The Legal Environment for Business - Assignment Example

The Legal Environment for Business Question According to the numerous amendments to the United s Constitution, there is one amendment that is relevant to this study, and that it the ‘Congressional Power of Enforcement’, found in amendment numbers 13, 14, 15, 18, 19, 23, 24 and 26. The Supreme Court of the United States of America has stated that the Congressional power, according to the Fourteenth Amendment, would give a private individual the authority to sue a US state in the Federal Court. It must be mentioned that the interpretation of the Fourteenth Amendment and its provision for enforcement has become the primary subject of numerous important Supreme Court cases. (Congressional Power of Enforcement) The Judiciary, or the Judicature, as it is often referred to, is one of the three branches of the Government. It is the system of courts of law to ensure that justice is upheld at all times, and it is also the most important branch of the government as far as justices, magistrates and judges are concerned. One of the most important functions of the judiciary is to adjudicate legal disputes wherever necessary, and it is also responsible for interpreting the law in certain systems, like for example, in common law jurisdiction, in civil law jurisdiction, and also in socialist law. (Judiciary: Wikipedia) It must be remembered that the court systems of local and federal and state governments are in essence responsible for the interpretation of the laws that are passed by the legislature and that are thereafter enforced by the executive branch. It is the basic duty of a court to try the cases that come to it, and to resolve the various conflicts that have arisen, with an impartial and unprejudiced outlook, so that the individual rights that are granted to an individual by the Constitution are protected, within the boundaries of justice. While some courts may try original cases, some courts act as courts of appeal, and they may use their powers of ‘judicial review’ and ‘injunction’ when they are trying these cases. (Judiciary, Politics) All Courts initially used a ‘literal approach’ in their interpretation of a law, and all the words in a law had to be taken exactly as they appeared, often giving rise to ridiculous statements being made. Today, a more ‘purposive approach’ is used, and the actual and intended purpose of the law is revealed. (Plain English Campaign’s arguments for clearer legal drafting) However, in general, there are two main ways in which Courts interpret laws, one when they take the law and legislation as a literal ‘living document’, and the other, when they take it as a ‘enduring document’. When it is interpreted as a living document, then it means that the meaning of the relevant document is taken to be continuously changing and evolving, according to the changing times and needs of the time, like for example, when cultural beliefs and practices and knowledge change with the times. This is the position that is most often favored by the judges of the Supreme Court, and other higher courts, especially in the United States of America and other Western countries. (How Judges and Justices interpret US Constitution and Laws) It is the opinion of Justice Scalia that this is in fact a ‘conventional fallacy’ where one may be compelled to change one’s interpretation of the legislature, form age to age, according to what the society of the time, or the Court may take it to mean; meaning that there may not be constancy or consistency in the interpretations. One example to illustrate this point is the case of Trop vs. Dulles, 1958. The US Supreme Court researched the term, ‘cruel and unusual punishment’ found in the Constitution’s eighth amendment, and revealed that the Court had earlier recognized the fact that neither were the words of the Constitution ‘precise’, nor were they ‘static’. In fact, the conclusion reached was that the Amendment must hereafter draw its meaning and be interpreted according to the changing standards of decency that must be a part and parcel of any civilized society today. Some Justices of the US Supreme Court have in fact reached outside their own society to incorporate certain references pertaining to Western society into their rulings. (How Judges and Justices interpret US Constitution and Laws) Another method of interpretation of the legislature is as an enduring document, and this is the interpretation that is favored by the more conservative judges in the courts, including Scalia. The legislations are taken to be ‘originalist’ or ‘strict constructionist’, wherein a legal document is taken as being something that must be relevant to the times when it was adopted, and not according to the changing times or to the changing needs of the society. Therefore, when the Bill of Rights and other parts of the US Constriction are taken to be enduring documents, then it would mean that the justices would take today’s society as being what it was during the time when it was drafted, and it must be remembered that at that particular time, there were many factors that do not exist today. For example, at that time, women did not have the right to vote, or to run for office, neither were they included in all professions, marital rape was not recognized, spousal abuse was ignored completely, slavery was present, African Americans could not marry, and homosexuals were jailed. Today, things have changed completely and irreversibly, and if the Constitution and laws were to be taken as an enduring document, then it would mean that today’s society is immaterial when it comes to the interpretation of laws. (How Judges and Justices interpret US Constitution and Laws) Question-2 If one particular Municipal Court were to be taken as an example to illustrate the case of Jane vs. Mary, then perhaps one can take the Phoenix Municipal Court to demonstrate Court proceedings in the case of a