Category: Court

Introduction

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 calculus². 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 negligence⁴.

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 activity⁶.

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 place⁷.

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 known⁹. 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 foreseeable¹⁰.

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 injury¹³.

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.

Bibliography

Australian Human Rights Commission, Fact Sheet 1: Defining Human Rights (2012). Web.

Bennett v Minister for Community Welfare (1992) 176 CLR 408, 420-421.

Brisbane Authority v Taylor (1996) 70 ALJR 866 at 871-2.

Cook v Cook (1986) 162 CLR 376 at 390 (Mason, Wilson, Deane and Dawson JJ).

Deakin Simon and Angus Johnston, Markesinis and Deakins tort law (Oxford University Press, 2003).

Feinman, Jay, Law 101 (Oxford University Press, 2010).

Kirby Michael, Is legal history now ancient history (2009) 83 Australian Law Journal 31.

McGlone, Frances and Amanda Stickley, Torts Law: Accessible and well-balanced overview of the law of torts in Australia (New Jersey, 2007).

Victorian Law Reform Commission, Civil justice Review (Report No 14, 2008).

Vines, Prue, Law and Justice in Australia- foundations of the Legal System (Oxford University press, 2009).

Wyong Shire Council v Shirt (1980) 146 CLR 40.

Footnotes

1. Australian Human Rights Commission, Fact Sheet 1: Defining Human Rights (2012).
2. Prue Vines, Law and Justice in Australia- foundations of the Legal System (2009) 10-37.
3. Brisbane Authority v Taylor (1996) 70 ALJR 866 at 871-2).
4. Jay Feinman, Law 101 (2010) 80-95.
5. Taylor (1996) 70 ALJR 866.
6. Simon Deakin and Angus Johnston, Markesinis and Deakins tort law (2003) 2-10.
7. Frances McGlone and Amanda Stickley, Torts Law: Accessible and well-balanced overview of the law of torts in Australia (2007) 23.
8. Cook (1986) 162 CLR 376.
9. McGlone and Stickley, above n 1.
10. Wyong Shire Council v Shirt (1980) 146 CLR 40.
11. Victorian Law Reform Commission, Civil justice Review (2008) 14.
12. Cook v Cook (1986) 162 CLR 376 at 390.
13. Bennett (1992) 176 CLR 408, 420-421.
14. Michael Kirby, Is legal history now ancient history (2009) 83 Australian Law Journal 31.

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.

Introduction

Supreme Court Judges Selection

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.

Thurgood Marshall, serving on the Supreme Court of the United States, was one of the prominent American jurists who played a pivotal role in shaping the history of civil rights in America. Being one of the start buttons for civil rights movement in the country, his influence is still felt to date (Gibson, 5). Thurgood served for twenty-four years then retired in 1991 because of old age and deteriorating health. He passed away on January24, 1993 being eighty-five years of age. Through the legal processes, Justice Thurgood eliminated the legacies of racism and segregation, which was even more instrumental in the civil rights revolution than the efforts of the other activists during the 20^th century.

In his career as a legal expert, Thurgood had many accomplishments. In collaboration with his mentor, Charles Hamilton, Thurgood strived to come up with appropriate ways of eradicating racial practices at the institutions of learning (Frost and Marshal, 17; Feldman, 34). The two intended to commence their work on the graduate and professional schools since they thought that the judges would assist them. After this, they had plans to shift their focus on the elementary and high schools. These efforts bore fruit during the case of Brown vs. The Board of Education in 1954 in which the Supreme Court ruled that segregation of schools was against the law (Haugen, 9). During this time, Thurgood was a sought-after advocate of the Supreme Court who argued his cases before the Court in a candid, straightforward and characteristic style.

In 1940, when he was only thirty-two years of age, Thurgood won the first United States Supreme Court case, Chambers v. Florida, and that same year, he was appointed the Chief Counsel for the National Association for the Advancement of Colored People (NAACP). He held this position up to 1961 and he assisted the organization in meeting one of its prime objectives: eliminating racial practices in the U.S. In 1961, President Kennedy appointed him to the Court of Appeals. However, he only managed to work for the initial several weeks by virtue of a congressional recess appointment when some of the legislators slowed down his affirmation. Thurgood served in the court up to 1965. From 1965, he served as the Solicitor General under President Lyndon B. Johnson, and after the retirement of Justice Tom C. Clark in 1967, he was duly appointed to the Supreme Court (Nazel, 157). He became the first African American to hold that position, and out of the 32 cases he argued before the body, he managed to be triumphant in 29 of them(Monroe, 4).

