Property Based Legal System in Business Law - Essay Example

Business Law Ans A property based legal system is one that revolves around the notion of property – which is the legal right to exclude or keep others from interfering with one’s property, which is what one owns.1 Under this concept, there would be three kinds of property (a) public property which is owned by the Government (b) private property, which comprises the resources that an individual owns and (c) common property, which comprises land and other kind of property which people own jointly. There is greater incentive for people to develop those resources which they own because they can control what they produce. In the United States, the capitalist system and the free market allows individuals to develop, to freely benefit and profit from the property and resources that they own. Therefore, this provides them the incentive to work hard to develop their resources. For example, in the United States, I can use my talent and financial resources to start a small business and I will be entitled to make as much profit as I can and keep most of that profit for myself. In a similar way, I will also have the right to enter into deals with other businesses and customers which will bring me the maximum profit and therefore I will have the incentive to work hard at my business to develop it. 2. The property based system is one that is based on a free market system and that of private enterprise. The level of Government control is very low and it is easy for individuals to exercise ingenuity in developing successful business tactics to make the maximum profits. The freedom of ownership and enterprise allows businesses to compete with each other, so that customers are also likely to benefit from fluctuating market prices and lack of Government interference in the running of businesses. As opposed to this, in a country like the erstwhile Soviet Union, where most property was owned and regulated by the State, there is little if any, incentive for individuals to work hard, because the level of their profits and personal gains are restricted to maintain economic parity among people. In such an environment, there is also a greater level of bureaucracy and corruption in the conduct of business, such as in acquiring licenses, etc because the Government has a substantial interest in the property. Moreover, the courts in such countries are staffed by judges and legal professionals who do not earn much money, and are therefore easily corrupted to render unfair judgments favoring the party they have received bribes from. Therefore, the institutional framework of the country becomes corrupted and not conducive to the thriving of business enterprise2. Ans 3: The ethical issue faced by Verichip is whether to continue marketing the chips when faced with the findings of the various studies showing that it causes cancer. From a consequentialist perspective, Verichip must assess the negative effects of possible cancer being caused, as well as the purported benefits that will result to patients as a whole from being able to have their medical records electronically assessed and thereby saving lives. On this basis, it needs to make a decision about whether or not to continue manufacturing the chips. The CEO however has a more difficult ethical issue that he must face up to. Was the information about the possibility of causing tumors available at the time the FDA approved the chips? In view of the fact that the Company is touting the chips as a safe product, the CEO must consider whether or not future buyers of chips should be informed about the possibility of contracting malignant tumors. According to Kant, the categorical imperative mandates that a person should act in the manner that he believes everyone has a duty to act3. Integrity and honest exercised on the part of the CEO would require that he makes such information available to future buyers of the chips. In the case of Tommy Thompson, although he advocates widespread use of the chips, he does not himself have one, thereby indicating that he is inherently uneasy about the product, Applying the categorical mandates mentioned above, it would be unethical for Thompson to continue to benefit from the chip and use his role as a former Government member to claim authenticity for the chips. Ans 4: The question of whether a case will be taken up at the federal level depends upon the subject matter jurisdiction over the case. Most of the cases where federal jurisdiction rests will deal with matters that arise out of the U.S. Constitution or federal statutes.4 They also deal with citizenship issues. Probate cases for example will be heard in the probate courts while disputes involving small amounts will be the jurisdiction of the small claims courts. The Supreme Court is the only court that can deal with cases involving disputes between states or states where jurisdiction does not rest in a particular state but ranges across different states. A plaintiff must also establish a legal standing to sue before a case will consider taking up the case. Standing will hold when a specific issue or event is at dispute, and when the plaintiff is able to demonstrate that he or she has a personal stake in the resolution of the dispute. Without subject matter jurisdiction and standing to sue, the federal courts will have to deal with abstract legal issues which is an untenable position. Moreover, the Courts must also have personal jurisdiction over the case, i.e, the plaintiff must be domiciled in the area served by that particular court. In criminal cases, the crime should have been committed in that state for the state courts to have jurisdiction over the crime. Federal courts may also accept class action suits, filed by a group of individuals or by a few individuals also on behalf of others who may all be affected by the issues in the suit and have a claim arising out of it, for example the manufacture of a drug that causes adverse side effects. Ans 5: In this instance, litigation would offer a good avenue to enforce the provisions of the contract and to ensure that the vendor is made to supply the necessary raw materials and also make up for the deficiencies in materials that were not supplied. The case will be especially strong if the proof of payment to the vendor is also available. The course to follow may be to file a motion in the court on the basis of breach of contract, which has been entered into by both the parties. The manufacturing Company can file a motion on the basis of the pleadings or summary judgment. This process can avoid the lengthy and expensive discovery process, which will be time consuming and expensive because plaintiffs will have to incur costs in attending depositions, producing and Xeroxing of documents and in payment of lawyer fees. Moreover, the request for summary judgment or judgment based on the pleadings can avoid the trial process, which is expensive because filing fees have to be paid and the bulk of the expenses will be the lawyer fees. Since in this case, the issue under question is a simple breach of contract, the manufacturing company can seek a pre trial motion to get the dispute resolved at minimal cost. Therefore, the most important factor to consider would be the costs and length of time involved in the suit. As an alternate to the litigation process, the Company can also seek an arbitration of the dispute or a mediation process whereby some kind of settlement can be reached between the two parties. Ans 6: The Commerce Clause, found under Article 1, section 8 of the Constitution and it provides the federal Government with the power to regulate business activity. Under this Clause, the Government has the power to regulate foreign and interstate commerce, as well as impose limitations on state police power and taxation. This will allow a state to impose taxes on foreign commerce activities. Similarly, the Government will also have the power to regulate all business transactions that occur between states. The Government can also impose state regulation of health and other issues such as safety, morals and general welfare. Under these provisions, an employer may be required to provide certain minimum wages, work hours of employees may be regulated, while employers may also be required to provide benefits to employees such as health, disability and unemployment benefits. Employers may also be required to adhere to certain regulations and implement measures to ensure the welfare of employees and to provide for their safety when they are working under dangerous conditions. Employers may be required to provide certain days of paid leave and implement a variety of other measures to ensure the health, welfare and safety of their employees. However, such regulations may not be the same in every state, since it will only be federal regulations that will apply uniformly across all states, for example the provision of equal employment opportunities is mandated across the entire country. Business practices required in one state may not be required in another. Read More