traffic accident. The Municipal Court, as must be noted, is the judicial branch of the Phoenix City Government, and it is also a part of the State of Arizona Court System. The various types of offenses that are heard by the Civil Division Court rooms are civil traffic, minor criminal traffic, parking, and also environmental damage charges. The so called ‘Orders of Protection’ and the ‘Injunctions against Harassment’ are also handled by these Courts. The primary intention of every Court, as must be remembered, is that of making each and every individual who approaches the Court for the solution to their problem feels that eh has had a fair chance at the trial, and also that his case has been impartially resolved. (Understanding Court Procedures, Welcome to the Phoenix Municipal Court) If the case to be heard were, for example, a traffic complaint, then the citizen would have received a legal Complaint with a Court date as well as time, and the person would be expected to present himself before the Court on the said time and date. Before appearing, however, the person would have to make a decision on how he would plead, whether he would plead ‘guilty’, or ‘no contest’ or ‘not guilty’. If the person has been charged with a ‘criminal offense’, then he would have to make the decision of whether or not he needs a lawyer to defend his case, and then proceed. If the Prosecutor’s office wants to impose a jail term, of if a statute states that he must undergo a jury trial, then he can request the Court to appoint a ‘Court Appointed Attorney’ to represent him. (Understanding Court Procedures, Welcome to the Phoenix Municipal Court) It is quite obvious that throughout history, people have had disputes with each other over large and minor issues, and they have indeed needed some means with which to settle them, and as civil societies started to develop, it meant that disputes must also be settled in a civilized manner, and this was the function of a Court of Law. In the state of Oregon, for example, there are two main branches of law: civil and criminal law. Civil law would include statutes and case laws that are meant to interpret an individual’s or an organization’s private rights in their various relationships and disputes that may involve either property or their own person and injury to the person, or tax, or any of the government’s rules and regulations, or even family relationships. Criminal laws, on the pother hand, are meant to protect and safeguard the society and its basic human rights, so that a peaceful and safe society may be maintained. Any individual, who violates his basic duty to preserve the peace and safety of the society that he lives in, is said to be guilty of a ‘crime against the people’, and he can thereafter face a jail term or some other form of punishment. (An Introduction to the Courts of Oregon) Modern criminal law is statutory for the most part, and criminal cases in general require the Court to interpret them and then to decide whether or not they may apply to the case in question. In the case of Jane vs. Mary in question, it would be the ‘Circuit Court’ that would have heard the Civil Case of Jane, when she was claiming for damages for personal damages that happened because of the careless driving of Mary. It is the Circuit Court that has the power and authority to perform many of the following functions: it can dissolve marriages, and subsequently distribute the assets of the two parties involved, it can award the legal custody of children to one parent or the other, it can decide who has the title to a piece of land, it can preside over trials, it can issue injunctions. (An Introduction to the Courts of Oregon) When the decision has been taken in a Circuit Court, then they are sent directly to the Court of Appeals, except for those cases where the decision was a death penalty, for which the court of appeal would be the Supreme Court. In this case, the Court of appeals, created in 1969, would have the jurisdiction to hear cases form the Circuit Court, and also review most of the actions of the state administrative agency. This is the Court that has the heaviest case load, and in order to manage it better, the Court divides the judges into three panels, with three judges each, and every month, the Chief Judge assigns a group of cases to each of the panels. (An Introduction to the Courts of Oregon) When a person willfully disrupts Court proceedings, then he would be held in ‘Contempt of Court’, and this can even lead to a jail term for the disrupter. (Scheb, 2001) Jane, the accident victim, would do well if she were to appoint a lawyer for herself, and if she cannot afford to do so, ask the Court to do it for her, and then plead her case in the Circuit Courts, after which she could try her case in the Court of Appeals. Question-3 In the case of James and Amy, who may either want to work in a partnership, or for a limited shares company, they would have several options to choose from. If an individual is not the sole owner of the business, then it would mean that he would not be able to enjoy ‘sole proprietorship’, and instead, he would automatically become a partner in any partnership, unless he were to take up the option of forming a ‘limited liability company’. It must be noted that a partnership is in actuality much like a sole proprietorship, except for the fact that there are two or more owners in the former. A partnership is in general inseparable from the owners, and unlike in corporations, partnership would not have to pay taxes as an entity, and instead, losses as well as income are passed through the existing partnership to the various partners, and they are thereafter reported on the partners’ individual federal tax returns. The difference between a partnership and a sole ownership is that while in a sole ownership, one single individual can own and run the business, in a partnership, tow or more people would be involved in all