Essay 11: Marry Carignan V. New Hampshire International Speedway, Inc. et al
Mary, the plaintiff, is in dispute with New Hampshire International Speedway, Inc., the defendant, accusing them of negligence under the element of duty of care. On the fateful day of the accident, Speedway was hosting the Winston Cup race hence attracting many fans. The organization would also open part of its parking for recreational vehicles (RVs) and a security guard to direct traffic. For negligence to apply in this case, the plaintiff must show a relationship with the defendant in which the latter owed a duty to the former (Miller, 2011). Speedway Inc., by opening up part of its parking next to route 106 it immediately creates strikes a relationship with the motorists on the highway.
The test for Speedway’s negligence is duty of care and breach (Miller, 2011, 86). The company voluntarily positioned an employee as a security guard and for directing vehicles. In this regard, the company and the security guard alike have a duty to ensure effective flow of traffic and prevent occurrence of accidents. Furthermore, the voluntary action showed that the organization knowingly understood the risks of not positioning someone to control traffic driving off Route 106 and into the open parking (Goldberg, 2005). The court is likely to rule in favor of the plaintiff for the defendant was negligent under the element duty of care. Once the court establishes that the defendant indeed owes a duty to the claimant, it attempts to settle whether that duty was breached. In this case, through a subjective and objective test the court will find that the defendant knowingly exposes the plaintiff to a significant risk of loss.
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Another test that would identify negligence on the part of the organization is causation in fact and the proximate cause of the injury (Miller, 2011, 86). The case points out that Carignan attempted to pass the large RV on the left while it was entering the Speedway’s open parking. As a result, the latter hit the motorcycle resulting in critical injuries sustained by the plaintiff. The provisions of the case show that Neerguard and Speedway Company could not identify the occurrence of the motorcycle passing the RV as a foreseeable risk. Any prudent motorcycle driver would identify the dangers of overtaking the large RV on its left when it was entering a parking area. In this regard, Carignan assumes the risk by not taking the normal pattern of traffic.
Essay 12: The evolution of Tort Law The Evolution of Tort Law:
Tort law is designed as a fault-based system for compensating injuries, but it has become something of a tool for spreading the cost of accidents to the party best able to bear it. Please read and ponder the historical evolution of tort law as Friedman lays it out in Chapter 11. For many years, the prevailing social view in the United States was that accidents happened, and the victims were simply unlucky. The notion that an injured person’s misfortune “must be somebody’s fault” and that “somebody should pay” is an attitude that evolved fairly recently. Do you think this is a positive development? Submit a 1- to 2-page response addressing the viewpoints of individuals, business, and society .
The tort law has had a significant transformation throughout the history of the American law system. The concept “tort” is drawn from the French meaning “wrongful act”. In this case, the law was created as an implicit identification of the responsibilities that civilians have towards one another. When one commits a “wrongful action” that causes another to suffer loss or harm, the former is legally liable. The English were the first to adopt this law into the rights of Englishmen and the Commentaries on the Laws of England by Blackstone published in the late 1700s identified the numerous torts (Friedman, 2002). The two were integral to the adoption of similar laws in the US, but included significant compensation for the victims of torts. The laws were adopted as part of the reception statutes with only Louisiana having partial reception (Friedman, 2002). It was not until the late 19 th and early 20 th Centuries that attempts were made to improve the common law.
In the early civilizations that adopted laws of punishing crime, the action itself was the one under scrutiny. The laws separated the defendant’s action from the motives of doing. However, following significant development it became evident that misfortune “must be somebody’s fault” who should pay for the damages and loss incurred (Friedman, 2002). From the individual point of view, this attitude brought about equality where all members of society should act in a manner that will not result in harm of others. According to Friedman, the tort laws provide the society with an overall protection against damages caused by another’s negligence or intentional (Goldberg, 2005). In this regard, corporations that generated a lot of power in the early decades of the 20 th Century are now held accountable for injuries, harm, or financial loss sustained by consumers, employees, or communities they serve (Friedman, 2002). The tort laws are positive as they identify that when a member of society suffers from harm, the tortfeasor compensates them for damages incurred including the labor it will take.
Lesson 5, Forum Post
In the recent years, tort law has become a common reason prompting individuals to take up legal action against others, professionals, and corporations particularly on gross negligence. The American civil justice system is the best in the world in the provision of fair and adequate compensation for injuries sustained (Nixon, & Texas Public Policy Foundation, 2013). However, the people sometimes abuse this system when juries make decisions on the financial compensation for the victims resulting in tort law becoming a “hot button” issue. From the late 1970s to the early years of the 21 st Century, the state of Texas was a “judicial hellhole” as medical practitioners, particularly specialists, became targets for malpractice lawsuits and in many cases came up against class action suits (Nixon, & Texas Public Policy Foundation, 2013). The law practices allowed many to become recipients of “jackpot justice” or “lawsuit lottery”. The plaintiffs usually refrain from pursuing individuals who cannot provide the compensation ordered in judgments making doctors a preferred target due to the malpractice insurance. As the lawsuits increased, so did the insurance premiums resulting in a drastic rise in cost of care (Nixon, & Texas Public Policy Foundation, 2013). Majority of the cases showed astronomical provision of compensation by jury rulings a clear indication why the task of determining damages should be given to the judge.
