22.01.2019 in Law
Law and the Legal System

1. Discuss various ethical standards in law and law-related professions.

Law-related professions involve a large degree of moral responsibility and interest in promotion of legal and social justice. Therefore, rigorous ethical standards are imposed on lawyers, paralegals, judges, and law enforcement officers by corresponding authorities. Ethical standards for law-related professions are established by bar associations in every state, but they are generally based on the model standards and opinions expressed by the American Bar Association. In fact, most state law associations have fully enacted the standards or “canons of justice”, suggested by this national organization (Van Dervort 18). Being adopted by the state bar, they gain the power of binding laws, not just abstract expectations. Their violation may lead to suspension or even prohibition on legal practice. 

Quite understandably, ethical standards for judges, lawyers, and paralegals are different due to their varying roles in the legal system. Thus, the professional activity of judges must be consistent with the ABA’s Model Code of Judicial Conduct. This document emphasizes the key importance of impartiality and neutrality in their professional conduct. All the rules are grouped into four major canons. These canons primarily oblige judges to promote integrity and independence, as well as to avoid impropriety in their actions. Moreover, the Model Code of Judicial Conduct requires judges to demonstrate diligence and competence in their work. It is equally important that judges avoid a conflict of interests due to their political engagement or personal activities. If a judge fails to conform to these principles, his/her judicial decision may be reversed by an appellate court. In case of serious violations, he/she may even be impeached. 

The primary task of lawyers is to defend interests of their clients, so most of lawyers’ ethical standards pertain to their communication with clients and representative functions. Most importantly, the ABA’s Model Rules of Professional Conduct require lawyers to refrain from representing clients who they know have been engaged in fraudulent activities, as well as to refrain from making false statements in the court. Lawyers have to keep their clients informed throughout the legal process. Another important issue is maintenance of a client’s confidentiality, apart from certain situations when it may result in criminal offense. Also, lawyers have to avoid a conflict of interests related to their work with other clients. 

Ethical standards for paralegals are contained in the code of ethics, devised by the National Association of Legal Assistants (Van Dervort 20). It emphasizes the role of the paralegal as merely an assistant with limited responsibilities. Particularly, this document discourages paralegals from providing independent legal judgment and engagement in unauthorized legal practice. At the same time, they are expected to constantly enhance their competence and expertise to be more helpful to attorneys. Just like a lawyer, a paralegal is obliged to protect the client’s confidentiality.   

 Ethical standards for law enforcement officers were developed by the International Association of Chiefs of Police (IACP). The IACP Model Policy on Standards of Conduct primarily requires officers to comply with laws, procedures, and regulations. Another important ethical standard is avoidance of unbecoming and discrediting behavior. Particularly, officers should not consume alcohol or tobacco products on duty. Social and romantic relationships with persons in custody or their close family members are also considered a form of discrediting behavior. Officers must not divulge any work-related information to the public unless authorized to do so. Furthermore, they are expected not to engage in political activity and not to endorse promotion of commercial products. 

Thus, ethical standards are different for each law-related profession depending on its particular functions. Still, the model codes of ethics in all law-related professions emphasize the quality of competence, which is crucial for solving complex legal problems and restoring justice. Another pervasive ethical standard in law is maintenance of confidentiality: lawyers, paralegals, and officers have access to personal information of their clients but they should not divulge it to others, apart from special circumstances. Ethical standards for paralegals and law enforcement officers are mostly prohibitive in their nature, whereas those for judges and lawyers are largely prescriptive.      

2. Discuss the importance of individual rights and due process of law in the American legal system. 

Individual rights are the rights that each person holds individually, as opposed to group (or collective) rights. In the U.S., individual rights of citizens are determined in the Bill of Rights.  The right to life, freedom, and property are the most important individual rights, all the others largely derivative from them. The Fifth and the Fourteenth Amendments to the U.S. Constitution include the Due Process Clause, which protects people from deprivation of these basic rights without a due process. 

Rights are intangible but they are still one of the most valuable assets a person might have. The Declaration of Independence states that the human rights of life, liberty, and pursuit of happiness are God-given and, therefore, inalienable. It is consistent with the theory of natural rights, which views individual rights as inherent to people since their birth. Thus, the government does not endow people with rights: it only guarantees their equal protection for everyone. Whether individual rights are created by God or by the government, they need to be protected to establish order in the society. As stated in the Universal Declaration of Human Rights (UN), the acknowledgment of equal and inalienable rights of all the people lies in the foundation of liberty, peaceful cooperation, and justice in the world. The distinguishing feature of democratic states is the respect for individual rights, at least to the extent they are outlined in their enacted laws or ratified agreements. In contrast, police states are known for their pervasive negligence of individual rights. For example, in the Soviet Union, people could be convicted and imprisoned, or even deprived of their life, without a proper judicial procedure. Such measures can only lead to chaos and fear among citizens because they know they can be accused of things they have not committed and have no opportunity to justify themselves. 

The American citizens are protected from arbitrary actions of the government by the due process clause. It guarantees both procedural and substantive due processes. The procedural due process implies that the government must adhere to the established rules in the treatment of suspects. For example, a citizen can only be arrested if there are reasonable grounds to believe that he/she has committed an unlawful action. Upon arrest, he/she must be informed of his/her charges and rights. Also, the procedural due process implies a fair trial of civil and criminal legal matters. Procedural standards of criminal and civil legal actions differ: for example, a jury is necessary for the former, but is not guaranteed for the latter (Van Dervort 58). All these procedures are expected to protect people from unfair convictions. Even in developed democratic countries it often happens that a person is wrongfully accused due to misleading evidence: the procedural due process can help to avoid or minimize such incidents to make sure that justice is served.   

The substantive due process is a more fundamental concept that requires the equity of the laws that are generated by the government bodies. It implies that all the enacted laws must be consistent with the US Constitution. Thus, the substantive due process protects people from the majority’s enactments that exceed the scope of the governmental authority.  A portion of the state legislature can be invalidated by the court if it is proven to be unconstitutional or exceedingly vague. The substantive due process often involves controversial matters that can be viewed from different standpoints. For example, there is an ongoing controversy in the US about fairness of the death penalty, which is currently a legal measure of punishment in more than a half of the US states. Many authors question the substantive due process of the death penalty, pointing out the conflict with the constitutional rights of death row prisoners and their relatives (King 199). In accordance with the substantive due process, all the federal and state laws must be reasonable and constitutional: if a conflict with individual rights is revealed, the piece of legislation is strictly scrutinized and may be eventually eliminated or amended. Opinions of judicial and legislative authorities may differ as the rights of both victims and offenders have to be taken into consideration. Despite frequent conflicts, they pursue the common goal of generating reasonable laws to punish offenders in accordance with their deeds and to prevent them from further infringement of other people’s individual rights. 


3. Name and discuss one constitutional law issue that is still considered controversial. 

One of the most controversial constitutional law issues in the US is the freedom of expression guaranteed by the First Amendment. The freedom of expression is a broad concept that encompasses many rights in itself, one of them is the freedom of speech. While there are no doubts of the necessity of this right in a democratic state, it has engendered the contentious issue of the hate speech regulation, which splits the society into two irreconcilable camps. The fundamental question is whether the freedom of speech can be reasonably limited without introduction of censorship. 

The freedom of speech is protected in most developed countries of the world as it has become a central concept from the human rights perspective. Still, every country guarantees this right to a different extent and for different types of speech. In the US, political and religious speech receives the highest degree of protection, and restrictions on them are rarely enacted. However, symbolic speech and advertising speech have very limited protection. Furthermore, there are many exceptions to the First Amendment protection, such as child pornography, obscene and fighting words, threats, and slander. 

Hate speech, though, is not exempt from protection, unless it leads to imminent lawless actions as established in Brandenburg v. Ohio. Thus, disrespectful and offensive speech with racial or gender slurs is not considered an offense. It is notable that at the end of the twentieth century many speech codes, adopted by educational institutions to fight discrimination, were cancelled by the courts as a violation of the First Amendment. Even terrorist speech can rarely pass the test of imminent lawless actions, so terrorists can freely disseminate their ideas in different media. Donohue argues that the test of clear and present danger established by previous hate speech cases must be used in relation to terrorist speech. All the more so, the cases of Schenck v. United States, Dennis v. United States, and Yates v. United States have never been overturned by the court (249). Hate spam and discriminatory speech on Internet forums have also caused much debate recently.

The proponents of hate speech regulation claim that it has a significant negative impact on affected people, even though it may not instigate them to lawless actions or threaten them. Therefore, under the US Constitution, the dignity of these people is not protected from defamation and even dehumanization. Moreover, the legality of hate speech can be viewed as inconsistent with the Equal Protection Clause of the Fourteenth Amendment, which guarantees protection of individual rights from bigoted and pornographic speech. Racist and sexist slurs, as being protected by the Constitution, raise particular concern as most developed countries do not tolerate them. For example, the British Public Order Act outlaws abusive and threatening speech that stirs up racial hatred (Fish). In the US, however, the lack of the hate speech regulation enhances discrimination of vulnerable minorities and undermines  social justice. Racial, ethnic, and religious minorities are often faced with hate speech and there are virtually no legal mechanisms that they can use to protect themselves.  

 The opponents of the hate speech regulation claim that it will inevitably engender pervasive censorship in all kinds of media, which is intolerable for a free society. Provoking ideas and expressions should not be suppressed by laws, but rather brought into public discussion. This way, when people are affected by hate speech acts, they have the corresponding right to defend their dignity by refuting offensive words or by replying in the same manner. 

Despite the fact that the public and academic sentiments tend toward stricter regulation of hate speech, it is still under strong protection of the First Amendment. The most recent related case, Snyder v. Phels (2011), held that outrageous speech about a public issue cannot be viewed as an offense, despite the emotional distress it inflicts. 

4. Discuss the difference between primary and secondary authority as well as the difference between mandatory and persuasive authority.  

The notion of primary authority (or sources) refers to the rules of law issued by a government body in certain jurisdiction. The government body can be represented by an administrative agency, court, or legislature. Primary authority includes constitutions, statutes, codes, administrative regulations, court opinions, ordinances, executive orders, adjudications, and so forth. Contracts and wills also belong to primary authority. All these sources may be produced at the local, state, and federal levels. The US Constitution is the most important primary source in the American law as it defines the functions of different government branches and establishes citizens’ rights and obligations. State constitutions can enhance the rights granted by the US Constitution but they cannot limit them. Statutes, rules, and regulations enacted in each state have to be consistent with its constitution. Another important source of primary authority in the US is international treaties, signed by the President, as they usually have a significant domestic impact. Primary authority can be either mandatory or persuasive. The mandatory authority has the binding power for courts and legislatures when it is applied in the same jurisdiction. For instance, a decision of the Supreme Court in California will be binding for every lower court within the state. In contrast, a primary source issued by another jurisdiction can only be persuasive in the court, but not binding. In this manner, lawyers in Arizona may cite the decisions of the Supreme Court of California to convince the judge to take an analogous decision, but the judge may use his/her own discretion and decline a suggestion of a lawyer if he/she does not consider it reasonable enough.   

Secondary authority has no binding power for any court or legislature as it merely summarizes, describes, analyzes or interprets the primary sources. It includes legal reviews, opinions, treatises, encyclopedias, digests, and restatements. Secondary sources usually contain broad citations of primary sources, along with extensive analysis. Lawyers can cite secondary sources in the court to ground their own interpretations of laws, but judges have the option not to agree with them. Restatements of laws and law reviews are the most common secondary sources cited in the court because they are written by legal scholars and professionals, whose opinion may be weighty. Legal encyclopedias are rarely cited in the court as their primary purpose is to help students find relevant primary sources and understand their most important concepts. Whenever a legal research is undertaken, it starts with the search for the necessary primary authority. Once it is found, the researcher may use reputable secondary sources to help him/her interpret the law and apply it. It is important to remember that, however authoritative they are, secondary sources can never be used independently from the primary source they discuss. 

