U.S. Patriot Act

The Patriot Act empowers the law enforcement by allowing the investigators to employ the available tools in the investigation of drug trafficking and organized crimes. The investigators are allowed to employ surveillance against terrorism crimes including the use of electronic surveillance. They are given the power to investigate part of crimes committed by terrorists, gather relevant information during investigation of crimes related to terrorism such as chemical weapons crimes and terrorism financing. The law enforcement is also given the mandate of following sophisticated terrorists whose training may enable them evade being detected (Department of Justice, n.d).  

As per the Act, a federal judge can authorize the use of roving wiretap to a given suspect instead of using a specific communication device.  The investigators are also allowed to carry out investigations without terrorists’ information, whereby the court can allow law enforcement to delay search warrant notifications so as to prevent destruction of evidence, killing or intimidation of associates, evading arrest of, and severing communication with associates (Department of Justice, n.d).  The law enforcement agents are allowed to seek court order for taking business records involved in cases related terrorism. This is possible if after it can be demonstrated that the records are needed in carrying out authorized investigation to acquire foreign intelligence that does not involve a US Citizen or for protection against terrorism activities in international arena (Department of Justice, n.d).

The Department of Justice provides guidelines on how the law enforcement can employ the Patriot Act while addressing terrorism related crimes. The guidelines include the extent to which the powers given to agents can be exercised. The Department provides information on the limits placed on these powers so as those local agents may not go overboard.

References

Department of Justice (n.d).The USA PATRIOT Act: Preserving Life and Liberty. Retrieved from: https://www.justice.gov/archive/ll/highlights.htm

Business law

Page 1

Affirmative action refers to policies that were created by the government to assist in leveling the filed for people who have historically been disadvantaged because of aspects like color, race, sex, religion or national origin.  The aim of these policies is to enhance social equality by preferentially treating people who have been disadvantaged socio-economically (Bennett-Alexander, 2014).

 The affirmative action includes quota, point and preference systems. Preference systems application involves is to determine independent or skilled workers. A point system may be used where a person is given positions that others won’t take.  Quota system ensures that no distinction can be made for various characteristics such as gender, race or age.

Reverse discrimination involves a situation where people who have historically been advantaged or belonging to a majority group face discrimination on the basis of their protected features like age , race and gender. This discrimination may arise out of affirmative action programs that aim at advancing the interests of the minorities(Bennett-Alexander, 2014).

Color and racial discrimination at work may be manifested during the hiring, disciplinary, remuneration and firing of employees. Employers may refuse to hire someone due to their race. They disciplinary actions and firing may be targeted to someone due to their race. In remuneration, employees may be paid less , not paid at all , not offered benefits , opportunities , promotions or be classified improperly due to their race(Bennett-Alexander, 2014).

 In order to avoid liability from cases of color or racial discrimination, employers should take into account some important steps: they should familiarize themselves with anti-discrimination laws applicable; come up with an anti-discriminatory policy that is comprehensive and implement it; ensure that training programs related to anti-discriminatory laws are developed and implemented at the workplace; investigate and deal with any cases of discrimination that are reported(Bennett-Alexander, 2014).

In this sense, a discrimination case brought before a court under Tittle VII should have sufficient evidence that can support their allegations.  As such, the evidence must be sufficient for to enable a jury or judge to conclude the occurrence of the discrimination. For a prima facie case involving National Origin Discrimination to be established by the plaintiff, he or he may use circumstantial or direct evidence(Bennett-Alexander, 2014).

The promulgation of 29 CFR §1606.7 that perceives any policy that requires employees to only use the English language as discriminatory on the basis of national origin was done by EEOC , but its application has been rejected by some federal courts (Bennett-Alexander, 2014) . Employers wishing to implement such policies must comply with EOCC, courts and laws passed by the states.

Page 2

The best strategy for preventing liability for cases of racial harassment at the workplace is to come up with an anti-discrimination policy and implementing it. The policy should allow the employees to report such cases and employers to perform investigation and provide the best disciplinary actions. It will allow the employees to clearly know the kind of behavior that may not be tolerated in a working environment (BUCKLEY, 2016).

In the case of Francisco’s compliant, the trainmaster should carry out the investigation of these allegations and look for evidence of the same. Where evidence of the same has been found, he should take an immediate action that is effective enough to stop the behavior buy other employees. In such a case, the guilty employees should be transferred and even fired where the transfer fails to yield results (BUCKLEY, 2016).

The situation at Astral Hospital Center may not be legally actionable in terms of racial harassment. This is because there may not be sufficient evidence that can support the allegation of harassment as provided under Title VII.  The case may be dismissed before a jury or judge due to lack of enough evidence.

Page 3

 Morales defence would be that the English only policies are not discriminatory since there is no proof that they have had negative effects on the plaintiffs.  Morale can argue that the requirement for communication only through English arose from a legitimate necessity for the business and the working environment was not hostile as per the Title VII.  Moreover, Civil Rights Acts of 1964 does not specifically forbid discrimination on native language basis (Bennett-Alexander, 2014).

In the stated situation, Franklin has been treated unequally in comparative to his colleagues who have a Chinese origin. The disciplinary action taken upon an employee for being late as stipulated in the policy of the firm have not been employed equally which forms a basis for alleging discrimination. The firm did not discipline or dismiss Jiang and Pan for being later often, but fired Franklin whose violation of the policy is dismal. The unequal treatment can serve as evidence of discriminating Franklin on the basis of his native language.

Nationality refers to a person membership which indicates their relationship with a given state and involves the concept of definition may be racial or ethnic. Citizenship on the other hand refers to the political status of an individual that indicates that one is recognized as the citizen of a given country.  Citizenship is, hence , a legal status that show one is registered with government in the country.

Page 4

Gender discrimination in the workplace can be manifested in various ways that makes some genders to be treated better than others. It can occur in both formal and informal ways. Formally discrimination involves limits on how much a gender can access specific positions, opportunities for advancing and improved compensation while informal discrimination involves some unfavorable satiations one may encounter.  Such situations include one gender being allowed part-time jobs, low payments, job security and fundamental public services (Bennett-Alexander, 2014). 

Fetal Protection Policies are laws that are aimed at providing protection of a fetus at the work place with work environment conducive to a mother being determined by the worker and her doctor. Gender Plus Discrimination refers to discrimination arising from an employer’s classification of employees based in gender in addition to another attribute. In this case, not all people belonging to a certain class are subjected to discrimination. Lactation issues at the work place involve those that may arise because a mother who is an employee is breast feeding. Logistical concerns based in gender involve some gender issues arising from logistical issues other than those involving a significant and irrational financial burden (Bennett-Alexander, 2014).

Quid Pro Quo arises when a manager or employer of other such figures in power hints or offers to give something to a worker in exchange of a sexual demand. This also involves an employee not being reprimanded or dismissed by an employer or manager in exchange of any kind of sexual favor. The plaintiff must prove that he or she applied for a position or was a worker, the offender made some unwelcome advances to the claimant and benefits from the job were under condition that the plaintiff accepts the advances (Bennett-Alexander, 2014). The alleged behavior should have been harmful to the claimant and it was a significant aspect in such harm.

Hostile Environment Sexual Harassment involves conducts that enable sex based conducts that are unwelcome and pervasive enough to lead to abuse.  In such a case, the victims must indicate enough ground to subjectively believe the behavior was offensive and abusive. In addition, a reasonable individual in the claimant’s position would hold an objective belief that the offender’s conduct was offensive or abusive.

Previously courts have been ruling that the language used in Title VII has no intention of providing protection against discrimination on the basis of sexual orientation. Some courts have given plaintiffs some reliefs through classifying such harassment on the basis of sex but not sexual harassment (Whitman, 2012).

Harassment on the basis of same sex is partly covered in Title VII. For instance, a male supervisor refusing to promote another male employee on the basis of same sex would be same as discrimination on basis of sexual orientation. On the other hand, if the male worker is subjected to sexual advances by male supervisor, this would be sexual harassment.

