Facts: In March 2005, Jeanson James Ancheta was indicted on charges of reaping profits from the utilization of botnets to destructively attack and send high numbers of spam to vulnerable computers through the internet. The defendant, aged 21, at the time, was a member of the botmaster underground which was a network of persons carrying out such malicious cyber crimes. The indictment charges included two counts of conspiracies, attempts to cause havoc to secured computers, actual damage to unprotected computers used by the federal government in the defense department and gaining unauthorized access to secure computers to facilitate fraud and money laundering. In total, the defendant was indicted on seventeen counts of cyber-related crimes.
Issues: The issue raised is whether or not the defendant would be convicted of all the seventeen counts of charges made against him during the indictment.
Holding: It was held that the allegations made against the defendant were indeed true. The defendant was thus convicted of all the charges made against him by the Supreme Court. Following his convictions, Ancheta was imprisoned for 57 months, the longest prison term for an individual found guilty of spreading computer viruses. In addition to the imprisonment, the defendant was forced to hand over the proceeds from his illicit activities $60,000 cash, BMW, and computer paraphernalia. In addition, Ancheta was forced to disburse close to $15,000 to the Weapons Branch of the United States Naval Air Warfare Center located in China Lake as well as the Defense Information Systems Agency because their networks were deliberately destroyed by Anchetas illegal activities. It was held that if the defendant avoided disbursing these payments, his personal properties worth the amount specified above would be forfeited to the federal government.
Reasoning: The jury argued that the defendant conspired to violate the Computer Fraud Abuse Act as well as the CAN-SPAM Act, caused havoc to computer networks of the national defense department of the federal government, and gained access to protected computers without the permission of the owners. It was reasoned that the defendant made approximately thirty distinct transactions which earned him more than $3,000. The transactions involved the sale of his botnets to other users of computers who would then utilize the botnets to carry out distributed denial of service (DDOS) attacks and to launch spam and unsolicited emails on other computers. Besides selling the botnets to the computer users, Ancheta also advised them on how to carry out the illegal activities effectively.
Relating to the computer fraud scheme, the defendant generated for himself and his co-conspirators an income of more than $107,000 through advertising affiliates. This they did by downloading adware to approximately 400,000 vulnerable computers controlled by Ancheta. He avoided being detected by the advertising affiliate companies by changing the times of download and the rates of installation of the adware. From the proceeds made, Ancheta purchased additional servers which he used to carry out his unlawful activities.
Rule: The reasoning and holding were based on the Computer Fraud Abuse Act as well as the CAN-SPAM Act whprohibitsibit persons from carrying out computer and internet-related activities that would cause damage or violate privacy and property rights of other people.
Concurring judges: Judge Gary Klausner, who also delivered the opinion of the court
Dissenting justices: There were no dissenting justices.
References
Findlaw.com. State v. v. Ancheta, 05-1060 (C.D. CAL. 2006).
This is a court case of a subcontractor on a building site where personal injuries were sustained by a lorry driver. The driver sustained serious injuries when he fell on the site. This accident was due to a poor system which was put in place to make sure the area was clear of mud. The contractor of the company was to blame for failing to setup a system that would take care of the situation. The lorry driver was 25 per cent to blame since he had negligent on his side as well. He should have taken more caution while walking on the muddy surface. The court was to resolve whether the defendant (contractor) and the second defendant (the subcontractor) were liable for personal injuries sustained by the lorry driver (claimant) in the accident.
This dispute was determined at the High Court of Justice, Queens Bench Division before Mr. Justice Foskett. The injury was sustained on the 16th December, 2004. The main issue is about the negligence of responsibilities from both the claimant and the defenders who both had representatives in the court.
Facts of the Case
Bailii (2010) has details that the accident occurred outside a site that was under clearance for a building. The claimant was an HGV driver; an employee of A & A transport. On the day of the accident, the driver had driven to the site to collect a load of shuttering. Through the maneuvering of the lorry, the claimant got out of the lorry and injured himself. The case ended up with a judgment conclusion of 75% of the damages to the claimant. The other issues would be dealt with by writing submissions or further oral hearing if needed.
Negligence Aspects
Currie and Cameron (2000) explains that the laws governing issues of negligence requires persons to conduct in a manner that is acceptable by certain standards. In any case the rules are violated; compensation must be given to the injured person depending on the nature of injury caused. It is evident that the site was developed as a housing estate comprising two areas; one of which was the main area. The site had a controversial history due to its use as a sewerage farm. Its drainage system was poor and fully contaminated. This was even a health concern to the local residents. Proper planning was neglected as the site was being managed.
There was also negligence in the establishment of the boundaries of the site. Though the boundaries were well defined, the mud could still spill over into the adjacent environment. This was one of the circumstances that contributed to the accident. The construction of the entrance was not well planned since the space for negotiating a corner was so tight. There was also the presence of bollards at the road centre near the entrance to the site and some cones in the entrance. This is negligence since it is this that led to the accident.
