Introduction
The most common court system used in many countries is the Adversarial System. Being an accepted legal system globally, it involves the representation of law suits or positions of the accused and accuser by their advocates before a jury that is impartial. In this case study, the cases highlighted will help us elaborate various legislation and their processes like the concept of jurisdiction, Alternative Dispute Resolution and civil litigation in the business world.
Privacy Act of 1974
According to the case problem highlighted by Miller and Jentz (2009), the hypothetical question 2-6 reads “should damages be awarded in such circumstances solely from the agency’s conduct, or should proof of some actual injury be required?” In this lawsuit, the petitioner sued the Department of labor for releasing his Social Security number to interested groups like lawyers and employers to aid in verifying Doe’s qualifications on disability benefits applications.
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Doe’s argument was based on the violation of the Privacy Act of 1974 that dictates ways in which agencies handle information of individuals. Moreover, the Act encourages the protection of data, records and information of persons scanned in federal agency systems (Winn, 2016). In the case of a violation, the individual qualified for recovery is awarded a minimum of $1,000 to cover the damages caused by the agency either willfully or intentionally.
To handle the question, Doe should not be granted recovery since he did not provide any proof of sustained damages. On the other hand, in favor of the Department of Labor, the agency followed due process to hand Buck Doe disability benefits application. Hence, the DOL did not in any way release the Social Security number of Doe willfully and therefore did not violate the Privacy Act. For Buck Doe to be rewarded, he must provide proof of the damages he sustained.
First Amendment
About the hypothetical question 2-2, Miller (2009) examines whether “the state’s denial of unemployment benefits to Thomas violated the free exercise clause of the First Amendment.” The defendant, a large firm that was involved in the production of both military and nonmilitary products, transferred Thomas, an employee of the company to the department that produced military products after seizing the production of nonmilitary goods.
The transfer forced Thomas to quit employment because according to him, the duties he was assigned defied his religious principles that are against the production of goods which are used in the destruction of human life.
Consequently, the state denied Thomas unemployment benefits because he was not discharged efficiently by the firm - according to the state, Thomas left willingly. On the contrary, Thomas was pushed to quit his job because of the religious demands that the company could not consider. According to the First Amendment stated in the Legal Information Institute (LII, n.d.), the Act forbids the Congress from either prohibiting an individual’s religious practices over others or restricting one from practicing their religion. It is evident that the Act promotes freedom of expression. Hence the business interest of the firm contributed to the state violating the religious clause of the First Amendment towards Thomas’ civil rights.
Alternative Dispute Resolution
Alternative Dispute Resolution especially the use of arbitration has become a substitute to litigation. Following its approval since 1925 through the Federal Arbitration Act (FAA), it is the handing over of a dispute to a third party group or individual as a mediator for aid in resolving the issue between the first and second party. ADR is a great idea that was raised to help come up with solutions to problems through the use of minimal resources like cost, time and effort. According to Peter B. Rutledge (2008), the reformation of the Federal Arbitration Act gave birth to the Arbitration Fairness Act which promoted justice during the process of dispute resolution. The amendment of the Act has raised so many questions including its viability.
The use of ADR especially arbitration is significant primarily for established companies who have the same sophistication, challenge or bargaining strength. On the other hand, in the case of a dispute between an employee and their employer, and family disputes among others, the federal court encourages arbitration over litigation. The core reason as to why it is favorable for corporates to settle for arbitration rather than litigation is due to the simplified procedures and the evidence rules as compared to the sophisticated court proceedings. Furthermore, companies are in a position to minimize costs on the need of an attorney for representation and time spent in visiting the court sessions.
While arbitration may favor corporates, it denies justice and fairness indicated in the Arbitration Fairness Act to consumers and some employees. According to Amalia D. Kessler (2012), some consumers have proved not to be in a position to afford some arbitration because of their cost. On the other hand, for those who can afford the arbitration’s fees, it is at times tough for them to apply their legal rights mainly because of the liberty bestowed on arbitration that does not dictate the use of the law, hence, the denial of the consumer or job seeker’s civil rights.
Arbitration Contract
As Amalia Kessler (2013) reckons, many are the times that individuals enter an arbitration contract through the signing of terms and conditions to purchase an item or earn a job. Depending on the requirements of the contracts, at times consumers find themselves in a disagreement with the company it enters an agreement with after signing and submitting it.
If I had a dispute with one of the credit card or a banking institution, I would not be pleased with the arbitration mandate primarily because of the hidden clauses that do not favor a consumer. For instance, as Rutledge (2008) explains, due to their business power, corporations in most cases increases their arbitration clauses that do not favor individuals hence take away consumer’s statutory rights. Furthermore, as a consumer, I will not be in a position to rely on my civil and consumer rights due to the lack of transparency that is exercised in public juries.
Considering that banks are established institutes, it is evident that they dictate, chose and hire the Arbitration Company or agency. With this in mind, they are in a better position to pay the fees and therefore it is common for the arbitrators to favor the companies that chose and hired them. Therefore, the arbitration mandate leaves me as an individual whose civil and consumer rights are violated by the institution in which I signed the arbitration contract with.
Conclusion
The Adversarial System has been in use for years and has come handy in resolving disputes between parties. According to the highlighted case studies, the Privacy Act of 1974 promotes the protection of individual’s information and data that are recorded in the federal system agencies. As for the First Amendment, its clauses reveal that persons are entitled to freedom of expression. Moreover, the congress is forbidden from restricting individuals from exercising their religious practices. Arbitration is one of the Alternative Dispute Resolutions that makes use of a mediator or arbitrator to decide a dispute. While this form of the settlement of disputes works for corporations, it denies consumers and job seekers the opportunity to make use of their civil rights as in the case of a court proceeding.
References
Kessler, A. D. (2012, March 6). Stuck in Arbitration . Retrieved August 3, 2017, from New York Times: http://www.nytimes.com/2012/03/07/opinion/stuck-in-arbitration.html
LII. (n.d.). First Amendment . Retrieved August 3, 2017, from Legal Information Institute: https://www.law.cornell.edu/constitution/first_amendment
Miller, R. L., & Jentz, G. A. (2010). Business Law Today, Standard Edition. Cengage Learning.
Peter B. Rutledge, Who Can be Against Fairness? The Case Against the Arbitration Fairness Act (2008), Retrieved August 3, 2017, from Alexander Compel King Law Library: http://digitalcommons.law.uga.edu/fac_artchop/800
Winn, P. A. (2016, June 14). Overview of the Privacy ACT of 1974 (2015 Edition) . Retrieved August 3, 2017, from The United States Department of Justice: https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition
