Author Archives: lawtermpapers-com

Punitive Damages

Posted on by
Reply

One very key victims’ right is the right to seek compensation for wrong done by a perpetrator.  Compensation is a monetary award determined by a judge or jury in a civil trial, that seeks to make-up for any wrong doing – a way to bring the victim back to his former state before he was wronged. Punitive damages, on the other hand, are an additional award that seeks to punish a defendant and deter others from committing like “crimes” – crimes being a misnomer since the type of infractions punished by this type of trial and punishment are not necessarily illegal, but are deemed to have caused harm.

In the United States, some states have set limits on the amount of punitive damages that may be awarded.  These limits are largely due to lobbying efforts by insurance companies.  And when reviewing the facts, one is not hard pressed to find reasons why insurance companies would be so keen to do so.  A quick look at examples of punitive damages awarded in civil cases shows that juries tend to be eager to award damages that go way beyond any real damages suffered and even far exceed the original request by the plaintiff.  For example, in BMW vs. Gore, the jury awarded the plaintiff $4,000,000 because the defendant had repainted a car and failed to notify said plaintiff.

What accounts for such vehemence in seeking revenge?  Though such extreme punitive damages awards may be due to the skill of the plaintiff’s attorney, one wonders if class envy or en vogue hatred of large (read ”rich”) corporations fuels any of this vengeful fire.  Either way, the practice of awarding excessive punitive damages punishes everyone, since it is one of the biggest problems related to high health care costs today.  And the actual plaintiff is likely to see very little of the money since his attorney will receive 40%-50% of the take, Uncle Sam will have his hand out for 39% and the plaintiff’s state will take what’s left over.

Racial Disparity in Sentencing

Posted on by
Reply

The Sentencing Project is a non-profit organization devoted to researching the causes and consequences of racial disparity in sentencing and developing appropriate remedies to this perceived problem.  The Sentencing Project defines racial disparity in sentencing as that situation which results when inmates of a minority race are disproportionately represented in jails and prisons than they are in society at large.  Apparently, The Sentencing Project feels that if the minority percentage of the general population is 25%, then the minority population in prisons should be 25%.  This organization accuses law enforcement and other officials in the criminal justice system of being racially biased.  One assumes that The Sentencing Project’s research goals would be met if a sort of reverse affirmative action in incarceration rates would take place and three whites were arrested and jailed to every one minority.

The Sentencing Project calls out several reasons for the incidence of racial disparity in sentencing.  Besides simple “overt racial bias”, preferential treatment to middle- and upper-income populations and racial profiling by law enforcement top the list.  It is interesting to note the spin put on racial profiling by The Sentencing Project.  Whereas statistics indicate that law enforcement officers do pull over more minorities than whites when looking for contraband, they are “no more likely to find contraband on minority motorists than white motorists.”  This means that officers were just as likely to find contraband on white motorists as minority motorists, suggesting perhaps the truer meaning that officers pulled motorists over based on observations of likelihood other than just race.

While this blog is in no way meant to suggest that racial disparity in sentencing never happens, it is hoped that thinking students will consider both sides of any argument.  The Sentencing Project claims that one cause of racial disparity in sentencing is an overemphasis by law enforcement officials on certain communities.  Perhaps a simpler and more sane answer to the question of racial disparity in sentencing is the fact that percentages are being taken of the nation as a whole.  While 38% of incarcerated individuals may be African American as opposed to the 13% of the population of blacks in the nation as a whole, these statistics do not take into account that perhaps more crime and arrests take place in large cities where there is a higher concentration of the minority population.  For example, the percentage of African American residents in Atlanta, Brooklyn and Detroit are 34%, 35.7% and 75% respectively, very clearly narrowing or eliminating that racial disparity in sentencing.

Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970

Posted on by
Reply

Though most of us have not been involved in or been a victim of organized crime, we are all familiar with the stereotypical scene that we’ve witnessed in a dozen gangster movies in which Vinnie, Luca or Guido shows up in his pin-striped suit with his little submachine gun to make somebody an offer they can’t refuse.

These are the images evoked by the title of RICO – the Racketeer Influenced and Corrupt Organizations Act of 1970.  This little doozy of a legislation passed by the Nixon Administration officially outlaws acts of racketeering.  The term racketeering originally referred to those types of extortion wherein an entity would offer “protection” from harm caused by said entity.  But the RICO Act covers that and so much more.  Any type of illegal business that crosses interstate or international borders can be encompassed in the RICO Act.  This include gambling, software piracy, insider trading, sale of illegal drugs, human trafficking – the list goes on and on.