Leaving the deposits on the site and the pavement on the opposite side was negligence. Those deposits were hazardous since they were covered by mud and water. After the accident, it is not clear whether it is true that the constructors did not see the driver lying on the ground. This is because the farm had no health measures to deal with such emergencies and accidents. It is difficult to believe that no one witnessed the driver lying on the ground. Due to unplanned nature of such accidents and emergencies, there should be immediate attention to life threatening heath related issues for stabilization in the firm.
Failure to replace the wheel-washer was negligence since measures should have been put in place to ensure site materials were not deposited on the highway and footway. A good system would have hosed the wheels before it left the site. Deakin, Johnston and Markesinis (2008) points out that a system in an industry should be efficient to avoid accidents. A contribution of negligence was evident in the second defendant since he was responsible for the day to day responsibility of all the site activities. However, Van Gerven et al. (2001) points out that one cannot receive full compensation if he or she also contributes to the negligence.
Facts: In March 2005, Jeanson James Ancheta was indicted on charges of reaping profits from the utilization of botnets to destructively attack and send high numbers of spam to vulnerable computers through the internet. The defendant, aged 21, at the time, was a member of the botmaster underground which was a network of persons carrying out such malicious cyber crimes. The indictment charges included two counts of conspiracies, attempts to cause havoc to secured computers, actual damage to unprotected computers used by the federal government in the defense department and gaining unauthorized access to secure computers to facilitate fraud and money laundering. In total, the defendant was indicted on seventeen counts of cyber-related crimes.
Issues: The issue raised is whether or not the defendant would be convicted of all the seventeen counts of charges made against him during the indictment.
Holding: It was held that the allegations made against the defendant were indeed true. The defendant was thus convicted of all the charges made against him by the Supreme Court. Following his convictions, Ancheta was imprisoned for 57 months, the longest prison term for an individual found guilty of spreading computer viruses. In addition to the imprisonment, the defendant was forced to hand over the proceeds from his illicit activities $60,000 cash, BMW, and computer paraphernalia. In addition, Ancheta was forced to disburse close to $15,000 to the Weapons Branch of the United States Naval Air Warfare Center located in China Lake as well as the Defense Information Systems Agency because their networks were deliberately destroyed by Anchetas illegal activities. It was held that if the defendant avoided disbursing these payments, his personal properties worth the amount specified above would be forfeited to the federal government.
Reasoning: The jury argued that the defendant conspired to violate the Computer Fraud Abuse Act as well as the CAN-SPAM Act, caused havoc to computer networks of the national defense department of the federal government, and gained access to protected computers without the permission of the owners. It was reasoned that the defendant made approximately thirty distinct transactions which earned him more than $3,000. The transactions involved the sale of his botnets to other users of computers who would then utilize the botnets to carry out distributed denial of service (DDOS) attacks and to launch spam and unsolicited emails on other computers. Besides selling the botnets to the computer users, Ancheta also advised them on how to carry out the illegal activities effectively.
Relating to the computer fraud scheme, the defendant generated for himself and his co-conspirators an income of more than $107,000 through advertising affiliates. This they did by downloading adware to approximately 400,000 vulnerable computers controlled by Ancheta. He avoided being detected by the advertising affiliate companies by changing the times of download and the rates of installation of the adware. From the proceeds made, Ancheta purchased additional servers which he used to carry out his unlawful activities.
Rule: The reasoning and holding were based on the Computer Fraud Abuse Act as well as the CAN-SPAM Act whprohibitsibit persons from carrying out computer and internet-related activities that would cause damage or violate privacy and property rights of other people.
Concurring judges: Judge Gary Klausner, who also delivered the opinion of the court
Dissenting justices: There were no dissenting justices.
References
Findlaw.com. State v. v. Ancheta, 05-1060 (C.D. CAL. 2006).
The current case touches upon the Fourteenth and First Amendments issues regarding civil rights violations. It included the freedom of speech of the black students. Two hundred young people were protesting against arresting their black friends, emphasizing the racial discrimination causes of the arrest. The protesting group blocked the part of the jail. As a result, all protestors were arrested due to the trespass with a malicious and mischievous intent (Adderley v. Florida, n.d.). From the plaintiffs perspective, their civil rights were violated on a discrimination basis. To be precise, the freedom of speech and petition rights were denied. The Regional Court has denied the lawsuit due to the presence of an adequate reason for the arrest. The group of students appealed to the U.S. Supreme Court in order to have this case solved.
Case Outline
Title: Adderley v. Florida 385 U.S. 39, 87 S. Ct. 242 (1966) (Adderley v. Florida, n.d.).
Facts of The Case: Harriet Louise Adderley is the representative of the group of protesting students. The primary aim of the students was to protest for the releasing their black friends from the non-public prison (Adderley v. Florida, n.d.). Before the arrest, the prison worker and police officers tried to warn students about their unlawful actions of trespass on private property. Students highlighted the race discrimination issues due to the fact that they protested, claiming the rights of black people. Thus, the U.S. Supreme Court should solve the questions about the violation of civil rights correlated with the First Amendment and unequal treatment of the different races. The defendants were the prison administration and the state of Floridas governmental bodies in general.
History of The Case: The doubtful situation took place in state Florida in 1966 (Adderley v. Florida, n.d.). The group of the Florida A&M University protested against racial discrimination. They were arrested and convicted of the breakdown of law and order on the streets of Florida. On the next day, a huge group of students (approximately two hundred students) from the same university went to jail to protect the rights of their friends. They tried to claim that the primary reason for the arrest was racial discrimination. The administration of non-public prisons ordered workers to arrest the protestants immediately. The police officers and the prison workers warned students that the prison is private territory and they have no legal right to hold protests here. Prison workers repeatedly asked students to leave the private domain. However, protestants continued blocking the one road within the prison territory.
As a result, all two hundred students were arrested and convicted of trespass with malicious intentions. Later, Harriet Louise Adderley and thirty students appealed to the U.S. Supreme Court to solve the case of violation of civil liberties based on discrimination. The prison administration acted based on the private territory protection laws. The arrest can be considered a legal action due to the fact that the prison is regarded as private ownership.
Legal Questions: One of the essential questions that the Supreme Court should have answered was the violation of petitioners rights of free speech, assembly, or petition (Adderley v. Florida, n.d.). The issue of equal protection was highlighted as guaranteed by the First and Fourteenth Amendments. Moreover, the Court also was to decide whether the discrimination issue was the primary motif of the prison workers, police, and administration.
Decision or Holdings: The Supreme Court held that the rights to freedom of speech, press, assembly or petition were not violated. Thus, constitutionally, the rights of the students were not denied. Judges emphasized that the students were arrested because they denied the order of the police to leave the prison territory. As a result, Court found no evidence proving that the plaintiffs were detained due to discrimination reasons. The breach-of-the-peace violation by the students was stopped aiming to ensure the prisons security. Thus, the Court decided that the defendant had a rational-legal basis for the arrest. The prison workers and police officers actions were legal without discrimination connotations.
Verdict and Opinion (Judgement): The Supreme Court preserved the jurys decisions claiming that there was no violation of the First Amendment. Five out of nine judges voted for the no rights violation. The final verdict included the information about the security concerns of the jail. Judges emphasized that according to the states legislation, the citizens are allowed to visit private properties seeking particular services. However, in the current case, petitioners had no such a reason. The Supreme Court supported the decision of the regional jury.
Conclusion
The Courts decision proclaims that the disrespectful attitude towards the states laws should be punished. The public order should be preserved at any cost. The members of society should be able to distinguish between the violation of their rights and legal procedures (Clement, 2018). Understanding the legal responsibilities before the state people live in is essential for law-abiding citizens (Alfieri & Onwuachi-Willig, 2020). The state can ensure the respecting of the rights and freedoms of people only when they respect the laws. The legal actions of the prison administration were not racially discriminative. The vital lesson that should be learned from this legal case is that citizens should know not only their rights but also the rights of entities and organizations. The lack of legal understanding and knowledge about freedom and rights can cause negative consequences.
Madisons article (2012) As Supreme Court Reconvenes, Civil Rights Issues in the Fore, discusses legal issues the Supreme Court needs to rule on after reconvening (p. 1). The court is about to reconvene with a lot of civil rights cases awaiting its determination. The civil rights cases which the court will rule on relate to race, election rights and homosexual rights.
The first case that the court will hear is the legality of affirmative action in admission of new students in higher learning institutions. The article argues that the way the court determines the case will affect future student admissions in universities and colleges. The affirmative action law compels institutions of higher learning to observe racial diversity when admitting new students.
The interpretation to be made by the court will have serious consequences for many higher education institutions. A narrow interpretation of the law would affect many small institutions. A broad interpretation would compel many educational institutions to reform their admission policies.
The case about the definition of marriage as upheld by the Defense of Marriage Act is very sensitive. DOMA recognizes marriage between heterosexual couples and not same sex couples (Madison, 2012, p.1). The court will decide if this hinders same sex couples from enjoying state benefits and welfare programs.
The court will also rule on whether voters in a state can withdraw marriage rights enjoyed by same sex couples if the state constitution allows it. The court also needs to determine the legality of election laws in some states which require each voter to have a photo identity before being allowed to vote.
The Supreme Court will have to decide on the legality of these laws and their impact on voting rights. The courts ruling could have a direct effect on Section 5 of the Voting Rights Act in states where these election rules are still practiced. The author simplifies complex legal issues and presents them in a manner that makes it easy for readers to understand (Madison, 2012, p.1). The issues discussed by the author in the article have a direct impact on the lives of all American citizens.
Evaluation of the Article
The reveals the critical civil rights issues which the court needs to rule on and analyses their significance to the society. The issue of affirmative action in educational institutions is very sensitive to minority populations. Many higher education institutions in the country use race as part of their criteria during admissions.
This article shows how affirmative action is used to create racial equality and diversity in higher education institutions. Madison (2012) observes that the Supreme Courts ruling is likely to have a big impact on how colleges in the country admit new students in future (p. 1).
Madison (2012) discusses issues related to same sex union couples and the legal rights accorded to them by the constitution (p.1). She focuses on the argument that the way DOMA defines marriage, denies same sex couples access to benefits and other state programs.