Essay 13: Criminal Procedure Essay 13: Criminal Procedure
Do you think that criminal procedure in this country is weighted too heavily in favor of accused persons? Can you think of a fairer way to balance the constitutional rights of accused persons against the right of society to be protected against criminal behavior? Submit a 1- to 2- page response. Give specific examples, which you have gathered from assigned materials and/or outside sources, to support your assertions. Please make sure that you properly cite any resources used in your work.
Criminal procedure within the United States is weighted heavily in the favor of accused individuals since the legislative and executive actions to change the manner of combating highly ranked criminal activities. Stiffer laws are used to guide and direct the federal court in the procedure. First, conventional law enforcement entities possess new powers of employing various procedures and methods when judging criminals depending on the severity of the action. Second, the nation's intelligence personnel and military have taken novel functions following the conception of specialized courts, which prevent with the ethical and moral entity concerning suspects. Third, criminal arraignments of suspected psychological militant are not concurred criminal trials yet rather speculates put in detainment. Fourth, there is the formation of new fear mongering laws that do not regard the sovereign of regional limits in capturing suspects of psychological oppression action (Wert (2011). The laws do not take to consideration important aspects of dealing with criminals.
The fairer means of treating criminals should take into consideration the following example that uses the treatment of terrorists. Under conventional law, they are mistreated and their human rights are completely disregarded. Terrorists meet state approval and receive legitimate cases is by indicting them as regular criminals in the civilian criminal justice system. In general, criminal procedures do not incorporate severe actions against the accused party. For instance, developing specialized courtrooms for specific criminal action could result in poor effects on the procedure. A high level of generalization of penal codes and statutes could result in many discrepancies in the enforcement. For example, the three-strike rule does not take into account the nature of crimes that occurred hence unfairly punishing the individual (Wert, 2011). A similar sentence may be provided to one who has engaged in simple burglary and one who undertakes illegal sale of substance and drugs (Richards, 2001). The court system should try individuals by applying procedures of fairness and careful consideration of the action and intent for the criminal behavior hoping for the best possible outcome.
Essay 14: Martha Stewart and White-Collar Crime
In the past decade, much has been made of corporate greed and white-collar crime. Ken Lay, Jeffrey Skilling, Dennis Kozlowski, Martha Stewart, Bernie Madoff… the list goes on. Read the Martha Stewart article. Write a 2-page response about the charges against Martha and whether her prosecution was fair (in your opinion ).
White-collar crimes have become a common occurrence in the modern society identifying the greedy nature of corporations and their leaders who attempt to undertake illegal measures to maximize their personal wealth. Since the turn of the 21 st Century, multiple corporate executives and the firms they represent have come under scrutiny and judgment of the law for their unlawful deals (Moohr, 2006). The crimes include forgery, embezzlement, bribery, money laundering, identity theft, insider trading, and other fraudulent schemes. Jeff Skilling, Dennis Kozlowski, Bernie Madoff, Ken Lay, and Martha Stewart are famous figures who have participated in such crimes. However, for Martha Stewart, the case is different owing to the paradoxical personas presented on television and off the screens. On the one hand, she was an encouraging symbol of the possibility of realizing the American Dream (Moohr, 2006). Through hard work and risky investments, she created her empire that made her a popular figure among feminists and women across America.
Martha Stewart’s primary business was home art and other works of women. Her firm, Martha Stewart Living Omnimedia, provided her with widespread recognition in the local industry prompting the New York Stock Exchange to invite her to sit as part of the board of directors. However, it was shortly after this that she would depict a completely different image from that the American public was used to. It all began with the sale of her ImClone shares following a tip from her broker that the founder Samuel Waskal had failed to receive approval from the Food & Drug Agency (Moohr, 2006). Stewart sold her 3,928 shares in the company at $58 before the members of the public were aware of the developments in the review process (Moohr, 2006). Waskal admitted to the fraud resulting in his arrest and subsequent conviction for more than 7years imprisonment. Martha Stewart denied the charges leading to investigations that would last 18 months before her indictment (Moohr, 2006).
Due to the high profile status and her influence on the public, the investigation would receive widespread media attention. She was indicted in 2004 on multiple areas of white-collar crimes including deceiving investigators, conspiracy, obstruction of justice, and one count of securities fraud (Moohr, 2006). The high profile investigation of Martha Stewart’s case had taken nearly two years to uncover various illegal practices. The charges raised against her were fair particularly as they did not focus on the sale of ImClone shares. It was depicted that the sale was not based on insider trading rather on nonpublic information that was available to ImClone investors (Moohr, 2006). Following the formulation of the insider trading law, Stewart could not be charged against it. She was not an insider, who owed fiduciary duties to other shareholders (Moohr, 2006). Additionally, she was not a tippee of an insider nor did she misappropriate information and then trade (Moohr, 2006). In this regard, the charges raised against her were fair and in accordance to her business activities.