The success of Thurgoods work was based on his belief that integration would permit the rights of every American to be protected. Although he fought for the rights of African Americans, he also succeeded in establishing the framework of individual rights that allowed the protections of the rights of all U.S. citizens. Justice Thurgood was successful in establishing the protections under the constitution for women, children, and the prisoners, and even the media can thank him for his assistance in expanding its liberties. Besides his success in the fields of civil rights and criminal procedure, Thurgood also played a role in the development of other areas of the law such as the formulation of the standard of materiality in the U.S. securities law and advocating for equal employment opportunities for veterans and non-veterans. Due to his unique perspective of the rule of law, Thurgood made significant contributions that has shaped todays racial landscape.

Works cited

Feldman, Ruth T. Thurgood Marshall. Minneapolis : Lerner Publications, 2001. Print.

Frost, Helen, and Marshall, Thurgood. Thurgood Marshall. Mankato, Minn.: Pebble Books, 2003. Print.

Gibson, Karen B. Thurgood Marshall: a photo-illustrated biography. Mankato, Minn.: Bridgestone Books, 2002. Print.

Haugen, Brenda. Thurgood Marshall: civil rights lawyer and Supreme Court Justice. Minneapolis, Minn.: Compass Point Books, 2007. Print.

Monroe, Judy P. Thurgood Marshall: civil rights champion. Mankato, Minn.: Capstone Press, 2006. Print.

Nazel, Joseph. Thurgood Marshall : supreme court justice. Los Angeles: Melrose Square Pub., 1993. Print.

The question regarding equality was urgent throughout the history of humankind. The primary purpose of the paper is to provide the in-depth analysis regarding a possible decision made by the Supreme Court of the United States regarding the case Brown v. Board of Education (1954) in the case that would be a different era of the Supreme Court, namely the Lochner Era.

To get a better understanding regarding the issue, the question concerning the Loncher Era of the Supreme Court should be taken into consideration. As a matter of fact, the epoch lasted from 1895 till 1937 (Pope, 2013). It is worth stating that during this period, the urgent discussions regarding the fourteenth amendment took place across the Unite Stated. It is essential to point out that the fourteenth amendment can be considered as the most democratic amendment throughout the history of America. It was focused on the proclamation of the quality among all the citizens of the United Stated no matter race or skin color. In addition, it was stated that every state that would ignore the amendment should be punished. The period of Loncher solved the economic problem regarding the working hours and the level of wage.

The case Brown v. Board of Education was a turning point in the history of the United States. The case proved that the separation of students on the basis of their skin color is unconstitutional (Tisdale, 2013). The decision of the Supreme Court was significant for the fight for human rights and the establishment of equality. However, it should be stressed that the decision of the Supreme Court might be different in other time, for example, Loncher Era. Although the fourteenth amendment was focused on human rights, it is worth highlighting that the society was not ready to change their attitude towards black people and be tolerant and respectful (Hall & Feldmeier, 2012). The decision regarding the case Brown v. Board of Education could be different during this era. Society needed something that could unite people and show that everyone needs to be respected no matter skin color or racial believes. Such stimulus for changing the opinion and attitude was the Second World War and the involvement of the United States in it. The war proved that racial and national discrimination, fascism ideology, and the belief that one race is dominant could lead to severe consequences. During the Second World War, Afro-Americans proved that they worth respect and should be treated equally. The Civil War, the Loncher Era, the Second World War, and other significant events consequently led to the change of the attitude towards Afro-Americans. They came a long way towards the deserved equality and the case Brown v. Board of Education proved that racial or national peculiarities and differences should never be the reason for discrimination. The decision of the Supreme Court was expected; however, it would be nonsense in any other era. There is no place for racial discrimination in the democratic society, and the decision by the Supreme Court highlighted it once again.

In conclusion, it should be pointed out that the case Brown v. Board of Education was significant for the history of the United States as it consequently led to the establishment of the democratic society. The question regarding equality and attitude towards racial groups was urgent that time and demanded a solution. The approved fourteenth amendment in the Loncher Era of the Supreme Court contributed to making the decision towards equality, tolerance, and democratic society.