This is a sensitive matter because the Supreme Court has to rule on the constitutionality of the act. Same sex marriages have become more common in the past decade and several states recognize their legality. This ruling will influence how the federal government implements its family welfare programs across the country.
This is an election year and the voting laws in each state determine how citizens are going to cast their ballots. The issue of voters carrying a photo identity before being allowed to vote is very contentious. The ruling could alter the Voting Rights Act of 1965, which some critics argue denies a section of US citizens the right to vote because of their race.
Madison (2012) emphasizes that, Supreme Court rulings have a big impact on civil rights cases brought before it (p. 1). The biases in this article are limited to the opinions of various legal experts who share their thoughts on legal issues that await ruling by the Supreme Court. The article shows how government policies regarding various civil rights issues are likely to change based on the way the Supreme Court rules on these cases.
Resource Linkage
Larkin and Slattery (2012) confirm that the civil rights cases which are yet to be determined by the Supreme Court are very significant (p.1). The Fisher v. University of Texas at Austin is controversial. A ruling in favor of the plaintiff would stop race being used as a criterion in college admissions to achieve racial diversity in student populations. The ruling on the Voting Rights Act of 1965 is also very sensitive to many black voters in southern states who view the requirement as discriminatory.
The interpretation the court will take on the constitutionality of DOMA will have an impact on the legality of same sex unions in the US. The rights enjoyed by same sex couples as stipulated under the constitution will be significantly affected by the determination of the case. It is important to note that the impending Supreme Court rulings will have a big impact on civil rights as understood by many people in the US.
Judicial intervention in legislation and executive powers of the government has assumed a new breath of light with the Roberts Supreme Courts using of the First Amendment Act to limit the effect of the regulatory laws made by the US government. The supreme court of the Unites States has been the upholder of the fundamental and basic human rights; however, in recent times the decisions passed by the court has demonstrated an inclination towards the conservative branch of politics rather than being an unbiased upholder of the constitution. Given this primary function of the Supreme Court towards upholding constitutional democracy, the Supreme Court headed by John G. Roberts Jr., popularly known as the Roberts Court, has declared many of the American laws unconstitutional. Further, the conservative stand of Chief Justice Roberts has brought the court to a split house with the voting 5-to-4 on the Affordable Care Act (Drehle par. 2). Roberts Court has often associated him with the conservative wing.
To judge the Supreme Court as solely a judicial body would be to undermine the significance of the American political system. Many a time the court has to provide a verdict on issues on which there exists severe disagreement within the society, like the abortion law or economic regulation. Proving a judgment on such cases is bound to make the decision political. This arises the issue of a political court and criticism regarding the role of the court to move a political agenda. However, if the court is assumed a political body then such issues will not arise. The Court has the constitutional right to interfere and change legislation, is it impossible that the judges will be completely apolitical in their views? In this paper, I would argue that Roberts Court has played a strong role in policy-making in the US and has influenced the democratic political system, inadvertently helping a certain group. In other words, the paper will investigate the position and the disagreements the Roberts Court has faced since 2012 in passing some and/or stopping some laws. This essay is an investigation of the relationship between Roberts Court and the Obama administration.
Roberts Court and Conservative Law
The history of American judicial system is marred with accusations of the Supreme Court being blind to the unequal economic power that the legislations of the US governments were promoting. During the reign of President Roosevelt, the advent of the Great Depression the Supreme Court upheld the minimum wage law against the freedom of contract, thus invoking Lochner-era. With a divided political space in America, the divide between the conservatives and the liberals have widened more starkly. The conservatives believe that laws ensuring individual freedom like abortion law and same sex marriage law are simply political gimmicks to create vote bank while the liberals believe judicial interference into the economic regulation is infringement. However, the recent action of the Supreme Court is not confined to mere name-calling among the political spectrum, as the court has made some serious decisions to counter the laws made by the government.
John Roberts was appointed as the Chief Justice of Supreme Court of America in 2005. The sequence of dissents that Chief Justice Roberts have given to government laws was observed since 2006. The first of which was in the Hamdan v. Rumsfeld case where the dissent was against the Bush administrations decision to prosecute the Guantanamo detainees through military commissions. His decisions also made a few laws unconstitutional, upheld against abortion laws, and limited the scope of the gun control law passed by the local government of Chicago. In 2012, Roberts Court restricted the scope of the strict immigration laws, as the court believed it caused problems for the government to function. In another landmark decision in 2011, Roberts Court adjudged that the women complainants did not have enough support to prove Wal-Marts gender discriminatory practices.
In 2010, the Roberts court passed the judgment that private corporations can buy advertisements to support political election campaigns. A more conservative ruling of the Roberts court was taken in 2014 when the court upheld that owners of religious families owning a corporation could not be forced to pay for contraceptive to their female employees. A more definitive attack on the political parties came with the court limiting the contributions given by individuals to political leaders or parties in 2014. Hence, the verdicts that have been discussed in the above section clearly depicts a conservative streak in the decision making of the Roberts Court that has upheld religious rights of employers, abortion, and unions.