The prosecution of Martha Stewart involved a 10 months term, split between prison and home confinement. Additionally, she would serve two-years probation from engaging in similar financial trading practices or taking up executive level positions in companies and a $30,000 fine (Moohr, 2006). Faneuil, the assistant to Stewart’s broker pleaded guilty and offered to assist the federal prosecutor in testimony against her. As a result, he did not receive prison sentence or probation from financial trading instead getting a minimum fine. On this note, the prosecution of Martha Stewart was not fair, as it seemed like the federal prosecutor was using her to teach other corporate leaders a lesson (Moohr, 2006). She had already suffered from the extra legal effects brought about by the lengthy investigation and subsequent indictment. Her company experienced a decline in revenue by 17% and 68% drop in earnings from publications (Moohr, 2006). The jail sentence, home confinement, and later probation is a severe punishment.
Essay 15: Ethical Conduct
Even in cases where the policies set by law identifies the validity and legality of an action does not necessarily make it ethical. Ethical conduct in business is an important factor to consider in the modern market. Since the latter half of the 20 th Century, firms looked to deter themselves from incorporating the attitude of making profits first and thinking of other issues (Sharif, & Scandura, 2014). In this regard, the action taken by the internet giant Zoidle is a clear indicator of unethical practices. The firm has a social responsibility of ensuring continued support and consideration of moral behavior in the United Kingdom market. Such a business is capable of addressing the needs of all these stakeholders and realizes significant benefits through increased sales and revenue. The taxation code of conduct is an internal guideline by a company that may highlight its commitment to paying taxes. Some firms may incorporate directives that may go beyond the directions given by the government.
The organizations in the modern market who incorporate tax law loopholes portray an image of greed and selfishness. As previously mentioned, it is unethical for businesses to demonstrate their high level of greed to keeping the highest amount of profit earned. The lack of ethical leadership at the peak of the organization culminates in a self-destructive practice where the lower ranking staff members also engage in poor behavioral practices. The corporation is more likely to experience high levels of workplace conflict or harassment of employees (Sharif, & Scandura, 2014). Additionally, the workforce will fail to demonstrate loyalty to the organization as its operations only seek to benefit the senior executives and not the lowly ranked workforce. As a result, the negative attitude towards the workplace or organization and the individuality beliefs also affect productivity levels.
Lesson 6: Forum Post
Criminal law is an effective measure towards a well-balance system that appropriately protects the rights of its citizens and those that depend on it. The US experiences a two-factor system including the federal and state laws both of which have multiple criminal codes that are used to identify the nature of crimes taking place (Silverglate & Lynch, 2010). It is important to note that the criminal law system is primarily for guiding citizens and residents on the appropriate behavior to uphold. Therefore, increasing the number of crimes in a nation has little effect in ensuring the significant reduction in criminal activity. On the contrary, continued growth in volume of these laws could result in vague interpretation and subsequent oppression of the people it serves (Silverglate & Lynch, 2010). For instance, drug trafficking has become a federal crime that significantly increased “police powers”. The control of the crime has become a lottery system where some members of the society win while others lose. Escaping arrest and being able to lead a successful lifestyle results is a win, which for minority populations is very rare (Beale, 2005). Having a federal criminal record and serving a jail term minimizes the individual’s ability to achieve success.
References
Beale, S. S. (2005). The many faces of overcriminalization: From morals and mattress tags to overfederalization. American University Law Review, 54 (3), 747-780.
Friedman, L. M. (2002) The Liability Explosion Personal-Injury Law in the Twentieth Century. In L. M. Friedman, American Law in the 20 th Century (349-376). New Haven, CT: Yale University Press.
Goldberg, J. C. (2005). The constitutional status of tort law: Due process and the right to a law for the redress of wrongs. The Yale Law Journal , 524-627.
Moohr, G. S. (2006). What the Martha Stewart Case Tells Us About White Collar Criminal Law. Houston Law Review, 43 (3), 591-619.
Nixon, J., & Texas Public Policy Foundation (2013) Ten Years of Tort Reform in Texas: A Review . The Heritage Foundation, Retrieved from http://www.heritage.org/report/ten-years-tort-reform-texas-review
Richards, H. (2001). Structured Analytic Techniques for Intelligence Analysis . London: SAGE Publications.
Sharif, M. M., & Scandura, T. A. (2014). Do perceptions of ethical conduct matter during organizational change? Ethical leadership and employee involvement. Journal of Business Ethics, 124 (2), 185-196.
Silverglate, H., & Lynch, T. (2010) The Criminalization of Almost Everything . CATO Policy Report, Retrieved from https://www.cato.org/policy-report/januaryfebruary-2010/criminalization-almost-everything
Wert, J. (2011). Habeas Corpus in America: The Politics of Individual Rights . Lawrence, Kansas: University Press of Kansas.
