The Ways of Disputes Resolution: Law Practice Management

NB: We do not resell your papers. Upon ordering, we do an original paper exclusively for you.

NB: All your data is kept safe from the public.

Plessy v. Ferguson approached the Fourteenth Amendment literally, distinctly emphasizing “equality” in their separate but equal approach; it was Constitutional, but also politically beneficial to the white majority. Brown v. Board of Education occurred in a different socio-political climate which presented evidence that highlighted that the “equality” promoted by segregation laws was not that way in practice. The Supreme Court used data collected by psychologists Kenneth and Mamie Clark that demonstrated the negative impact of segregation on the psyche of African American children, and other evidence suggesting underfunding, overcrowding, and “inherently unequal” conditions in black schools – leading to the overturning of Plessy (“Brown v. Board of Education (1954)”).

Although law is meant to be a set of enforceable rules, it cannot predict every possible situation nor are all laws going to be equally applicable after passage with time as society, technology, and other aspects of the status quo evolve (Cheeseman). Flexibility of the law is a complex legal debate, but a large majority of scholars and potentially the Founding Fathers, believed that the law can and should adapt, thus the purpose of Constitutional amendments and the Supreme Court, to set new precedent based on the ongoing situation in the country and realities of social relevance.

Negotiation is the simplest of the ADR methods, a procedure of discussion between parties to come to an amicable resolution or settlement that can be then agreed to in a legal form (such as a settlement agreement) approved by a judge. Mediation goes a step further in the negotiation process by inviting a neutral third party to assist disputing parties in reaching a settlement if they are unable to do so on their own. Arbitration consists of selecting an impartial third party that examines the facts of the case and decides the dispute. Arbitrations are more complex and formal and are usually included preemptively in the contract and are guided by specific rules. Arbitrations can be binding as the decision is final and non-binding with the possibility of appeal to legal courts (Cheeseman).

ADR methods vary in complexity and ramifications. A negotiation is largely voluntary, and any side may choose to walk away and begin legal proceedings. Meanwhile, arbitrations take time and the decision of the arbitrator, even if its non-binding, will be presented and likely influence the court. Business disputes are potentially highly technical and rely on UCC which is rather rigid on many issues, thus it is best to resolve the issue before trial, particularly for the side in violation. Arbitrations also offer other elements that businesses value including speed, flexibility, and confidentiality (Cinotti and Stein).

International treaties the likes of TRIPS and agreements under the WTO and the World Intellectual Property Organization (WIPO) are existing and being enforced. However, the issue is complex and has become increasingly political as well in recent years, making current agreements signed approximately 20 years ago significantly outdated in the current intellectual property rights (IPR) status quo. One major issue is that patents and some other forms of IP are country specific. Therefore, a U.S. based patent does not guarantee protection elsewhere.

Most disputes by businesses must be resolved at the local level in the country where IPR are being violated. Many countries are not keen on enforcing IPR legally, either for political or economic reasons. There is virtually no means to enforce rulings on IPR unless the country itself does it locally. The best approach would be to implement new strategies that promote a strong global IPR regime, which would particularly put pressure on countries that intentionally violate IP (i.e. China) and assist developing nations in technical efforts of building IP infrastructure – driven altogether by innovation. This should be supported by robust legal frameworks internationally that allow for greater inspection and enforcement by arbitrations, including for violations of IP even at the local levels and support for businesses beyond transnational corporations (Ezell and Cory).

The wording of the language in the Walmart court decision does reflect the Standards for Suppliers section of the company contract. In the contract, the wording suggests that Walmart has the option to inspect and observe and cancel orders or terminate contracts if discrepancies with local regulations are found. The workers never had a case against Walmart because workers were never an active party in the contract, and incidental beneficiaries have no rights to enforce or sue under other’s contracts (Cheeseman). In order to make the workers the intended beneficiaries of Walmart supplier contracts, the wording must directly state that if Walmart and its suppliers do not fulfill obligations regarding local labor laws, employees are eligible for compensation. Only by directly stating workers as a party in the contract, do they become intended third-party beneficiaries.

Monetary damages are most common for breach of contract. These include, compensatory damages compensate the nonbreaching party for the loss occurred due to the breach, restoring the benefit that would have been gained if the contract were fulfilled. Consequential damages are foreseeable damages outside of the primary contract damages that can be recovered by the non-breaching party, but contracts may have a disclaimer preventing such action (Cheeseman).

Monetary rewards may not always provide sufficient relief, resulting in equitable remedies, which are actions that a court can force upon a breaching party. Equitable remedies usually occur in egregious violations of contract or when consequences of the breach have far-reaching effects that monetary damages may not compensate. A specific performance remedy forces the breaching party to perform the act outlined in the original contract. This may include actions such as delivering goods paid for in the contract or fulfilling a sale (such as a court judgement to sell property). An injunction is a court order which prohibits a party from performing a certain act, which has been demonstrated to cause irreparable injury to the plaintiff party. Injunctions can be used in aspects such as employment where an individual is prohibited to work for a competing organization or as common in employment contracts, within a certain distance (Cheeseman).