So how can we describe Roberts Court is it conservative, divided, popularized? Robert Dahl in his article published in 1957 discusses that courts usually work as an amalgamation rather than a disjoint body that counters the policies created by government bodies (285). He points out that it would be most unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority (Dahl 285). The explanation that Dahl presents to support his argument is too simplistic as he simply assumes that as the justices are appointed by party leaders, they inadvertently assumes sides with the dominant alliance (293). Thus, he points out that the courts have the power to formulate policies but their power is limited by the goals of the dominant alliance (294). However, this does not hold true in case of the Roberts Court.
Roberts Court has found itself in conflict with the Obama administration since the presidents first term. Political stalwarts believe that the first term of President Obama aimed at creating a new electoral order for the country (Clayton and McMillan 142). In his first term as President Obama aimed at electing a bench of justice based on diversity than ideology. The Hispanic chief justices Obama appointed were assumed to be moderates however, their voting practices showed that they were more conservative compared to their predecessors. The philosophy that Obama seemed to abide by was in his belief that the judicial bench was there to uphold and protect the basic rights and show restraint by not overturning the policies enacted by the elected branches (Clayton and McMillan 143). Thus, the divide between the court and the president became abundantly apparent. Paradoxical, as it may be, was the rift between the progressive president who supports judicial restrain and conservative Chief Justices who aspire to continue the conservative counter-revolution (Clayton and McMillan 143).
Chief Justice Roberts too has faced a divided and polarized Court and has continued in its agenda to forge the path for constitutional amendments and demonstrate the conservative nature of Roberts Court (Clayton and McMillan 138). The first judgment passed by the Court that amply demonstrates the conservative nature of the judicial is the use of original intent jurisprudence to advance the conservative version of the Constitution has been often observed as a process to reinterpret the Second Amendment (Clayton and McMillan 138).
In 2009, Roberts Court provided a victory to Bush administration and National Rifle Association (NRA) and uphold the right of individuals to posses firearms as a constitutional right. Roberts Court has been found to take a conservative stand in the private corporate financing political parties and leader case, as well as the eliminating the wall between the church and the state in the Arizona Christian School Tuition Organization v. Winn (2011). A more recent verdict in 2014 adjudged unconstitutional a Massachusetts law of creating a 35-foot zone outside the abortion clinics to keep the anti-abortion activists at bay. In many other cases, Roberts Court has been found to be more inclined towards building a conservative constitutional order in America.
Conclusion
The essay finds that the Roberts Court has passed certain decisions that has shifted the balance of the constitutional justice to wards the conservative wing of American politics. The decisive judgments in many of the cases have shifted the balance towards the conservative political wing and have created a polarized and divided Court. Roberts Court has taken a series of decisions that shows inkling towards conservative politics. Usually, the bench of nine Chief Justices appointed by the president is aimed a creating a balance between the liberals, moderates, and conservatives. However, Roberts Court has been found to be more conservative than expected as many of the moderate judges have shifted their decision towards the conservative group.
Works Cited
Clayton, Cornell W. and Lucas K. McMillan. The Roberts Court in an Era of Polarized Politics. The Forum 10.4 (2012): 132-146. Print.
Dahl, Robert A. Decision-making in a democracy: The Supreme Court as a national policy-maker. Journal of Public Law 6 (1957): 279-295. Print.
The Supreme Court is a very important organ of the judiciary in the United States and other countries around the world. The Supreme Court plays a critical role in the interpretation of state laws and serves as the final court where appeals are determined. Apart from interpreting all the congressional enactments, the Supreme Court plays a significant role in the policy making process. The Supreme Court ensures that all policies and state statutes are formulated in accordance to the constitution.
All federal statutes must be interpreted and expounded by the Supreme Court to ensure that they do not violate the constitution. The rulings and decisions made by the Supreme Court are final and this demonstrates the high power that the court wields. The legislature and the executive arms of government are normally put in check by the Supreme Court by ensuring that they conform to the United States constitution.
The Congress and the president of the United States play a critical role in governance and policy making and can end up violating the constitution voluntarily or through misinterpretation. The Supreme Court has the power to dismiss the decisions made by other courts as long as it remains within its mandate. The policy making process is a very elaborate process that requires checks and balances. All policies should conform to the U.S constitution and anything contrary to that is a violation of the constitution.
The Supreme Court has the power to oversee policy formulation and implementation to ensure compliance with the constitution. Policy making is normally associated with political disputes and the Supreme Court comes in to solve the disputes through constitutional interpretation. The Supreme Court adopts other powers to ensure that it does not interfere with other arms of government. The Congress formulates policies which are supposed to be enforced by the president.
The Supreme Court only comes in when polices conflict with the constitution. The Supreme Court can request the Congress to make some amendments to a policy to ensure that it complies with constitutional requirements. The Supreme Court therefore plays an oversight role in the policy making process.
Constitutional interpretation is the fundamental role of the Supreme Court even if other stakeholders may have reservations. The Supreme Court applies the law in the resolution of various disputes and this is what determines national policies. The fact that the Supreme Court decisions and constitutional interpretations are final means there is no way the country can end up having unconstitutional policies.
