Personal Law Issues - Essay Example

POL 210 Test ____________________________ Take Home questions 8 points Are laws banning gay marriage just law Applying Martin Luther King's criteria for determining whether a law is just or unjust, explain why you believe they are or are not. What argument(s) would be made by someone taking the opposite position on this issue In a jail cell in Birmingham Alabama, Martin Luther King stated: "there fire two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all1." Against that backdrop, this question questions state banning on gay marriage. Applying Dr. Kings analysis, a just law was one that was in keeping with our moral teachings or the moral teachings of God. Likewise, if our moral teachings, teach us that something is immoral, then Dr. King would have advised against following that particular law and instead engaging in non-violent civil disobedience. If Dr. King felt that homosexual relations were something that were immoral then he would have agreed that state laws banning gay marriage are just and should be followed. Someone advocating in favor of gay marriage might argue that King would have advocated for gay marriage because he believed that all men are created equal and as a marginalized black man he can certainly identify with the feelings that gays have in being denied the ability to have their union legalized. I think however, that given Dr. King's religious background, the moral and vast religious climate of his time, Dr. King would have said that his interpretation of the Bible is that there was to me a union between man and woman only. 6 points 2. Under what circumstances do you believe civil disobedience is justified When would it not be justified I think that any law that allows the separation of people is one that begs civil disobedience. Any law that allows one group of people to have superiority over another group is one that is immoral and therefore must not be respected. For example if a group of gay students are not allowed to attend graduation or are made to feel so afraid to go to graduation that they refrain, refusing to attend graduation even though you must do so to get a diploma is an instance of when civil disobedience is justified. There is a way to get a message across without it becoming violent and without bringing additional malevolence to the marginalized party. The perfect form of civil disobedience was that of Rosa Parks. While we are all familiar with her refusal to give up her seat on a bus, she also brought a line of African American children to a "white" library and had them each attempt to check out a library book. The children were courteous, and sincere when they explained that they needed to get the books from the "white" library and despite being turned away, they did not protest violently. An unacceptable form of civil disobedience is when there are laws or codes enacted for the safety of a population and they are violated. Rioting or any other form of violence which puts the lives of others in jeopardy is not proper. Further, there is a fine line as to what is pushing the break of the law too far. Remember, Dr. King readily admits that in order the get the law changed, it must first be broken or others will not take notice. Thus the better question, is what is the difference between breaking the law and civil disobedience 5 points 3. What is the rule of law Under the rule of law how are government officials supposed to use their power and how are they not supposed to use their power There does not appear to be one universal definition of the rule of law. However there are basic tenets to the definitions that I did find. For purposes of answering this question I will submit the simplest definition and work my answer around it. The rule of law, according to Your Dictionary.com is" "A substantive legal principle; the prevailing of regular power rather than arbitrary power; the principle that all citizens are subject to the judicial decisions in their states as well as those of the courts of the United States, and that such decisions are the result of constitutional principles." That sounds like an impressive commentary, but what exactly does it mean It means that any rule that is made by law, meaning a statute, an administrative code or a law that is the result of a judicial decision (which is case law) is a rule governed by law and is within the ambit of the United States Constitution. Pursuant to the rule of law, government officials are to use their power in a way that benefits the people that they serve. Their job as government officials is to uphold the constitution and the laws of the state that they represent. Concomitant with the demand to uphold the constitution, comes the obligation of the government official to not abuse their power. It incumbent upon government officials to do their jobs against the backdrop of constitutional tenets and that is the oath that they take when they swear in. Government officials are not only beholden to the law, they are responsible for setting a good example for citizens in following it. 6 points 4. Explain what precedents are, how and why they are used in our legal system and why they are not always followed. A precedent is an idea or principle that has been found and fortified by others. As applied to the legal system, a precedent is set when courts have decided to follow the lead of a superior court. For example, if the United States Supreme court has established a finding on a particular issue in a particular case, legal precedence has been set. Once the United States Supreme Court has made a finding, the lower courts, meaning the Federal Court of Appeals, and the highest Court of Appeals of a particular state is obligated to be sure that their opinion is consistent with the precedent set by the United States Supreme Court. If a lower court renders a decision that conflicts with the precedent of the higher court, the appellate division of that court will reverse the decision. Additionally, local courts must regard the decisions of their appellate Courts as setting precedent. There are times however that precedent is not followed. In those cases, the matter may be appealed and subsequently remanded to the lower court for a finding consistent with the opinion of the higher court. Other cases may be a reason for the beginning of new precedent. Oftentimes, a case at first blush may appear to be based upon the same fact pattern and therefore mandate that precedent be followed. However, after thorough analysis, a court may find that the facts are indeed not the same and therefore a new precedent must be established, or perhaps the other is somewhat modified. This is really what caselaw is all about. 