References

Hall, D., & Feldmeier, J. (2012). Constitutional values: Governmental powers and individual freedoms (2nd ed.). Upper Saddle River, NJ: Pearson Prentice Hall.

Pope, T. (2013). Social contract theory in American jurisprudence: Too much liberty and too much authority. New York, NY: Routledge.

Tisdale, R. (2013). Brown V. Board of Education. New York, NY: The Rosen Publishing Group.

Changes in Supreme Court Decisions Concerning Vehicle Searches between Carroll v. the U.S in 1925 and U.S v. Ross in 1982

In the case of Carroll v. U.S of 1925, the United States Supreme Court upheld that warrantless searches of cars for contraband goods do not violate the Fourth Amendment of the constitution (Del 56). They upheld that the mobility of vehicles targeted for a search makes it impossible to get a search warrant in time. This ruling meant that security agents had the mandate to stop a vehicle and conduct a thorough search similar to what they would do if they have a warrant as long as they had just cause to believe that the vehicle had contraband goods. Inasmuch as the issue of infringing the personal privacy of the owners of the vehicles as stated in the Fourth Amendment was raised, the court held that getting a warrant to search an automobile in not practically possible. This is so because the police will not have the authority to detain the car for the entire period of getting the search warrant (McCord 92).

In 1982, the issue of warrantless search and seizure was brought back to the Supreme Court of the United States in the case U.S v. Ross (Champion 78). The court ruled that police officers may conduct a warrantless search on automobiles as long as they had a legitimate cause of concern that such a vehicle was carrying contraband goods. This decision was very different from the ruling made in 1925 case. However, the court upheld that in line with the Fourth Amendment of the constitution, the security agents had to prove that they had a legitimate lead making them believe that the particular vehicle had contraband goods. This additional clause, which was not there in the 1925 ruling, was meant to eliminate possible harassment of citizens by security agents.

Limitations Placed by Courts on Law Enforcement in Terms of Searching Closed Containers in Vehicles

The ruling made in 1925 and that made in 1982 about warrantless searches of automobiles allows security agents to conduct searches when they have reliable information about movement of contraband goods (Hails 122). However, the ruling made in 1982 placed some limitations that had to be observed by law enforcement agencies. The security agents are required to have a just cause to believe that the containers in the vehicle are carrying contraband goods. There must be some reliable source of intelligence passed to the security officers which they can present in court to prove that they had reliable information about the cargo in the automobile. According to Stephens and Glenn, people often feel that such searches often infringe on their privacy (45). Sometimes it may cause delays or even destruction of property (Hemmens and Brody 88). For these reasons, a limitation to the searches was introduced in 1982 by the Supreme Court that requires the officers to conduct the warrantless search only if they have a strong belief about the illegality of the goods on transit.

I strongly agree with this limitation. It is not ethical and legally right for security agents to stop every automobile and conduct search without a probable cause of concern that it could be carrying contraband goods. That would lead to massive waste of time for the commuters and harassment of innocent citizens. Officers must have a lead that can be confirmed in a court of law making them believe that the search is necessary.

Works Cited

Champion, Dean. The American Dictionary of Criminal Justice: Key Terms and Major Court Cases. Los Angeles: Roxbury Publishers, 2015. Print.

Del, Carmen. Criminal Procedure: Law and Practice / Rolando V. Del Carmen, Sam Houston State University. New York: Cengage, 2016. Print.

Hails, Judy. Criminal Evidence. Hoboken: John Wiley & Sons Publishers, 2014. Print.

Hemmens, Craig, and David Brody. Criminal Procedure and the Supreme Court: A Guide to the Major Decisions on Search and Seizure, Privacy, and Individual Rights. Lanham: Rowman & Littlefield Publishers, 2010. Print.

McCord, James. Criminal Law and Procedure for the Paralegal: A Systems Approach. Clifton Park: Delmar Cengage Learning, 2012. Print.

Stephens, Otis, and Richard Glenn. Unreasonable Searches and Seizures: Rights and Liberties Under the Law. Santa Barbara: ABC-Clio, 2006. Print.

Introduction

Loving v. Virginia was a landmark Supreme Court Case that allowed interracial marriage in the United States under the protection of the Fourteenth Amendment. It sought to challenge state-level anti-miscegenation laws and potentially other statures that sought to discriminate based on race. As a landmark court case, Loving v Virginia was critical for the Civil Rights Movement in establishing the legitimacy of equal rights for all citizens in social practices and institutions.

