Category: Law

Assessment of the Organization and Effectiveness of the U.S. Department of Homeland Security

Homeland security policies involve organization of the activities in all social spheres to detect, protect, and respond to the domestic attacks, including 9/11. Within the context of the National Strategy for Homeland Security, the mission of the department is defined as a concentrated national effort to prevent terrorist attacks within the United States, reduce Americas vulnerability to terrorism, and recover from and minimize the damage of attacks that do occur (Kamien, 2005b, p. xli).

The Department of Homeland Security organized activities into six critical mission areas, including intelligence and warming, border and transportation security, domestic counterterrorism, protecting critical infrastructures, protecting against catastrophic threats, and emergency preparedness and response. All these areas involve specific agencies and administrations that take greater control of specific fields of social activities to ensure security, protection, and prevention.

Under the auspices of the department, such agencies as the Federal Emergency Management Agency (FEMA), Transportation Security Administration (TSA), and many other areas work on analysis, prediction, and prevention of all possible hazards within and outside the United States. Specifically, the FEMA aims to organize, plan, and coordinate available resource for mitigating and responding to the effects of natural and man-made risks (Kamien, 2005b).

The TSA is also an important element in the security framework because it monitors seaports, airports, highways, railroads, and pipelines that ensure safety movement of people and goods within and out of the country (Kamien, 2005b). This sector is of particular attention because it is closely associated with global transport infrastructure.

The Homeland Security Infrastructure successfully applies a multi-dimensional approach to protecting and introducing prevention measures and responses to outside and inside threats. Despite the total coverage, there are still gaps that need to be fulfilled to enhance the security and reduce the risk of terrorist attacks.

Specific attention should be given to agricultural/food sectors which are considered within a broader context of domestic counterterrorism. Biological weapon and foodborne diseases can constitute a serious threat to the safety and health of the nation and, therefore, the Department of Homeland Security should consider this issue in more detail. In addition, the agencies should focus both on various types of terrorist weapons and on the areas that could be affected seriously.

Overseas combating terrorism is also among the most important natural strategies initiated by the Department of Homeland Security. Regarding the scheme under which the terrorism combating occurs. The problem is that the National Strategies address too generalized issues while encountering terrorist threats and hazards.

There should be a more consistent and specific approach to the areas that need particular attention. Much concern should be connected with diagnosing and predicting, as well as constant overview of possible measures that could improve the protection systems. Constant control and innovation is the major source of facing terrorist attacks.

Threats and Issues Pertaining Cyber terrorism

The issue of cybersecurity has now been on the agenda of the Department of Homeland Security for many reasons. First, the technological advances and popularity of web space have increased the computer-literate population. The spread of hacker tools complicated the tasks of the security agencies in terms of development of effective software and hardware that would reduce and eliminate the access to the confidential information (Moteff, 2010).

In response to the treat, the Clinton Administration planned to establish a Federal Intrusion Detection Network that could meet the goals of the Homeland Security Department (Moteff, 2010). During the Bush administration, the intense focus on cybersecurity occurred due to the 9/11 events, due to the mission to introduce a separate unit that would protect and monitor the recent challenges and problems in the sphere.

Cybersecurity significantly differs from the purpose of protecting the nation from cyber crimes in terms of objectives that are purposes by the initiators of cyber-terrorist attacks. Specifically, cybercrime covers much more general categories and that different cause outcome for the security of the U.S. nation (Moteff, 2010).

Specific attention should be paid on the developing a new agency and framework that would be responsible for cybersecurity activities and policies. The legislation and regulations introduced by the Obama Administration have enhanced cybersecurity and have contributed to the development of cyberinfrastructures that were particularly interested in considering the challenges being critical to the safety of the nation.

According to U.S. Department of Homeland Security (2009), the use of innovative technology and interconnected networks in operations improves productivity and efficiency, but also increases the Nations vulnerability to cyber threats (p. 12).

Therefore, lack of awareness in the malicious factors that trigger attacks against the virtual infrastructure can lead to quick spread of debilitating effect. Therefore, the current and the main objective of the agencies responsibility for cyberspace should ensure that the information flow within the nation is properly controlled and monitored.

The development of policies enhancing protection of the cyberspace is quite challenging because of the interdependent and interconnected nature of Infrastructure Resource Center. In order to meet the goals, the primary purpose of the Department of Homeland security is to introduce effective measure that would sufficiently address the consequences of outside influences, as well as provide effective response to the emerged contingencies.

In this respect, the U.S. Department of Homeland Security (2009) has introduced a consistent plan that touches upon the safety of essential assets, networks, and system operating in Canada and Mexico and creating possible threats to the welfare of the nation. In particular, functionality, planning, and coordination should be among the core approaches of improving the protection and prevention mechanisms.

Vulnerabilities, Threats, Hazards, and Challenges Regarding Port and Cargo Security

The post 9/11 event produces another potential attention to the carrier systems and cargo transportation in airports, and seaports. Such sectors as aviation and maritime have become the primary focus of protection due to the increased vulnerability and threats. The major challenge in aviation is connected to the open and distribution of entry points both inside and outside the country, which makes it difficult to protect (The White House, 2003).

Moreover, the main aspects of the aviation infrastructure constitute the primary focus of the terrorist targets because they can become potential weapon for a terrorist attack. There are many other potential hazards for aviation, including volume, limited capabilities, and time-sensitive cargo, accessibility, and aspects of security confronting accessibility.

To meet the threats experienced in the aviation sphere, the Homeland Department National Strategies has decided to identify interdependencies and vulnerabilities that could present the major threat in all possible spheres (The White House, 2003). Survey of manufacture, industrial, and production spheres in aviation are under the major focus. The points of accessibility should also be tightened in terms of security so as to reduce the availability of entrance areas in airport (The White House, 2003; Kamien, 2005a). Operations and coordination centers should not be available, as well. Cargo screening capabilities and detection technologies should also be improved constantly.

Railroad challenges should also be considered carefully to limit the threats of terrorist intrusion. The National Strategy, therefore, gives especial attention to the complicated network of railroad routes, which makes it challenging to ensure availability of security measures (The White House, 2003).

In particular, the threat of specific train materials, including freight and transportation security, as well as lack of effective information exchange between the managers of the transportation sector can increase the probability of terrorist attacks. Transportation of marketing car container is another challenge that needs special consideration. This is of particular concern to the emergency response mechanisms that are not developed extensively.

Highways and public transport have also been the primary concern because of lack of sufficient security system that would take control of the passengers. Therefore, this field is the least protected among all types of transportation systems. The routes that include tunnels and bridges are also under the significant risk of intrusion (The White House, 2003). These areas should be monitored by the public transportation officials to prevent the possibility of intrusion.

Because pipelines are part of industrial and public service system, no specific unit is responsible for this sector. In fact, any damage to pipelines can lead to negative consequences in many spheres of control. Because pipelines are attributes of differential industrial networks, the distribution of stakeholder prevents the government to take sufficient control of the safety measures.

In order to prevent the described risk, it is reasonable to introduce a common unit for controlling the industrial pipelines that are owned by various stakeholders. Introduction of common standards of checking is also another approach that has been implementing by Homeland Security.

Appropriate Roles and Responsibilities of the Federal, State, and Local Government and the Private Sector Respectively, in Terms of Security for Critical Infrastructure Key Resources

The U. S. social, economic, and political infrastructure is complex and multi-facet and, therefore, it is difficult for both state and federal government to take control of the public sectors. The greatest vulnerability can experience such spheres as the food industry, public places of food consumptions, including care and restaurant networks, as well as food markets. The Centre for the Disease and Control can experience significant hazards because of debilitating influences on economic and social infrastructure as a result of the identified gaps.

Michel-Kerjan (2003) argue that private sectors lack sufficient degree of collective preparedness, which is especially essential after the 9/11 events. Therefore, terrorist attacks are oriented on the private sectors that are out of the attention of the government to generate fear and deterrence among the population.

Previous experience reveals that use of separate elements in combination with more extensive social networks can be used to generate terrorist attacks because there are a bad interaction and connection (Michel-Kerjan, 2003). Therefore, the government at regional and national level should enhance their cooperation and interaction to be able to react immediately to emerged contingencies, as well as to predict any possible threats the welfare of the U.S. nation.

Most of the resources used by the government are not used properly to address the needs of successful infrastructure cooperation. There should be an equal distribution of forces, responsibilities, and duties to coordinate actions and introduce a powerful protection mechanism.

Specifically, the primary mission of the Homeland Security is to ensure proper cooperation of local, tribal and national governments, as well as private sector administration to remove control deficiency (Department of Homeland Security, 2010). Lack of interconnected response to threat is among the principal vulnerabilities that the President Administration should address first. The establishment of relations between public and private sectors is also essential for working effective protection strategies.

Despite the useful diagnosing and prediction of challenges and threats, there are still areas that need to be addressed. Specific attention should be paid to equal distribution of control between the identified sectors because prevalence of one over another will not ensure successful cooperation (Department of Homeland Security, 2010).

Therefore, there should be balance struck between local government initiatives and the legislature and protection schemes issued by the federal and state administration. Specific attention should be paid to decision-sharing process and problem identification.

Overall, the overall protection and prevention techniques that were previously developed will work much better in case they are enacted in cooperation of private and public sectors. These operations could also be enhanced in case much concern will be given to the private areas where separate elements of a network should be in accord with other elements relating to much greater infrastructures.

Threats and Vulnerabilities Affecting Agriculture/Food Sector

Foodborne illnesses are among the major threats that can be used as a biological weapon for terrorist attacks. This is of particular concern to seafood, poultry, eggs and other perishable goods that should undergo strict control and adherence to food standards. The problem is that there no strict standards that could be applied equally to all products irrespective of region and place of delivery.

Imported goods should be of particular concerns because there are differences between the food standards at home and abroad (DeWaal and Barlow, 2004). In order to prevent the hazards, the government should be more concerned with the development of international standards that would correspond with global standards and that would provide a safer ground for food distribution.

Lack of facilities for inspecting and checking food for quality is also a severe problem that needs to be addressed immediately. The local governments should creative an extensive network. Lack of laboratories and relevant technologies does not contribute to the security of the U.S. citizens because of the lack of cooperation between public and private institutions. The second step that needs to be considered is poor work of reporting and surveillance systems (DeWaal and Barlow, 2004).

Despite the excellent and cooperative work of investigation networks, the information received is not properly distribution for further analysis and, therefore, the government fails to implement to corresponding measures. In order to avoid this program, the government should implement a specific legislature that would regulate transparent reporting. This area of reporting should not be confidential because the public awareness should be informed about possible threats of consuming various food products.

Monitoring of food-poisoning outbreaks is also a significant component that should be properly arranged. Most of the programs addressing this issue do not equally assess the extent to which these outbreaks can damage the economy and social welfare of the country.

Therefore, the government and the Department of Homeland Security should introduce more significant efforts to improve the situation (DeWaal and Barlow, 2004). In addition, Domestic food production is closely connected with agricultural sector and, therefore, it should be carefully monitored by the National Strategy initiative. Control of planting and supply of pesticide and other substances are enhanced to prevent the spread of biological weapon.

References

Department of Homeland Security. (2010). Quadrennial homeland security review report: A strategic framework for a secure homeland (Sections I-IV, pp. 1-36). Web.

DeWaal, C.S. and Barlow, K. (2004). Outbreak Alert! Closing the gaps in our federal food-safety net. Web.

Kamien, D. G. (2005a). Civil Aviation in the United States: Security Before and After 9/11. In D. G. Kamien The McGraw-Hill Handbook of Homeland Security. US: McGraw-Hill Companies. pp. 613-630.

Kamien, D. G. (2005b). The McGraw-Hill Handbook of Homeland Security. US: McGraw-Hill Companies.

Michel-Kerjan, E. (2003). New challenges in critical Infrastructures: A US perspective. Journal of Contingencies & Crisis Management, 11(3), 132-141.

Moteff, J. (2010). Critical infrastructures: Background, policy and implementation. Congressional Research Service, 1-31. Web.

The White House (2003). The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets. US: Washington. 1-96.

U.S. Department of Homeland Security. (2009). National infrastructure protection plan. Web.

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579

This was one of the notable cases in the US Supreme Court that encompassed standards for admitting and articulation of expert testimony especially in federal courts (Shana & Hackett, 1996). This case was about two children namely Eric Schuller and Daubert Jason who were born with birth defects.

Due to the defects, their parents decided to sue Merrell Dow pharmaceuticals claiming that they gave the mother a prenatal injection that was believed to cause the defects. Moreover, the two children submitted their investigation on the injection claiming that it caused the birth defect.

In this case, they used pharmacological studies to make an analysis and published it for review by scientists (Shana & Hackett, 1996). In line with this, they made an appeal in the US Supreme Court to determine the evidence of their studies even though it did not receive a general public acceptance. Consequently, this made the case to be ruled out (Shana & Hackett, 1996).

Frye v. United States, 293 F. 1013.

This case was handled in the US Supreme Court and acted as a test for the standards used in admitting both scientific and expert evidences related to a given testimony (Adina, 1996). From a careful review of history, this test was meant to determine the acceptance and admissibility of evidences from experts and scientists.

This court used this case to question the standards for admission of studies that lacked general acceptance. In this case, the US Supreme Court dictated that any testimony presented in the court must have been verified through scientific methods and only declared as authentic when there was general public acceptance (Adina, 1996).

Comparison of the two rulings

Needless to say, the two ruling are based on the principle of general acceptance of any testimony presented to the court. Moreover, the ruling dictates that any testimony must be scientifically proven by experts and scientists in order to determine whether it has the preconditions for admissibility by the court (Shana & Hackett, 1996).

Contrast

Nevertheless, the Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 ruling overemphasized on general acceptance of a testimony regardless of whether it is proven to be true by experts or not (Adina, 1996).

On the other hand, though Frye v. United States, 293 F. 1013 takes general acceptance as a precondition for admissibility of any testimony, the ruling highly incline on evidences derived from a body of experts. In this case, the ruling is able to decimate or relax traditional barriers caused by general opinion by embracing scientific studies (Adina, 1996).

Relevance of the rulings

As an expert, it is essential to understand what the rulings mean to me in order to be critical when applying certain standards on cases presented in courts. For instance, the rulings help one in appreciating public acceptance might be biased from a scientific perspective. In this case, it is important for an expert to consider multidimensional approaches in order to evaluate the admissibility of any testimony or evidence presented in a court of law.

Rule 702 of the federal rule of evidence

This is a rule that puts appropriate limits governing the admissibility of scientific evidences in regards to a given testimony (Adina, 1996). The rule weighs the reliability and relevance of scientific methods used in order to come up with appropriate evidences. In this case, the ruling relies on the use of facts to provide evidence in support of a given testimony and how evaluation can be done to prove the facts (Shana & Hackett, 1996).

References

Adina, S. (1996). Dogma of Empiricism Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States. Harvard Journal of Law & Technology 10: 149237.

Shana, M. & Hackett, J. (1996). Setting Boundaries between Science and Law: Lessons from Daubert v. Merrell Dow Pharmaceuticals Inc. Science, Technology & Human Values 21 (2): 131156.

Martha Stewart Committing the Crime of Insider Trading

The fact that Martha Stewart committed a crime by engaging in insider trading are beyond any reasonable doubt. When Samuel Waksal, co-founder of the ImClone Systems realized that the companys stock shares would fall drastically in the coming days, both he and his daughter decided to sell all of their shares.

Although client information was supposed to be treated with utmost privacy, as written in the Merrill Lynch policies, the financial management and advisory company that was managing the Waksals shares went ahead and informed Martha Stewart of the decision by Sam Waksal and his daughter to sell their shares.

Under the Merrill Lynch policies, employees were not supposed to discuss the business affairs of any client with any other employee except when there was need to seek for additional information, this regulation means that the conversations between the two companys employees: Douglas Faneuil and Peter Bacanovic, was against the companys policies (Hoffman, 2007, 712).

The policies further stated that the company did not release client information except upon permission by the client or when required by law to do so. However, Bacanovic went ahead and informed Martha Stewart of the decision by the Waksals to sell their shares without their authorization, besides, the move was not permitted or required by law (Engelen & Liedekerke, 2007, 501).

Although Martha Stewart may not a part of the initial decision to inform her of the sell Waksals decision, she eventually got involved in the process when she received the message regarding the situation at ImClone and called Merrill Lynch to ask about the current share prices. She immediately instructed the firm to sell all of her 3,928 shares. She also called Sam Waksal for further information on the situation at ImClone.

She sold her stocks based on information received from her stockbroker and the company, information that was not available in the public domain, which made her guilty of insider trading. Although the two (Stewart and Waksal) maintained that they did not communicate for some time, call records indicated that they had had a 5-minute call on December 31.

The call most definitely focused on the situation at ImClone and of the decision of the Waksals to sell all of their shares, and helped her arrive at the decision to sell all of her shares (Koch, 2004, 36). Selling her shares based on information from both her stockbroker, who had policies against sharing client information, and the company implies that Martha Stewart was guilty of insider trading.

US Attorneys and the SEC Judgment of the Case

The decision by the US attorneys and the SEC to indict Martha Stewart stemmed from good judgment and compelling evidence presented throughout the prosecution period by prosecutor and witnesses. I believe that Stewarts indictment was based on evidence of a serious crime.

Faneuils lengthy testimony revealed how Bacanovic had ensured that Martha received information regarding share sales by the Waksals, and when she finally got to receive the message from Merrill Lynch, she called back immediately to enquire for further information. The testimony also revealed how Bacanovic tried hard to cover up the situation at ImClone that had resulted into Stewart selling her shares.

To prove that the decision to sell her shares was based on insider information, Martha Stewart is said to have called Sam Waksal, who had been her friend for some time. The information provided both by Merrill Lynch and Waksal was not in the public domain, and Stewart used it to her advantage (McGee, 2008, 205).

The circumstances leading to the sale of shares by both the Waksals and Stewart stemmed from the fact that ImClone had failed to get the expected FDA approval of an antibody drug it had manufactured after many years of research.

Although Stewarts defendants tried to paint her as someone who was being persecuted by the state due to her status, all the evidence seemed to point to someone who unfairly used her influence and status to engage in illegal dealings.

Her relationship with Bacanovic at Merrill Lynch enabled her to receive information that Sam Waksal and his daughter had sold all of their ImClone shares due to the firms bleak share prices in the near future. Apart from being friends, Bacanovic handled Stewarts pension and personal accounts. He also handled accounts for her company, Martha Stewart Living Omnimedia (MSLO).

At ImClone, she had a long-time existing friendship with Sam Waksal since the 1990s and this enabled her to contact him at will to receive information that facilitated her decision to sell all of her shares (Washington Post, 2004). Therefore, Martha Stewart used her influence and status unfairly and in the end, her indictment did not come as a surprise regarding all the evidence presented during the trial.

Further evidence of Stewarts knowledge that what she had done was wrong stems from her numerous attempts to block the course of justice through her staff at MSLO and her influence at Merrill Lynch, mainly through Peter Bacanovic (Shaw, 2003, 55).

To say that the prosecutors had a consciously or unconsciously had additional motives for pursuing the case are simply outrageous since the prosecution presented evidence that clearly to Stewart engaging in insider trading and using her influence and status to receive insider information and to block the course of justice.

Conspiracy and Obstruction of Justice: Jury Decision

Martha Stewart engaged in numerous activities aimed at obstructing justice that only seemed to point out to her guilt regarding insider trading. First, she blatantly claimed that she had made an agreement with her broker to sell ImClone stocks when they fell below $60, and that her decision to sell the shares was purely based on the information that the ImClone shares were trading at $58 per share.

It was later found that the @60 had been added after December 27, and her defendants tried to cover up that addition. The judge found out that alleged agreement had been a lie and was only meant to justify the sale of her shares, and acted to obstruct justice (Shaw, 2003, 57).

Martha Stewart and Peter Bacanovic also engaged in numerous activities aimed at covering up the fact that she had received insider information from him. In one example, Bacanovic is said to have threatened Faneuil against saying anything about the dealings between the two.

When Faneuil was interviewed by the FBI, he stuck to what Bacanovic had told him regarding the $60 stop-loss order. Consequently, Bacanovic rewarded him with an extra week of paid vacation. It is obvious that Stewart knew of the activities between Bacanovic and Faneuil as they were aimed at protecting her image.

Stewart also instructed her staff at MSLO to alter the message of Bacanovics call that had informed her of the Waksals stock sale. In a testimony by one of her staff members, Ann Armstrong, Stewart is said to have first altered, then instructed her to restore the wording of the phone message.

These alterations were undertaken to support her statements relating to her communications with Bacanovic (Jennings, 2004, 45). Armstrong also said that Stewart knew that what she had done was wrong but was determined to cover up everything and obstruct the course of justice.

On a number of occasions, Stewart provided false information to the investigating team about her innocence to mislead prosecutors and push up her companys share prices. For instance, she insisted that she had not talked to Faneuil on December 27 when she had infact been informed of the Waksals share sale by Faneuil.

She also mentioned that although she had talked to Bacanovic, she could not remember if he had said anything relating to the Waksals. This was obviously a misleading statement. Her statement of the agreement to sell ImClone shares when they fell below $60 only served to obstruct justice further.

On the Fairness of the Punishment

Stewart was sentenced to 8 months in prison and another 5-month home imprisonment, she was also ordered to pay a $30,000 fine. She was also put on a 2-year probation. She served her sentence from September 29 and was released on March 5, where she proceeded to serve her home confinement at her home.

In my opinion, this sentence was not enough since she caused suffering of a number of investors and the imprisonment and fine was not enough to deter similar occurrences in the future (Moore, 1990, 171).

ImClone stocks fell by 30 percent after she had sold her shares upon advice by Merrill Lynch staff and Sam Waksal. She deserved a longer jail term and a heavier fine since the $30,000 fine she paid was nothing compared to the huge loses she brought to ImClone Systems and its shareholders.

A heavier fine would deter future offenders, especially those who are wealthy, from engaging in insider trading. Besides, all profits from Stewarts insider trading activities should have been withdrawn.

Peter Bacanovic also received an 8-month prison sentence, 5-month home imprisonment, and a $ 4,000 fine. He also served a 2-year probation. I feel the sentence and fine imposed on Bacanovic were appropriate and can prevent similar events from occurring in the future. Since he was not the main beneficiary of the insider trading scheme, the sentence was just appropriate. Daniel Faneuil was only fined $2,000.

This light sentence stemmed from the fact that he provided vital information regarding the case and had a lesser role in all insider trading activities carried out by Bacanovic and Stewart. His evidence was very important in the indictment of Stewart and Bacanovic, and outlined the extent to which insider trading occurs. Therefore, his sentence was appropriate.

Reference

Engelen, P., & Liedekerke L. (2007). The ethics of insider trading revisited. Journal of Business Ethics, 74(4), 497-508.

Hoffman, D. (2007). Martha Stewarts insider trading case: A practical application of rule 2.1. The Georgetown Journal of Legal Ethics, 20(3), 707-718.

Jennings, M. (2004). The ethical lessons of the Martha Stewart case. Corporate Finance Review, 8(6), 41-47.

Koch, E. (2004). Martha guilty? Surely you jest. Columbia Journalism Review, 43(1), 36 -37.

McGee, R. (2008). Applying ethics to insider trading. Journal of Business Ethics, 77(2), 205.

Moore, J. (1990). What is really unethical about insider trading? Journal of Business Ethics, 9(3), 171.

Shaw, N. (2003). Cloning Scapegoats: Martha Stewart does insider trading. Social Text Winter 2003 21(4 77): 51-67

Washington Post. (2004). A Chronology of Imclone and Martha Stewart. Washington Post. Web.

The government has various ways of collecting its revenue, domestically; it is collected through government bonds, treasury bills and levied taxes. The government through its revenue collection agency levies taxes and duties on various services and commodities sold.

This is either through income taxes where workers both in the government and established private companies and organizations remit taxes which are a stipulated percentage of their earnings. The goods sold with the country also attract duties what is commonly referred to as the Value Added Tax (V.A.T). Companies too are levied taxes on the basis of their nominal share capital.

Despite the noble contribution done by these kinds of domestic taxes, they are always in sufficient to support and sustain the government budgetary allocation not unless the government wants to render its citizens incapable of sustaining their livelihoods (Kaplan 120).

This leaves the government with no choice but to make levy taxes on the imports for a variety of reasons which look justified or unjustified depending on the purpose it is meant to serve.

The benefits accrued by the government levying taxes on goods entering its territory is to protect its territorial integrity where contraband products find their way into the economy thus causing security problems either health wise or proliferation of firearms from unknown sources.

There are some developed countries that export products they consider obsolete to be used in the third world countries thus using them as their site for dumping unwanted products (Johnson & Lee 110). These wastes especially e-wastes are a danger to our environment and this is why the governments will levy taxes to act as a punitive or penalty to such imports.

The self sustaining country is one that has its human resource developed and functional; so the levying of taxes on services offered from foreign experts helps the nation build capacity and develop homemade industries.

However, despite the benefits of levying taxes, there are also numerous dangerous and disadvantages of levying taxes. The levy of excessive taxes on imports harms the economy because it interferes with the balance of trade where countries shy away from trading with others they feel are exploitive.

The country also remains caged as foreign expertise that should otherwise build capacity of locals abscond and go to potentially friendly countries. Countries that rely on import of machinery especially less developed countries suffer in the long run as the levies on agricultural goods cannot give double coincidence.

This limits trade. Regional integration is also hampered because of tariff barriers will is a potential recipe for chaos and war.

Social Security

The United States of America being caring nation, from start after world war II decided to caution its senior citizen from the misery associated with retirement by incepting four major funds which were Federal Old Age and Survival Insurance Trust Fund established in 1940.

The second was Federal Disability Insurance Trust Fund of 1956 and the last one was the Federal Hospital Insurance Fund and finally the Federal Supplementary Medical Insurance Trust Fund, both founded in 1965 (Eckes 720).

These funds were started as noble ideas though in the event of time, many emerging issues seem to be regressing the gains intended. This constitutes inflationary trends, world market dynamics, and unemployment rates have doubled over this period.

Now the greatest question is whether the federal government should increase the expenditure on the social security funds or not. However, there is no specific answer to this question. This indifference is brought about by the schools of thought adduced by various stakeholders of the issue.

There are those who believe that to mitigate the problem, the special US Treasury bond should consider converting them into cash. This means that future taxes in addition to social security taxes and new federal borrowing will be in cash form. There are those who want pay-as-you-go funding while others support the trust fund investment in assets other than US Treasury bills. Nevertheless, it is the citizens who advance Socialism.

Works Cited

Eckes, Alfred. Opening Americas Market: U.S. Foreign Trade Policy since 1776. New York: Journal of Law and Economics, 51 (Nov. 2008), 71542.

Johnson, Walter & Lee, Raymond. Public budgeting systems (8th ed). Sudbury, MA: Jones and Bartlett, 2008.

Kaplan, Edward. American Trade Policy. Washington: Greenwood Press, 1994.

The Webster dictionary defines tort as an action which causes harm to other people (Fleming, 1992). It can also be termed as a civil wrong caused when individuals indulge themselves in unreasonable actions. Tort claims are based on the belief that people should always take responsibility of their actions, especially, when such actions cause injuries to other people.

The tort laws are divided into two categories which are known as intentional and negligent torts. Just as the name suggests, intentional torts are actions imposed on specific kinds of offences committed with the offenders full knowledge of the expected outcome.

This kind of tort is proven if a person commits it with very clear knowledge of the outcome of the actions (Hill, 1991). Examples of two common types of intentional torts include assault which is an intentional attempt to hurt a person by inflicting fear and battery which are the acts of hurting a person physically.

On the other hand, tort of negligence refers to all the actions that violate the expected standards of duty and care without intentions of doing so. A claimant is required to prove four main elements when reporting negligence tort. One is supposed to prove on the duty to protect the actual injury, breach of duty and the proximate cause (Mallor, 2010).

Every individual in the society is required by law to take responsibility of caring for all the people, hence every person is liable to duty to protect.

This, therefore, means that people are required by the law to do things perfectly, always avoiding all the forms of negligence and recklessness that can cause harm to other members of the society. For instance, all the doctors are entrusted with the responsibility of taking care of their patients by prescribing appropriate medications as well as providing them with the right treatment (Stein, 2002).

An individual is liable to breach of duty in instances where one fails to exercise reasonable standards of care when attending to other people. This can happen intentionally or unintentionally through exposing other people to dangerous situations which pose threats and consequently result to some sort of damages (Fleming, 1992). This concept can be imposed implicitly or expressly.

For instance, if individuals enter into a given contract, the terms and conditions of the contract are likely to impose certain duties and rights on all the contract parties. In cases where one party fails to honor the terms and conditions of the contract, it is liable to breach of duty to the other ones (Peck, 1990).

The law, however, expects individuals engaged in particular relationships, such as family relationships, to take the duty of responsibility. For instance, the law places high standards of care on parents with the responsibility of taking care of their children, hence a stranger may never be liable breach of duty as a result of child neglect.

Actual injury element is based on the principle highlighted by the fact that breach of duty eventually causes injury or loss to the affected individuals. Therefore, when imposing neglect tort, the claimant must always produce evidence of injury since lack of the evidence justifies the defendants against committing any form of tort. Damage of property and emotional stress are addressed under this element of negligent tort (Stein,2002).

Lastly, the factual or legal causation which is also known as the proximate cause states that there is a link between injuries resulted and breach of duty. If there is no link between the two, this element states that no monetary compensation is awarded to the complainant. Sometimes, the defendant may have legal causation or no factual causation for injury caused.

References

Fleming, J.G. (1992). The law of torts. Washington, DC: Law Book Co.

Hill, T.F.(1991). A Lost Chance for Compensation in the Tort of Negligence by the House of Lords. The Modern Law Review, 54, 511-523.

Mallor, J.B., Barnes, A.L.,Bowers, T. K.,& Langvardt, A. M. (2010). Business law: The ethical, global and e-commerce environment. (14th ed.). New York: McGraw Hill/Irwin.

Peck, C.J. (1990). Negligence and Liability Without Fault in Tort Law. Wash. L. Rev, 46(62), 225-236.

Stein, M.A. (2002). Priestley v. Fowler (1837) and the emerging tort of negligence. BCL Rev, 44, 698-790.

Many analysts have examined the effectiveness equal opportunities laws and its associated aspects, encompassing disparity, unfairness, intolerance, multiplicity, and lack of opportunities expansively which has added to extensive intellectual growth to the field.

Nonetheless, the efficacy of enforcing the equal opportunities and affirmative action statute to business organizations is still contentious.

Consequently, this paper intends to analyze the linkage between the prerequisite for having equal opportunities for employees within organizations to the assumed accrued benefits. The study will thus scrutinize this correlation in terms of job performance and alleged financial returns to the employer and employees.

Definition

The International Finance Corporation (IFC) defines workplace discrimination as any disentanglement, segregation or partiality that has the effect of invalidating or weakening impartiality in job openings, workplace behavior and career growth due to an individuals uniqueness.

This may encompass ethnicity, color, sex, religious faith, political affiliation, country of origin, societal bias, disability, marriage, age, sexuality, and/or HIV status (2).

Despite registering much progress against occupational biases, the U.S. Equal Employment Opportunity Commission admits that racial bias still represent the most cited job-related injustice, with 35.5 percent of the commissions complaints in 2005 centered on race issues (U.S. Department of Labor, n.p.).

This confirms results from other studies that disclose racial and ethnic inequalities still evident even after the enactment of Title VII of the Civil Rights Act of 1964; with non-Caucasian job seekers still unlikely acquire top jobs hence relegated to menial or unskilled jobs due to their skin color (EEOC 2).

Consequently, studies on financial returns from such integrated recruitment regimes are problematic due to the scarcity of appropriate case studies.

Benefits of an Integrated Non-Discriminatory Employment Strategy

Most studies affirm the economic benefits of an integrated non-discriminatory employment strategy citing inherent advantages like innovation, better labor supply, improved work relations, higher productivity and avoiding penalties among others (Kandola and Fullerton 8), Harvey and Allard (2) and Gray (14).

Thus, Richardson (4) affirms that organizations hiring the most qualified staff without bias typically end up with the finest workforces and a high retention rate. Hence, as global rivalry in consumer markets intensify; corporations still upholding bigotry tendencies are bound to decline.

Therefore, Harvey et al. (393) stress that workplace diversity allows corporations to compete globally while enjoying uninhibited benefits accrued from multicultural ideas. This view is supported by Fine (502) who argues that a workforce not resolutely restricted to certain cultural categories as more likely to generate higher returns in terms of labor, ideas and loyalty.

Cynics of Benefits of the Equal Opportunity Concept

Forth and Rincon-Aznar (18) are however cynical regarding the efficacy of equal employment opportunities offering greater economic benefits to businesses.

The authors contend that most of the studies supporting the notion are just based on long-term market yields, which cannot be directly linked to the integrated workforce. Likewise, assumptions based on case studies only highlight a few successful large corporations whilst lacking corroborative industry-wide studies.

Perotin and Robinson (31) have also stressed that productivity within businesses tend to decline after cyclic equality reviews though yields are higher without distinguishing monitoring. However, organizations with formal printed directives on the statutes fared better as compared to those lacking official guidelines on equal opportunities.

Dex, Smith and Walters (9) similarly found no collaborative indicators for financial growth by organizations that had enacted or practiced equal opportunities statutes. They also noted that monitoring activities tend to disrupt work schedules thus leading to slight declines in productivity levels.

Perotin and Robinson (18) however established positive correlations between employee loyalty and provisions of equal opportunity laws particularly amongst the male staff.

However, Burrows (2) examining the European angle argue that there is dichotomy between the statutes as propagated and actual practice asserting that discrimination is still quite widespread in workplaces despite the numerous regulations enacted.

Equal Pay for Equal Work Concept

While analyzing the Equal Pay for Equal Work concept, Burrows (2) established that conventional labor laws are generally outdated and thus unreliable in rendering parity to both the employer and employees. The existing statutes tend to favor executives rewarded for proficiency and performance while other workforce overlooked in reward schemes.

Similarly, contemporary employers are inclined to evaluate performance competence rather than hours logged or work done with quality the current guide. Consequently, Burrows argues that the bylaws be changed to reflect modern concepts of equal pay for work of equal value (5).

Affirmative Action

A study by Sumner and Silverman also established that equal opportunity rules though rarely practiced in workplaces, has the potential to play a role as part of an effective program if a priority (30). This could only be possible through devoted HRM programs, with appropriate recruitment schemes and accountability.

The authors however noted that despite these programs nowadays being acceptable, affirmative action is still politically contentious although awareness is increasing. Standing and Baume (9) affirm that despite the presence of numerous labor laws regarding discrimination, there remains widespread discrimination with issues of equal pay and opportunities still biased against women.

Conclusion

The Equal Employment Opportunity (EEO) laws make it unlawful for companies to discriminate against workers or job applicants. However, this study has revealed that prejudice though generally acknowledged as a vice, is still widely practiced. The significance of enforcing equal opportunities laws is still debatable but most reports indicate favorable financial benefits.

However, some analysts are skeptical regarding their efficacy since the rules have the possibility of creating reverse discrimination by giving undue advantages to minorities and gender groups in hiring overlooking merit. Overall, the equal opportunity laws are a valuable development in labor rules for all the stakeholders but should be modified to reflect modern workplace practices.

Works Cited

Burrows, Noreen. Equal Pay for Equal Work: The Impact of European Law Draft. Glasgow: University of Glasgow/EU, 2003. Print.

Dex, S., Smith, C. and Walters, S. Effects of family-friendly policies on business performance. Judge Institute of Management Studies Workplace Paper No. 22/2001. 2001. Print.

EEOC. Race and Color Discrimination. Number 915.003. Washington D.C.: The U.S. Equal Employment Opportunity Commission (EEOC), 2006. Print.

Fine, Marlene G. Cultural Diversity in the Workplace: The State of the Field. Journal of Business Communication (1996): 33(4), 485-502. Print

Forth, John and Rincon-Aznar, Ana. Equal opportunities, employee attitudes and workplace performance: findings from WERS 1998. London: Department for Business, Enterprise and Regulatory Reform (BERR), 2008. Print.

Gray, H. Family-friendly working: what a performance! An analysis of the relationship between the availability of family-friendly policies and establishment performance. Discussion Paper. London: London School of Economics, 2003. Print.

Harvey, Carol P. Jersey, M. June Allard. Understanding and Managing Diversity. New Jersey: Pearson Education, Inc., 2000. Print.

IFC. Non-Discrimination and Equal Opportunity. Good Practice Note No. 5. Washington, D.C.: International Finance Corporation (IFC), 2006. Print.

Kandola, R. and Fullerton, J. Diversity in Action: Managing the Mosaic. London: Institute of Personnel and Development. 1998. Print.

OFCCP. Equal Employment Opportunity is the Law. EEOC-P/E-1. Washington, D.C.: The Office of Federal Contract Compliance Programs, 2009. Print.

Perotin, V. and Robinson, A. Employee participation and equal opportunities practices: productivity effect and potential complementarities. British Journal of Industrial Relations (2000): 38, 4: 557-584. Print.

Richardson, Margaret A. Recruitment Strategies Managing/Effecting the Recruitment Process. Geneva: United Nations, 2005. Print.

Standing, Hilary and Baume, Elaine. Equity, Equal Opportunities, Gender and Organization Performance. Geneva: World Health Organization, 2001. Print.

Sumner, Michael D. and Silverman, Carol J. The path to equal opportunity: An investigation of best practices in employment and contracting. Berkeley: University of California  Berkeley, 2011. Print.

U.S. Department of Labor. Equal Employment Opportunity 2011. Department of Labor website. Web.

Introduction

Tort as used in common law is a civil wrong. It is a law that allows an individual who has suffered harm or loss to be compensated. The harm or loses may have been caused by another persons behavior. For instance, in a case where a person suffers legal injuries, he or she is entitled to compensation from those who caused the injury.