10 points 5. Explain how the Supreme Court be decision in the D.C. gun ban case changed the interpretation of the Second Amendment. What issues regarding the Second Amendment and the regulation of guns by states remain unresolved How do you think they will be resolved Explain the reasons for your answers. I don't think that the decision really changed the interpretation of the Second Amendment all that much. One of the basic tenets of our Constitution is the right to bear arms. The framers of the constitution were not saying that police agencies have that right, the language is explicit in stating that all men have the right to bear arms. Now to a silly extreme one might argue is that the literal interpretation is that women therefore do not have the right, but that notion is absurd. "Men" is defined as private citizen, not a classification of sex. The right to bear arms is inalienable. It is the handling of those arms which spawns litigation. Thus, states must enact legislation that protects rights and protects others pursuant to its' police powers. What remains unresolved is how to register the handguns in a way that allows for the protection of citizens without putting the safety of others at risk. I would suggest an amnesty period for all citizens to register their guns, whatever type they may be, without getting arrested. If the guns are of the type that are banned (such as an AK-40) then that person is subject to confiscation of the weapon. The issue with the second amendment is not the right to bear arms, but the regulation of the possession of the arms. Against that backdrop, this will not be resolved anytime soon. The floodgates have now been opened to the other states in this country to challenge their gun control laws and they undoubtedly will. This is especially so since the NRA will be, in my opinion spearheading much of it. As such, the matter will not be resolved anytime soon but what we may see is a uniform measure adopted by the states to regulate gun control. 8 points 6. What is the subprime mortgage crisis and why did it happen The subprime mortgage crisis is a financial crisis that is pervasive and does not seem to have an end in sight. It was seemingly initiated by a staggering peak in mortgage payment delinquencies and the subsequent foreclosures in this country. Simply stated, high default rates on "subprime" and adjustable rate mortgages, starting on or about 2005-2006. The subprime fiasco started by an increase in offerings to purchasers that would make borrowers to take on impossible mortgages, under the misguided belief that they would be able to refinance under even more favorable terms in the near future. Unfortunately, crisis hit when interest rates rose and housing prices started to drop. Under the circumstances, there was no ability to refinance a house or p This crisis has shattered the United States financial market and has also resulted in adverse consequences across the world triggered by a dramatic rise in mortgage delinquencies ay the original mortgage note because the people who obtained the original mortgage, really did not have the ability to pay it. Accordingly, these once fine investments have become subsequent foreclosures in the United States, with major adverse consequences for banks and financial markets around the globe. The onset of the crisis (although who know it then) seems to have happened during the late 1990's. At that time, mortgage companies and banks were offering loans on rather risky terms. Those terms presumed that the housing marked (meaning the value of houses) would skyrocket and they did not. Mortgage backed securities as a result, took a nosedive and now the economy is a mess. 15 points (300-350) 7. The Supreme Court has ruled that the Fifth Amendment due process clause grants citizens a right of privacy. Explain how the right of privacy restricts the government action regarding such matters as reproductive decisions and intimate relations between consenting adults. Why do those who hold a libertarian view of the law agree with the interpretation that there is a constitutionally protected right of privacy while those who hold a conservative view of law disagree with the interpretation I think that the best example of this analysis is the octuplet case. This is a case about a woman who has been artificially inseminated which has resulted in 14 children all together. Even her doctor finds himself under scrutiny for inserting six embryos when she already had six children. The issue here is that why should tax payers bear the burden for what can only be defined as an irresponsible act It is not as if this woman has the means to support her own children yet the government cannot do anything about it. Once tax payers are bearing the burden of one's child support, I do not think that the matter is a private one any longer. It is somewhat akin to the single parent on welfare who just keeps reproducing. Does a person really have the right to continue to burden the citizens of a state It may sound heavy handed, but state funds should be used to get the woman a job or the proper training for one and provide job placement instead of a monthly check and food stamps which increases with each new child born. Accordingly, in this particular situation there is no right to privacy. What