References

Bennett-Alexander, D.(2014). Employment law for business . Chicago, IL: Irwin.

BUCKLEY, J. O. H. N. F. I. V. (2016). EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE GUIDE: 2017 edition. S.l.: WOLTERS KLUWER LAW & BUS.

Whitman, M. E. (2012). The Intersection of Religion and Sexual Orientation in the Workplace: Unequal Protections, Equal Employees. SMUL Rev., 65, 724.

Employment Discrimination Law

An employee is one whose work, working hours, equipment or tools are under the control of an employer. The work to be done and how it’s done by the employee are also controlled by the employer. IF the worker’s tasks and working hours are under his or her control, they are independent workers.  If a worker is given benefits he is an employee, but a particular contract may show that one is an independent contractor even though such an aspect alone does not demonstrate control (Twomey & Jennings, 2010).

The Title VII prohibits forbids employers from discriminating person due to their skin color, race or attributes relating to a certain race. It also forbids any employment practice used equally to all workers and whose effect will be adverse to specific racial group. The law covers all genders and pregnant women. It also covers issues of sexual harassment that a person may be subjected to (Bennett-Alexander, 2014). However, the law does not cover LGBT since sexual orientation discrimination is included.

Negligent hiring can be traced from the common law and results from tort section of laws.  The application of negligent hiring is normally done to place liability on an employer when, under respondeat superior theory, there lacks another recovery basis.  Any claim relating to negligent hiring is based on the notion that the liability arising from negligent acts of an employee is borne by the employer. In such a case, a court will assess the extent to which an employer was reasonably careful in selecting an employee to perform some specific tasks (Twomey & Jennings, 2010). Lack of background checks before employment such as drug testing may lead to such a liability.

Reference

Twomey, D. P., & Jennings, M. (2010). Business law: Principles for today's commercial environment. Mason, OH: South-Western Cengage Learning.

Bennett-Alexander, D.(2014). Employment law for business . Chicago, IL: Irwin.

The passing of the 13th amendment

Introduction

America has experienced   moments that have shaped and changed it for the better. When Jeff Kennedy died, the Times Magazine claimed that that was the turning point for America. Whereas there is no doubt that his death changed America and set loose a ripple of events that could be felt for ages. The constitution amendments have also played a crucial role in America. In 1897, only white American men had the right to vote. As if that was not enough, the president had no term limit and could serve for as long as he was still breathing. Through the gradual change of the constitution over the years, the lives of all people have been influenced by the amendments. One such amendment is the 13th amendment. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

The 13^th amendment is one of the most influential and impactful amendment ever made in the constitution of the United Sates of America .This amendment led to the abolishment of slavery in the united states .It was the first among three reconstructed amendments that America implemented  during a five year period after a civil war .Congress passed the amendment in January 31^st 1865 and a firmed their decision  on December 6^th 1865.The content of the amendment banned slavery or any form of involuntary service except if it was a punishment .Congress had the authority to enforce it into law. The amendment was passed after a very bloody war between territories that opposed slavery and territories that supported slavery. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

The civil war

The civil war was one of the central events that shaped America. It would be futile to discuss the 13^th amendment without discussing the civil war. It took place between 1861-1865.This was one single event that could determine the type of nation or the direction the future of the nation could take. The war would solve two question: will America be a sovereign united nation with a sovereign authority or whether it would continue to exist as a nation that tolerated slave trade although it was founded on the mantra: all men are created equal. The northern part of America won the civil war. This victory preserved the unity of United States of America as a country. And put to a stop the system of slavery that had caused major cracks within the nation. The results of the war were good but it cost around 625,000 people their lives. This number is high as it can be equated to the total number of soldiers who fought and died in different wars .Therefore the cost was very high. (Holcombe, 2002).

The civil war was one of the most bloody and destructive war ever witnessed in western world between 1815 and World War 1 in 1914.The war was provoked by the contrasting views of people who opposed slavery and people who supported the institution of slavery. Some individuals were of the opinion that slavery should not be prohibited in all locations including areas that had not yet become states. (Holcombe, 2002).

Passing of the 13^th amendment

The 13^th amendment which led to the eventual abolishment of slavery in the united states was discussed by the senate in 1864 April 8 and the house on the month of January 31^st,1865.On February 1^st ,1865,Abraham Lincoln, the president at the time, gave a go ahead to joint resolute of congress which had brought in  the proposed amendment to the legislatures .The number states required to pass it into law was reached and it was ratified on the month of December 6,1865.The 13^th amendment stated that slavery would not be permitted in united states .Any form of involuntary services except punishment  would seize to exist in united states. (Holcombe, 2002).

Previously, President Abraham Lincoln had come up with the emancipation proclamation which declared that all people who were slaves in the rebelling states should gain freedom. Although the emancipation declaration did not have much traction in ending slavery. The only way the emancipation declaration would work, is if it could only be backed up by an amendment in the constitution. (Holcombe, 2002).

The 13^th amendment was passed when the civil war came to an end and the southern part of America had not yet joined the rest of America. This is one of the reason the amendment succeeded when it was passed through congress. Even though the senate passed the amendment in 1864, the house did not pass it. At this point, Lincoln took charge and ensured the amendment had passed when it reached congress. Lincoln emphasized that the amendment should be prioritized by the Republican Party’s next presidential candidate in the next elections. His efforts bore fruits when the amendment was passed by the house on the year 1865, January with 119 votes against a paltry 56 votes. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

After the amendment was passed by the house, United States of America adopted it. The amendment gave the first solution in tackling slavery and brought to an end the struggle that came with it. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

Events that led to the 13 amendment.

The ratification of the amendment took place eight months after the civil war ended but it painted a perfect picture of the struggle against slavery. When the civil war commenced, most of the people in northern America were against it as they saw it as a chance to crusade against slavery. (Holcombe, 2002).

Many northern republicans and conservative democrats were against slavery and its expansion but not wholeheartedly .They tolerated it to some extent. The war was the only event that forced the public to rethink slavery and the role it had took part in starting the war. In 1862, Lincoln realized that it was useless to engage in the war without abolishing slavery first. In 1862, after the union winning the battle of Antietam, Lincoln issued the emancipation declaration which allowed slaves who had rebelled to be free, in the regional areas they were in. This took place in January 1^st, 1863.The emancipation declaration was not effective as it only allowed slaves to be free within certain regions that were not within the union’s control. The declaration changed the cause of the war and turned it from a civil war that seek unity within their states to a course that considered the plight of the slaves. (Holcombe, 2002).

Importance of the 13^th amendment

The 13the amendment was vital because it banned slavery through constitutional means. This implied that there would be peace within America due to the unifying factor it brought. Slaves had the right to privileges and access to education and other necessary amenities such as housing. The United States of America was built on slavery of the African Americans. The civil war disrupted the peace in America and the 13^th amendment brought a lasting solution and long awaited peace to the nation. States that did not ratify the amendment seek to do so in order to be at par with the rest of the states. Therefore, it unified America as a whole. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

Impact of the 13^th amendment

Some may argue that slavery did not stop immediately after the 13^th amendment was approved by America. Unfortunately, this is the whole truth. In the current world slavery may exist in terms of forced marriages and labor. But the impact the 13^th amendment had on America cannot be swept under the carpet. It was the first step ever taken to abolish slavery along the journey to abolish slavery. Although the amendment was passed, it did not changed men’s attitude toward slavery. But to some extent, it changed the American society and got people’s minds thinking on the controversial issue. It also changed people practices. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

In today’s American society, the impact of the amendment can still be felt in each and every part. It shaped the views of both white Americans and black Americans .Black Americans got the opportunity to become members of the society. They could work and earn wages for their labor unlike in the past where they had no choice. This equalized the all people. (Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum, 2012).

