999, p.21). However, whist in some states like Arkansas, there is the mention of installation only if the defendant can afford it, most states do not mention about the expenses afforded and who is responsible for those expenses.

The bill is in the best interest of protecting not only the defendant but also society in general. However, the defendant is likely to incur the cost of the purchase as well as installation of the ignition interlocker. The legislation is clear in stating that the defendant will have to incur his or her own expense. This means that the state wants nothing to do with the purchase or installing of the product.

Costs involved in the implementation of the bill

This bill directly affects the people of Nevada because of the costs likely to be incurred by the people. In this case, the state is removing any cost expenses that may be involved in the in the purchase or installation of the device. The bill is in many ways good as it helps give as second chance to the defendant to be able to drive again. However, this freedom comes at a cost to the defendant. This is because, since the state will not be responsible for the purchase or installation of the device, the defendant will shoulder this cost. There is also the fact that the since the device is required to be installed for a limited period, no one person can buy a new one unless they can afford to. The installation of one device costs a couple hundred dollars. This is costly without adding the fact that the device has to be maintained and checked on a monthly basis. It will cost the person with the device installed approximately a hundred dollars a month to be able to keep the device (Snyder, 2009, p.56). In most cases, the device can be rented out for the specific amount of sentence that the court has decided. The cost of renting as well as the scheduled check-up of the device depends on the vender of the device. There is also the fact that the device has to be installed in all the vehicles that the defendant intents to drive. At the end of the day, the person who ends up paying the larger cost in this case is the defendant. On the other hand, most businesses that deal with the selling of as well as maintenance get to rake in a lot of profit from the business. The state on the other hand benefits economically from the taxes received from the businesses. However, with this bill, the state removes all costs that may be related to the purchase, installation or maintenance of the device. In this case, the duty of the state is to only ensure that the device has been installed and is being properly used and maintained.

Benefits of the proposed bill

The benefits of the proposed bill however greatly outweigh the cost in more ways than one. In the first instance the defendants are allowed the freedom, though restricted in a way, to drive. It is more so beneficial for people with multiple DUIs because rather than revoking or suspending their licenses, they are given a second chance to drive (England, 1988, p.34). Secondly, society is kept safe because the people are not allowed to drive while under influence. This is because it keeps hardcore drinkers from going behind the while while drunk. The legislation seems to be concerned about the safety of children who always end up being victims in most cases where DUIs are involved. Thus, in this case, the interest of the society comes first. Finally, the costs of paying a penalty for DUIs and in most cases those that get multiple charges is always on the higher end with people having to part with up to five thousand dollars as fines. Compared to the fine, purchasing and installing an ignition interlocker is cheaper.

The responsibly of any given government is to equally protect and look after the interests of its citizens. This particular legislation illustrates the role that the government plays in ensuring it exercise its role of limited government. The state has the right in intervening when an individual is likely to cause havoc in society due to negligence. In this case, driving while under influence is posing a threat to the society. The state has to come in and try to eradicate the problem before it happens. Thus, while it is the duty of the government to intervene in the rights and freedoms of their citizens, it has the duty to protect its citizens and the general population. The citizens have to understand that each right afforded to them by the constitution comes with a responsibly. In this case, while the government has no right to interfere with their right to drinking alcohol, it is the duty of government to protect society and its’ citizens from the reckless consequences that may result from excessive drinking, DUI (drinking under influence) included.

Conclusion

While state of Nevada has the duty to practice limited government, it is also their constitutional duty to protect the American citizens. This particular proposed bill is a clear advantage to the people of Nevada. Not only does it give DUI offenders a chance to live a controlled normal life, but ensures that such persons are kept off the road. However, there are many advantages of adopting the legislation on ignition interlock devices.

A recent study conducted in 2005 by students in New Mexico (which had adopted ignition interlock legislation in the same year) found that in that year alone, 700 fewer alcohol related accidents had occurred (Marques et.al, 2010, p.1). In fact, a research carried out by the American CDC (center of disease control and prevention) found that when installed, the device re-arrested rates for alcohol-impaired driving decreased by a median of 67 percent relative to drivers with suspended licenses. The department had prompted this study for it had found that in a day, drunk drivers were killing thirty people (CDC press release, 2011, p.1). Since the adoption of these legislations in different states, this statistic was changing. Thus, adopting this bill would be in the interest of the people of Nevada.

Works Cited

Jasper, Margaret C. Drunk Driving Law. Dobbs Ferry, N.Y: Oceana Publications, 1999. Print.

England, Robert. Ignition Interlock: Curbing Drunk Drivers with Modern Technology. Boston, MA (30 Winter St., Boston 02108: Massachusetts Legislative Research Bureau, 1988. Print.

Snyder, Eileen. Ignition Interlock Devices. Madison, WI: Legislative Reference Bureau, 2009. Print.

CDC press release, 2011. Center Of Disease Control and Prevention. Accessed in 2013 at http://www.cdc.gov/media/releases/2011/p0222_ignitioninterlocks.html

State ignition interlock laws, 2013. National Conference of State Legislature. Accessed in 2013 at http://www.ncsl.org/research/transportation/state-ignition-interlock-laws.aspx

Marques, P. R., Voas, R. B., Roth, R., & Tippetts, A. S. (2010). Evaluation of the New Mexico Ignition Interlock Program (No. HS-811 410).

Good reasons for criminal behavior-an evolution, of motives, justifications and excuses

The examination the socio/environmental factors surrounding some of Canada’s most serious child offender as well as hardcore Juvenile repeat offender cases.

Introduction

The Canadian broadcasting corporation recently published an article in their website titled under the world news section ‘children who kill children: 6 high profile cases’[1]. This report reported the six most publicized cases of this nature in the world. Shockingly, out of the six cases, three of these cases involved Canadian children[2]. In these cases, the offenders either received first or second degree murders. Statistics indicate that in the year 2010/11, between 15,000 and 20,000 were charged in a court of law and convicted for committing one or another form of violent crime.