precisely is the solution, I cannot say. I am not suggesting that we turn into China but I am saying that the government should be regulating reproduction, because ultimately I am paying the price for another woman's bad choices, and I should not bear that burdern. Intimate relations between consenting adults on the other hand, is an altogether different matter. What happens behind closed doors, so long as it is consented to, is none of anyone else's business. The conservatives disagree but they are also the one's who honestly believe that being gay is a mortal sin and a bad choice. Whether one is gay or not has no bearing on government and should not fall within the police powers of government. Yet for reasons that are unexplained, they are. The right side would have one believe that sex is something that must be legislatively governed, and there are some aspects that should be because there are certain acts that are harmful and a manifestation of violence. However, funds on both a state and federal level are being wasted in enforcing some laws that are simply archaic. 10 points (300-350) 8. In 2005 the U.S. Supreme Court ruled that state and local government use of eminent domain to promote economic development did not violate the U.S. Constitution i.e. that economic development is a legitimate public use of eminent domain because economic development benefits the public. The ruling left it to the states to determine whether eminent domain would be considered public use by their local governments. Do you believe this was a reasonable decision Explain why or why not and describe what state laws pertaining to eminent domain you believe would be just law. I think that the Fifth Amendment is a crucial part of this analysis. Indeed, according to John R. Vile, author of Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues 1789-1995, it "outlines a variety of guarantees" (129). Among such guarantees is what has become known as the "public use" clause. This provision comes at the end of the Fifth Amendment and reads, "nor shall private property be taken for public use without just compensation." My read of this clause is that the public use must be a direct use by the public and not for a purpose so vague and amorphous as "economic development". A taking pursuant to eminent domain should be for a reason that is only for the purpose of benefitting the public. Thus the real question is really, "what benefits the public Does condemning a building that people live in, benefit the public when a developer is going to erect another building The left could argue that it brings employment to the community thus cutting taxes. However, one cannot help but wonder, to what end the public welfare surpasses private. While the Supreme Court refuses to, they should be outlining direct parameters that serve as a guideline for local governments in deciding what constitutes a proper taking for eminent domain purposes. It is an unrealistic notion to believe that local governments will not serve themselves before serving themselves. Politics has historically proven that politicians, under the guise of working for the people, work for themselves. Accordingly, the duty of the United States Supreme court is to guide politicians and assist those people (private citizens) who may find themselves the victim of such a taking. A just law would be one that guides the decision maker in deciding what constitutes eminent domain by setting forth explicit parameters. It is also one which is heavily supervised to make sure that the state is not in fact serving itself alone. I cannot imagine that the framers of the constitution wanted this amendment to be expanded upon and it is not the job of anyone to rephrase out constitution and that includes congress. The framers clearly did not want the government to take land from citizens unless it was under the most dire of circumstances and that must be respected. 10 points (300-350) 9. Who is to blame for America's soaring credit card debt - the credit card industry and government policies or individual consumers Explain your answer fully. We as a society have a morbid addiction to things. We have somehow lost the difference between knowing the difference between necessity and commodity and that is presuming that one has the definitions correct to begin with. Because we as a society are bent on having.we find ourselves loosing. We are losing our money, our economy and our future because whether we like it or not, our credit report decides whether we can buy shelter, groceries transportation and education. The problem is that nobody taught that notion to people when they were at the 'credit card age". Nobody holds a gun to our head when we are online, on campus, or hanging out at the train station while we fill out those credit card applications. Naturally, it is tempting. With the swift stroke of ink, one can have access to tens of thousands of dollars. It can be the difference between a train ride or that new Mercedes that we just have to have. Thirty days seems so far away when we think of billing statements. Does it not It is the human condition to believe that we will have that money to pay that credit card bill in thirty days and if not, so what I only have to make the minimum payment. It is our own greed that caused this credit card debt. It is our desire to show what we have, to compete with others, and the unyielding demand to materially measure up that we impose upon ourselves just so that we can keep up with everyone else. Conversely, credit card companies prey upon the young. They jam the mailboxes of college students, and promise elegant entry into the world of credit. What they do not do is explain is the insane interest rates, the absurd terms and the ultimate trouble the unemployed student will find himself in should he fail to pay his bills. Students find themselves in a quagmire of debt upon graduation and are basically paying twenty- five cents on each dollar they borrow from credit card companies. Read More