The CAN-SPAM Act attempts to regulate marketing and spam emails and messages on a federal level. In reality, many businesses send marketing emails that are considered spam, but these are allowed if following strict rules outlined in the law. However, there are a large number of spam messages received by third parties with malicious intents such as fraud, malware, phishing, or simply false or manipulative marketing. The CAN-SPAM Act is weak, particularly in the modern environment with almost two decades since its passing, it is unable to adequately regulate online spam. It does not provide civil right of action to individuals, does not regulate international emails, and largely offers very little protection (Cheeseman).

Although Facebook and other platforms have utilized CAN-SPAM to get major legislative wins against spammers (albeit unlikely to collect the multimillion-dollar compensations), the court decisions are largely ineffective against individual malicious parties. Official businesses attempt to comply with CAN-SPAM to avoid lawsuits, but the large issue remains with individual spammers who use other illegal tactics such as hacking Facebook accounts or creating hundreds of fake emails to generate spam. The true nature of spam is that it is difficult to identify, track, and prevent under the current legal regulations (Chowdhry).

Common law of contracts is developed from court decisions, usually at the state level that became precedent for later rulings. Although general principles remain, there are important variations. The UCC was created with the sole purpose of unifying and creating a consistent legal base for commercial law (including contracts) among the 50 states. Elements such as employment, insurance, real estate, intangible assets, and service provision are governed by common law of contracts that is based on case law rather than a uniform code (“Common Law and Uniform Commercial Code Contracts”).

The UCC places the risk of loss of goods on the party that is most able to bear the risk or insure against it. The UCC is typically used for any disputes, unless there is an issue that is not included, at which point the common law of contracts comes into play. The UCC had the objective to unify commercial codes specifically for sales and leases which often occur on an interstate basis, thus eliminating the confusion for commercial businesses (Cheeseman). The UCC is more rigid than common law on a variety of aspects such as offers, performance, warranties, and other general terms of contracts which promotes the objectives that the UCC is meant to achieve as to ensure consistency and stability for those engaging in commercial sales across the country.

The rationale behind the entrustment rule is the principle of estoppel. The rightful owner is stopped by his own acts from asserting the title if given the merchant the usual evidence of title or apparent authority to dispose of it. It is in place to protect the good faith buyer who had no knowledge that the entrustee had no right for sale. Unless the original goods were acquired by theft, then the original owner has no claim. Deference is given to the buyer because UCC rules state that unless there is a specific contractual agreement, the title passes to the buyer once the good is physically delivered or purchased (Cheeseman). The logic behind this ruling likely assumes that the entrustor is aware of risk when transferring the good to a merchant dealing in that kind of good. At the same time the buyer is protected as they conduct a purchase of good faith unaware of such potential risks.

A breach of contract occurs any time when a party in the contract does not perform to the terms that the sides agreed to entering the contract. In breach of contract, typically the plaintiff is only award compensatory damages, or money damages suffered as a result of the loss of the value of the contract. Courts do not assign punitive damages due to the assumption that parties enter into a contract aware of any possible risk that can be undertaken in the agreement and with good faith that the contractual obligations will be fulfilled (Cheeseman).

However, the UCC allows for parties to agree in advance in the contract as to what damages must be paid upon breach, known as liquidated damages. Liquidated damages are valid if reasonable that the breach will cause harm or create situations where proof of loss or adequate remedy is difficult to obtain (Cheeseman). However, it is up to the court whether to consider this clause, evaluating whether the liquidated damages clause is considered as punitive damages.

Works Cited

Cheeseman, Henry R. Business Law (10th edition). Pearson, 2018.

Chowdhry, Amit. “Facebook Obtained Nearly $2 Billion From Legal Judgments Against Spammers.” Forbes, 2014, Web.

Cinotti, David N., and Gary Stein. “The Benefits of Arbitration for Business-to-Business Disputes.” Pashman Stein Walder Hayden, 2018, Web.

“Common Law and Uniform Commercial Code Contracts.” Lumen, 2020. Web.

Ezell, Stephen, and Nigel Cory. “The Way Forward for Intellectual Property Internationally.” Information Technology & Innovation Foundation, 2019, Web.

“Punitive Damages.” Cornell Law School, 2020. Web.

Click Here To Order Now!

The Ways of Disputes Resolution: Law Practice Management

Do you need this or any other assignment done for you from scratch?

We have qualified writers to help you.

We assure you a quality paper that is 100% free from plagiarism and AI.

You can choose either format of your choice ( Apa, Mla, Havard, Chicago, or any other)