Conclusion

Years have passed by and the amendment is still with us. It resides in the hearts of each and every one of us. I sincerely believe that if the 13^th amendment had not existed our situation as a country would have been totally different .Slavery will still persist in various forms now and in the foreseeable future .Imagine if the amendment did not see the light of day, what could have been the situation currently?

References

Abraham Lincoln Presidential Library Foundation. & Abraham Lincoln Presidential Library and Museum. (2012). The 13th Amendment: Its history & restoration at the Fortnightly of Chicago. Chicago: The Foundation.

Holcombe, R. G. (2002). From liberty to democracy: The transformation of American government. Ann Arbor: University of Michigan Press.

Cyber-stalking legislation

In Texas, cyberstalking laws related to online harassment offense and which involved the amendment of Chapter 33, Penal Code where section 33.07 was added. The online harassment includes using a name, another person’s persona to for creation of web page or posting message on social network without consent of the person or while intending to harass. It is also an offense if the person communication references another person’s details, initiating electronic communication that is obscene, repeatedly making anonymous communication to a person telephone number with intent to harass, in a manner likely to embarrass, offend or even abuse them (Working to Halt Online Abuse (WHOA), 2016).

The cyber-stalking legislation deals majorly with criminalizing the act while doing little to prevent the victims from being targeted or the culprits from proceeding with the act. The unique challenge relating to preventing cyberstalking involves the anonymity of the criminal who is able to hide his identity and constantly pursuing his intentions. There is much protection of a person while using the internet which means the privacy issues may arise while law enforcement agents want to pursue the cyber-stalker (Elder, 2014). Without providing a solution to how the privacy of such a person can be overlooked for the benefit of victims’ justice, the law may fail to prevent this crime.

There are various limitations to these legislations especially in relation to their enforcement. A local law enforcement agent is specifically disadvantaged due to jurisdictions constraints since a stalker may be located in another state or even country which makes it difficult to investigate or even prosecute.  Investigation of the offense also faces obstacles such as 1984 Cable Communication Policy Act which requires a court order for agencies wanting to obtain personal information (Elder, 2014).

Reference

Working to Halt Online Abuse (WHOA). (2016) Cyberstalking-related federal and state laws. Retrieved from http://www.haltabuse.org/resources/laws

Elder, C. (2014). Stalking: Watching a Crime Evolve.

Reflection paper 3

    I believe that being a good lawyer requires one to build and maintain personal values that will enable him or her to successfully conquer adversary systems. Trust is one of the most important values in the legal system that lawyers have to develop. This is because trust forms the trademark of a client-lawyer relationship. Therefore, a lawyer has an obligation of ensuring that cultivate trust between them and their clients as this will provide a component of representation. Having this trust based client-lawyer relationship, will also place an element of confidence and reliability. A lawyer must therefore guarantee the client that they are competent in representing them and that it is in their best interest to ensure that justice is served. In doing this, a lawyer maintains his public trust and hence can be trusted to successfully offer his skills in this profession. This helps in branding the skills of the lawyer hence many clients can easily rely on the lawyer as they are confident that they will be proficiently represented.

    Nevertheless, I disagree with the idea that asserts that providing the best representation is equivalent to providing a zealous representation. According to public expectation, it is the core role of the lawyer to see to it that justice is served to the client as well as the general public. Zealous representation is at times important as there are times when zealous representation is needed while seeking justice. For instance, as a lawyer there are times when one requires a bargaining power so as to equally bargain for a position of the parties in disagreement hence offering a chance for a more just outcome. However, there are still other times when justice can be served without necessarily having to be zealous. For instance, in Proffessor Giller’s second hypothesis, he asserts that even without practicing zealous representation, your client already has a better bargaining opportunity as compared to the injured woman (Acker & Brody 2013). Justice in this case therefore, does not mean having the best outcome for your client by means of pushing the other party. However, justice in this case means that the lawyer is concerned about the well being of his client hence protects him or her from unnecessary and unreasonable liability. Moreover, in some cases, carrying out zealous representation may discourage public interest in seeking justice. This public interest frustration will only risk the lawyer’s reputation as well as that of his client. This may intern affect the future of legal business.  It is therefore the role of the lawyer to balance his or her duties so as to be able to serve their client’s interest with that of his sense of duty as a legal officer to the public.

    According to Professor Giller’s first hypothetical case, it is all right for lawyers to push for any advantage that would help in delaying the proceedings hence allowing the client to have ample time to search for finances that would pay off his or her debts (Acker & Brody 2013). Failure to do so leaves the client at a bad bargaining position as they are unable to effectively bargain for a just outcome.  It is thus important to note that giving more time to a case will act in favor of the client as it will offer more opportunities to look at the case more carefully hence allowing justice to prevail for the innocent victims.

Reflection paper 4

            I concur with the North Carolina State Bar’s 2005 Formal Ethics Opinion No. 3 which argue that a lawyer ought not to use the threat of reporting the opposing party to the immigration officers so as to have a competitive edge in settling a negotiation.  It is a fact that using the threat of reporting the Canches, in regards to their immigration status will act as an advantage to my client’s considerable leverage within the negotiation. However, I personally stand against this position and s does some of the ethics opinions. The rationale behind this stand is that immigration status is not important to the value of the civil claim and thus they may be detrimental to the justice legal system. However, I may as well use the opportunity to remind the opposing party that it is in their best interest to keep off the dispute from the trial system as it may pilot the discovery of their immigration status by other interested parties.

            According to the analogy drawn by the state bar from the American Bar Association Formal Opinion No. 92-363, it asserts that a lawyer is only allowed to use the threat of criminal prosecution in a civil matter in order to gain merit for his or her client, only if there is a link between the criminal case and the civil claim (American Bar Association 2002). The Nc State Bar opinion also asserts that use of threat promotes no lawful interest of the judiciary system. It actually enables the happening of an exploitation of inappropriate matters and the abuse of the adjudicative system (American Bar Association 2002). This standpoint may place a lawyer in violation of the ethical rules since the MR 8.3 (d) rule out the act of lawyers engaging in an act that is detrimental to the administration of justice. Section 4.3.2 of the 2002 ABA Ethical Guidelines for settlement Negotiation also disallows the utilization of exorbitant threat during the negation process. Though the ABA Comm’n on ethics & Prof’1 Responsibility in the Formal Op. 92-363 fails to mention about the threat of reporting to immigration officers, it, however, addresses the use of threat of criminal prosecution. This ethics opinion claims that the requirement and presence of the relationship between the criminal and the civil matter are to ensure that negotiations are fully based on the true value of the civil claim (American Bar Association 2002). I will, therefore, refrain from using exploitation through threat as it has nothing to do with assessing the claim.

            Based on the opinions above, I will without a doubt not use the threat of reporting the opposing party to the immigration officers so as to gain an advantage in the negotiation as it might place me in a state of ethical violation. I will, however, ensure that the opposing party understands the seriousness of the matter if they decide to proceed with the trial, as this will only disadvantage them as they will risk being identified by the third party. I agree with the ABA regulations as they state that it is appropriate to remind the opposing party of the regular costs of proceeding to trial and to suggest that it may be to their merit if they avoid these costs through making an agreement of settling the case. Therefore, I will not threaten the opposing party using the disapproved ways by the ethical opinions as this will be irrelevant since there is nothing that I will do that will negatively affect them in case they decided not to settle. 

Reflection paper 5

    This case revolves around the determination of who actually makes decisions in a lawyer-client relationship and determination of the lawyer’s role of candor to a tribunal. This case involves an innocent defendant who is determined to protect his sister at all costs and thus he is willing to be incriminated for a crime that he did not do. The real owner of the drugs is the defendant’s sister; however, his brother is the one who has taken the responsibility of being accused of possessions of drugs and is ready to face consequences for his decision. According to the Model Rules of Professional Conduct, section 1.2 asserts that a lawyer ought to stand by the client’s resolution in regards to the objectives of representation (American Bar Association 2002). Moreover, it asserts that in a unlawful case, the lawyer ought to stand to the client’s choice, after having a discussion with the lawyer in regards to a claim to be entered. Lawyers are autonomous when it comes to the way to be employed in undertaking a representation. However, the rule also claims that the lawyer ought to consult the matter with the client in advance.