5. Define what a tort is and discuss the basic types of torts. 

A tort can be defined as a civil wrong that infringes the rights of others and results in the legal liability of a person who commits it (tortfeasor). In civil law jurisdictions, tort is equivalent to delict. Usually, tort lawsuits are resolved by paying monetary compensation for the caused damage. The types of damage that can be compensated to an injured party include pain, suffering, medical expenses, and the loss of working capacity. Stricter punishment measures, like fines or imprisonment, are uncommon for torts. Preponderance of evidence is a sufficient burden of proof of torts, which makes them different from crimes that require a proof beyond a reasonable doubt. 

The most common torts are based on intent, negligence, or strict liability of a person. An intentional tort is committed with the purpose of causing psychological or physical damage to other people or their property, or both. Examples of the intentional tort are assault, battery, false imprisonment, trespass on land or chattel, and intentional infliction of emotional distress. The concept of the intention implies that the defendant must realize the potential consequences of his/her actions. In case of battery, he/she must be aimed at an unlawful contact, while in assault he/she must intend to make another party apprehensive of imminent danger (Lunney and Oliphant 51). Upon careful consideration, however, many seemingly intentional acts transpire to be mere wanton or reckless behavior, which cannot constitute an intentional tort. The intentional infliction of emotional distress is the most difficult for a plaintiff to prove because, as a rule, emotional damage is not obvious. 

Negligence torts are wrongdoings caused by the lack of care, which a reasonable person would demonstrate in the same situation. It may be either an act or a failure to act when it is necessary. The liability for negligence can be established when it is proven that the defendant owed a duty of care, which he violated, thus caused an injury. The duty of care implies that the defendant and the plaintiff were in a relationship, which required special care from the defendant (for example, a doctor and a patient, a driver and a pedestrian, a school teacher and a student). In determining the reasonability of the defendant’s actions, the jury has to be guided with common sense as there cannot be strict criteria to define it. The plaintiff should be able to prove that the defendant’s breach of his/her duty was the proximate cause of the caused damage. The court must be careful in distinguishing a negligence tort from an accident that happen despite the due care taken by the defendant. Also, it must be clearly established that the plaintiff has not assumed the risk consciously, whether implicitly or explicitly. Negligence has prevailed in the tort law since the beginning of the twentieth century, which is apparently linked to the industrial revolution and to the growth of individualism in the society (Lunney and Oliphant 12-15). 

However, it often happens that defendants are found guilty not due to their actions, but due to the mere type of their activity. Strict liability torts involve abnormally dangerous activities, such as keeping wild animals in captivity and shipping hazardous substances or materials. Owners of domestic animals can also be liable for the harm their pets cause to other people and their property. Currently, the predominant type of strict liability tort is the product liability. When products are put in the stream of commerce, they are expected to be suitable and safe for consumers, as long as they are used properly. However, if a product causes damage to consumers, they have a cause of action against its manufacturers. Sometimes, though, designers or marketers of the product can also be sued, depending on the nature of the defect. For example, designers of a children’s toy will be liable if a child is hurt due to its form, while marketers will be liable if they do not put a warning sign on the package or do not indicate the appropriate age. In strict product liability torts, the degree of care exercised by the defendant does not matter, as long as the product is found defective. Thus, the defendant may not have moral fault but he/she still may have legal fault. If it is proven, he/she must compensate the damage to a consumer.   

Other common types of torts include defamation, nuisance, and a business (economic) tort. Defamation refers to spoken or written statements that libel another person and can harm his/her reputation. Defamation suits are usually filed by public figures whose reputation can be seriously affected by false allegations. Nuisance is an activity, which prevents people from using and enjoying their own property, such as causing loud noises or pollution of soil. Only private nuisance is considered a civil wrong, whereas public nuisance is a criminal wrong. Business torts include activities, which make the plaintiff suffer an economic loss, such as interference with a contract or negligent misrepresentation.

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