Judicial review can only be conducted by the Supreme Court depending on the cases brought before it. All the laws and policies formulated by federal governments must be reviewed by the Supreme Court. Policy disputes between states are very common in the U.S and the Supreme Court plays a very important role in resolving such conflicts. It is the role of the Supreme Court to ensure all the laws and policies formulated at the federal level conform to the U.S constitution.
In conclusion, the Supreme Court plays an oversight role in policy formulation and implementation. The decisions made by the Supreme Court determine the majority of national policies.
The Supreme Court ensures that all the policies that are formulated by the central and federal governments do not violate the constitution. The Supreme Court has the jurisdiction to approve and dismiss policies based on constitutional interpretation. The Supreme Court is not meant to interfere with the functions of other arms of government but to guard the constitution.
In the resolution of civil cases involving claims of negligence, it is vital for the plaintiff to attest that the defendant owed him/her a duty of care, the breach of which resulted to a damage on his or her part. It is also crucial for the defendant to have recognised in the most reasonable sense that he owned a duty of care to the plaintiff.
This implies that every element of tort has concepts of value judgment ingrained in it. One such value judgment is the capacity to proof that the damage caused to the plaintiff was foreseeable in the most reasonable sense by a reasonable individual in a similar position as the defendant during the time of raising the negligence claims. In this end, a controversy emerges in determining what is foreseeable and what is not foreseeable.
Consequently, judges, not only from Australia, have to derive mechanisms of settling matters involving claims of negligence by determining the reasonableness of the claims, extents of duty of care owed to the plaintiff, and the degree of foreseeability of the damages claimed by the defendant1. Therefore, as revealed in the paper, judges theoretically apply an objective test to disguise a subjective value judgment in claims relating to negligence in the Australian courts.
Components of tort of negligence in Australia and objective test
In the Australian law, negligence comprises of two essentials components: foreseeability of the risk of harm and the so called negligence calculus 2. The first component is central in providing a response to the query of whether a person deemed reasonable would have considered the necessary precautions to avoid the risks acerbated to the defendant.
This is a quest to prove a duty of care. One of the ways of proofing duty of care is through a subjective test in which the court has to determine whether the defendant knowingly subjected the plaintiff to situations likely to cause substantial harm. Another way of proving duty of care is through objective test applied by judges.
This entails determining that a defendant failed to realise his/her actions towards another party (claimant) would have caused substantial harm; something that another party in such a position as the defendant would have realised. In Australia, the objective test disguises prior knowledge that ones actions towards another person would cause substantial harm (subjective test) because the person claimed to have caused the damage is not vital to have prior knowledge that his/her actions could have caused the claimed damage3.
Rather, the standard is to prove that another reasonable person in the same position as the defendant would have realised the probability of the damage and could have taken the necessary precautions to prevent its occurrence. However, even though this argument points at asserting that judges in high courts use objective tests to disguise subjective tests to settle claims of negligence in the Austrian courts, it is important to pin point that foreseeability implies precondition for finding negligence 4.
This means that a court cannot hold one accountable for not adhering to the necessary safety measures aligned with any unforeseeable risk. However, the fact that the defendant is needed to have foreseen a possible risk on the part of plaintiff does not necessary imply that the defendant needs to be considered as being negligent in taking appropriate precautions to make sure that the plaintiff was free from risks exposure as a subjective test would require5.
Instead, a calculus for negligence is applied to lay the frameworks for making decisions on the necessary precautions that a reasonable person in the same position as the defendant (objective test) would have taken to eliminate the risks posed to the plaintiff, and which truncated in breach of duty of care.
The negligence calculus applied by Australian judges sets out the various precautions that a defendant is anticipated to have taken into consideration before acting in a manner that a reasonable person would have known could have caused risks of harm to the plaintiff. According to Deakin, and Johnston, the calculus tests a) the probability that the harm would occur if care was not taken, b) the likely seriousness of the harm, c) the burden of taking precautions to avoid the harm and, d) the social utility of the risk-creating activity 6.
Essentially, the calculus entangles weighing these four components. For personal injuries, the approach of the court is not to test all these components separately for a proof of negligence claim to stand. Rather, &the court simply asks in the light of these factors what the reasonable person in the position of the defendant would have done or not done in order to avoid harm to the plaintiff (McGlone & Stickley, n 11).
In this context, it is arguable that, while the probability of risks may a scientific concept, the objective approach of foreseeabilty rests on both interference and knowledge. For example, even though an event would be highly probable to occur, any person can foresee such an event if that person ought to know or even knows that such an event would take place 7.
This means that judges interpret knowledge of an event likely to pose danger or harm to an individual resulting from undue acts of another person based on the alleged date of negligence but not on possession of such knowledge at some future time.
Conversely, an event of low probability, which can truncate into harming another person (plaintiff) due to negligence of another person(defendant) is only foreseeable by any person in legal terms if that person ought to have known or even knows that such an event had taken place some times in the past8.
Consequently, it is deducible that, for the purposes of interpretation of validity of negligence claims in Australia, whether a person ought to have foreseen a particular event is not a matter of what they knew, but of what the reasonable person in their position would have known 9. This is why judges apply reasonable foreseeabilty to proofs entailing negligence claims. Essentially, this requires objective tests.