    However, it is important to note that using the MR 1.2 is not enough in dealing with this kind of case. This is because the case is a complex one and thus requires a thorough consideration. According to MR 3.3, it asserts that a lawyer shall not make a false statement or even provide false evidence to the tribunal on purpose. This is because a lawyer is a legal officer of the court and hence is entitled to maintaining the integrity of the justice system. Therefore, in my representation of this case, pleading guilty is not an option. In doing this I will violate the MR 1.2 since there is no way that I can argue the case out without using false facts in regards to the rightful owner of the drugs. The fact that through questioning I already know that my client is innocent only places me in a position where I have to apply the MR 3.3. I will thus not plead guilty as I am already aware of the client’s innocence. However, in compliance with the MR 1.4 (a) (5), I will have to explain this restriction to my client. Having no way to represent my client in a manner that will not put me at risk, I will consult him on the way forward as he has a right to discharge my professional role if he fails to agree with the way I will carry out the representation. However, in case my client decides to continue pleading guilty, I will have to withdraw from representing him. This is in accordance with the MR 1.6 (a) (1) (Walkowiak 2008). It is true that I will lose my client but one thing is for sure, that I will have maintained my integrity as a lawyer and thus will avoid the risk of being punished or even being disbarred. I value my profession and I thus would not want to expose myself to the risk of being held liable for malpractice due to ineffective representation and for failing to offer a competent representation. I strongly believe that it is all about being professional as it is all that counts in the law profession. 

References

Acker, J. R., & Brody, D. C. (2013). Criminal procedure: A contemporary perspective.    Burlington, MA: Jones & Bartlett Learning.

American Bar Association., & Center for Professional Responsibility (American Bar        Association). (2002). Model rules of professional conduct. Chicago, Ill: American Bar    Association, Center for Professional Responsibility.

Walkowiak, V. S. (2008). The attorney-client privilege in civil litigation: Protecting and defending confidentiality. Chicago, IL: Tort Trial & Insurance Practice Section,         American Bar Association.

Briefing a Case

Case Brief: Nichols v. Niesen

Issue

In the case of Nichols v. Niesen, the Nichols consisting of four girls and the defendants are the Niesen Family (McAdams et al, 2015). Facts regarding the case issue are grounded on a party that took place at the Niesen home where they had allowed underage drinking to occur. It is rather apparent that Niesen family never offered alcohol to the minors but it was consumed in their acknowledgment. After the party ended one of the party guests by the name Beth Carr having engaged in underage drinking hit another vehicle that was carrying the Nichols while crossing the highway heading home. The Nichols suffered minor injuries which ranged from psychological to physical harm. Nichols decided to litigate the Niesen family based on their negligence of the legal provisions as they permitted underage drinking to prevail in their homestead (McAdams et al, 2015). This derived a major dilemma based on the fact that the alcohol was never provided by the family despite the incident having taken place in their homestead.

Rule

The Nichols forwarded their case to the Appeal court and it is during the circuit that an appeal to dismiss the case was rejected even after it had been stated that a claim regarding negligence had not been stated (McAdams et al, 2015). The main issue is grounded on whether the argument regarding negligence is to be allowed against the Niesen family based on the situation of the party. The case was solved in approval of the Nichols argument at the court of Appeal. The ruling held that the four provisions of relevant negligence were achieved (McAdams et al, 2015). The judges stated that the Niesen ought to have observed and acknowledged the harm that was associated with underage drinking within their property as they never demonstrated the obligation of care nor fulfilled the other requirements.

Analysis

It is evident that under the negligence provisions the Niesen family had committed a crime. In that, they acknowledged underage drinking despite the fact that they understood it was not allowed and it might have resulted in more harm to the teenagers (McAdams et al, 2015). The act having occurred in their homestead they were found guilty of acting in negligence.

Conclusion

The case was ruled in support of Nichols family claims on the ground that the act by Niesen was in violation of the negligence common provisions. They should have acted as responsible parents and controlled the situation and their actions resulted in damages.

Nalwa v. Cedar Fair

Issue

Smriti Nalwa the case plaintiff broke her wrist while in a jumbo car driven by her 9 years old son (McAdams et al, 2015). In the case, she had sued Cedar Fair under negligence among a number of notable action causes being the amusement park machinist at the time when the accident took place (McAdams et al, 2015). The accident had taken place in the park and therefore, the plaintiff held that she was entitled to safety as a public passenger within the public setting.

Rule

The court ruled that the assumption of risk doctrine barred negligence recovery since the injury was acquired as a result of bumping a threat that cannot be avoided while riding bumper carriages. The supposition that the risk doctrine encompasses the need for promoting public safety as the amusement parks were reversed in regard to bumper cars given that the activity is accounted as being highly gentle to be accounted as a sport (McAdams et al, 2015).

Analysis

Even though the court ruled in favor of the defendant it was not on the ground that safety would not be guaranteed at the parks but based on the fact that the operator was obliged of the duty to reduce the related risks but had no ability to eradicate all of them.

Conclusion

It is evident that the plaintiff was owed a care responsibility but that does not imply that the defendant had the ability to eliminate all the related safety issues.

Liebeck v. McDonald's Restaurants

Issue

Stella Liebeck a customer at McDonald's agonized third-degree burn wounds after unintentionally leaking coffee on her lap which she had acquired at McDonald's (Rosenfeld, 2015). This incident resulted in her 8 days hospitalization and additional clinical treatment for two distinct years. Liebeck lawyers held that the coffee which was over 82 degree Celsius was very dangerous and had a higher potential of resulting in harm to the customers (Rosenfeld, 2015). The lawsuit was mainly filed in regard to negligence which the restaurant had demonstrated.

Rule

The court ruled in support of Liebeck that led to her compensation for the physical and emotional damage that she had suffered at the time (McAdams et al, 2015). In that, the restaurant was found guilty of offering coffee that was dangerous thus violating their responsibility of care and leading to damages.

Analysis

It was determined that the restaurant was fully aware that its coffee and actions were not reasonable having placed labels to illustrate the threat that the coffee was subjected to (McAdams et al, 2015). They also understood that the coffee was to be consumed at the location which implied that it created a major threat.

Conclusion

The ruling in support of the plaintiff was indeed justifiable as the restaurant did not demonstrate any care responsibility for its actions in general thus leading to harm. The coffee should have been at a lower temperature to assert the safety of the consumers.

References

McAdams, T. et al. (2015). Law, Business and Society (11th Ed). New York: McGraw-Hill.

Rosenfeld, J. (2015). Liebeck v. McDonald’s: The Hot Coffee Controversy. Retrieved from https://www.rosenfeldinjurylawyers.com/news/liebeck-v-mcdonalds-the-hot-coffee-controversy/

Assignment

Question 1

Any jurisdiction that is associated with intellectual property crime as well as disputes which have to do with retribution and compensation may cause more challenges when the crime takes place in the media. Intellectual properties refers to each and every advancement in terms of technology or modernization, business enterprise or creative elements, any recent method or formulation with financial value; or anything with an exceptional branding name or logo that is used commercially. Questions usually arise concerning where an accusation should be recorded and which authority will be responsible for overseeing the responding to the complaint. (Lucchi, 2006).

            Intellectual property rights are not very common to the public as they can be complex or complicated .One intellectual property item may be secured by various IP rights which can lead to infringement in a number of ways. For instance an acoustic compact disc in the music industry is referred to as ‘mechanical’ right while being recorded and designing rights in terms of the cover. Commonly known brands usually register their brands as trademarks to avoid infringements. (Lucchi, 2006).