Thesis statement

The commission of crime by children under the age of eighteen is usually influenced by external factors beyond the control of the child. These factors whether directly or indirectly end up affecting the decisions as well as the choices that the child makes including criminal activities. The social and environmental factors that surround any child ultimately dictate the morals that any given child is likely to pick up. The examination of these socio/environmental factors as well as an evaluation into how this factor can be shifted for bringing up less criminally inclined children would be the ultimate solution. Studies have indicated that there is a direct link between the sociological and physical environmental a child grows in and the likely behavior the child is likely to exhibit. This can in turn become criminal behaviors that are likely to be exhibit in certain children and which lack in others. This essay will examine these social and environmental factors that affect these children in relation to the hardcore juvenile offenders as well as the some of the prominent high profile child offender cases.

Essay outline

The essay will generally examine the social factors then the environmental factors highlighting each factor individually. The essay will then combine the two and examine them in relation to the general upbringing of the Canadian serous juvenile offenders. Finally, the paper will examine some of the high profile child offender cases, and how the social and environmental factors were highlighted in these cases.

Sociological and environmental factors

Social factor are the surround a particular human that influence his behavior. These affect an individual’s lifestyle character and attitude. Thus, the way a child is taught to act will influence their eventual outcome. This refers to a period in a child’s life where they learn are they are taught the rules and values of society. Thus at this stage, they are taught either directly or indirectly what is right or wrong[3].   Socialization thus refers to the developmental period where the ideals of morality and socially acceptable behavior are instilled in a child. If a child is constantly taught how to act through both positive and negative reinforcement, the child will begin to exhibit certain characteristics because they believe them to be inherently correct. The opposite of this would be if a child is not taught how to properly act or inconsistently reinforced, clear-cut moral obligations may not be instilled in them leading to effected social judgment and a disposition towards criminal behavior.

Children tend to assimilate the things around them, thus at this stage family and peers play an important role in influencing the actions of that particular child. If a child is exposed to a negative family or bad peer pressure they are likely to engage in bad behavior[4]. The decisions that parents make mostly influence the child[5]. The child is likely to pick on what they see from their parents. Thus, if say a child is from an abusive family, they are likely to engage in violence. On the flip side, children who do not associate with other children or the general population are likely to engage in criminal behavior than their social counterparts.

Environmental factors on the other are the general factors that sound the child outside home[6]. These include issues such as poor performance in school, bullying, which is a major contributory factor, the environment in which the child lives such as the neighborhood. In such a case, a child living in a gang infested neighborhood is likely to join a gang[7]. Thus is the child lives in an environment that is likely to provide agents that facilitate criminal behavior then that child is likely to be influenced.

Case study

In the famous Reena Virk case all the participants in the violent beating and subsequent murder of the deceased were children[8]. It was observed that during the trial, all the girls who formed part of the group that beat up the deceased did not look remorseful and in fact they could be described as ‘cocky’. The decisions made by this children and the subsequent actions could best be described as a disconnect from responsibility or what could be referred to as a blind moral spot that society had overlooked and that had ended up resulting in the worst form of criminal behavior.

One can therefore conclude that indeed external factors, including those of a sociological and environmental nature play a very important role in establishing bad criminal behavior more so with the juvenile offenders.

References

Tolan, Patrick H., Kenneth Dodge, and Michael Rutter. "Tracking the Multiple Pathways of Parent and Family Influence on Disruptive Behavior Disorders." Disruptive Behavior Disorders. Springer New York, 2013. 161-191.

Grunwald, H. E., Lockwood, B., Harris, P. W., & Mennis, J. (2010). Influences of neighborhood context, individual history and parenting behavior on recidivism among juvenile offenders. Journal of youth and adolescence, 39(9), 1067-1079.

Farrington, DaviD P., S. I. M. O. N. E. Ullrich, and RANDALL T. Salekin. "Environmental influences on child and adolescent psychopathy." Handbook of child and adolescent psychopathy (2010): 202-230.

Burt, S. Alexandra. "Rethinking environmental contributions to child and adolescent psychopathology: a meta-analysis of shared environmental influences." Psychological Bulletin 135.4 (2009): 608.

Rajiva, Mythili, and Sheila Batacharya, eds. Reena Virk: Critical perspectives on a Canadian murder. Canadian Scholars’ Press, 2010.

[1] http://www.cbc.ca/news/world/children-who-kill-children-6-high-profile-cases-1.1322603

[2] - A Toronto 14 year old boy who was charged for the murder of 16 year old Yusuf Tifow who was charged in 2013

- A 13-year-old Alberta girl was found guilty in the 2006 murder of her eight-year-old brother and her parents

   - A group of teenagers who bet a girl to death in 1997

[3] Grunwald, H. E., Lockwood, B., Harris, P. W., & Mennis, J. (2010). Influences of neighborhood context, individual history and parenting behavior on recidivism among juvenile offenders. Journal of youth and adolescence, 39(9), 1067-1079.

[4] Society generally compares this to criminal behavior.

[5] Tolan, Patrick H., Kenneth Dodge, and Michael Rutter. "Tracking the Multiple Pathways of Parent and Family Influence on Disruptive Behavior Disorders." Disruptive Behavior Disorders. Springer New York, 2013. 161-191.

[6] Farrington, DaviD P., S. I. M. O. N. E. Ullrich, and RANDALL T. Salekin. "Environmental influences on child and adolescent psychopathy." Handbook of child and adolescent psychopathy (2010): 202-230.

[7] Burt, S. Alexandra. "Rethinking environmental contributions to child and adolescent psychopathology: a meta-analysis of shared environmental influences." Psychological Bulletin 135.4 (2009): 608.

[8] Rajiva, Mythili, and Sheila Batacharya, eds. Reena Virk: Critical perspectives on a Canadian murder. Canadian Scholars’ Press, 2010.

Brown .v. Board of Education

What historic case did the Court overrule?