In this paper the focus is on negligent tort. Negligent tort focuses on the failure to use that degree of care required under the circumstances to prevent harm to others (Deakin et al., 2008, p. 23). Ideally it involves two major issues nonfeasance and malfeasance. The principle here is everyone who owes others a duty should act in a manner that will not cause harm.

Elements of a negligent tort

There is a formula that should be used when evaluating harm or injury as a result of negligence.

The complainant must prove to the court beyond any reasonable doubt that the following occurred; that the defendant has a duty to the plaintiff, the general public, employees including the complainant, he or she must show that the defendant did not uphold his duty diligently, the harm or injury incurred is due to the failure of the defendant to uphold his or her duty and the harm suffered was indeed realistically predictable outcome of the defendant action or inaction.

A typical example include the following scenario; a construction company fails to provide workers with personal protective equipment while the employer clearly knows that it is dangerous for employees to work when constructing buildings without such equipment as helmets, gloves among others.

If employees get hurt during the process, the employer will be taken to task to compensate his employees since the harm was reasonably foreseeable (Mallor et al, 2010).

Types of negligence

There are various types of negligence and associated principles. Gross negligence is where an act or inaction by a party is reckless that clearly shows that there is lack of concern for whether harm will occur or not. Comparative negligence is a situation whereby the compensation awarded to a plaintiff is proportional to his or her own fault for the injuries (Mallor et al., 2010).

For instance if it is established a plaintiff is to be awarded $200,000 and it is found that he is 40.0% at fault, then he will be awarded $160,000 against the defendant.

There are instances where the plaintiff is responsible for his or her injuries. This has been termed as contributory negligence for instance when one is drug and crosses the road carelessly causing an accident. He or she is not allowed to seek for compensation from the defendant.

Remedies

The courts provide several remedies including compensatory money damages, punitive money damages and injunction. For the later, it entails a situation where a court order requires that a defendant refrains from committing tort.

It is worth noting that an injunction cannot be granted in case damages would be an appropriate measure. For damages, the court may order the defendant to pay the plaintiff money to cater for loss of earning as a result of the injury, meet medical expenses, pay for actual loss, pay for prospective loss among other. This is only done if the plaintiff meets the four elements of negligence tort (Deakin et al., 2008).

Conclusion

The essay has critically examined the concept of negligence tort. Among issues addressed include elements of tort and remedies for tort.

References

Deakin, K., Johnston, M. & Markesinis, L. (2008). Markesinis & Deakins Tort Law. Oxford: Oxford University Press.

Mallor, P., Barnes, J., Bowers, T. & Langvardt, A. (2010). Business Law: The ethical, global, and ecommerce environment. (14th ed.). New York: Irwin/McGraw Hill.

The Internet and Intellectual Property Right Infringement

Intellectual property rights are broadly defined as exclusive rights pertaining to distinct intangible creations of the mind which range from music, designs and various artistic works to broad categories such as inventions, literature and even phrases (Woker, 2006).

The basis for intellectual property rights is to protect the creators of unique inventions, concepts, or ideas from having their work arbitrarily utilized without their permission for the profit of other individuals/ companies.

Without IPRs (Intellectual Property Rights) various artists, writers and inventors would be reluctant to release any of their work to the general public due to the possibility of their ideas being subsequently stolen and claimed by others as their work.

Companies apply IPR law as a method of protecting their patented and copyrighted products from being subsequently copied and sold by other companies. It is through this method of business law implementation that various corporations have been able to maintain their positions in the global market place due to their protection and control of their patented processes, products and designs.

It is rather interesting to note though that within the past 12 years as a direct result of trends in the digitization of products and services as well as the prolific use of the internet many digital products such as software, music and images (taken or created) are increasingly being utilized, shared and distributed online without the aforementioned consent of the holds of their copyright (Jameson, 2011).

Sites such as the Piratebay.org, Megaupload and Rapidshare contain millions of music, video and software files that were ripped illegally from legal sources and then subsequently shared online for free (Bhattacharjee, Gopal, Lertwachara, & Marsden, 2006). This has resulted in significant losses in sales for hundreds of companies with estimates placing the amount lost in the hundreds of billions of dollars within a given year.

On the other end of the spectrum billions of intellectual property right infringements are also done on a single day by the sheer amount of videos and images shared on social network sites such as YouTube and Facebook (Bhattacharjee, Gopal, Lertwachara, & Marsden, 2006).

Users arbitrarily share images taken from official websites and magazines as well as post videos online containing copyrighted songs, labels, symbols and images resulting in practically millions of people being guilty of intellectual property right infringement.

Yet for the past 12 years companies have been unable to successfully combat this problem due to its sheer scale and the inherent limits of business law in actually being able address the issue. What must be understood is that there are inherent differences between violations of intellectual property rights between a company and an online internet user (Bhattacharjee, Gopal, Lertwachara, & Marsden, 2006).

When a company commits a violation of intellectual property rights business law becomes more enforceable since the affected party is dealing with a single entity. In the case of online internet users, there are just far too many individuals, too many cases and not enough enforceable evidence of an intentional violation to actually implement a successful means of deterring IPR violation in the scale it is seen today.

One of the means in which companies have attempted to combat this issue has been to lobby for stricter laws regarding digital good and services.

The result was the DMCA (Digital Millennium Copyright Act) which in effect criminalized the production and distribution of various technologies, services or even devices which allowed individuals/groups to illegally access copyrighted works or circumvent the process that prevents digital distribution (Grosso, 2002).

In effect, this law in the U.S. made it illegal to circumvent copyright protection on digital software for online distribution and made methods associated with intentional violation of such laws punishable by heavy fines or jail time.

It must be noted though that the limitations of this particular type of business law is evident in the fact that despite its implementation in 1998 online piracy has continued unabated and has in fact increased within the past decade (Grosso, 2002). One of the reasons behind is the sheer size of the internet with quite literally billions of websites and trillions of pages devoted to all manner of digital content.

Despite the best efforts of any company or government agency it would be quite literally impossible to police all known sites.

Not only that, even if a company or government agency was to take down a website based on its supposed distribution of pirated content the fact remains that website addresses can be changed resulting in the site being transferred to some other corner of the internet where it would take months if not years for it to be found by piracy regulators.

Another problem in sufficiently implementing IPR law is the fact that when it comes to laws regulating the online distribution of digital content each country has a different application of IPRs (Miller & Bove, 2011).

For example, though the DMCA is enforceable within the U.S., it is still a U.S. based law and thus cannot be enforced in other countries that have a different version and interpretation of what constitutes enforceable action regarding intellectual property rights. (Miller & Bove, 2011)

One way of seeing the overall lack of international enforceability can be seen in the case of the Piratebay.org which is the internets largest and most well-known site for finding and downloading pirated content ranging from movies, music and games to movies and software applications (Morton & Koufteros, 2008).

Over the past six years, the Pirate Bay has been able to resist various moves by companies such as Microsoft, EA, Universal Studios and even Apple Incorporated to shut it down due to the presence of pirated copies of the movies, software and games of these companies on the website.

The reason it has been able to stay in operation for so long is not only due to the inapplicability of the DMCA since the Piratebay.orgs servers were based in Sweden but the fact is the site took advantage of a loophole in online IPR protection wherein technically the files werent stored on the website itself but rather what was present on the site were torrents in which people could use to download the pirated content from the computers of other people (Morton & Koufteros, 2008).

Torrents are a method of online file sharing wherein individual files are broken up into smaller aggregates which can be downloaded and uploaded from multiple sources (Norton & Freedmart, 2006). In effect, this technology allows thousands of users to download from other users that are uploading the file from a background process on their computer (Norton & Freedmart, 2006).

As such technically the files arent present on the Piratebay.org itself and it merely acts as a collection of torrent files that can be used to download the content from elsewhere.

While it may be true that international pressure on the Swedish government did in fact hamper the Pirate bays servers in 2010 with several of its owners being arrested the fact remains that the site was able to go back online within a matter of hours as soon as it transferred from its servers based in Sweden to other servers based in other countries (possibly China).

Based on this particular outcome, wherein despite the best efforts of the application of business law no satisfactory outcome was created, this calls into question whether business law involving IPR of digitized content can still be considered effective when taking into consideration the flexibility the internet grants illegal online content distributors.

IPR Violations and E-commerce

One of the current trends in E-commerce has been the digitization and sale of EBooks via Amazon, iTunes and various online stores.

As seen in the article of Miller (2011), EBooks have gained considerable ground in terms of market penetration and popularity among different age groups due to the proliferation of EBook readers such as the iPad and the Amazon Kindle as well as their considerably lower prices since they easy replicable digital content that costs distributors next to nothing to reproduce and sell (Miller, 2001).

The inherent problem though with this particular method of sale and distribution is that unlike hardcopy version of novels, short stories or textbooks EBooks can be easily copied, transferred and even distributed freely online by the thousands.

The same digitization that allows companies to sell EBooks also allows other people to use the same methods for their gains. A brief Google.com search shows that there are quite literally dozens of sites where EBooks can be illegally downloaded for free.

(Growth of Internet Piracy, 2011). The main question that must be asked in this particular case is what can business law do about?

When examining the possible resources of the law in this particular case, it becomes quite obvious that in the age of digital content distribution and consumption business law has in effect been rendered impotent in terms of its ability to limit illegal IPR violations.

Domain Names and Trademark Violations

Going back to the example mentioned in the previous section involving the illegal distribution of digitized content by the Piratebay.org it can be seen that such a trend in online piracy is not limited to merely movies, music, software and games but extends to other aspects related to digital content (Szuskin, de Ruyter & Doucleff, 2009).