Due to the complex nature of legal issues that entail intellectual property crimes, the government came up with the internet crime complaint (ICCC).This body deals with intellectual property crime and directs the cases to corresponding agencies that will bear the responsibly of investigating the case at the state, locality or global level. The law enforcers of this entity are regulatory agencies. (Lucchi, 2006).

Question 2

The role of law enforcers in intellectual property theft in media scenarios.

The state collaborates with other law enforcers and third parties to ensure that they widen their base of monitoring and create awareness of the violation, get information about crime patterns, facilitate investigations that will assist in solving the crime and identify the perpetrators and gathering evidence of concerning any intellectual property theft in the media. (Harms, 2012).

Another role that the law enforcer’s play to regulate intellectual property crime is that they help to enforce the law and ensure it is adhered to by the public. This reduces instances of infringement on intellectual property. For instance they ensure that they set up an operational framework that will assist everyone to license their products and items as a method of discouraging crime. By licensing, they ensure that rights are granted to the owner of the intellectual property to do as he pleases with it. Licensing ensures that there is a continuous flow of creativity and protection of the content. They also make an environment where the creator profit from their craft. (Harms, 2012).

Question three

Most of the victims of intellectual property are more concerned about how they can regain their monetary losses that they have suffered as a result of the theft. Victims are usually entitled to a form of restitution or compensation to cover their losses. The perpetrator must agree to pay as part of the agreement. Victims may be a person or business entity. (Harms, 2012).

As stipulated by the federal law compensation is compulsory for intellectual property crimes. A perpetrator who does not have money is very unlikely that he compensate the victim. If an offender is found guilty, the attorney general is supposed to provide the probation office with essential information on each loss that was incurred by the victim .Victims are supposed to take into account compensations available as they are normally limited and ,ay not cover the loss efficiently. (Harms, 2012).

References

Lucchi.N. (2006).Digital Media and Intellectual Property. Springer.

Harms. Louis. (2012).The Enforcement of Intellectual Property Rights. World Intellectually Property Rights.

White collar deviance is a criminal activity that is perpetrated by any individual who works in a high ranking position. The crime is normally committed during the individual’s tenure in the position they serve in. Such crimes are commonly known as offenses committed in suits rather than in the streets. There are certain things that need to be considered as white collar deviance: what an individual who committed the offense wanted to accomplish and conditions that made him able to achieve the crime. Examples of white collar crime include: corporate crimes such as embezzling funds from banks or companies, corruption and violation of trust. (Friedrichs, 150).

White collar felonies such as embezzling funds and controlling or manipulating stocks robs the society of a lot of money than street crimes such as burglary robbery .Based on the data from the FBI, white collar deviation costs an estimated $1 trillion which is more expense than street offenses which cost only $15billion.Inspite of this difference, a lot of effort is focused toward era street crimes than white collar crimes. (Payne, 210).

Contrary to popular belief, this type of crime is not victimless. A single white collar crime has the ability to destroy an entire business enterprise and rob millions of families of their lively hoods and hard earned savings .perpetrators of these crimes have the power to hire the best defense lawyers to handle their cases in court. In addition to a good defense they create a good public relations image through prestigious firms. This often turns the case upside down, making the case appear weak therefore it is not treated with the seriousness it deserves. (Franzese, 250).

White-collar deviance partially takes place due to the systematic ways in which the politics, corporate and army institutions are built and carry out their operations. These systems regulate white collar offenses giving spaces for more crime to penetrate through .Also, these systems are geared toward making profits and securing their power hence they do not do enough to ensure white collar offenses are heavily punished. (Payne, 230).

Works cited

Franzese, R. J. The sociology of deviance: Differences, tradition, and stigma. Springfield, Ill: Charles C. Thomas. (2009).

Friedrichs, D. O. Trusted criminals: White collar crime in contemporary society. Belmont, CA: Wadsworth Cengage Learning. (2010).

Payne, B. K. White-collar crime: The essentials. (2012).

Rule of Law

Introduction

The theory of Rule of Law can best be described as the foundation on which the contemporary democratic society is grounded. The Rule of Law guard’s individuals from the excessive power execution from the government while facilitating easier governance. For the effective functioning of the government as a political institution, the enforcement of the law is inevitable[1]. In that laws are mainly created and applied for the wellness of the public while maintaining harmony amid different conflicting factors in the society in general[2]. One of the main objective of the creation of laws to the sustainability of law as well as order and creating a harmonious surrounding that encourages development amongst individuals. In this context, the Rule of Law serves as an essential part of the whole process[3]. The Rule of Law is a concept that is derived from the legality principle mainly referring to an administration that is founded on the values of law rather than personal motives. In other words, it might be interpreted to imply that law holds superiority over every individual[4]. While the Rule of Law guards individuals against exploitation from the government it becomes evident that the same concept requires them to be obedient to it. The rule of Law means that the power held by the government might only be exercised in reference to the legal principles embraced through a classified process with the intention of safeguarding individuals from arbitrary actions of executive authorities.

The Rule of Law is widely recognized as a rate and variable value of political civilizations. The concept mainly encompasses the values that are related to regularity and confine. Despite the fact that the concept is categorized as a set of shield amid persons and government’s extreme power the actual content and its use is not clear[5]. This is because the phrase does not offer any description in reference to the manner in which its legal principles are made and how the fundamental liberties that it focuses on should be applied in general. However, the Rule of Law offers provisions for two founding principles holding that the law based on its legality should be obeyed by individuals both the ones ruling and those under governorship and that laws should be developed in a manner that they are capable of offering behavioral guidance to all its subjects. Different law theorists hold differentiated strategies with respect to the Rule of Law concept as a number of them hold they believe that the concept is characterized by formalized features[6]. This is to imply that laws should be proclaimed publicly with the prospective use as they demonstrate the features of equality, inevitability, and generalization but there are no necessitates regarding the law’s content. On the other hand, some theorists in the legal field hold the consideration that the Rule of Law mainly involves the protection of individual’s privileges[7]. With respect to the legal conceptualization, the two approaches are perceived as the founding options which are classified as substantive and formalized theories.

The idea that the Rule of Law and societal wellness are unsuited is present in two different but legal thoughts schools that have little to share in regard to their assertions. One of the school is comprised of a group of legal critical studies professions while the other is headed by Fredrich Hayek. According to Dicey’s Rule of Law theory without the superiority of the law no individuals can be penalized or exposed to suffering in exception of situations that they have been engaged in the infringement of law as established by the legal bodies in the specific setting. Dicey held the view that all people regardless of whether they are ordinary persons or the government authorities are obliged to obeying the law[8]. This is grounded on the notion that the law is the only superior ruler and there is none that is above it. In this context, Dicey asserts that no individual should be subjected to punishment for any other violation except that which involves law breaching based on its establishments[9]. In other words, Dicey mainly argues that the Rule of Law is bound on guarding individual’s rights against the wrongful power execution by the government. In this context, as individuals are expected to act based on the provisions given by the law it is also evident that the government is to act based on the principles of the same law in governorship and management of the people and the society. Dicey also provides in his assertion that the Rule of Law is mainly to be applied with equality in mind. In that individuals should not be punished based on their socio-economic, ethnic, religious or any other form of classification[10]. This implies that equality, as provided by the law, should prevail while managing ordinary persons. In this context, the principality of the Rule of Law asserts that there is no individual that is superior to any established law. In that, even the government executives are obligated to adhere to the same law’s provisions and thus their issues cannot be dealt in a customized court of Law because they are under the same jurisdiction. The other principle of Dicey’s assertion is that the constitution as part of law is derived from the ordinary legality of a given jurisdiction. Dicey asserts that in most states a number of privileges like freedom are detention are mainly highlighted within the drafted country’s constitution as law on its own and cannot there be violated for any reason[11]. In different countries, the privileges are grounded on the judicial provision in general based on the present conflict amid different subjects. In this context, it is not that always the source of guidance is the constitution but the resulting outcome and the need to guard individual’s rights[12].