The brown case overruled the famous Plessy v. Ferguson 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) which had upheld segregation of races in schools as long as the facilities, which in this case was the schools provided for the individual races were separate but equal (Alexander & Alexander, 2012).

What is the doctrine of separate but equal?

The doctrine of was a legal doctrine used to justify the system of racial segregation. Under this doctrine, services, public places and facilities were allowed to be separated based on races or colors on the condition that the respective facilities remain equal (Hauser, 1995).

What did the Court say about that doctrine in the case?

The court felt that the doctrine had no place in public education due to the fact that it would deprive children of the minority races equal educational opportunities. The court felt that even though there would have been equality in the amenities, the provision of the services would vary depending on the race size.

How much importance did the Court give to the actual intent of the drafters of the Fourteenth Amendment?

The court, while considering the significance of the creation of the fourteenth amendment did not consider its drafters actual intent. The court felt that the amendment was created during a time when racial segregation was largely being practiced thus there was bound to be partiality in the creation of this law.

What did the Court consider when deciding the case? 

The court in making their decision considered the fact that while the facilities provided to all races might have been equals the education provided varied. Thus the court felt that the educational opportunities that were being given to the different races was bound to be different and would effectively short change minority races (Davis & Graham, 1995).

Do you agree with the Court's reasoning in this case?

In this case, I do agree with the court. This is because the doctrine of separate but essentially made it legal for one to segregate particular races. Not only was the doctrine over dated, but it also provided an excuse that had the potential of being used to provide inferior services for minority races.

References

Alexander, K., & Alexander, M. D. (2012). American public school law. Belmont, CA: Wadsworth Cengage Learning.

Davis, A. L., & Graham, B. L. (1995). The Supreme Court, race, and civil rights. Thousand Oaks [u.a.: Sage Publ.

Hauser, P. (1995). Great ambitions: From the "separate but equal" doctrine to the birth of the NAACP (1896-1909). New York: Chelsea House.

 Analysis of The American Constitution

TASK 1

Analysis of the American Constitution

The bill of rights in the American constitution is an important part that safeguards and protects the rights of the American people. The constitution of any given country is the highest law in the land and surpasses any other law. This principle also applies in the United States. The entrenchment of particular rights in the constitution ensured that these particular rights cannot be infringed upon and that any process of the law cannot remove them. While this is a great way on ensuring that the rights of the American people are protected, some of the amendments made to the American constitution are too important and have to be protected at all costs. On the other hand, some of the rights in the same constitution have been surpassed by events since their inception. These particular laws need not be in the constitution. These can either be removed from the constitution, or placed in other minor legislations.

Most Important Rights in the Constitution

Amendment I

The first amendment is the most important amendment in the constitution. This is because it safeguards one of the most important fundamental universal rights and freedoms. That is freedom of speech and expression. This particular amendment strictly forbids the U.S government from making any laws that may seek to curtail on infringe on these two freedoms. The amendment makes strict reference to religion as one of the means of expression that the government cannot touch. This is important for it ensures that there is versatility and that no specific religion or religious group is targeted (Fallon, 2013).

The amendment further safeguards the right of the Americans to engage in free speech. This gives Americans the right to speak without fear of persecution or prosecution. While there are some exceptions to this particular right, ensuring that citizens can speak out without fear ensure that they can speak up against their government if they feel that it is not performing. The third part of this amendment involves the press and its freedom. While the press in some or most cases tends to exaggerate facts, the press is in most cases the eye of the people. This is because they report on matters that touch on the lives of the American citizens. Safeguarding press freedom ensures that the citizens are able to access unbiased information. The final part of this particular amendment protects the citizens’ right to peaceful assembly (Konvitz, 2001).

This particular amendment was created with the sole intent of protecting any citizen whose intention is to address a particular grievance to the government. This particular therefore foresaw, the governments’ potential to use force in trying to suppress reports or complaints against it.

Amendment IX

The ninth amendment is also an important amendment for it addresses all the other civil rights not outlined in the constitution. This amendment is important for whist the other eight outline the powers of the federal government and seeks to protect the people from the federal government; this particular amendment addresses the rights that are not in the federal governments hands. While there was a great debate on whether or not to include the full bill of rights in the American constitution, a conclusion was reached that against fully incorporating it. However, the ninth amendment was included to ensure that these rights were specifically included. The wording of this amendment is such that it acknowledges that there are other civil rights not mentioned in the constitution that still have to be respected (Farber, 2007).

Thus, this amendment makes provision that bar the denial of certain enumerated rights on the basis that they are not expressed in the constitution. Thus this particular amendment makes provision for other laws including natural rights, implied rights or any other laws accorded to the American citizen either naturally or by laws other than the constitution.

Rights that may be removed

Amendment II

Over the years and specifically in recent years, there has been uproar over the second amendment and its implications in the United States. This is due to the resultant effects of this particular amendment. This is because the amendment grants American citizens the right to carry firearms and that this particular right should not be infringed upon. This particular law has been created so that no other legislative body can restrict the owning or carrying of a firearm

This right has however brought more harm than the good it was intended for in the first place. This is because this amendment was created in the era where there was need to carry the arms in defense of the sovereignty of America against Britain. Back then, America was not a confederate state and there was no established military to fight on behalf of the country. This meant that the citizens had the right to form militias and fight for their country. This particular has however changed and the united states now have a well established military that can fight on behalf of the country (Charles, 2009). Thus, this amendments purpose has been surpassed by events and does not necessarily have to be in the constitution as a right.

Amendment IV

This particular was created to be able to protect the property as well as the privacy of the American citizens. However, this right has been subject to a lot of abuse in one way or the other. This is because; it has given law enforcement a hard time in obtaining evidence that may play an important role in the administration of justice (Amar, 2005)..

Over the years, the courts have been able to establish exclusionary rules and principles to this amendment. These principles have however not been easy. With new technological advancements, this amendment has been able to be bypassed by law enforcement agents as well as the court. The greatest breakthrough regarding this amendment is the USA Patriot Act which was passed in recent years and which lessens the strength of fourth amendment. While this particular right is important, this particular right has been taken advantage of over the years and the courts and legislators have been able to come up with ways around it.