What must be understood is that the internet is now considered one of the best platforms for mass sales and content consumption and as such an online E-commerce site such as Amazon can now be compared to the previous generation of traditional superstores in New York such as Macys and Bloomingdales or the equivalent of Dubais Mall of Dubai.

While there are quite literally thousands of other examples that can be mentioned what all of them have in common is a proprietary trademark. This trademark is an essential aspect of a store or companys brand image and as such, is protected by various business laws against illegal or unsanctioned reproduction.

In the case of online E-commerce stores such as Amazon, eBay and Alibaba their proprietary trademarks come in the form of their domain name. A domain name is the name of the website with the prefix www. and the suffix .com; this is the primary method in which sites are visited and searched for on search engines such as Google and as such can be considered the online equivalent of a trademark.

When it comes to business law, what must be understood is that there are inherent differences and limitations to the application of business law in traditional market environments and the application of business law on the internet.

Domain name copying is actually a proliferate and frowned upon practice today wherein variations of the suffix or in the name itself are done so as to imitate the trademark of a particular site.

For example, the trademark Amazon.com can use the suffix Amazon.biz, Amazon.net, Amazon.xxx, Amazon.cc as well as a sheer plethora of possible suffixes. Variations to the name itself can result in the following examples as well:

TheAmazon, AmazonShop, AmazonStore, etc. All of these techniques are utilized in order to draw consumers away from the original owners of the trademark to other E-commerce stores that utilize the same site design but are in no way connected to the original trademark owners.

While the traditional response of business has been to sue other companies who have obvious trademark infringements the same cannot be applied to cases of internet domain names since while such names are considered part of the trademarks of companies business law is not applicable to their use or creation unless in particular cases.

For example, misleading domain names which direct users to pornographic sites are in violation of the U.S. Truth in Domain Names Act which was created in 2003 to prevent such actions from continuing.

Domain name seizures also occur when the use of a particular domain has been proven to be connected to a specific form of criminal activity (Joe, N.D.).

As seen though, in the case of the Piratebay.org, there are limits to the application of this particular form of the law since U.S. law is not applicable to domain names registered, applied or transferred to companies outside the U.S. In fact there is an underground business currently booming online wherein domain names are held hostage so to speak.

This practice is done by buying and registering a domain name which has the same name as that of a company, organization, or brand. Since such institutions would want to create their own online presence, they would need to subsequently purchase the domain name in order to ensure proper online brand recognition.

This usually leads to the company paying several thousand dollars (more than 300 times the worth of the domain) in order to acquire it from the person that had legally acquired the companys online trademark by being the first to purchase it.

Based on this it must be questioned whether there need to be subsequent changes in business law in order in order to mitigate the apparent problems related to online practices that are in clear violation of not only a companys IPR but their trademarks as well.

While it may be true that domain name providers do give companies a certain degree of preferential treatment when it comes to purchasing specific domain names related to their company when new suffixes are created (such as the recent.xxx suffix) the fact remains that this does not bode well for companies that will be created in the future that find their online presence hijacked by an unscrupulous individual looking to make a profit.

Copyright Infringement in Website Posting and Development

Copyrights are defined as laws which give the creator of a certain work exclusive rights towards sale, distribution or development over a predetermined period of time. This can encompass various literary works, artistic works and even film or music. What a copyright does is that it in effect, allows the creator of a particular piece of work the right to profit over what he/she created.

Without sufficient copyright protections in place artists, writers and moviemakers would be unwilling to create any new work since they wouldnt be able to profit from it in the long term due to alternative channels of sales and distribution that other individuals or groups would utilize in order to tell the created work themselves.

While this paper has so far delved into the topic of illegally downloading copyrighted content from websites what hasnt been discussed is how the process behind the creation of websites can actually fall under various aspects of copyright violation as well.

Ever since the implementation of Web 2.0 which transitioned websites from the static domain of the solitary programmer to the dynamic world of the normal user the creation of sites through the use of numerous types of online and offline website making software has made copyright infringement a norm rather than rarity (Kahandawaarachchi, 2007).

Thousands of websites utilize borrowed content from other sites in the form of pictures, banners and even written information. Not only that, online services such as Photobucket allow users to store copied copyright content from other websites to utilize on their sites and blogs (Kahandawaarachchi, 2007).

When attempting to examine the sheer proliferation of copyright infringement and the ability of business law to resolve this issue it becomes evident that there is actually no way to stop it. Just as there are hundreds of websites which allow users to illegally download ripped content, there are millions if not billions of sites where copyrighted content has been utilized in order to add some pizzazz to the site (Kahandawaarachchi, 2007).

There are just far too many sites, too many internet users and internet technology have become too accessible resulting in no possible way to even make a small dent in the degree of infringement. It must also be noted that the general anonymity connected to the internet helps to proliferate the practice of copyright infringement online.

Studies such as those by Hinduja & Ingram (2009) indicate that while internet users are aware that their activities are a form of copyright violation some users still post copyrighted images online since they are under the apparent assumption that their anonymity grants them a certain degree of immunity from direct prosecution, they are unfortunately right in this case due to the fact that it is quite literally impossible to examine all aspects related to what individual users are doing online (Hinduja & Ingram, 2009).

Internet Anonymity and the Application of Business Law

One of the current problems in the application of business law in online cases of IPR infringement is the level of anonymity granted by the internet which not only makes methods of prosecution against violators difficult but also encourages criminal behavior.

As seen in the study of Hinduja & Ingram (2009) which attempted to explain the reason behind the popularity of online IPR infringement it was seen through numerous interviews and accounts that anonymity played a massive role in encouraging the behavior.

As Hinduja & Ingram (2009) notes, social identity plays a huge factor in limiting criminal or anti-social behavior yet when the concept of social identity and thus accountability is taken away people are more likely to commit acts related to IPR infringement as they otherwise would have done if there was a distinct level of identity and accountability related to their online presence (Hinduja & Ingram, 2009).

In other words, the Hinduja & Ingram (2009) study showed that people were more likely to commit acts of online copyright infringement and the promotion of online piracy since they knew that the level of anonymity afforded to them by the internet allowed them to act without negative consequences.

This, in turn, explains the depth and proliferation of online piracy and copyright infringement and shows how the problem cannot be so quickly resolved merely by applying laws which state that a particular action is illegal.

Another way of looking at this concept is to look at it from a prosecutors point of view. While there are many instances where users download illegal IPR content there is no way to prosecute them for the act since there is no way of knowing who they are.

Not only that, services such as Rapidshare, Megaupload and Torrent technologies enable users to anonymously upload content and distribute it to millions of other users which further complicates the problem. The sheer number of users and the amount of available online services which allows illegal IPR violations to continue shows just how impotent business law is at the present in actually resolving this issue.

It must be noted though that one way in which companies have attempted to fight back against online piracy has been to directly attack the sites themselves through their ISP (Internet Service Providers) however just as the Piratebay.com has been able to say operational by shifting ISPs and servers other websites have done the say which makes any attempt at even trying to resolve the issue a losing battle for companies due to the sheer number of servers available that are not under the jurisdiction of IPR law (Nelson, 2010).

Selling Counterfeit Goods online

One of the more interesting developments regarding online violations of IPR, copyright and trademarks has been the use of E-commerce platforms as a way in which counterfeit goods are sold and distributed to international customers in bulk shipments

(Internet IP: Review of UDRP begins, 2011). While the IPR, copyright and trademark violations in this particular case are quite obvious the audacity in which the products themselves are sold is indicative of the limitations of the reach of business law in such cases.

For example, numerous websites utilizing the name ChinaPortal, importfromChina or a variation thereof utilize online advertisements seen in prominent sites such as YouTube in order to convince online consumers to go to their website and purchase counterfeit goods online (Internet IP: Review of UDRP begins, 2011).

The reason why businesses havent be able to shut these websites down is due to the fact that their servers, domain names and ISP providers are all based in China and as such becomes yet another example of the limits of business law in combating IPR violations
(Internet IP: Review of UDRP begins, 2011).
It is actually quite interesting to note that there is currently an ongoing trend wherein services that engage in online IPR violations are increasingly transferring their domains and servers to China as a direct result of U.S. and European based legislation that seeks to prevent such websites from going online in the first place.

This is particularly interesting to note since the study of Johnson (2008) indicates that nearly 40 to 50 percent of all counterfeit goods sold in markets today actually come from factories based in China (Johnsonn, 2008).

As such, not only is China becoming a harbor for the production of counterfeit goods, but it has also become a refuge for illegal online services that distribute copyrighted content (Johnsonn, 2008). It now becomes a question of why businesses havent been able to do anything regarding Chinas actions which in effect cost them billions of dollars a year in lost revenue.

One way of explaining this particular situation is to examine it from the Realist theory of international relations which specifically explains that States are the primary actors in international relations and as such, there is no entity above a state (Hall, 2011).

Foreign policy, according to Professor Daniel W. Drezner of the Fletcher School of Law and Diplomacy at Tufts University, is conventionally defined as the means by which a nation-state advances and protects its interests in the world.

It includes fashioning alliances, establishing trade relationships, negotiating treaties, shoring up domestic support for international policies, bargaining with international organizations, crafting military doctrines, and waging war. From this, it can be seen that foreign policy is the manner with which a state interacts and relates to other countries and actors with the aim of protecting and securing a states national interests.

Moreover, foreign policy is something that a state and its machinery produce on behalf of a nation using all the instruments they can muster in competition with other similar actors in a world that is dominated by the logic of Realpolitik.

Taking this into consideration it now becomes obvious that the reason why businesses cannot do anything to resolve this particular situation is due to the fact that they dont have the right or the capability to actively force the domestic policy of a foreign state towards their ends (Hall, 2011).