Case Origins

In 1958, Mildred Dolores Loving and Richard Loving decided to marry after finding out they were going to be parents. Mildred was of a mixed African American and Rappahannock Indian heritage while Richard was a white man. Under the Virginia code 20-54 law, interracial marriage was forbidden. It was known as the Racial Integrity Act of 1924 that sought to prevent marriage between whites (Caucasian) and any other race. Therefore, the couple went to Washington D.C. to make their union legal and returned to live in central Virginia. However, by doing so, the couple violated code 20-58 which prevented interracial marriage out of state and return with the intent to cohabit as husband and wife. Several weeks later, after an anonymous tip, the police raided their home in the early hours of the morning. The couple was forced to admit their marriage, and despite a valid marriage certificate, they violated the state law. Both plead guilty to felony charges and were indicted by a grand jury in Carolina County Circuit Court, sentenced to one year in prison. The sentence was suspended under the condition that the couple would leave Virginia and not return together. Subsequently, the Lovings left their home for the District of Columbia (Hoewe 1).

Inspired by the Civil Rights Movement, Mildred Loving wrote to U.S. Attorney General Robert F. Kennedy which directed her to the American Civil Liberties Union (ACLU). The ACLU decided to support the case and lawyers Bernard S. Cohen and Philip J. Hirschkop initiated the procedure of appeal. Since the couple pled guilty, the judge refused the appeal which led the case to be taken to the Virginia Supreme Court of Appeals. The Lovings violated the Virginia Racial Integrity Act of 1924 which was based on centuries of anti-miscegenation laws and paved the way for various discriminatory state laws. Historians believe that it was a primitive legal mechanism of eugenics since many sincerely believed that racial intermixing would result in Caucasians being debilitated by inferior traits (Taylor 7). It was a political move under the cover of pseudoscience to justify racism.

According to Loving v. Commonwealth, the Supreme Court of Virginia supported the original ruling and its Constitutional integrity. The sentence was modified to allow the couple into the state as long as they did not cohabit. Lovings attorneys argued that the state laws violate the Fourteenth Amendment Equal Protection Clause which prohibited any state from denying the rights that are guaranteed to all citizens under the U.S. Constitution. However, the state ruled that was not the case as both Richard and Mildred were equally punished and their sentence was not discriminatory based on race. The state relied upon a 1955 case Naim v. Naim to support that the Racial Integrity Act of 1924 used racial classification for state purposes of preserving racial integrity. Also, the judge cited the Federal Supreme Court case of Pace v. Alabama which supported anti-miscegenation laws in 1883, which led to more than half the states enforcing such legislation with only one successful case of appeal. Therefore, the state chose to uphold previous convictions, and the case was returned to the local circuit court. The ACLU chose to pursue the Loving case as an avenue for Civil Rights and filed a class-action suit to the United States Supreme Court.

Constitutional Question and Arguments

The Supreme Court Case Loving v. Virginia was heard and ruled upon in 1967. The constitutional question under investigation was whether Virginias statutory scheme preventing marriage based on racial classification was a violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Lovings attorneys presented arguments for this. Hirschkop argued that the state statures not only made interracial marriage illegal but put the couple under arrest for fornication and a cohabitation statute. The whole family would lose various social rights such as insurance and social security which are fundamental civil rights. The Virginia stature has a long history which is based on slavery and racism. The bill for Racial Integrity of 1924 was initially aimed towards the preservation of the integrity of Caucasians, preventing only marriage between whites and other races but disregarding any other interracial unions which is discriminatory.

Meanwhile, Mr. Cohen argued that the Due Process Clause is protected under the Fourteenth Amendment by protection from state infringement on the right to marry. Although the state may have some level of control such as preventing marriage between close relatives, there must be a reasonable basis for this which the Virginia legislation does not by discriminating solely on race. The Assistant Attorney General R. D. McIlwaine III presented the counterargument that the Fourteenth Amendment does not prevent the implementation of anti-miscegenation laws and should not infringe on state rights. Also, the statute is a rational decision made to prevent sociological evils. The question of whether the amendment applies to marriage was already examined during the Pave v. Alabama case and ruled in favor of the state (Excerpts from a Transcript of Oral Arguments in Loving v. Virginia).

