Current Issues of Modern Law - Assignment Example

 Q 1. Alternative Dispute Resolution (ADR) is the term used to describe the different alternative processes used to resolve a dispute without going into trail. There are different types of these processes namely: arbitration, mediation, collaborative family law, summary judge trials, parenting coordination, case conferencing and neutral evaluation. ADR is less formal and conducted in private, which offers confidentiality unlike trials. It therefore ensures that both parties are able to resolve their disputes more amicably as the environment under which they are undertaken are less stressful. In Arbitration, the two disputing parties agree to have a person who will hear out both parties and make a decision as to who is right/ aggrieved. The two disputing parties may choose to make the process either binding or non-binding. If the process is, binding then a document to that effect is be prepared and duly signed by both parties stating it to be so. The decision of the arbitrator in this process will be final and neither party can dispute it and proceed to trial. In the non-binding arbitration, either or both parties may dispute the decision of the arbitrator and proceed to trail. The process in Collaborative Family Law is designed to encourage mutually agreeable solutions to couples who want to legally put an end to their marriage unions. Each partner has the right to have their legal representatives in the proceedings but would have to hire new ones if they decide to proceed to court. Either party reserves the right to go to court at any point in the proceedings. This type of process is not advisable for couples who have domestic violence, or and intimidation issues. In Case Conferencing as an alternative dispute resolution, the focus is on narrowing the issues that are in dispute between parties. This is done by a judge or their representative and the legal representative of both parties with little input from the disputing parties. Neutral Evaluation makes use of expert evaluation of the matter in dispute through professional opinion of projected outcomes of the matter if it went to court. The expert evaluates the pros and cons of each side’s case and with the consent of both parties offers advice on settlement. The expert also offers case planning to encourage settlement. Mediation is dispute resolution process where a person/mediator acts to enable disputing parties reach a mutually agreeable settlement amongst them. The mediator unlike the arbitrator does not decide the case but helps the disputing parties do on their own. Parent Coordination as an alternative conflict resolution uses an experienced trained legal or health professional in assisting high conflict parents carry out their parenting plan. The main objective of this type of dispute resolution is to resolve and manage conflicts so that meaningful parent-child relationships can be obtained or created if absent. Summary Jury Trials can be binding or non-binding as agreed to by parties. They are only available in limited jurisdictions. It entails giving a summary of both sides of the disputing party in order to get a projected outcome of a case if it were to go to trial. Advantages: Saves money Speeds up settlements Disputing parties are more involved in the process There is more room for creative solutions The is a greater possibility of improving relationships Adherence to the solutions are likely to be higher due to being involved in the process Antagonism is lowered Satisfaction levels are higher Saves time Disadvantages Not having a trial It is not an effective solution where intimidation , threat, violence, abuse, rape, fear exists Minors may not fully understand their rights and privileges not trespasses against them A party may feel under pressure to make concessions out of fear or the need to appear amicable or co-operative to their hurt and disadvantage Does not work well where one party has more power and control over the other in disputes Where the law requires a change of representation such as in Collaborative Family Law then the disputing parties have to get into a lengthy process of bringing their new legal representatives to speed One may not get what they would have gotten if they actually went to trial Q.3 Each state legislates its own laws based on their understanding of law, morality, ethics and culture. Every state has cultures that are unique to it in terms of norms, morals and values. Sometimes these values are influenced by religion and its historical impact on the people of that jurisdiction. The existence of differences in laws concerning similar issues in neighboring jurisdictions was caused by relativity in different areas. The society decides what type of human behavior is positive or negative. It also decides penalties or rewards for human behavior. The judicial system and the laws that guide it are simply the structure and tools that are used to penalize or reward human behavior. Truth is what is derived from a socially constructed frame of values, which are relative to the society in which they are made. The law is a reflection of the values of a society, which are used within a judicial system to obtain justice by obtaining what is true. Each society is guided by their unique set of morality, ethics, culture and norms. Religion, the absence of religion or even the presence of multiple religions will as a matter of course influence the was different jurisdictions make their laws. Law making is not only made by the legislative instruments within government but by the general public who can seek to repeal laws they find as offensive or that they feel do not reflect their morality as a society. The legalization of homosexuality, lesbianism and gayism is a case in point. Some jurisdictions have legalized gay marriage while some have not all based on interpretations of what the larger society judged as either moral or not. Different jurisdictions also have differing processes through which laws can be enacted or, amended so that there is no harmony in legislation. Some jurisdictions may have completed legislating on a particular matter while others may be in the process or, rejected the particular legislation, or altogether. Judicial precedents also influence the interpretation of law in a jurisdiction. It therefore follows that each jurisdiction is bound by law to take them into consideration, which will make for differences within the jurisdictions. Differences can also come about form the different interpretations by judges and lawyers who use the laws. Different jurisdictions also have people from different origins who settled on them who came with different interpretations and understandings of the law. These interpretations have shaped the development of law in the particular