The Racketeer Influenced and Corrupt Organizations Act was passed during a time when crime ran rampant throughout the United States.  Two civil rights giants – Robert F. Kennedy and Martin Luther King, Jr. – had just been shot down in cold blood.  The people were looking for salvation from crime.  And certainly there should be a law against racketeering, conspiracy, murder, rape and mayhem.

The concern today, however, is that RICO has given the United States government too much power.  The Feds could probably find just cause against 9 out of 10 obscure businessmen today for any number of untold white-collar crimes.  RICO can be vague and it allows federal officials to seize a defendant’s assets – money that might be used in his defense – before the defendant is proven guilty.  And, because of the stiff penalties it carries with conviction, RICO is often used as a weapon brandished to coerce defendants into pleading to a lesser crime.  It’s no wonder that lawyers who specialize in RICO defense are in high demand and it’s a good thing that insurance covering RICO-connected claims can now be had.

Non-Custodial Fathers

Posted on by
Reply

Before the turn of the 19th century, all children were considered the property of the father;  therefore, fathers were almost always given full custody of their children in cases of divorce.  During the 20th century, societal sentiment changed as it became widely thought that children fared better if they were allowed to stay with their primary caregiver – normally the mother.  Today, though family courts tend to recognize the importance of fathers in the lives of children, more than 70 percent of child custody cases continue to be awarded to mothers.  Whether or not these are cases of gender bias on the part of the courts, many non-custodial fathers are left with no further recourse.

Because too many non-custodial fathers are happy with their lot and some even refuse to pay child support, others face not only the pain of being unable to see their children at will, but also a certain social stigma.  Non-custodial fathers are often stereotyped as deadbeats who make children, but are unwilling to make the sacrifices necessary to raise them.  However, there are many non-custodial fathers who want to be a part of their children’s lives, but face many obstacles.

Many non-custodial fathers are like any loving parent who wishes to instill his values into the character of his children.  This is a difficult process when a non-custodial father may see his children only every other weekend and perhaps on Wednesday nights.  Also, non-custodial fathers may not have a say in major decisions in the children’s lives relating to issues such as healthcare or education.  At times, angry spouses may seek revenge by using the child to manipulate the father.  In extreme cases, non-custodial fathers may have to worry about the well-being of their children. 

Another issue facing non-custodial fathers is child support.  A judge may make a ruling concerning the amount, but some mothers will return to request more, time and again, or will refuse to bring the children to visitation according to the legally determined schedule.  A non-custodial father’s best and only recourse in these situations is to seek good legal counsel.

Family Law: Child Custody

Posted on by
Reply

One of the most prominent vehicles of a court of family law involves the determination of child custody where circumstances of divorce, death or other situations necessitate the court’s intervention.  Child custody refers to the rights and obligations undertaken by any guardian of a child, such as physical care and safety and decisions regarding healthcare and education.

Prior to the early 20th century, fathers were automatically given custody of any biological children in the event of divorce, but the turn of the century saw a change in the status of women and a shift in family law to the Tender Years Doctrine.  This doctrine came about in response to the newly accepted theory that children under the age of 13 suffer emotionally when exposed to undue changes in their circumstances.  This resulted in almost every child custody case being awarded to the mother.

During the 1970′s, family law theorists shifted once again to the Best Interests of the Child Doctrine.  Under this philosophy, psychologists and social workers investigate all parties seeking child custody in order to determine which environment will better serve the health and growth of the child.  Since an overarching belief that the mother is better suited to care for the child continues to prevail, mothers are still awarded primary custody more often than fathers.  However, a new tendency for joint custody and creative parenting schedules offers benefits for both children and parents.

Single mothers often have the difficult task of raising children while also having to devote the bulk of their time to earning the money to support them.  This is made all the more difficult when children become ill and require the mother to miss work to care for them.  The change in child custody laws has birthed revolutions in other spheres of family law such as the Family and Medical Leave Act.  This law allows mothers and fathers time off of work to care for sick children without fear of losing their jobs.  Shared custody distributes the parenting load, while also giving children access to both parents whose love and attention are equally necessary to healthy, well-rounded growth.

The Laws of the Hammurabi Code

Posted on by
Reply

The Hammurabi Code was a set of 282 laws - a primitive constitution – set down by the sixth king of Babylon around 1780 B.C.  The Hammurabi Code is significant for many reasons.  It enlightens the historian on ancient Babylonian life and the development of the cuneiform writing that records the Hammurabi Code in itself is important in the development of civilization as of way of establishing a concrete form of communication.  But perhaps the most striking influence are the actual laws of the Hammurabi Code. 