Right that would be included

The right to privacy

There have been conventional issues as to the real position of the constitution regarding citizens’ rights to privacy. The American constitution does not clearly refer to the term individual privacy. It however mentions privacy in a number of other rights and by doing so protects some aspects of privacy. Over the year, American courts have established that the right to privacy is a fundamental human right. The same courts have outlined that this right is covered by the ninth amendment. However, this fundamental right has come to the public eye with controversial subjects such as contraception such as the Griswold and Eisenstadt cases in the Supreme Court. Other contentious matters include the Roe v Wade abortion case and the intermarriage issues as was the Loving case (Rossum & Tarr, 2009).

Thus, the incorporation of a well outlined and defined right to privacy would encompass all issues that deal with the infringement of this particular right. This would also strengthen some of the other amendments that deal with the protection of privacy such as the Third, Fourth and Fifth Amendment.

TASK 2

Homeland Security Issues in Art or Popular Culture

Introduction

Prior to the 9/11 terrorism attack on the United States, homeland security was not a common topic in the minds of American. However, since the terrorist attack, homeland security has been on the spotlight and outlined not only in normal day to day interactions but has also infused in art and popular culture. This comes in form of music, books and comics, the internet and the film industry. Society has been able to use these mediums to create mediums where they can articulate their concerns on issues touching on homeland security.

The Film Industry

Since the 9/11 attack, there have been a number of movies that have been created that have illustrated multiple attacks on the United States. Most of these movies show the role that homeland security plays in either encouraging or thwarting these attacks or attempts. However, prominent in the film industry are the series. These are made and either merely touch on or fully concentrate on homeland security and its issues. One of the very first series that fully concentrated on homeland security was the 2003 series THREAT MATRIX aired on ABC. In the trailer to this particular movie, the president receives a report every morning detailing all international and domestic threats against United States. The justification is because “our nation is a target; Al-Qaeda and other deadly enemies are determined to destroy our way of life; [and] an attack could come at any time, from anywhere around the globe,” this makes the president decide to create “a highly specialized, elite task force trained and equipped to counter anyone or anything that threatens our nation.” The show did not do well and was cancelled due to bad ratings.

However, over the years, there have been other series on Homeland Security, which including one titled HOMELAND SECURITY aired on NBC in 2004. The most successful series made on the topic was titled 24, aired on FOX in 2001, and which lasted for six seasons. The series depicted a fictitious CIA counter terrorism unit that usually has twenty four hours to stop terrorist attacks on American soil. Thus the plot is narrated on the view of a fictitious homeland security. Some sections of the series depict the steps taken by the ‘homeland security’ in stopping the terrorist attacks which left questions in the minds of the viewers.

What is evident in these films is that Americans are worried about the security of their nations and the fact that America has so many enemies both internal and external who wish to the country harm (Boyd, 2008).

Comic books and strips

Like the film industry, comic books and strips are a larger part of the American culture. This is because comic are loved by Americans of all ages. Thus, it was not odd that some of the comic characters and stories touched on homeland security issues. While some of the topics are not purely specified on homeland security issues, once or twice a comic strip series touches on contentious issues.

The Captain America v.4 #1-3 comic was changed 2002 to focus on the national responsibility as well as violence rather than the previous World War II. Other includes Civil War created in 2007 from Marvel by Mark Millar and Steve McNiven. In this comic book, hero fights hero as legislation passes to make the registration of identities and powers requisite. Over the years, there have been other comic strips illustrate issues that touch on homeland security (Bragard, Dony, & Rosenberg, 2011).

Conclusion

The infusion of homeland security issues in art and popular culture illustrates the level of awareness that Americans on these issues. It also illustrates the trust or lack of that the citizens have in their department of homeland security.

TASK 3

Two Pre-9/11 Homeland Security Events

America has been target to terrorism attacks from both internal and external and internal forces. The natures of these attacks vary from one attack to the other. The reasons for these attacks also vary from one group to the other. Whichever reason a group has to mount an attack, homeland security has tacked these attacks before or after they happen. However, some of the attacks mounted have been able to share similarities with the most fatal and memorable attack in Americas history.    

I920 Wall Street Bombing

A non-descript man driving a horse drawn cart stopped the animal with its heavy load in front of the U.S. Assay Office. This office was across the J. P. Morgan building which was the heart of Wall Street. The driver was then said to have quickly gotten down and walked into the crowd. Minutes later, the cart exploded into thousands of metal fragments that instantly killed more than 30 people and injured more than 300 more. What was sadder is the fact that in days to come, more and more injured people succumbed to their injuries from the bomb. The number of victims was high due to the fact that the bomb went off during lunch hours.

Terrorism as a motive was first ruled out. This is because; the scene was cleaned up without detailed investigation on the crime. However, evidence latter revealed that the attack was from an anarchist group referred to as the "American Anarchist Fighters". Investigations into the bombing found that prior to the attack a mail carrier had found crudely spelt and printed flyers from the group that had demanded the release of political prisoners. These fliers were similar to others that had been used in other bombings from the group (McCormick, 2005).

Similarities

There are a number of similarities between this particular terrorist attack and the 9/11 attack. First being that, both attacks were both carried out by extremist organizations. In the former, it has never been established exactly which precise group claimed the bombing. The later was clearly claimed by the al-Qaida organization. In both the attacks, there had been warnings of terrorist attacks. In the former, there were flyers while in the latter there had been intelligence reports and warnings. Both attacks were directed towards the government and both organizations had demands to the government.

1993 World Trade Center Bombing            

This particular attack occurred at the parking lot of the world trade center. Six people were instantly killed from the attack. However, a very large number of people were injured from the attack. Unlike the 1920 attack, investigators suspected that this was a terrorist attack. A search at the bomb site revealed a rented vehicle identification number that belonged to a famous Muslim fundamentalist. Further investigations uncovered other plots planned by cells of Muslim extremists. By making the arrests, the FBI had unknowingly thwarted other similar terrorist attacks which included simultaneous attacks on major land marks. Upon the arrest of the leader, it was established that the groups’ intention was to topple one tower to collapse on the other (Gard, 2003).