the various activities and major decisions of the company. (Fishman, 2004) In a partnership, one would have to decide, among various other things, the fact of whether or not each partner would share in the profit and losses of the company, and how. One would also have to decide how exactly partnership decisions would be made, and also what the duties of each and every partner will be in the running of the organization. He would have to make the decision of what must be the procedure to adopt if there were to be a dispute and what to do if a partner leaves or dies. It must be remembered that all the partners are to be held equally liable for all partnership debts, and for lawsuits, if any, just like a sole proprietor would handle everything himself. A so called ‘limited partnership’ would mean that there would be two different types of partners: one or more ‘general’ partners would be responsible for running the business, while one or more ‘limited’ partners would not interfere with the running of the business, but would be partners at the same time. These limited partners would be much like stakeholders, because they are not personally liable for the business. The general partners would be held liable for all the activities, including disputes and lawsuits involving the company. (Fishman, 2004) It can therefore be stated that a partnership as such is a business hat is owned by two or more people, which has not filed the papers that would enable it to make it a ‘Corporation’ or a ‘Limited Liabilities Company’. In other words, the creation of a partnership is very simple and quick; one would not be required to file any papers to do so, the arrangement would start to function as soon as business is started with another person. If, therefore, James and Amy were to start working with each other, then it would mean that they have successfully entered into a partnership. However, even though it is a fact that the law does not require it, a written agreement is in fact made and the partners generally work out how they would work in a partnership with each other, on paper. If there is no written agreement, then it means that the partnership laws of the state in which the partnership has been formed would govern the partnership. There is a great difference between a partnership and a company that is limited by shares, and where in a partnership, there is no need to form a written agreement, or for any other form of paperwork, in a Limited Liability Company, the various business owners must file the so called ‘formal articles of organization’, also referred to as a ‘Certificate of Organization’, and file the same in the state’s LLC filing office. Apart form this main difference, another difference between a partnership and a company is that in a company, all the partners are to be held equally and personally liable to any business debts that the partnership may incur. In other words, the creditors of the partnership may pursue the partners’ personal assets, while the members of the Limited Liability Company cannot be held personally liable for their firm’s debts or losses. One major similarity between a partnership and a Company is that both offer ‘pass-through taxation’, which in other words means that the owners are expected to report the business income or the losses of their business in their individual federal tax returns, and this is because of the fact that the partnership or the company is not expected to pay any taxes. (Partnerships FAQ) While a partnership can raise more capital quickly, it does have certain disadvantages: each partner may have a different goal or vision for the business, each partner my have different commitments, in terms of involvement and finance, and there may also be a number of personal disputes where there is a partnership. However, at the same time, a partnership can be less expensive, and also quicker than forming a company. For one, there is no paperwork involved, and there are fewer formalities. The advantages outweigh the disadvantages: there is a shared financial commitment, and the partners can pool their resources and strengths together for their own advantage. The start up costs are minimal as compared to a company, and perhaps James and Amy could consider entering into a partnership before they think of forming their own company. (Advantages and Disadvantages of General Partnerships) Question-4 In today’s world, there is conflict in our day to day lives, at home, in school at work, in a business establishment, in workplaces, and so on. It is a fact that almost everyone would like to have all their conflicts and disputes resolved with a minimum of tension and drama. the most well known and recognized traditional dispute resolution process of the civil justice system is where there is litigation and a trial where a judge or a jury decides and settles the dispute, and decides who was right and who was wrong, and who is the loser and who the winner. The other option that is available to a person desirous of solving his dispute or conflict is the ‘negotiation, mediation, and arbitration’ procedures, or what is also known as the ADR procedures. This is the procedure that can bring forth the best results possible with a minimum of tension, whether the dispute involves the family, or the entire neighborhood, or even thousands and thousands of dollars of money. The reason is that when using the arbitration method of resolution, the result can well be a fair, sensible, logical and reasonable solution, for both the sides fighting the dispute, and this can therefore be a real win-win situation, with there being no winner or loser. As a matter of fact, it must be mentioned that settlement and compromise have been traditionally favored in the Court, and more often than not, the Court does arrive at a settlement and a compromise, instead of making one party the winner and the other the loser. Statistics show that only about a mere 