Hayek’s argument is mainly centered on Dicey’s claims with respect to the Rule of Law as Dicey held that the concept is not a formalized concept of government while Hayek based his oppositions based on the standard of planning[13]. While Dicey asserted that the set law is usual in creating harmony and encouraging growth, Hayek noted that the law is developed through collective planning that is mainly facilitated by the state and does not incorporate any voluntary activity thus making several aims such as social justice challenging given that there lacks a more appropriate strategy of achieving each[14]. In this context in the Rule of Law, there are no such measures are collective sets of laws given that the principles such as equality and freedom are set by a group of experts through the generalizations of individual’s needs[15]. In this ground there lacks any form of consensus and by taking the choices and principles on behalf of the public mainly means that intimidation has been applied[16]. Hayek, therefore, asserts that the government based on its power to rule and to punish individuals is supreme to the law and the people which tends to be an application of arbitrary actions against individuals rights.

To Hayek, market competition is the most effective strategy for ensuring that decisions are made collectively without the use of more power by a set of persons[17]. In that, in the markets, there is no coercion given that decisions are made voluntarily which in turn promotes the right of freedom and choice rather than the imposition of certain principles which are not operative. In this context, the distribution of resources is fairer contrary to when compared to the government which tends to rely on convenience while corruption is at its best. In addition, he asserts that the framework that is provided implies that in all the actions that are controlled by the government it has the capability of predicting with certainty the manner in which it will be able to apply the acquired power to intimidate those that it governs[18]. In other words, while the Rule of Law is aimed at guarding individuals against any form of exploitation through governed based authority it also provides the executives with more predictable grounds for the use of coercion. This is because it involves giving certain persons the power of ruling and making different decisions on behalf of the larger majority[19]. Predictions on what societal wellness are never accurate because the needs of the populace differ with time. In this sense, while the concept mainly asserts on equality and superiority of the law that is never the case since the government utilizes its power as coercion which shows that although it is bound to obey the same law it utilizes the framework for its gains thus equality is not achievable. This is well illustrated by the case of Harden and Lewis (1988) which demonstrate the concept as just a pure intimidation[20].

The Rule of Law is one of the most dynamic theory that is in a way challenging to describe and every individual holds their customized strategies for describing the law[21]. In that, there are some individuals that believe that the law is superlative but others believe that it is mainly characterized by a number of features such as constancy, intelligibility, and universality. In that, while Dicey believes that the Rule of Law should mainly be governed by equality while seeking to create an orderly and principled society Hervek holds that the law has no ability to create equality based on its complexity that makes it hard for governorship to be applied[22]. In this context, the conceptualization can be said that it mainly seeks to promote wellness while ensuring that the government utilizes related sets of principles that seeks to promote justice as well as protect individual’s rights[23].

Based on both schools of thoughts with respect to the Rule of Law it is apparent that the concept is mainly objected at creating order in the society and encouraging wellness by protecting individual’s rights from execution by the government[24]. The government has the obligation of protecting individuals under its rule by creating a favorable surrounding for coexistence, guarding their rights and emphasizing on law application in different settings. It is rather evident that law exists mainly in written form based on the followed procedure such as the constitution[25]. It is therefore in the case that the principles and values of the law have been violated that Hayek believes that the concept is the source of conflict because even though it decides on what should be done by obeying the law and ensuring that no violations prevail it fails to direct them on what should be done[26]. In that, as the law dictates the government should play part in guarding individual’s rights but fails to illustrate how the goal is to be achieved[27].

Conclusion

In summing up, it is evident that even though the application and content of the Rule of Law concept are not clear its responsibility is to guard individual’s rights against being violated. In that, it protects the public from arbitrary actions by the governments which assert its superiority. There is no person that is above the set law as both the people and the government are expected to obey and acquire guidance from the same law. One thing that both schools of thoughts agree is that the Rule of Law’s framework is mainly intended as guarding individuals against excessive power use by the government. The essential thing in regard to this concept is the fact that it is required to offer provisions and guidance of how a well-performing society is to be developed. It can be agreed that the applicability of the Rule of Law mainly lies in the set legal principles within a given jurisdiction.

References

Barnett, H., 2017. Constitutional and administrative law. Taylor & Francis.

Barreto, J.M. ed., 2014. Human rights from a third world perspective: Critique, history and international law. Cambridge Scholars Publishing.

Blattman, C., Hartman, A.C. and Blair, R.A., 2014. How to promote order and property rights under weak rule of law? An experiment in changing dispute resolution behavior through community education. American Political Science Review, 108(1), pp.100-120.

Bugaric, B., 2014. Protecting democracy and the rule of law in the European Union: The Hungarian challenge.

Carrera, S. and Den Hertog, L., 2015. Whose Mare? Rule of law challenges in the field of European border surveillance in the Mediterranean. CEPS Liberty and Security in Europe No. 79/January 2015.

Costa, P., & Zolo, D, 2007. The Rule of Law. http://dx.doi.org/10.1007/978-1-4020-5745-8.

Government of UK, 2017. Legislation. http://www.legislation.gov.uk/

Gupta, J., Pouw, N.R. and Ros-Tonen, M.A., 2015. Towards an elaborated theory of inclusive development. The European Journal of Development Research, 27(4), pp.541-559.

Hadfield, G.K. and Weingast, B.R., 2014. Microfoundations of the Rule of Law. Annual Review of Political Science, 17, pp.21-42.

Harden and Lewis (1988), UK

Humphreys, S, 2010. Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice. Cambridge University Press.

Loughlin, M. and Tschorne, S., 2016. Public law (pp. 324-337). Routledge.

McAdams, R.H., 2015. The expressive powers of law: Theories and limits. Harvard University Press.

Mitsilegas, V., 2014. The criminalisation of migration in Europe: challenges for human rights and the rule of law. Springer.

Ojiako, U., Chipulu, M., Marshall, A. and Williams, T., 2017. An examination of the ‘rule of law’and ‘justice’implications in Online Dispute Resolution in construction projects. International Journal of Project Management.

Sikka, P. and Lehman, G., 2015. The supply-side of corruption and limits to preventing corruption within government procurement and constructing ethical subjects. Critical Perspectives on Accounting, 28, pp.62-70.

Thornhill, C., 2017. The Sociology of Constitutions. Annual Review of Law and Social Science, 13, pp.493-513.

Waldron, J., 2016. Rule of Law. Retrieved from https://plato.stanford.edu/entries/rule-of-law/

Webley, L, 2015. Complete Public Law: Text, Cases, And Materials. Oxford University Press.

Ying, S.U.N., 2017. Study of Rule-of-Law Theories Applied in University Management. DEStech Transactions on Environment, Energy and Earth Science, (eesd).

[1] Ying, Siu, Study of Rule-of-Law Theories Applied in University Management (EESD, 2017)

[2] Barreto, ed., 2014. Human rights from a third world perspective

[3] Government of UK, 2017. Legislation

[4] Humphreys, Simon 2010. Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice.

[5] Loughlin, M. and Tschorne, S., Public law (Routledge 324-337)

[6] Waldron, J., 2016. Rule of Law

[7] Hadfield and Weingast, Bree, Microfoundations of the Rule of Law (2017, Annual Review)

[8] Waldron, J., 2016. Rule of Law

[9] Ying, S, Study of Rule-of-Law Theories Applied in University Management (EESD, 2017)

[10] Government of UK, 2017. Legislation

[11] Waldron, J., 2016. Rule of Law

[12] Ojiako, Chipulu, Marshall and Williams, Tim, 2017. An examination of the ‘rule of law’

[13] Loughlin, M. and Tschorne, S., Public law (Routledge 324-337)

[14] Waldron, J., 2016. Rule of Law

[15] Bugaric, 2014. Protecting democracy and the rule of law in the European Union

[16] Carrera nd Den Hertog, 2015. Rule of law challenges in the field of European border surveillance in the Mediterranean.