Similarities

Islam extremist groups carried both the 1993 and 9/11 bombings. However, while the former did not have a particular name, the later was well organized. It should be noted that in both there was intention to carry out multiple simultaneous attacks. Finally, both attacks were aimed at the world trade center with the resultant impact intended to be fatal.  

TASK 4

1)    If the United States learns about the Scorpions' plan, is President Obama empowered to order a military attack against us? If yes, how would he most likely justify his actions?

President Obama is empowered to order a military attack against the group. This is because over the years, there have been a number of state sponsored terrorist attacks on the country. While, the military will not be able to fully fight terrorism, the international community is encouraged to fight back. Thus president Obama can use international law as a justification to order military attacks on the group (Pillar, 2001).

The law allows the United States to mount attacks on high level militants as a matter of self defense. This might be a problem for them in this case because there are no commanders in the scorpions group. However, they may come after the sub-commanders who are the next in the hierarchal chain. Furthermore, the military is justified under international law to carry out military raids on terrorist bases, safe havens and training camps (Murphy, S. D. (2002).

Based on past military attacks by the United States on countries known to support terrorist attacks on countries that have supported attacks against them, there is a pattern established. This pattern involved resorting to military force as a last resort. However, if forced to the United States may use its military as an act of self defense.

2)    If U.S. Army soldiers detain our fighters and transfer them to Saudi Arabia (a country known to torture people) for questioning, what is this process called? Does U.S. public policy allow for such a practice? If the current U.S. policy is to allow such a practice, is this policy lawful?        

The process of transferring a prisoner, especially one convicted of terrorism to a foreign country for extracting information from them is referred to as ‘Extraordinary Rendition’. Prior to the Obama administration, this practice used to go on. It is believed that despite Obamas’ promise to make changes in the existing interrogation and transfer policies that stop the torture, the practice is still ongoing. These changes would ensure that the receiving country would not torture the prisoners (Nowak et.al, 2010).

Under international law and more specific humanitarian law, prisoners of war are to be treated in a humane manner by whoever has captured them. Similarly, international instruments on torture strictly forbid this act. However, the united states have been able to bypass this in their military manuals by extraditing the prisoners to countries where torture is legal. This act is illegal under international law and legal instruments. Over, the years there have been an international outcry to stop this act by the European Union and other entities including the ICRC (international committee of the Red Cross). Thus, even if the current United States policy were to allow such a practice, it would be illegal under international instruments (Paglen & Thompson, 2006).

3)    As part of its Global War on Terror, the Bush Administration took many captured fighters to Guantanamo Bay, Cuba. If our soldiers are taken there, is it likely that they—none of whom are United States citizens—will be able to access the U.S. federal court system and wage litigation warfare? What is the background and current status of this issue?

Reid v. Covert

Issue

This particular case challenged the supremacy of the American constitution over treaties and treaty law. The case establishes the importance of the constitution and over laws made by congress or signed by the executive.

Other than the supremacy of the constitution, other judicial issues are also established in this case. It questions the role of the military American system of government. Furthermore, the case questions the power of the congress over the exposure of civilians to military tribunals. This denial to engage civilians to civil courts ends up depriving them of their access to constitutionally given rights.

In this particular case, the defendant who had been the wife of a United States air force sergeant had been tried and convicted, by a military court martial in England, for the sergeants’ murder. This had been in accordance with article 2(11) of the uniform code of military justice. The defendants’ argument in this case was that the article under which she was tried was unconstitutional. The argument by the defense in the case was that since the defendant was a civilian, the military has no right trying her under its jurisdiction as it would a military officer. Thus, the defense has petitioned for a writ of habeas corpus because he American constitution forbade the trial of civilians by military authorizes.      

Rules

The case that was a consolidation of two cases was a success. This means that the Supreme Court found in favor of the defendants. What was established in this case was the supremacy of the constitution. The court established the importance of the constitution by establishing its link with the land (United States, 1975). The judges found that the state was a part of the constitution and thus the constitution had the right to protect all its citizens regardless of where they were. The court found that the rights of the American was not only protected by customs and traditions, but also enshrined in the constitution.

Having established the supremacy of the constitution, the court quoted articles III and 2. These laws provide that any trials of crimes by civilian Americans should be done by way of jury. These laws also provide that where the crime was committed outside the jurisdiction where the crime was not done. In this case the constitution gives congress the power to direct by law any other place that such a trial may be held. In asserting this fact the court quoted re Ross, 140 U.S. 453. In quoting the case, the court stated that the where common law and equity then the ministers of such countries had the authority to make laws to make up for such deficiencies.   

The court also quoted the fifth and the sixth amendment. This two laws provide the fact that no American be held answerable for crimes unless before a grand jury. The law goes ahead to state that it was the right of the accused to a speedy and public trial.

The role of the congress as a law making organ as mandated by the constitution was an issue discussed in the case. The judges in this case decided that congress was granted authority by the constitution to make laws concerning American civilians. This power was vested upon congress by article 1 of the constitution.  

The case addressed the matter of the supremacy of the in the second part of the cases ruling. At the time of the crime, there existed a treaty between the U.S government and Britain. This agreement provided that any crime committed by American service members and their dependants on British soil (Haljan, 2013). This agreement was domesticated under article 2(11) of the uniform code of military justice.

The courts have always recognized the supremacy of the constitution treaties. In quoting Geofroy v. Riggs, 133 U.S. 258, the Supreme Court found that indeed the as much as the constitution recognized treaty law, the treaty had no power to dictate the constitution. In fact, the court stated that as was the case in Missouri v. Holland, 252 U.S. 416, any treaty inconsistent with the constitution was not recognized under American law.