jurisdictions. Other jurisdictions may have been forced by extreme events and circumstances into legislating to cater for the particular crimes they encounter such as twists to crimes of passion or even economic crimes. Laws are generally made for regulation and sometimes the society had not yet experienced the need for a particular form of legislation. Some may borrow the legislations of neighboring jurisdictions with changes to suit their own context. Q.5 The state and federal courts act in partnership with each other in the administration of justice. The state courts are lower in jurisdiction than the federal courts. State courts are usually the courts of origin for most cases that end up in the Supreme Court. The laws that govern state courts are state legislature while the Supreme Court and Federal Courts are governed by federal law as codified. The federal courts will mostly uphold the verdicts of state courts unless there has been some mischief in the interpretation of the law. They may also overrule any verdict that contradicts the Constitution. Federal courts may also increase or decrease the penalties or awards of state courts. Federal courts may also refer civil cases back to its jurisdictions. Civil cases that involve contracts such as business, marriage or other partnerships are usually referred back to the jurisdiction of origin. This is because different states have different laws on such contracts, which may not be applicable in other states. The same case applies for state courts that may refer a case back to the state of original jurisdiction if it finds that its legislature may bring mischief into the contract in question. They provide for certain rules and procedures in prosecution of a case of action (civil litigation). States in and congress have provided for these rules and, procedures. State law is the law that governs each separate state and is passed into law by state legislature and consented into law by the governor. Where state law comes into conflict with federal law then it must give way to it. This means that federal law is superior to state law. The United States constitution gives explicit rights to federal governments, which makes it superior to state government in matters of international affairs, matters of national currency and national defense. The Bill of Rights is applicable to all states due to the Fourteenth Amendment to the United States Constitution. It is the federal law that governs presidential orders, laws of congress and interpretations of federal law as made by federal courts. The US Supreme Court is the final jurisdiction over all other courts both federal and state. The Supreme Court uses the federal law and the Constitution in making its decisions. The Court is responsible for interpreting all constitutional matters. Decisions of the Supreme Court have judicial precedent in all lower courts, which are the federal courts, and the state courts. All federal laws are codified in the US Code and are to be used as a reference by state courts in the making of judgments. A federal court may nullify a decision of a state court if it is found to be in contravention of a federal law that governs the subject matter. The federal court can modify or over-rule a decision of a state court due to insufficiency issues either in evidence or precedent. The Supreme Court using federal law may also use its judicial power to review the decisions of state court that have to do with interpretation of the US Constitution and federal laws of the country. State courts cannot overturn federal court decisions as they are subject to federal law under the constitution. State laws were bound by federal laws, as were state courts to federal courts due to the supremacy clause Article. III. State Supreme Courts have the final jurisdiction in state law where federal laws have not provided for it in specificity. Q. 6 The concept of due process in civil litigation is governed by four over-arching principles or themes. The first this themes is the “adversary system” which form the heart of the common law system. The Common Law demands that all must come before equity with clean hands. The adversary system relies on this principal by entrusting each side with a responsibility of coming with clean hands. In this system, the disputing parties are required to drive and shape the legal dispute for which they are engaged. The most basic right of a party is the desire to have control over their own defense without outside interference or pressure. This is what the law allows only that legal representatives defend their version of truth using the law. The truth is thought to be best derived from a case made for and against each other as each party strives to prove itself on the right. This means that both parties have to gather evidence for their case and present it before judge and jury, which puts a lot of power in their hands to employ all legally permitted means to do so. Any evidence that has not been obtained in the set out legal manner will not be allowed in court and will be inadmissible. The second is the is the principle of due process which is meant to ensure that fairness to all sides and a level playing field are maintained at all times. Due process has two component parts: procedural process and substantive process. Procedural due process is the refers to the right to be served with a notice and the subsequently the right to be heard without prejudice in response. This means that each side in the adversary system must be given notice of what the other side intends to do. Each side must be given an opportunity to gather evidence and counter arguments in their favor. This process is started by a “personal service of process” which initializes the process to which the defense has the opportunity to respond to the motion. The third component is “judicial efficiency” which is in line with the common law principle that “justice delayed is justice denied”. This effort to hasten justice so that remedies to injustice may employ faster means of settling disputes called “alternative dispute resolution” in order to speed up judicial efficiency. Courts may also hear cases that concern the same issue jointly in order to save time, resources and to hasten judgment. The court also has the discretion of hastening cases if the parties are deemed too lax or wanting by making summary judgments. Judicial efficiency should however never override the due process. The fourth are the requirement for all federal courts to abide by the constitution. America has a dual court system, which confines federal courts operations within the governmental structure. This means that federal courts can only hear cases on subject matters permissible to it in the constitution under the “subject matter jurisdiction rules”. Read More