Subject to the approaches of objective value judgment in Australia, a major problem emerges because low probability events may be foreseeable. Consequently, while it sounds subtle to anticipate an individual to be held liable for failing to pay attention to precautions for unforeseeable risks, it is also unreasonable to anticipate an individual to have taken precautions to a risk possessing low probabilities just because it was foreseeable.
In dealing with this challenge, in the case of Wyong Shire Council v Shirt (1980) 146 CLR 40, the high court held, in effect, that a person cannot be held liable for failure to take precautions against a risk that could be described as far-fetched or fanciful, even if it was foreseeable 10.
This simply implies that some risks possess very low liabilities to the extent that reasonable people would ignore them. Hence, such persons would not be considered as having breaching duty of care if such risks could have materialised and caused immense damage with the cheapness of mitigating them withstanding.
Another objective approach in determining any claims of negligence, as set out by the Australian high court is the determination of circumstances in which individuals may be held liable for failing to prevent personal injuries and or death from occurring. This disregards the case where the negligence of the defendant to play his or her duty of care resulted into the harm and unless such conduct of the defendant was not too remote from the defendants negligent conducts11.
The problem with such an objective approach is that individuals get rare opportunities and guidance on how and when their conducts so considered as negligent may amount to harm. Irrespective of this problem, the high court considers that such causation entangles two main aspects12.
The first aspect is the factual causation while the second is the causal causation. The high court has established laws to deal with issues of causation both subjectively and objectively. Hence, further discussions of these aspects are beyond the scope of this paper. Further examples of objective approaches to judgments that are disguised as subjective value judgments are exemplified by Gaudron in Bennett v Minister for Community Welfare (1992) 176 CLR 408, 420-421.
In fact, Gaudron reckons, in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty of care caused or materially contributed to the injury 13.
From this judgment, it is clear that the impact of objective value judgment in negligence claims is to ensure that the onus of proof in matters of causation are shifted to the defendants the moment the court establishes that the duty of care on the part of the plaintiff was breached.
This also applies if the plaintiff suffered injuries that were foreseeable. This principle is widely approved by the high court in its recent settled cases. Its impact is to alter the traditional law relating to the causation of events leading to breach of duty of care coupled with having an immense potential in expanding the scope of the claims of negligence14.
Conclusion
In conclusion, in settlement of claims of negligence, the approach followed by the Australian high court is to proof that the defendant behaved in a style that would have caused injury, damage, or harm to the plaintiff. For the claim to hold, the paper has discussed that a consideration does not proof that the defendant failed to act to prevent the risk from occurring hence causing the claimed damage by the plaintiff.
Rather, a consideration goes to proof that a reasonable person could have foreseen such risks. This implies that the court seeks to proof that the defendant acted in an unreasonable manner so that he or she caused harm on the plaintiff part. In this light, the paper has argued that the Australian courts judges theoretically apply an objective test to disguise a subjective value judgment in claims relating to negligence.
The stand holds since the burden of the proof rests on the defendant to proof beyond any reasonable doubt that he was reasonable in acting in a manner that caused harm, as claimed by the plaintiff, or he never acted in such a manner.
Personal jurisdiction stands for the courts authority over individuals to a court case. If a court has personal jurisdiction over a party to a lawsuit, it can pass judgments that affect the person directly. Otherwise, the court can only exercise its powers to a level that the state powers give it. In other terms, personal jurisdiction refers to the capacity of the court to pass a verdict against an individual over a particular dispute.
Personal jurisdiction allows courts to make judgment even if one of the parties affected by the judgment does not reside in the state or is absent during the judgment.
According to Nebraska Long-arm Statute, any court in the state has the right to exercise personal jurisdiction over any person who directly, or through the help of agents, carries out any business transaction in the state. For personal jurisdiction to hold, the defendant has to be really at home. Personal jurisdiction can only be applicable if an individual has direct contacts with the state where an action is filed.
Software.com does not have direct contact with Nebraska. The company does not have any subsidiary in the state and only sells its products in Nebraska through the internet. Consequently, it is hard for Nebraska courts to exercise personal jurisdiction over Software.com.
Products from a company in a different state may reach a different jurisdiction in the process of trading. Nevertheless, this does not imply that the respective company has minimum contact with that jurisdiction. The same case applies to Software.com. The fact that its products reach the Nebraska state does not mean that the company has minimum contact with the state. Consequently, it is hard for the courts in the state to exercise personal jurisdiction over the company.
One of the most elite private clubs in Israel is the Supreme Court. It is mainly dominated by the so called secular Ashkenazim. This is an old boys network that has excluded religious judges and Sephardim. In Israel, democracy has been undermined by the current ruling system. There has been the essence of degrading the justices who were in the former Israel court system.
These people have come across all forms of frustrations during their term of service. Due to their religious affiliations, their points of view have been marginalized (Toobin 35). In addition, there has not been any form of appreciation for the kind of work done by the former judges during the classical times.
The Existing Law
This current law in Israel is dominated by the secular Ashkenazim. These groups of people are against the legislation of a new law. Their approach is so rigid because it does not allow room for public debate and is very self selective. This provides the court with a high susceptibility of marginalizing the vast segment of citizens of the country Israel (Martin 120).