The American law recognizes the important role or the military. In doing so, it confers some certain liberties on the military. Such liberties include the right to try service members under the military (Vile, 2003). The courts have however limited the jurisdiction of the military. In Ex parte Milligan, 4 Wall. 2, the courts found that military courts were without powers to try civilians. Duncan v. Kahanamoku, 327 U.S. 304 asserted the courts position on this matter.

Analysis

The constitution is the supreme law of the land. Thus, any other laws created under the direction or guidance of the constitution cannot be superior to the constitution. Treaty law is part of the law established under the constitution. The treaty that established the jurisdiction of the military court over its servicemen in foreign land could not supersede the constitution. In this case it was right for the court to uphold the supremacy of the constitution over that of the treaty between America and Britain.

Rules established under the constitution are meant to protect the rights of American citizen. Thus, the right of civilians to be tried before a grand jury is accorded by the constitution and no statute can negate it. Thus the court was right in declaring that that the court martial had acted outside its jurisdiction in trying a civilian, even if that civilian had been on foreign land.

The constitution grants the congress the powers to make laws that seal the loops left behind by common law and equity. This means that congress has the power to create more jurisdictions where civilians can be tried as American civilians even if it is on foreign land. This would ensure that they access their constitutional rights even as criminals.

Finally, while the constitution grand the military the power and jurisdiction to try cases of crimes of men in the service, the same position does not apply to civilians. The court has established that the civilians linked in one way or another to people in the military have to be tried as civilians and not military personnel.

Conclusion

The decision made by the Supreme Court was a just one in this case. Not only did it uphold the constitution and its supremacy as the absolute law of the land, the case showcases the importance and value of the constitution on the lives of all Americans. Indeed, the request presented by the defendant was a justified one. In this case, the Supreme Court has played an important role in ensuring its continued interpretation of constitution for the people of America.

References

Haljan, D. (2013). Separating powers: International law before national courts. The Hague: T.M.C. Asser Press.

United States. (1975). Reid v. Covert (1956 & 1957): Sweezy v. New Hampshire (1957). Bethesda, Md: University Publications of America.

Vile, J. R. (2003). Encyclopedia of constitutional amendments, proposed amendments, and amending issues: 1789 - 2002. Santa Barbara, Calif. [u.a.: ABC-CLIO.

Case 1

Facts

Peter wants some money to boost his new business he therefore asks his uncle for help in acquiring a loan from the bank. His uncle who migrated from china some twenty years ago does not understand English too well and relays on peter for financial and legal advice. His uncle agrees to take up the loan for peters sake and uses his house as collateral. The bank manager is well aware or Mr. Ji financial position but does not offer him advice before allowing him to sigh the contract. Peter is unable to repay the loan contract and the bank wants to sell his house to recover their money as per the contract. Under the law, there is no legal contract between Mr. Ji and the bank and in fact the bank manager did perform unconscionable conduct toward him.

The law

Unconscionable conduct

The law on unconscionable conduct[1] usually deals with transactions between dominant and weak parties to a contract. The Australian law provides for certain remedies available for Mr. Ji under both equity and common law.

Under Equity

Equity usually intervenes when one party to a contract takes advantage of a special disability of the weaker party. When looking at special disability, the courts usually consider factors such as illiteracy or age, lack of education or a combination of all these factors. However for equity to consider this defense the resulting transaction must be oppressive to the weaker party and the weaker party must prove that the disability was evident to the stronger party who took advantage of this fact (Vuot, 2009). Australian case law recognizes the position of the weaker party to the contract in the case of Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447[2] where the case was set aside due to unconscionable dealings.

Under common law

Recently, common law has established laws against unconscionable conduct in trade as a way to protect consumers. The Australian consumer law[3] strictly prohibits unconscionable conduct under part 2-2 of the act. The law which incorporates equity into common law provides under section 20 provides for corporations not to engage in unconscionable conduct within the ‘limit of unwritten law’[4]. The law goes ahead to note that for any person or corporation that contravenes this law will be liable to a pecuniary penalty.

Under sections 21 and 22, the Act prohibits the engaging in unconscionable conduct with regards to goods or services[5] and sets out the conditions which the court may rely on to consider whether indeed the defense brought by the weaker party is valid[6]. With regards to Mr. Li, the bank manager had a legal obligation to inform him of the terms and foreseeable consequences[7] of the breach of the contractual terms.

Case 3

Facts

There was a sponsorship contract between Emanuel and Roo-oil ltd that he would display their trademark on the front of his vehicle for four years when he was competing and when not he was to publicly display the car. The terms of the contract were that he was to display the colors of the trademark. The company terminated the contract due to breach of the terms of the contract. It is therefore to be determined whether there was a breach of contract by Emmanuel and if the sponsors had a legal right to terminate the contract due to breach.

The law

Breach of contract

Under contract law, a non-breaching party to a contract may terminate the contract due to breach of the contract by the other party. Under contract law, obligations are created by the terms of the contract are usually promissory in nature which thus warrants for the creation of obligations. The courts mostly consider the conditions/warranty that creates legal obligations when determining whether there was a breach of contractual obligations[8]. Therefore the court will determine whether the breach of the conditions of the contract by Emmanuel were right. It should be noted that the company was sponsoring him in exchange for his displaying of their logo and no other conditions were set by the company.

Contact law expressly gives the promisee the right to terminate a contract either expressly or by law. However there is no express right given to the promisor to terminate a contract that was being performed by the promisee unless there was repudiation[9] on the part of the promisee (Latimer, 2011). Therefore can it be implied that breach of contract Emmanuel was in fact choosing to terminate the contract? Yes, a promisee may chose co terminate a contract through his actions[10]. Therefore it can be concluded that though the company has no right to terminate the contract that Emmanuel was performing unless stated in the contract, by breaching the contract, Emmanuel was terminating it.