5% of all the cases filed does go to trial; and the ADR procedures would be an excellent option for a person who wishes to solve his problem through the method of arbitration. The basic advantage is that the procedure costs infinitely less than the traditional court case, and the disputes are also resolved much more quickly and simply than with the traditional trial procedures. Therefore, it can be said that ‘arbitration’ as such is the submission of a dispute to an impartial individual, or the arbitrator of the dispute, for the final decision about the conflict to be taken. It is typically an ‘out-of-court’ proceeding that is being more and more favored today, to settle a dispute. It is the arbitrator’s duty to control and keep an eye on the proceedings, and give an unbiased ear to both sides of the problem, and thereafter make his decision, based on impartiality. However, much like a traditional trial, only one side would be able to win or prevail, but at the same time, unlike as in a trial, appeal rights would be extremely limited. When the setting is more formal, then the arbitrator or a panel consisting of three arbitrators will conduct a ‘formal hearing’ in a formal meeting room or in an office, and according to the proceedings being conducted, the parties involved in the conflict would be expected to produce the relevant evidence to prove their point. These may be exhibits, documents, or testimony, and at times, the parties can be allowed to establish their own method of procedure for the settlement of the dispute. At other times, any particular organization would be required to provide the procedures required to settle the dispute. If all the parties involved have decided, prior to the hearing, that they will be bound by the decision being taken on their behalf by the arbitrator, then it can be said that the result of the arbitration is ‘binding’. Thereafter, there is very minimal chance for an appeal; since there has been an agreement that everyone would deem that the arbitrator’s decision will be final. an arbitrator’s award may be reduced to a judgment in Court, and when this is done, then it means that it has become an enforceable decision. However, when the arbitration is considered to be non-binding by all the parties involved, then the decision may become a final one if all the parties agree to accept it, or it can be taken as a stepping stone for all future settlement talks, and it may also help the parties to re-evaluate the case. Arbitration is most commonly used in labor disputes, like for example, when there is a dispute between fire fighters and the city in wage. In general, in such cases, an attorney would be required to represent the arbitrator. In fact, today, many contracts state that any disputes that may arise must be settled by an arbitrator, like for example, in a credit card dispute, or in any dealings with a stock broker. This is because it would save the parties the expenses of going to Court and filing a case and thereafter standing for trial; in arbitration, things would be much simpler and quicker and much more economical, and the result may well be acceptable to all the parties involved, because there may be no real winner and loser. If a contact has been signed with the arbitration clause, the user must be aware of the following facts: it will be the arbitrator, who will make the final and binding decision, and furthermore, one may be in fact giving up or waiving one’s right to stand for trial in a court of law. Some of the main advantages of arbitration are that it can be used voluntarily, it will remain private, it will be definitely less structured and formal than going to the court to fight the case, it would offer each party the opportunity to present their own view points, and the necessary evidence to substantiate it, it would give the party the right to choose their own arbitrator, the arbitrator’s result can be enforced in a court of law, and if litigated, then the party will still have the right to appeal. (Methods for resolving conflicts and disputes) Disadvantages seem to be infinitely less than the advantages of using arbitration to settle a dispute, and one would do well to remember that it is assumed that arbitration is one of the best ways in which to settle a dispute or conflict today. REFERENCES “Advantages and Disadvantages of General Partnerships” Retrieved From http://www.allbusiness.com/articles/StartingBusiness/2513-25-1769.html Accessed 20 January, 2005 “An Introduction to the Courts of Oregon” Retrieved From http://www.ojd.state.or.us/aboutus/courtsintro/ Accessed 20 January, 2005 “Congressional Power of Enforcement” Wikipedia. Retrieved From http://en.wikipedia.org/wiki/Congressional_power_of_enforcement Accessed 20 January, 2005 Fishman, Stephen. (2004) “Working for Yourself, law and taxes for independent contractors, freelancers and consultants” Nolo. “How Judges and Justices interpret US Constitution and Laws” Retrieved From http://www.religioustolerance.org/scotuscon6.htm Accessed 20 January, 2005 “Judiciary, Politics” Retrieved From http://www.answers.com/topic/judiciary-1 Accessed 20 January, 2005 “Judiciary” Wikipedia. Retrieved From http://en.wikipedia.org/wiki/Judiciary Accessed 20 January, 2005 “Methods for resolving conflicts and disputes” Retrieved From http://www.okbar.org/public/brochures/confbroc.htm Accessed 20 January, 2005 “Partnerships FAQ” Retrieved From http://www.nolo.com/article.cfm/objectID/D2C7200B-28A8-49FB-9EA5E2B7E7F15CB5/111/182/275/FAQ/ Accessed 20 January, 2005 “Plain English Campaign’s arguments for clearer legal drafting” Retrieved From http://www.plainenglish.co.uk/drafting.html Accessed 20 January, 2005 Scheb II, John. M. (2001) “An Introduction to the American Legal System” Thomson Delmar Learning. “Understanding Court Procedures, Welcome to the Phoenix Municipal Court” Retrieved From http://phoenix.gov/COURT/courtpro.html Accessed 20 January, 2005 Read More