Voting and Legal Doctrine

According to Loving v. Virginia, the vote was unanimous (9-0) in favor of the plaintiff which reversed their criminal convictions and made their marriage legal everywhere in the United States. Chief Justice Earl Warren presented the court findings stating that Virginias anti-miscegenation laws violated the Fourteenth Amendment. The equal application of punishments for the stature and its supposed purpose of the state did not make it appropriate under the Equal Protection Clause. The statue was found to have no objective other than discrimination based on a racial classification which the Fourteenth Amendment seeks to eliminate. Also, marriage was ruled as a basic civil right of citizens. Therefore, laws preventing entrance into union due to racial classifications directly violate the due process of law by depriving citizens of fundamental liberties. Associate Justice Potter Steward released a concurring statement supporting the courts decision and stating his previous position that any state stature supporting criminality based on race is inherently illegal under the U.S. Constitution.

The Supreme Court decision on this case made any state laws preventing or criminalizing interracial marriage illegal and unenforceable under the Fourteenth Amendment. It drastically shifted the legal and social landscape of Civil Rights and the marriage institution. Interracial couples, no matter their ethnicity, could gain the social privileges of marriages without sanctions from the state. Scholars support that this decision helped bring more cohesiveness and understanding amongst races, as the number of interracial marriages continued to grow after the decision (Roberts 203). As part of the Civil Rights movement, it helped to disrupt another mechanism of control that individual groups attempted to use to support its racist agenda and legislation from the Jim Crow era. Based on Loving v. Virginia, any state legislation which seeks to classify based on race would be declared unconstitutional under the Equal Protection Clause.

Works Cited

Excerpts from a Transcript of Oral Arguments in Loving v. VirginiaEncyclopedia of Virginia. 2014. Web.

Hoewe, Jennifer. Loving v. Virginia, 2015. The Wiley Blackwell Encyclopedia of Race, Ethnicity, and Nationalism. Web.

Loving v. Commonwealth, 206 Va. 924 (1966). Supreme Court of Virginia. Web.

Loving v. Virginia, 388 U.S. 1 (1967). Supreme Court of the United States. Web.

Martin, Douglas. Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68. New York Times. 2008. Web.

Taylor, Marshall. Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc. and National Association For The Advancement of Colored People In Support Of Petitioners. 2015, Web.

Roberts, Dorothy. Loving v. Virginia as a Civil Rights Deicision. New York Law School Law Review, vol. 59, no. 1, 2015, pp. 175-209. Web.

The Targeted Criminal Case

One of the current criminal cases addresses the issue of cultural heritage destruction. On 27^th September 2016, the International Criminal Court (ICC) jailed Almad al-Faqi al-Mahdi for destroying historic shrines and monuments in Timbuktu (Simons 12). The court sentenced the radical Islamist to serve nine years in prison. This criminal case is attention-grabbing because it redefines the role of cultural heritages in the society. This case has encouraged more people to focus on the issue of cultural heritage preservation. Many anthropologists argue that any destruction of cultural heritage should always be treated as a crime against humankind (Simons 12).

The case of Almad al-Faqi al-Mahdi goes further to explain why international law should be allowed to address any form of attack on mankinds heritage. In the recent past, the destruction of historical sites is something that has been used as a critical aspect of warfare (Storm 28). Such attempts have been committed as a way of destroying the identity and historical image of specific racial groups. This case has been widely publicized because of the growing concern to safeguard many religious heritages and cultural monuments.

Historians and social scientists believe that the intentional destruction of cultural monuments is currently being used as a war tactic (Simons 12). The tactic has been aimed at disseminating apathy and abhorrence across the globe. Experts also believe that many future extremists will continue to attack every aspect of diversity and critical thinking (Walasek 39). The leveling of the famous Sufi mausoleums in Timbuktu is something that should be taken seriously than ever before.

Recently, the historical sites of Aleppo and Palmyra were also destroyed by Islamists. Such acts have the potential to redraw human history and therefore new measures and legal ramifications should be put in place. That being the case, the world should put such destructions into perspective. By so doing, a global strategy of punishment and persecution will be implemented in an attempt to safeguard every human right.