References

The history of the 40 hr work week/ 8 hour day

Introduction

Workers have been fighting for an eight hour workday since the beginning of the industrial revolution. During this period, most workers were forced to work for up to 16 hours in a day for six days in a week. This was not to the satisfaction of many laborers who believed that that this stand was not only exhausting but also unfair and degrading to the workers who had to endure this much to earn a living. Towards the end of the eighteenth century, the whole of the nineteenth century and the early twentieth century, there was a global outcry for the need to reduce the working hours of workers all over the world. America was not spared from this global outcry.

The American labor history

Strikes by workers demanding for eight hour work days were first experienced in the United States in the state of Philadelphia in 1791. The carpenters in this state went on strike demanding for ten hour days. By 1830, this demand had become general with more workers from other fields demanding for ten working hours in a day. Later, labor movements started calling for eight hour work days. This increase in demand eventually bore its first fruit in 1842 when ship carpenters in Boston were granted an eight hour working day despite the fact that they had no union.

By 1860, eight hour working days were the central demands by labor unions all over the United States. Between 1866 and 1880, Labor unions in different states in the U.S passed resolutions demanding for congress to come up with a legislation that would legalize eight hours to be the normal working hours in the United States. In the year 1884, the American federation of organized trades and labor unions passed a resolution that stated that eight hours would constitute a legal day’s labor[1]. Although this was a strong push by the labor organization aimed at the government, it failed miserably in congress and was therefore thrown out.

During this period there had also been other groups and organizations that had been formed to try and champion for the eight hour day cause. For example, in 1969, an organization led by Terence V. Powderly referred to as the Knights of Labor was formed to champion for the eight hour day cause and institute it. The movement believed in the promotion of social and cultural uplifting of the working man by rejecting socialism and radicalism. In some cases this movement acted as a labor union and negotiated with employers on behalf of their workers. At its peak, this movement had 100,000 members. The movement successfully organized boycotts and strikes[2] to show their stand on the matter. However, this movement failed to convince the authorities to institute their demands and by the 1800s it was on the decline. Despite all this the movement was responsible for the 1886 Chicago parade in support for the eight hour day which had 80,000 people. In later days to come after the parade, the parade became nationwide with people from Chicago, New York and Cincinnati joining in the parade. This resulted in some workers getting shorter hours with no payment reduction while others accepted the reduced hours with pay cuts.

On 3^rd may, 1886, a tragic event occurred that may have had the potential of changing the federal governments stand on the eight hour day policy. An editor of a local workers newspaper[3] had just spoken a group of about 6,000 people and had later led them to down the streets of Chicago to harass a group of crowd-breakers at a factory plant. The police were involved, opened fire, and as a result, four people died and scores of others were injured. Subsequently, at a rally in Haymarket square, held the following day by labor activists to protest, the violence used by the police the previous day, a bomb went off, leading to the arrest, trial and conviction of many labor organization leaders. Though these leaders were executed, this did not stop the labor organizations from operating and further demanding for the eight hour day, if anything he executed leaders were perceived as martyrs to the cause (Hunnicutt 58).

In December of 1888, the American federation of workers met and set may 1, 1890, as the date that American workers were to start working for eight hours in a day. This stand was later endorsed in 1889, by the international workingmen’s association[4] that decided that the date would suit for international demonstrations. In the same year the united mine workers won an eight hour day.

In 1990, the Building Trades Council of San Francisco also won a land mark case for the eight hour day as well as earning $3 for the work of that day. When the employers resisted and responded by locking out employees, the trade council established a planing mill in which the employers were to obtain supplies or face boycotts and/or sympathy strikes from their employees. When the mill owners went for arbitration, the union won the eight hour day along with other changes that benefited mill workers.

The Ford Motor Company also took a radical step in 1914, when not only did they double the daily salary to $5, but also reduced the daily work shifts from nine to eight hours. This decision was not popular with most rival companies, however, they soon followed suit when they realized that fords profit margin had shot up of the implementation of the eight hour day plan.

By the summer of the year 1915, when their was increased demand for labor in world war one, there were a series of strikes[5] all over the united states to demand for the eight hour work day.

In 1916, the first law[6] was created, that upheld the eight hour day rule, in the U.S., the law that also required additional pay for over overtime strictly applied to railway workers. The Supreme Court upheld the constitutionality of this act[7] of congress in 1917.

Through out the early 1990s, proposals kept on reaching the federal level that would limit the amount of hours an individual could work in a week. Finally, in the year 1938, the Fair Labor Standards Act was passed by congress. As it was being enacted, the act applied to all industries whose employment when put together symbolized just about 20% of all the United States work force. The act set a maximum workweek of 40 hours, a minimum wage and overtime bonus salaries.

The positive and negative effects of shift lengths

Work performance and Safety

Longer shifts are a great advantage to employers and the economy as well since the input of the employees in a day is great. However, Studies show that human errors start occurring more and more with the increase in the number of hours an individual is forced to work in. research preformed on different professions in the United States indicate that work related accidents and errors usually increase in the afternoon and are at an all-time high in the night shift. As individuals keep on working in a day fatigue kicks in. this leaves the employees vulnerable to performing errors at the work place (Facer 168). However, there have also been studies that indicate that the impact of work lengths on the work performance is only attitudinal and that in some cases, a decrease in the work length actually led to decrease in work effort by the employees[8]. Despite this fact, generally it has been established that increase in working hours of an employee led to the increase in work related errors[9] and therefore a decrease in efficient work performance[10].

Studies in the transport sector[11] indicate that most driving accidents that occurred due to fatigue related factors (White 112). It was also found that there were high accident risks for truck drivers who drove for more than eleven hours. This position was found in other professions that warranted precise care such as in nursing.

Health

Research has indicated that there is a correlation between loner working hours and physiological and psychological symptoms in workers. Researchers have found that there are greater health risks on employees including mental health for employees who work for longer hours than 48 in a week. There have been conclusive studies that have also linked other physical illnesses with long working hours[12]. However these results are not conclusive in all professions[13]. Anger frustrations and fear anxieties have also been noted with employees who work in longer shifts than the normal 8 hour shift (Knauth 130). Though there is inconclusive evidence, health concerns such as cardiovascular, gastrointestinal disorders and in extreme cases reproduction problems have been linked to longer work shifts.