While it may be true that in the case of the U.S., lobbyists within Congress are able to influence the decisions and laws implemented the fact remains that such a system does not exist in China and as such companies have next to no ability to actually prevent the current server and domain transfer towards Chinese based services in order to perpetuate the release of illegal copyrighted content.

Furthermore, this also prevents companies from actively targeting websites that sell counterfeit goods since they are not located within countries that have strict IPR regulations.

Discussion

Based on the facts presented in this paper so far it becomes quite obvious that necessary changes in the application of business law need to be implemented in order for it to apply to the challenges described so far.

In response to this particular situation two new proposed acts of Congress by the U.S. namely PIPA (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011) and SOPA (Stop Online Piracy Act) are currently being deliberated and should they go into effect would resolve many of the problems described in this paper.

The first act, SOPA, allows copyright holders to utilize a court-ordered agreement which would in effect ban U.S. based advertising networks from advertising on such sites, would prevent online payment transaction services such as PayPal from processing payments on behalf of that site and it also prevents search engines from displaying the site during an online search as well as requires ISPs to in effect block the website from being accessed by anyone within the U.S. or if the site is based within the U.S. allow all users to visit the site (Nagesh, 2011).

The Stop Online Piracy Act effectively neutralizes all possible avenues by which a sight with either pirated or IPR violating content from continuing to exist by strangling all means by which it could derive an income or attract users (Nagesh, 2011).

This proposed act is the culmination of all the various facts presented in this paper regarding the inadequacies of business law thus far regarding violations of IPR and as such resolves many of the problems indicated in this paper.

What must be understood is that a vast majority of online internet users are from the U.S. and as such by blocking their ability to access to create sites with infringing content this could possibly create a cascading effect where due to reductions in income due to a lack of visitors, sites with illegal copyrighted content would in effect have to shut down (The Internet, 2011).

As such, this particular application of business law not only affects violators within the U.S. but violators on an international scale as well since it limits their ability to conduct business. On the other hand, SOPA has continued to receive widespread derision and contempt from a vast majority of internet users due to the limits it imposes on the consumption of online content (The Internet, 2011).

What must be understood is that many of todays users have grown used to various websites having infringing content in the form of photos, graphics, music and files and as such have considered their presence as an ubiquitous right to online internet usage. What must be understood is that the broad definitions of the act itself could possibly result in thousands of sites being shut down as a direct result of copyright infringement.

This involved not only illegal sites but legitimate sites such as Facebook where users share copyrighted images by the thousands on a daily basis. Not only that the implementation of the bill itself has numerous pundits concerned on how it would effect the ability of internet-based entrepreneurial businesses to operate due to the increased liability that may have to face due to the exposure to possibly copyrighted content.

The best way of examining this particular issue is from the words of blogger James Alworth, who works at the Harvard Business Review. He states the following quote which reverberates throughout all the problems and concepts presented in this paper: Is this really what we want to do to the internet, shut it down every time it doesnt fit someones business model? (The Internet, 2011).

This very statement actually calls into question business law itself as it is applied on the internet today. What must be understood is that the internet is widely acknowledged as the single greatest innovations within the past century due to its ability to not only encourage communication but information sharing on a massive scale.

Implementing solutions to the problem of applying business law solutions to the cases presented in this paper unfortunately has the effect of stifling the ability of the internet to continue to be an effective platform of communication and the sharing of ideas since as seen in the case of SOPA the implementation of the most effective solution prevents the proper functioning of the open and freestyle of communication and collaboration the internet is known for.

It can even be argued that copyrights and IPRs actually constrain innovation and the subsequent application of new methods to use old technologies.

With copyrights and IPRs securely in the hands of companies that want to keep them in order to perpetuate the success of their business models they in effect stifle potential new applications of the technologies they so religiously guard.

Evidence of this can be seen in the way in which open-source software projects such as Linux, Mozilla and Googles Android software application have practically done leaps and bounds in their ability to not only rival but exceed the capabilities of proprietary based systems.

While it may be true that under business law companies have a right to profit from the copyrighted and trademarked content that they created it is at times questionable whether the perpetuation of practices which allow old business models to continue to operate is truly the most effective path to pursue.

In fact, it was stated by the director of Valve (one of the largest computer game companies in the world) that the popularity of online IPR violation isnt an issue that involved business law but is rather a service issue.

Examining the Concept of IPR Violations as a Service Issue

When the head of Valve mentioned that IPR violations are a service issue he meant that certain licensed content whether in the form of media, games, software or pictures were either unavailable in a particular region or unaffordable by people that wish to utilize the copyrighted content.

What must be understood is that a vast majority of IPR violations done today through the illegal consumption and use of copyrighted content is actually done by individuals who cant afford to get the software or media in another fashion (Khouja & Park, 2007). As such, they turn towards IPR violation as the only recourse they have in order to gain the content the need.

In the case of Valve, they resolved the problem of IPR violations being a service issue by establishing a service that both addressed the issue of availability and affordability of video games. Through their proprietary Steam portal, players from all around the world were able to find the games they wanted and pay for them at a fraction of the cost that they otherwise would have if they had bought the game through traditional methods.

Based on this it can be seen that there are alternative solutions that other companies are not event attempting since they seem more concerned in perpetuating their old business models instead of attempting various methods of innovation to address the issue of IPR violations (Khouja & Park, 2007).

Losing Touch with their Customers

It can actually be stated that based on the words of the Valve CEO that the inherent problem in this particular case is the fact that companies have in effect lost touch with their customers based as a direct result of the internet and as such have begun to rely on business law as a way of reversing an unfavorable situation.

One way of looking at this is by comparing the case of Netflix and Blockbuster and how one business model was affected by changes to consumers and the effects of innovation.

When examining what company has lost touch with its consumer base, the best example that can be seen at the present is the fall of Blockbuster and the subsequent rise of Netflix within the past 10 years. What is notable in this particular case is that Blockbuster originally had a dominant position in the U.S. market.

It has 3,000 stores and controlled 95% of the video rental market; however, it is interesting to note that its business model did little to change over time. Blockbuster stores were notable for their large selection of movies and games; however, they tended to be overly spacious and placed in an equally large parking lot with few surrounding stores.

Such a scheme did result in high sales over a period of 15 years however it must be questioned whether the sales were a result of its business model or just the sheer proliferation of its stores and the dominant position it enjoyed in the market.

When examining how Blockbuster dealt with local competition, it was obvious that they did so by offering a wider selection, lower prices and more attractive looking stores in order to gain more consumers.

Not only that Blockbuster also enjoyed a rather healthy relationship with several studios which enabled it to release movie rentals faster than its competitors could have, which resulted in more consumers coming to Blockbuster as a result.

The fall of Blockbuster

By the late 1990s though it is obvious that Blockbuster was so competitor centered in maintaining its dominant position that it neglected to examine changes within its consumer base (Gandel, 2010). By this time, faster internet speeds were becoming available to the general public which, along with the proliferation of home computer systems, resulted in more people turning towards the internet for their needs.

In fact, it was at this point that online e-commerce systems which enabled consumers to make purchases online started to proliferate which enabled new companies to enter into previously hard to enter markets due to the flexibility and low-cost nature of online sales and consumer marketing.

When Netflix began its online video rental service in the latter half of the 1990s this gave consumers a faster and more convenient method of video rental which subsequently eroded away at Blockbusters market position till by 2005 to 2009 when Netflix released its online video streaming service this could be considered the final nail in the coffin so to speak resulting in the dominance of Netflix and the complete erosion of Blockbusters previously dominant position.

Based on this example, it can be seen that companies that dont innovate in light of subsequent changes to markets very likely could go under as a direct result of their actions.

Examining the Issue

The case of Blockbuster and Netflix is actually an example of the wider state of all businesses today and as such is evidence as to why the fight against online IPR infringement should not be considered one based on business law but one where companies are reluctant to innovate in light of the changes needed and are utilizing business law as a means of resisting the change so to speak.

The reason behind this is the fact that businesses dont operate within a vacuum and have to deal with intense competitive environment forces on an almost daily basis. What must be understood is that there are three components to market orientation that dictate how a company acts within a competitive environment; these are: customer orientation, competitor orientation, and inter-functional coordination.

In the case of customer orientation, a company spends what resources it has in gathering data on the needs and behaviors of various consumers, the same can be said for competitor orientation however it focuses on competitors instead. What must be understood is that either method has a distinct weakness.

Focusing too much on consumer orientation can actually blind a company to changes in the market or may actually stifle innovation since the company focuses too much on consumer satisfaction rather than changing based on trends.

Focusing too much on competitor orientation on the other hand results in too much time and capital being placed on competitive activities which results in companies at times neglecting their consumer bases and focusing too much on getting ahead of the competition.

On the other hand, both methods also have their own respective strengths, such as the customer orientation strategy being more effective in uncertain markets, whereas competitor oriented strategies become effective in fast-growing markets.

The best way to maintain a balance between the orientations is to first create a market intelligence mechanism that gathers consumer information and disseminates it within the company and secondly is to encourage the free flow of information within the organization.

What must be understood is that market orientations tend to become ineffective when organizations are mired in bureaucratic nuances which prevent information from being passed on quickly. This is exactly what is happening to companies at the present wherein they are mired in the bureaucratic entanglements of IPRs, copyrights and trademarks.

They have become so concerned with maintaining their positions that they have neglected to take into account current market intelligence and customer orientation in order to innovate their products in such a way that it allows the company to both profit from online IPRs while at the same time allowing consumers to enjoy the current level of freedom they enjoy online.