Why the International Criminal Court (ICC) Has Jurisdiction Over the Case

The International Criminal Court (ICC) has jurisdiction over criminal cases associated with the destruction of cultural heritages (The International Criminal Court par. 2). The World Heritage Convention (WHC) held by UNESCO in 1972 indicated that any attack on cultural monuments was a crime against mankind. The ICCs mandate to combat such kind of destruction was founded on a century of jurisprudence in international law (Greenhalgh 12).

Consequently, Article 8 of the Rome Statute of the ICC states that intentional attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives constitutes a war crime, regardless of how the conflict is classified (Ending Impunity for War Crimes on Cultural Heritage: The Mali Case par. 7).

This statutory stipulation echoed the strategy embraced by the International Criminal Tribunal for the Former Yugoslavia that was ratified in the early 1990s (Walasek 32). The statutory stipulation was put in place to protect every cultural heritage. According to this law, the destruction of historical or religious buildings should be categorized as cultural genocide (The International Criminal Court par. 11). In conclusion, the ICCs achievement should be treated as an historic step towards protecting every cultural heritage and ensuring that the rule of law is applied accordingly.

Works Cited

Ending Impunity for War Crimes on Cultural Heritage: The Mali Case. 2016. Web.

Greenhalgh, Michael. Destruction of Cultural Heritage in 19th-century France. Boston, MA: Brill, 2012. Print.

Simons, Marlise. Prison Sentence Over Smashing Shrines in Timbuktu: 9 Years. New York Times. 2016. Print.

Storm, Lisa. Introduction to Criminal Law. New York, NY: Flat World Education, 2012. Print.

The International Criminal Court. 2016. Web.

Walasek, Helen. Bosnia and the Destruction of Cultural Heritage. Burlington, VT: Ashgate Publishing, 2015. Print.

The decision of the Supreme Court on the constitutional right of citizens to same-sex marriage is a significant event in the history of the development of modern democratic society. However, this topic is still controversial as to how legitimate it is for such institutions. While some opponents of this decision may argue that marriage is a union of a man and a woman, changes were necessary to meet the current social needs.

I believe that the Supreme Court is able to make decisions of this kind as they protect the equality of citizens. As noted in the article by Gerstmann, the traditional view of marriage is Christian, which does not necessarily need to be extended to the whole of American society (par. 2). In my opinion, the court cannot decide on the restriction of same-sex marriages since this is a direct violation of the rights and freedoms of citizens. However, the given change, on the contrary, allows all people to marry, regardless of their sexual preferences. In particular, the restriction on same-sex marriage can be viewed as taking away the right to marriage from LGBTQ members due to their inability to tie the knot with a member of the opposite sex.

This decision is also important because the absence of same-sex marriage can lead to many legal inconveniences. In particular, same-sex couples did not have options to protect their rights in relation to, for example, property acquired with a partner or custody of children. However, in modern society, same-sex relationships, as well as relationships between a man and a woman, are the norm. The law should reflect the current needs of society and effectively protect their rights in the context of current social conditions.

Work Cited

Gerstmann, Evan. Dont Panic: The Supreme Court Is Not Going To Overrule Its Same-Sex Marriage Decision. Forbes, Web.

Introduction

The Pledge of Allegiance is a common tradition in most public schools in the U.S. In California, all the elementary public schools are supposed to start their day with an exercise of patriotism and the Pledge of Allegiance to the Flag of America is rightfully used to fulfill the states requirement. Over time, the pledge of allegiance which is used as a symbol of loyalty and pride to the nation has undergone some modifications. One of the amendments was the inclusion of the word under God. This amendment has become the basis of many court contestations. It led to the case of Elk Grove Unified School District v. Newdow (Supreme Court of the United States, 2004). In the case, Newdow an atheist as opposed to his daughters participation in the recitation of Pledge of Allegiance due to the word under God. His claim was that the school and the state were violating First Amendment and the Establishment Clause and that the action of reciting the Pledge of Allegiance policy was religious indoctrination. Therefore, the salient points were religious indoctrination, the constitutional provision about the U.S. is not aligned with any religion which is the key to religiosity ethics, and custodial rights.