Sleep/Fatigue

There is a general published agreement that there is a distinct correlation between long work hours and sleep. Studies conclude that people who work for longer hours either tend to suffer from loss of sleep which ultimately leads to fatigue which may then lead to sleeping at work. Sleep and fatigue often result in other factors that end up also affecting the employee such as disruption in the normal family and social life of the employee (Knauth 127). Fatigue at the place of work is often associated with among other side effects at the workplace decline in alertness, slow response and poor decision making. Even thought fatigue cannot measure and is only observed at a personal level, studies have shown that employees who work under eight hour day policies often end up having sufficient sleep and are less fatigued than their other counterparts.

Quality of life  

It has been argued that work hour arrangements can be used to enhance the general qualities of employees’ lives. Studies have indicated that individuals on the 8 hour day shifts record improvements in their general lives. This includes more time to spend with their lives and for leisure and relaxation, social life and domestic duties (Sparks 402). These employees are able to efficiently balance between their work-life-family conflicts. The quality of life is also improved health wise with these employees suffering less from health complications than their other counterparts. It is also indicated that the employees on longer work shifts suffer from decreased job satisfaction as well as a negative impact on their social lives[14].

Overtime

There is inconclusive research with regards to longer working hours being regarded as overtime and the impact they have on workers as opposed to those that work for longer shifts. However, it has been found that the employees on shorter shifts are more willing to do overtime than their counterparts on the longer shifts (Spurgeon 64). The decision on whether an employee should work for overtime should be based solely on the employee and not by coercion by their employer. Overtime should therefore be distinguished from the normal working day hours.

Working Families Flexibility Act of 2013

The Working Families Flexibility Act of 2013 is an act recently introduced into congress by the Republican Party. The act, much like the a similar one that had been introduced 16 years ago, seeks to increase overtime working hours and reduce pay for those employees who do not want such conditions. This act seems to have favored the employees rather than the employees and seeks to undermine the 40 hour work week that employees and trade unions worked so hard to establish (Roby 1). With this act, workers will no longer have the time to spend on their own leisure as well as time to spend with their families and their social pursuits. Due to the flexibility of this bill, workers would have to work unpaid overtime hours that are beyond the standard 40 hours work week to be able to accrue as many as 160 hours of compensatory time.

This would in essence mean that any low paid workers who accrued the comp time of say the 160 hours because of an overtime pay would in effect owe their employer a small loan. This goes against all labor laws both local and international. This incentive would give employers a strong reason to increase the employees’ overtime working hours[15].

It should still be noted that the American economy is still undergoing a slow recovery. This means that the labor market is still very fragile with many Americans still in the unemployment bracket. The bill however acts a detriment to the fight against unemployment, for instead of encouraging employers to continue hiring more people so that the business may do well, they will be more encouraged to increase overtime for the employees that they currently have.

Generally, the workers decision on whether to receive comp time instead of overtime payment is usually at the workers discretion. The bill is also clear on the fact that the employers are not supposed to use any form of coercion to intimidate the employees into accepting comp time instead of wages. However, these are tough economic times and there are still so many unemployed individuals who would do anything to gain employment status. With this trump card, the employers still hold the upper hand over employees whose loyalty may be questioned if they refused to comply with the demands of their employers. It should also be noted that not all jobs in the United States are under workers unions who would fight for their right.

The bill also has a weakness in that it allows the employer the right to determine whether they can the employees request for comp time is accepted of not. This may be bad for the employee if the employer decides to reject the request on the basis of the fact that granting the request would disrupt the company’s schedule. This gives the employer undue leverage over the employee which should not be the case.

With that said, there are better legislations that congress would pass that would help the workers more so the hourly paid worker. Such bills include the Healthy Families Act and ‘the small necessities bill’[16].

Conclusion

The American workers quest for 40 hours a week/ 8 hours day work has been a long road that has been marred with challenges that were later overcome with the help of strong labor unions and movements that fought for the right of the employee. The passing of the fair Labor Standards Act came as a relief to all employees whose working conditions were then legally protected employees from excessive exploitation from their employers. Over the years since its passing, American employees have been able to exercise their rights as American citizen in a dignified manner while earning a living. Introduction of legislation that would negate the long struggle for the better work place conditions for workers all over America.

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[1] This was to come into effect after May 1, 1886 and was to be adopted through out the United States jurisdiction.

[2] With their most successful being the 1884, Union Pacific Railroad strike.

[3] August Spies, was the then editor of the Arbeiter-Zeitung

[4] At a meeting held in Paris, France.

[5] Started in Bridgeport, Connecticut and continued spreading.

[6] This was the first Federal Law of its kind that regulated workers in private companies

[7] Wilson v. New, 243 U.S. 332 (1917)

[8] This was proved by a study conducted on nurses who worked on a 12 hour shift who reported that they [provided better patient care as compared to the 8 hour shift. However, this is still subject to contention.

[9] A report preformed by Falkland and Tucker in 2003 indicated that there was a great number of industrial accidents and injuries that occurred with the increase of working hours from 8 to 12 hours.

[10] It has been established that there is lower cognitive performance in employees who work in longer shifts than those who work in 8 hour shifts.

[11] This is an analysis carried out by the National Transportation Safety Board (NTSB) on air carriers between 1978-1990.

[12] Research carried out on truck drivers indicated that those who drove for longer hours in a day experienced lower back pains.

[13] Such as nursing where the results were inconclusive.

[14] This is according to a research carried out on nurses who worked on the 12 hour work shift.

[15] This would mean that Instead of having to pay time-and-a-half wages when an hourly-paid employee works longer than the standard 40-hour work week, the employer incurs no financial cost at the time the extra hours are worked

[16] Which would let workers accrue a few paid sick days each year so they can stay home for a day or two or on family medical emergencies and provide workers with up to 24 hours a year unpaid to attend parent-teacher conferences or meet other urgent family needs respectively.