[17] Waldron, J., 2016. Rule of Law

[18] Ying, S, Study of Rule-of-Law Theories Applied in University Management (EESD, 2017)

[19] Waldron, J., 2016. Rule of Law

[20] Harden and Lewis (1988), UK

[21] Gupta Pouw, and Ros-Tonen, 2015. Towards an elaborated theory of inclusive development.

[22] Blattman, Hartman and Blair, How to promote order and property rights under weak rule of law? (2014, 108(1)

[23] Waldron, 2016. Rule of Law

[24] McAdams, 2015. The expressive powers of law: Theories and limits

[25] Government of UK, 2017. Legislation

[26] Mitsilegas, 2014. The criminalisation of migration in Europe: challenges for human rights and the rule of law. Springer.

[27] Thornhill, 2017. The Sociology of Constitutions

            Case- Obergefell v Hodges

Introduction

In case Obergefell v Hodges the United States Supreme Court ruled that with respect to the constitution a national wide privilege is granted to same-sex marriage. This occurred in a 5 to 4 ruling where 5 Supreme Court judges wherein the majority position while four of them dissented with the ruling[1]. The decision of the majority held that LGBT people are protected by the constitution and should thus be permitted to wed. For the longest period, it has remained evident that the supporters of same-sex marriage have remained in the minority side in the United States a norm that was transformed on the 26th of June during the court’s ruling. The ruling was made after a group of gay couples from different states in the United States moved to court challenging the constitutional basis of the states that had banned or refused to acknowledge gay marriage[2]. The plaintiffs argued that this was in violation of the fourth amendment and Equal Protection Clause. The ruling that had been made prior was thus reversed by the Supreme Court against the holding that the ban and refusal were not in violation of individual’s rights[3]. While the argument of the majority judges held that the right to marriage is constitutionally provided regardless of who one wishes to marry the dissenting side raised concern in regard to other Americans right in regard to dissenting same-sex marriage as it has been.

The fourth amendment necessitates states to offer license to same-sex marriage populace based on Obergefell v Hodges ruling[4]. The majority opinion was delivered by Justice Anthony Kennedy for the supporting judges in regard to same-sex marriage. In that, the court asserted that the Due Process Clause with respect to the Fourth Amendment offers individuals equally the right to same-sex marriage in an equal manner as provided to couples engaged in opposite-sex marriage[5]. The judicial pattern also held that marrying is one of the fundamental rights which are fully guarded and the provision is applicable to same-sex marriage. This is based on the fact that the right is an inherent one in reference to the concept of individual’s independence as it guards the primary intimate connection that exists amid two persons. In addition, the same clause offers protection to families as well as children by rendering legitimate recognition and respect to creating a home as well as raising children and it is conventionally recognized as the cornerstone in reference to social arrangement[6]. Given that there are no distinctions amid same-sex and opposite-sex marriage in regard to the constitutional principles it is evident that the segregation of same-sex persons from marrying each other is a primary defilement of the Due Process Clause of the fourth amendment[7]. In addition, the court held that the Equal Protection Clause within the same amendment provides assurances asserting that gay couples should be provided with the privilege to wed as denying or prohibiting them from such is a definite denial of same-sex pair’s equal protection which is offered by the constitution[8].

Conventionally, marriage privileges have widely been handled through several clauses of the fourth amendment and it is the same interrelated principles with reference to freedom and equality that were applied in equal nature in resolving the crisis of same-sex unions[9]. In this case, the constitution, therefore, guards the fundamental rights of same-sex intimate pairs in regard to marriage. Further, the court also asserted that the First Amendment guards the general rights of religious institutions in regard to following and obeying their standards but on the other hand it does not permit different states to prohibit or assert refusal of gay couples of their privilege to getting married in regard to equal terms when equated to those of the opposite sex pairs in general[10]. Based, therefore, on the general provisions of the Fourth Amendment it is rather clear that it is a misunderstanding to hold that gay couples disrespect the notion of marriage because their intention is based on creating a more uniform family in general. The argument is that based on their motives and the fact that they have been bonded by devotion and love they have demonstrated respect in regard to marriage as needed by the constitution and they are therefore in search of satisfaction for selves. The clause also creates support for such marriages by condemning individuals from being subjected to any form of loneliness by being segregated from one of the oldest institutions to have existed being marriage. In this context, same marriage plea from Obergefell v Hodges was only in search of equal dignity under the provisions of the American law as they have been offered the privilege by the court[11]. In that the court argued that the differentiation has not be made constitutionally but based on the equal protection section of the amendment then their rights are fully guarded as should not, therefore, be denied.

On the other hand, the dissenting rule differs with that of the majority in several aspects. John Roberts the Chief Justice gave the ruling provisions in which he raised the argument that while gay unions might be beneficial as a positive and fair rule, the American constitution does not in any case address it existence of all that it concerns[12]. In this context, he raised the argument that it is thus, beyond the jurisdictions of the court to make the ruling on whether all states are bound to diagnose, acknowledge or license such unification. In this context, this is a problem that should be resolved by individual state governments based on the motivation and decision of their voters. In this context, Robert argued that ruling in the position of the states is a violation of their obligation to respect those that elected them and those that they represent as the decision might be in violation of the voters and the state’s governments[13]. He added that the constitution and judicial standard evidently offers adequate protection in regard to the privilege of getting married and therefore necessitates differs states to utilize laws that address equality in the subject of marriage but in this context, it is not fair for the court to overrule its boundaries and participate in judicial policy development thus denying states government to engage in the activities[14].

The standards that regard to the privilege of marrying mainly raids down the unconstitutional boundaries that are related to marriage based on the notion that it has been conventionally been described and administrations interruptions and thus, there lacks a precedential support in regard to creating a notion that basically affects the general description of marriage[15]. Robert raised the argument that the minority decision mainly dependent upon the excessively extensive provisions of the Fourth Amendment without mainly relying on the conventional rulings as well as discounting the appropriate response in reference to courts within the democratic setting[16]. Other within the dissenting opinion raised the argument that the ruling of the majority was exceeding of their authority because the court was focused on exercising the legislative role rather than based on the court’s judicial authority by acting in the place of state’s governments. In this context as the court decided to take the policy-making role, they were therefore in defilement of the elected member's rights[17]. In that, the majority opinion created a privilege that was never in existence which is a form of basically creating their own policy. In that, the court stretched the clauses and in this act, they disrupted the democratic provisions by acquiring the general authority of the legislative process. In addition, they argued that the ruling also infringed religious liberty by making policies while on the bench rather than permitting legislatures within states the manner in which the issue can best be addressed for the wellness of the communities[18].

In conclusion, while the majority opinions in support of gay marriage asserted that the constitution guards the rights to equality and marriage the dissenting forum held that the court acted beyond their power by playing the legislative role. In that, the majority opinions were derived from stretching the Fourth Amendment leading to creating a policy that never existed which in turn altered the democratic process. On the other hand, the supporting opinions were grounded on the fact that the constitution guards individuals rights in regard to equality and marriage and these privileges should not be denied given that the amendment has not created any distinction amid gay and opposite-sex unions.

References

Top of Form

2015. Obergefell Et Al. V. Hodges, Director, Ohio Department Of Health, Et Al. Certiorari To The United States Court Of Appeals For The Sixth Circuit. PDF

Cathcart, Kevin M., and Leslie J. Gabel-Brett. 2016. Love unites us: winning the freedom to marry in America. http://lib.myilibrary.com?id=931916.

Koren, Marina. (2016). Gay Marriage in the U.S., After Obergefell v. Hodges. The historic Supreme Court ruling led to a surge in same-sex marriages in all 50 states, polls show. Retrieved from https://www.theatlantic.com/news/archive/2016/06/gay-marriage-obergefell-hodges/488258/

Liptak, Adam. (2015). Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide. Retrieved from https://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html

Lopez, German. (2015). Obergefell v. Hodges: Supreme Court’s same-sex marriage ruling. Retrieved from https://www.vox.com/2015/6/26/8851699/gay-marriage-scotus-decision-obergefell-v-hodges

Ring, Kevin A., and Antonin Scalia. 2016. Scalia's Court: A Legacy of Landmark Opinions and Dissents.http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&AN=1233168.