The creation of SOPA is merely evidence of this resistance and as such should not be encouraged to go into effect since it not only negatively impacts online users but also prevents companies from forcefully innovating themselves.

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Brief statement of facts

This case involved Rockwell Kent and other people who sued the Secretary of State for denying them travel passports on the basis of the fact that they held communistic associations and beliefs. Kent intended to travel to England where he was going to attend a meeting (Cooper, 2006 p.34) and he was denied the passport on the grounds that he was a communist and had for a long time been closely linked to the communist society.

The other issue that the state secretary raised was the refusal of the petitioners to supply an affidavit stating their close links with communists. Kent was informed that he had a right to an informal hearing before his passport could be issued and that he was also required to file an affidavit in which he would indicate he was a member of a communist society (Charles, 2009, p.34).

Kent declined to file the said affidavit arguing that it was unlawful and in violation of his constitutionally guaranteed rights. He argued that according to the laws governing matters of issuance of a passport, the only relevant issue was that of his citizenship and since that was not in contention he argued that other issues were not of any relevance to the department responsible for the issuance of passports.

The department responsible on the other hand argued that due process needed to be followed and that without Kent supplying them with an affidavit, his application for a passport would not be given any further consideration. It is then that Kent decided to sue the secretary of state for failing to issue him with a passport.

During this period, there was an Act that had been passed by the congress which required that any citizen should be offered a passport for travel to a foreign country incase a state of emergency was declared (Lee, 1961,p.45). Having examined all circumstances surrounding the matters at hand, the court held that the Secretary of State was not justified in denying passports to Kent and other petitioners.

Kent filed the matter in the District Court and made prayers for declaratory relief where he was praying the court to have the department in charge of issuance of passports reverse their decision and issue him with a passport. A summary judgment was entered in favor of the respondent and the petitioner decided to appeal.

Upon appeal, Kents case was heard together with that of another gentleman who was facing a similar predicament. During this hearing, the second applicant Briehl who was a psychiatrist raised three main issues.

Firstly, he raised the issue that the kind of affiliations he had politically were totally irrelevant to the issuance of his passport. He further argued that every citizen had been guaranteed the right to travel to any other foreign country regardless of his political affiliation. He also argued that incase he was accused of being involved in criminal activities it was upon the department in charge of issuance of passports to prove this.

Opinion of the court

The Court of Appeal which entertained the matter began by reversing the order made by the District Court. In arriving at this conclusion, the court took into consideration the Act of Congress of the year 1926 and paid attention to six provisions of the act (Sieghart, 1984, p.45).

The first provision of the act stated that every citizen has a right to travel and this right cannot be deprived unless under the due process that is provided by the constitution in the Fifth Amendment.

The Act further states that the power of the secretary to deny issuance of passports to any citizen which is purely discretional is limited to only when an applicant is not an American citizen or if a citizen of America has been involved in activities that are criminal in nature (Whiteman & Hackworth, 1963, p. 23).

The court, while recognizing the fact that the secretary of state had discretion to deny issuance of passport to any applicant whom he deemed as not having satisfied all requirements, he was supposed to remain within the parameters of law that governed the issuance of passports.

The court was also of the opinion that incase any persons travel to a foreign country needed any kind of regulation, then this ought to be done pursuant to the laws that govern the issuance of passports. The court felt that much as the congress had left the discretion of issuance of passports to the secretary, that discretion needed to be exercised within the parameters of the law and needed not be abused.

The court further noted that the Immigration and Nationality Act which gave the powers to issue passports to the secretary of state did not give him (the secretary) the power to withhold or refuse an application of any person based on their faith, political affiliations or associations.

Having examined all the relevant provisions of this Act which were applicable to this case, the court held that there was no valid reason for the Secretary of State to deny passports to complainants. Leonard Boudin and Victor Boudin held brief for the petitioners while David Rein and Victor Rabinowitz held brief for the respondents.

The opinion of the court was given by Justice Douglas. The first issue that the court noted was the decision made in Urtetiqui v. DArbel regarding issuance of passports.

According to the outcome of this case, there are no systematic laws governing the issuance of passports other than the fact that the applicant needs to prove to the secretary of state that he (the applicant) is a citizen of America. The secretary of state is however not expected to carry any form of inquiry, judicial or otherwise to ascertain the citizenship of an applicant.

Conclusion

The case was heard by a bench of 9 judges and the judgment was on a ratio of 5:4 with 5 concurring and four dissenting. This case involved the interpretation of the constitution as read together with legislations that have been enacted by the congress. Usually, when the congress is enacting laws, they must be reflective of the spirit of the constitution.

This is because any law that tends to go against the provisions of the constitution is null and void up to the extent of its inconsistency.

Therefore, the court found that in the spirit of the constitution, the secretary of state had gone against the provisions of the laws governing the issuance of passports. The petitioners were therefore given declaratory relief where the department in charge of issuance of passports was ordered to reverse their orders.

References

Charles, S. (2009). Understanding law for public administration. New York: Jones & Bartlett Learning.

Cooper, P. (2006). Public law and public administration. London: Thomson/ Wadsworth.

Lee, L. (1961). Consular law and practice. California: Stevens.

Sieghart, P. (1984). The international law on human rights. New York: Oxford University Press.

Whiteman, M. & Hackworth, G. (1963). Digest of international law, Volume 15. California: United States department of state.

We consider the underlying fallacy of the plaintiffs argument to consist in assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position.

We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each others merits, and a voluntary consent of individuals.

The above passage describes the case of Plessy v Fergusson which occurred in May 18, 1896. The issue was whether the Whites and Blacks had to be separated in the society. The main argument provided in this passage was on the enforcement of the segregation laws. According to the plaintiff, the enforcement of these laws would make the colored race the inferior race.

In the main decision of 7-1, the court disagreed with the plaintiff stating that there was no way the Louisiana state laws went against the Thirteenth and the Fourteenth amendment rights of the colored people. In the opinion offered by Judge Henry Brown, the court shot down the Plessys argument because it interpreted the constitution wrongly, by arguing that the separation would place the colored people in an inferior position.

The majority argued that the inferiority that existed in the colored people existed only in the minds of the African Americans. The judges introduced a scenario in which they assumed that the colored race was the superior one in the state legislature, then they would pass laws in the precise terms as the current laws that the white race would be relegated to the inferior race.

The other unproven statement made in this argument by the Supreme Court is that African Americans would be happier if they were not mixed with the white or other ethnicities. In the third sentence of the passage, the majority argued that if the two races were to meet upon social inequality, natural affinity might have caused it. In addition, the acknowledgment of each others abilities and the consent of individuals had to be there.

They assumed that social prejudice could not be overruled by legislation. The fourth amendment of the Constitution was effective in protecting against social prejudices, the colored people were protected against being deprived of liberty because of races segregation.

Passing the law of segregation and expecting the races to mix through a natural inclination is ridiculous as the law creates an assumption that penetrating is similar to breaking the law, and therefore, impossible. It is believed that prejudices that exist in the society can be eliminated by legislation.

Brown s argument lacks logic, he assumes that the blacks are suffering from inferiority complex; he forgets that they might have been prompted to do so by the badge of inferiority that has been afflicted to them by the law. He chooses to question the plaintiff argument but doesnt question the laws. He does not believe that the fourteenth amendment of the constitution also protects the colored race from the southern states laws. He only believes that the fourteenth amendment was supposed to protect blacks from slavery.

Brown in his argument doesnt bring forth the evidence to prove the scenario in which he stated that, if Blacks were put in the same position as Whites, they would do the same as that done by whites in legislation of segregation laws, his scenario is thus implicitly made. His statement assumes that whites would never be the inferior race even if the reverse is done; his belief undermines his later statement that the law should allow mutual appreciation of each others merits

John Marshals dissenting opinion predicted that decision set forth in Plessy v Ferguson would become infamous just like that of Dred Scott v Saidford, in which he called for a color-blind constitution. He gave an example of the Chinese race (a race which was viewed as inferior) as Chinese people were allowed to share the same facilities with the whites.

He alluded to the fact that the Chinese race was very different from the white race, but people were allowed to mix with the whites, so why the blacks could not be allowed to do the same.

The sole dissenting judge also acknowledged that these laws allowed for a form of slavery in contravention of the constitution, the lifestyle led by blacks was similar to that discussed by Professor Brook Thomas in his lecture during the world war in which a black general was not allowed to dine with Nazi prisoners; thus the law can be considered to be unconstitutional.

The law is also unconstitutional as the effect is only felt by the blacks and not the whites, it is clear that the law was trying to protect the inferior Whites from the superior blacks and not the other way round. The segregation laws were creating a conducive environment for the Whites while inconveniencing the blacks, as judge Harlan states, the purpose of the statutes was to exclude blacks from railroads assigned to whites and not the other way round.

And according to the fourteenth amendment of the United States Constitution laws, the immunities of citizens shouldnt be enforced by states as they are unconstitutional, assuming that one can create two separate systems that are similar to each other and can never be achieved.

The laws purpose was to abolish racism and, in addition, establish absolute equality of the races based on the law as opposed to political, social, or a combination of the two, stating otherwise is incorrect. Any other distinction based on color cannot be seen as intending to abolish natural rights and freedoms.

On the other hand, it is impossible to enforce political or social equality as they are different from each other, the law that permits the separation of one race from the other doesnt necessarily imply that one race is inferior to the other. An example of this is the separation of people according to their races in schools, church and many other places.

This separation has been held to be valid legislative prerogative, and the northern states have been the longest and the most earnest enforcers and defenders of the political rights of the colored race. They have acknowledged the validity of the separation laws (Fogli ,para 2).

Works Cited

Fogli, Counterarguing Strategies, U. S. 2007.Print