The Evolvement of the Case before Reaching Supreme Court

The case was first filed in March 2000 in the U.S District Court for the Eastern District of California by complainant Newdow. Newdow listed the State of California, U.S Congress, and Elk Grove Unified School as the key respondents. The complaint was that the addition of the word under God as declared in 1954 Act violated the Establishment Clause and Free Exercise Clause of the U.S Constitution (Supreme Court of the United States, 2004). The complainant added that the states policy and the schools were coercion and religious indoctrination of his daughter. The court referred the case to a Magistrate Judge who counseled that the pledge did not violate the constitution. The District Court did abide by the recommendation and consequently dismissed the case. Newdow took the case to Court of Appeals that led to the reversal of the district courts rulings. Three opinions were provided by Court of Appeals. The First opinion was that as a parent Newdow had standing and could challenge the authorities that interfered with the religious education of the girl. Also, the court held that the 1954 Act and Policy on patriotism went against the Establishment Clause as enshrined in the first amendment.

In relation to Newdows standings, Sandra Banning, the mother of Newdows daughter filed a case to dismiss the complaint. She argued that she was the legal custodian of the girl, and thus had the sole rights to present legal interests that pertained to her daughter. Also, she pointed out that she was legally responsible for the decision that related to religion and education of the daughter. This led to the second decision in which Newdows standing was reconsidered though he was not deprived of being a noncustodial parent.

On February 28, 2003, the Court of Appeals amended its first opinion relating to the conditionality of the 1954 Act and subsequently gave the School Districts petition for a writ of certiorari to consider (a) whether Newdow has standing as a noncustodial parent to challenge the School Districts policy, and (b) if so, whether the policy offends the First Amendment (Supreme Court of the United States, 2004 par. 13). Hence, the case reached the Supreme Court.

The Decision of the Supreme Court in Brief

The Supreme Court overturned the decision of the Court of Appeals. The judgment found that the Pledge of Allegiances word God did not violate the Establishment Clause; Justice OConnor noted that God did not refer to a particular religion. As a result, the words did not portray a ceremonial deity and did not favor a particular religious belief over another. Furthermore, Justice OConnor not that the reference God had a minimal reference to religion and that that certain ceremonial references to God cannot be avoided due to the history of religious principles that led to the establishment of the U.S and its values; instead, it reflected the nations traditions that are based on religious background.

Fundamental Impacts of the Decision

Generally, the decision by the Supreme Court implied that despite the nation being secular, it cannot disregard the word God in totality based on its traditional founding principles of liberty and justice. The implication for such judgment is that the use of the word God is a way of ensuring that the Americans retain their values instead of absolute incantation (Thompson, 2003). The values are based on the religious attachment that the country had and that forms the basis of its originalism. Also, the ruling affirmed that the state or federal government cannot coerce anybody to a particular religion. As per OConnors judgment, the use of the word God in the Pledge allegiance had a very minimal religious connotation.

In relation to the ethics of the American Society, the decision elicits religious dilemmas in relation to the spiritual matters and the influence they have on children. For example, for atheists they do not believe in any deity; therefore, the use of word God which their children are allowed to recite amounts to indoctrination which in effect leads to adherence to ceremonial deism (Prouser, 2005).

Is Recitation a Religious Issue or a Sign of Respect for the U.S.?

The use of the word God in any place denotes a belief in some supernatural power or deity which in essence is the basis of any religion. The proclamation nation under one God has aspects of religion and respect for the U. S. (Prouser, 2005). However, based on the context in which the word is used, it does not signify a specific religion, and it is not used as a prayer. The context is more based on values which the U.S. Flag stands for such as justice and liberty. Thus, it is more of a patriotic act and less of religious significance. Therefore, it is a sign of respect for the U.S. as the recitation leads to a promise of fidelity to the Flag and not a deity.

Recitation of the Pledge of Allegiance in Public Schools

The sense of nationhood and pride are very critical components for patriotism. Bearing in mind that the Pledge of Allegiance is based on Americas values that are the basis of the nationhood, public schools should be allowed to recite it. In addition, the minimal religious implications due to the use of the word God are critical in making sure that children understand the origin of the nation of the U.S. It does not coerce them to a particular religion but makes them know how the current national values came to be.

References

Prouser, R. (2005). Elk Grove Unified School District v. Newdow. Journal of Gender, Social Policy & the Law, 13(1), 235-15.

Supreme Court of the United States. (2004).Elk Grove Unified School District et al. v. Newdow et al.Web.

Thompson, J. (2003). Whats the big deal? The Unconstitutionality of God in the Pledge of Allegiance. Harvard Civil Rights-Civil Liberties Law Review, 38(3), 563-97.