Stephens, Otis H., and John M. Scheb. 2012. American constitutional law. Boston, MA: Wadsworth Cengage Learning. Bottom of Form

[1] Lopez, German. (2015). Obergefell v. Hodges: Supreme Court’s same-sex marriage ruling.

[2] Stephens, Otis H., and John M. Scheb. 2012. American constitutional law. Boston, MA: Wadsworth Cengage Learning.

[3] Lopez, German. (2015). Obergefell v. Hodges: Supreme Court’s same-sex marriage ruling.

[4] 2015. Obergefell Et Al. V. Hodges, Director, Ohio Department Of Health, Et Al. Certiorari To The United States Court Of Appeals For The Sixth Circuit. PDF

[5] Ring, Kevin A., and Antonin Scalia. 2016. Scalia's Court: A Legacy of Landmark Opinions and Dissents.

[6] Cathcart, Kevin M., and Leslie J. Gabel-Brett. 2016. Love unites us: winning the freedom to marry in America.

[7] Koren, Marina. (2016). Gay Marriage in the U.S., After Obergefell v. Hodges. The historic Supreme Court ruling led to a surge in same-sex marriages in all 50 states, polls show.

[8] Liptak, Adam. (2015). Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide.

[9] Liptak, Adam. (2015). Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide.

[10] Koren, Marina. (2016). Gay Marriage in the U.S., After Obergefell v. Hodges. The historic Supreme Court ruling led to a surge in same-sex marriages in all 50 states, polls show.

[11] Lopez, German. (2015). Obergefell v. Hodges: Supreme Court’s same-sex marriage ruling.

[12] Ring, Kevin A., and Antonin Scalia. 2016. Scalia's Court: A Legacy of Landmark Opinions and Dissents.

[13] 2015. Obergefell Et Al. V. Hodges, Director, Ohio Department Of Health, Et Al. Certiorari To The United States Court Of Appeals For The Sixth Circuit. PDF

[14] Cathcart, Kevin M., and Leslie J. Gabel-Brett. 2016. Love unites us: winning the freedom to marry in America.

[15] Liptak, Adam. (2015). Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide.

[16] Ring, Kevin A., and Antonin Scalia. 2016. Scalia's Court: A Legacy of Landmark Opinions and Dissents.

[17] Koren, Marina. (2016). Gay Marriage in the U.S., After Obergefell v. Hodges. The historic Supreme Court ruling led to a surge in same-sex marriages in all 50 states, polls show.

[18] Ring, Kevin A., and Antonin Scalia. 2016. Scalia's Court: A Legacy of Landmark Opinions and Dissents.

Human Rights: Rights of the Formerly Incarcerated

Introduction

It is estimated that about 70 million people in America which account to one in every three adults have previous conviction or detention records (Lam, 2016). For this populace and over 600,000 Americans that are freed from both federal and state prisons every year, having served certain periods in often cases implies that the foundations of the reintegration procedure that involves securing employment and other amenities such as housing become a severely challenging operation (Lam, 2016). In addition, the racially prejudiced criminal justice system that has fueled mass incarceration in the recent years has extremely affected the colored communities. A conviction in an individual’s past should not be a life verdict to poverty, joblessness, illiteracy, and loss of certain human rights (Austin, N.D). It is never easy to live with the knowledge that your criminal record will forever determine you. The primary objective of sentencing is to ensure that those found guilty of crimes are corrected and after release would, therefore, integrate at ease with the real world and focus on being a good person (Lam, 2016). Yet, these records hinder individuals from perusing education, developing self and regroup their real value. The rights of formerly convicted persons in America has consistently been violated based on unjustified prejudice and not on rationality.

In May 2016, President Obama signed up a memo proposing a law that would restrain federal organizations from requesting information on whether the applicants have any criminality records until the recruitment is in its final stage (Lam, 2016). While it remains theoretically unlawful to deny a qualified person a working opportunity based on past conviction unless the committed criminality has a link with the job, in most cases those with conviction and other related criminality records history are normally deterred or separated from other applicants leading to their disapproval based on the disclosure following the submission requirements. Most individuals close to 70 percent have consistently been disapproved based on such disclosure even though the detention or charges never resulted in a conviction or the competence is justifiable based on the needs of the company (Austin, N.D).

Besides the challenges of securing employment, some formerly incarcerated persons are denied the right to education and voting (Binswanger et al., 2017). The constitution makes it rather clear that every individual is entitled to the provision of such needs and privileges of voting. In this regard, this populace is subjected to poverty because unlike the counterparts they cannot access advanced education at ease based on fear and prejudice that they are not suitable to be integrated with other learners. With low education status this, therefore, implies that their chances of getting decent employment that is capable of taking care of them and their families are impossible. The dependency rate among the affected families is quite high which can ultimately lead to low living standard and the lack of access to essential services such as healthcare (Nelp, 2017).

It has been established that close to 40 percent of the formerly incarcerated persons are subjected to felony disenfranchisement due to assumption that most of them are a threat to the society (Binswanger, 2017). On the other hand, those suffering from poverty account to 55 percent of those that have secured employment have the privilege of connection or family wealth (Binswanger, 2017).  The suicidal level of those released from prison is eight times higher than that of those that have not be convicted at any time (Binswanger et al., 2017). This is driven by psychological instability because most of them feel that they have been alienated and have no control over their lives no more and they are to blame for such mistakes. In addition, to the inability to secure jobs their families are forced to live in undesirable states that drives their motivation down even further resulting in hopelessness (Nelp, 2017). The fair chance employment policy work to ensure a reasonable decision making procedure by encouraging employees to account for job-relatedness to past sentences, mitigating evidence and the conceded time (Keall, 2012). Every individual is entitled to employment given that they are qualified based on the job requirements. However, one with conviction records will have to face challenges due to the prejudice that such information creates on the employers. Title VII also restrains any employment discrimination that is grounded on nationality, age, race and so on but does not address the issue of conviction (Keall, 2012).

Conclusion

In summing up, employment security is one of the primary determinants in deterring criminality recidivism among those that had formerly been incarcerated. With more than 70 million persons having been incarcerated in the past and the number increasing with over half a million every year, it is apparent that discrimination based on conviction record is unnecessary and unlawful. In that qualified persons should be given the opportunity to participate in the workplace, pursue education, integrate with their communities and develop their personalities to achieve their actual values. The current system promotes the infringement of human rights as granted by the American constitution. A past conviction should not be utilized as a lifetime verdict to subject individuals to suffering even after serving their sentences and demonstrating reforms.

References

Austin, R. (N.D). The Shame of It All": Stigma and the Political Disenfranchisement Of Formerly Convicted And Incarcerated Persons. Retrieved from https://www.law.upenn.edu/cf/faculty/raustin/workingpapers/b36ColumbiaHumRtsLR173(2004).pdf

Binswanger (2017). Release from Prison — A High Risk of Death for Former Inmates

Ingrid A. Binswanger, M.D., Marc F. Stern, M.D., Richard A. Deyo, M.D., Patrick J. Heagerty, Ph.D., Allen Cheadle, Ph.D., Joann G. Elmore, M.D., and Thomas D. Koepsell, M.D. Retrieved from http://www.nejm.org/doi/full/10.1056/NEJMsa064115

Keall, S. (2012). Employment & labour law: Jurisdictional comparisons. Thomson Reuters.

Lam, M. (2016). Obama’s Proposal to 'Ban the Box' for Government Jobs. Retrieved from https://www.theatlantic.com/business/archive/2016/05/obama-memorandum-opm/480909/

Nelp. (2017). Ensuring People with Convictions Have a Fair Chance to Work. Retrieved from http://www.nelp.org/campaign/ensuring-fair-chance-to-work/