The process of choosing a judge involves nine people who make up a committee. Of these nine people, three are members of the current court plus a president, a few congressional leaders and one representative of the Israel Bar Association. These people are involved in the selection of the Supreme Court judge.
Their actions are not to be made public since they are always held privately. The process is done behind closed doors hence there is neither a debate nor a public oversight during this process. The self selective process shows that the selected person has judicial power reflective of all the members of the high court system.
Sadly in Israel, the Judges appointments are not subject to the parliament or the so called Knesset . The court is dominated by judicial activism. This means that those in the high court can just create laws that are imaginary which can implement within the shortest time possible (Toobin 40).
The amendment or Proposed Law of Israel
This proposed law is to provide a transparent procedure in the processes of appointing Supreme Court judges as opposed to the current law. This would involve open approval by the Parliamentary or Knessets constitution. This procedure also involves the law and justice committee that follows a public hearing. During the public hearing, the candidates would be asked questions relating to their views and opinions on politics.
US and UK Methods of Choosing High Court Judges
In the US, the high court judge is appointed for life by the president himself; of course this has to be by the consent of the members of the Senate. There has to be an approval by the senate. Such approval may involve good conduct and behavior of the candidate. Before approval, the candidates undergo an intense grilling process on political and social matters (Parcel 14-22).
The only thing that can result into the removal of the judges is their impeachment, death or resignation. In the United States, the Supreme Courts decision is final and the majority will always win. The United States of America has one disadvantage.
They always create a bias argument along different party affiliations. The priority is given to the candidate who is loyal to the reigning political party or the person affiliated to the political party in power (Gordon 1).
In the United Kingdom, three primary rules are used in the process of interpretation of the law. These are mischief, golden and the literal rules. These rules are related to the interpretation of words in the process of giving out judgments. On the other hand, the America uses the statute text in reading out the ordinary word in the statute.
Other unique qualities of United Kingdom laws are in the issue constitutional reform bill. The UK has been in the verge of whether to consider the legislative changes in the reforms. This would lead to the replacement in the Lord Chancellors office.
Hence, there would be a possibility to establish a supreme court in the United Kingdom. The UK though has not considered the kind of federal appointment that is exhibited by the United States.
Comparison of the Items Discussed
The court should be a center for varied view points of the judicial system. In the current system operating in Israel, there is no freedom at all for democracy. The Supreme Court has sidelined itself from the people it is supposed to be protecting.
In any case the government is ruling the citizens with unfair methods; the citizens would not have any place to run to. Due to their religious affiliations, they are more disadvantaged by the laws. The democratic values of the people of Israel have been undermined by the current judicial system.
The proposed amendment although seems fair, no one knows if it will really pick up quickly. It is the law that is being used by most countries around the world. When the law is employed it will nullify the status of dictatorship governance that is reigning and the citizens would then be able to enjoy their democratic rights.
Unlike in America, Israel is being ruled by a small group of elite people. These people are involved in making the decision of the person who is supposed to sit on the bench. In US, there is a stage for vigorous debate by the public. This always helps to know more about the nominees rather than having a person who has been selected against the will of the majority.
The United Kingdom on the other hand is looking forward to having such a system as the United States. Theirs would involve creation of a legislative system that will allow the incorporation of the Supreme Court as it is in the United States. The only difference is that the Congress in the United Kingdom has involved the procedure for selection in the federal trial courts and appellate before (Eliezrie 1).
Findings
The discussion on Supreme Court judge selection has enlightened the people on the differences that exist in the selection methods at the Supreme Court level. This shows the form of versatility that exists in the high court judge selection procedures. Different countries have their own methods.
Some methods are fair while some are not. The issue in Israel is so serious that the nation should seek out ways to accelerate the new amendment process.
In any case such procedure can be adopted by countries like Unite States of America and the UK; the result would be very chaotic. The Supreme Court in Israel depicts the form of rule that can be associated with dictatorship.
It is so unfortunate that learned people are undermined by their religious affiliations. It is important that Israels choice of coming up with supreme high court judges change for the benefit of all citizens.
The Kind of Versatility that exists in different countries is so strange that it cannot be overcome by globalization.
The essence of influencing other countries to adopt more fair ways is hard because the countries have their own republican rights hence the businesses of the countries are spearheaded by their own constitution. It always calls for an external force to bring change when a country cannot make a decision. But for Israel, the issues of religion have been a challenging factor since time immemorial.
Works Cited
Eliezrie, David. Israel Democracy Endangered by the Supreme Court . The Jerusalem Post, 4 Mar., 2003. Web. Print.
Gordon, Evelyn. Criticism of the Israels Supreme Court . Azure, 23 Sept., 2010. Web. Print.
Martin, Jacqueline. Legal System of the English. London: Hodder Arnold, 2005. Print.
Parcel, Richard. Supreme Court Role in America. Texas: Westview Press, 2011. Print.
Toobin, Jeffrey. The Nine: Inside the Supreme Court. New York: Doubleday, 2007. Print.