Despite being restrictive of the responsibility of the defendant most of the time, it does, however, also extend the liability of the defendant in certain cases. Both will be considered in this essay in further details. The encounter of novel cases necessitates the courts to invoke the Caparo 3-stage test to determine the existence and extent of duty of care not yet established by the authorities. The ‘fair, just, and reasonable’ stage, under which matters of policy are to be considered, is what must always be faced when using the test. Andrew Robertson proposed two categories of policy considerations: ‘justice between the parties’1 and ‘justiciability, community welfare and other non-justice considerations’2 which concerns the effects that recognition of the duty may have on legal system or on people’s behaviour.4 Even when no public policy matters are said to be concerned and the decision reached on the basis of foreseeability and proximity proves desirable, the decision actually conforms to the former sense of policy where it is thought to be fair among the parties to do so.
1. Describe these two judicial philosophies. Judicial Activism is when judges/courts do not strictly stick to the interpretation of a law, but create a new one. Easily explained, when an issue is being ruled upon, courts establish a new law to rule broadly on the issue rather than limit their verdict. A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts.
Informal 1. Although informal adjudication is not as elaborate as the formal method, the hearings are still subject to a predetermined set of rules, to which parties must adhere. 2. Laws may implement a specific “time frame” (DeLeo, 2008, pg.4), in which concerned parties will be allowed to submit their case. If too much time elapses between an event and an action the case may be set aside.
ADR Team Clause 1 Running head: ADR TEAM CLAUSE ADR Team Clause ADR Team Clause 2 ADR Team Clause With a surfeit of litigations consuming our legal system, the Alternative Dispute Resolution (ADR) has provided disputing parties with various non-traditional means of legal resolution to their disagreements; thus avoiding the complexities and expense of the court process (Jennings, 2006). The ensuing passages will discuss the purpose and provisions of the ADR clause for the LAW/531 Learning Team (L5LT). Teams can be an embodiment of individuals with diverse characteristics
1. International Legal and Ethical Issues Cynthia Debose October 07, 2013 Law/421 University of Phoenix Chontele McIntyre 2. Once an individual completes the simulation, he or she can see that there are many problems concerning the practices, and resolving of international transacts disputes. It was hard trying to work through the difficulties of dealing with two different sets of protective laws. One problem encountered was attempting to develop one agreement that would represent two different companies, each with its own set of government policies regarding business. Every company involved must do its part of resolving any legal disputes, such as drafting a choice-of-law clause.
Lack of clarity of purpose can be a risk and a legal issue leading to disputes. The major legal principle here is that, companies should always endeavor to clarify and understand each and every clause of the contract so that they know what they are committing themselves too. It lessens on the misery caused during times of disputes. No matter how easy and simple it may appear during the contract signing process, it becomes totally complicated to understand and agree upon a common interpretation of ambiguous clauses when disputes come up. For instance, in the simulation given, there were ambiguous clauses like “ordinary requirements change” which became a source of conflict because the software user and system requirements changed over time which were had to just incorporate into the contract because of the big effect they had on the project costs and
There should also be an increased use of ADR in courts those tribunals for civil cases. ADR is a great way to solve civil cases not everyone has the money to go court so ADR is an option in civil cases. A problem that may affect the access of the legal system is the strict rules of evidence resulting in useful evidence being inadmissible. Evidence such as stolen evidence cannot be used in court it could be very useful in get to the bottom of a case but it inadmissible because it was stolen. There are also difficulties with witnesses giving evidence.
Alternative Dispute Resolution University of Phoenix LAW/531 Courteney Harris March 22, 2011 Alternative Dispute Resolution The learning team environment could be often disturbed with disagreements and disputes between members. To reduce the conflicts, learning teams should integrate methods of alternative dispute resolution that could resolve, prevent, and address all types of team confrontations in a responsive, timely and fair manner. An alternative dispute resolution (ADR) is used to resolve business and other disputes among persons. “The most common form of ADR includes arbitration, negotiation, mediation, conciliation, mini-trial, fact-finding, and judicial referee” (Cheeseman, 2010 p.43). The purpose of this paper is to prepare an ADR clause that may be used by a learning team to resolve disputes.
It was clear to Aristodemou that Gaines had a more liberal approach when it came to intellectual property. Throughout the article Aristodemou continuously argued Gaines opinion due to their different outlooks on what they thought intellectual property was and what it entitled. .Gaines is constantly coming up with one theory to the next with different opinions of each going against the regular norms in law, which has made the article become controversial in many ways. Therefore we can tell Gaines has a more negative discretion towards the topic of intellectual property compared to Aristodemou look on it. Within law this allows us to question our beliefs on certain subjects more in depth.
Constitution being so vague in many areas, it appears that its power is derived by simply stating what is required and how things should work. By states adding so much detail, they clearly indicate that the detail is needed justify their powers given by the national government. With this detail comes the necessity for effective writing to ensure that clear guidelines are set. Similar to giving directions, if things aren’t precisely explained, it can lead to barriers in the legislative system and make the need for amendments even greater. A perfect example of this is in a 2009 amendment to the Ohio constitution covering the topic of casino’s in the state.