Much is made in the classroom over whether or not the laws of the Hammurabi Code are in any form a predecessor of the modern constitution.  Many argue that they are not, but certainly they are.  Even if the law has changed and evolved, the Hammurabi Code has most certainly affected the modern legal system.

Significant in this compilation of laws is the fact that within the Hammurabi Code is found the earliest example of the presumption of innocence wherein Hammurabi’s Code allows both the complaintant and the defendent to present evidence.  Additionally, Hammurabi advocates the “eye-for-an-eye” policy.  And though the laws of Hammurabi’s Code do adjust punishments and retributions according to class and gender, we nevertheless find here an experiment in establishing justice and order from chaos.

In addition to reinforcing class distinctions, Hammurabi’s Code also attempts to legislate morality via laws pertaining to adultery, incest, marriage and the like.  Scholars assert that these laws were legislated to effect social order – an interesting statement in light of our current civilization’s effort to delegislate morality.  Studying the purpose and effects of a legislation’s conception should shed light and caution on reverting to more uncivilized times.

Kidnapping of the Lindbergh Baby

Posted on by
Reply

During the 33 hours spanning May 20-21, 1927, Charles Lindbergh became an American hero.  As the first person to fly solo across the Atlantic Ocean, Lindbergh made history and became the recipient of the Orteig Prize and a Congressional Medal of Honor.  His fame was to bring him tragedy, however, when on March 1, 1932, his 18 month old son was kidnapped from his upstairs bedroom at the Lindbergh estate in New Jersey.

The kidnapping of the Lindbergh baby is still a topic of interest for true life crime television shows and continues to inspire mystery authors to this day.  Because of Lindbergh’s fame, the crime resulted in perhaps the earliest of all media circuses.  Mobsters, under the guise of helping the family, were feeding information to the New York Daily News.  The newspaper even managed to obtain a copy of the ransom letters, duplicates of which were sold on street corners for $5.00 each. 

Bruno Richard Hauptmann was electrocuted for the kidnapping and death of the Lindbergh baby on April 3, 1936.  He was convicted after ransom money was found inside his home and the wood used to make the ladder discovered at the crime scene was found to have come from Hauptmann’s attic.  However, like many high-profile crimes, the Lindbergh kidnapping had many hoaxes surrounding it at the time, and conspiracy lovers continue to claim that the execution of Hauptmann was a miscarriage of justice.

Besides the intrigue that lives on for mystery afficionados today, the greatest significance of the Lindbergh kidnapping is the resulting act of Congress.  At the time Charles Augustus Lindbergh, Jr. was abducted, kidnapping was considered a local crime under the jurisdiction of the local police.  But the high profile nature of the crime spurred Congress to pass the Federal Kidnapping Act which makes transporting a kidnapping victim across state lines a federal crime.

Celebrity Privacy and the Paparazzi

Posted on by
Reply

By most accounts, it is the annoying photojournalist, Paparazzo, in the 1960 film La Dolce Vita who gave his name to annoying photographers everywhere.   The term paparazzi refers mainly to celebrity photographers who seem to have no heart and will do anything to get a shot.

There are certain laws that govern the paparazzi.  In California, they are prohibited from trespassing on private property,using telephoto lenses to survey private property and from pursuing their subject matter in automobiles.  The punishment meted out on those who break these laws – usually just stiff fines – is worth the risk since media outlets pay so handsomely for photos of celebrities. And – the more demeaning or scandalous the shot a paparazzi can get, the more he will get paid.

Conflict arises when celebrities value their privacy and resent the ever present paparazzi.  The most infamous and tragic episode involving a celebrity and the paparazzi is the story of Princess Diana.  Diana was hounded by the paparazzi throughout her married life and ultimately met her death in a high speed attempt at escaping the paparazzi.

Diana’s fragile demeanor made her particularly vulnerable to the intrustions of the paparazzi, but perhaps a modicum of acceptance on her part may have somewhat lessened the angst between herself and the paparazzi.  Celebrities, elected officials and high-powered businessmen all rely on the media to promote and define them – for better or for worse.  Therefore it seems that celebrities know going in that they must trade their privacy for fame.

If, in fact, it does seem that the paparazzi overstep their welcome into celebrity privacy, perhaps it is the magazine-buying, tv-watching public that should question their own insatiable desires for celebrity dirt that keep the paparazzi in business.

The Life, Career and Legal Views of Judge Clarence Thomas

Posted on by
Reply

The boy who would grow up to be U.S. Supreme Court Justice Clarence Thomas began life in a poverty-stricken family in coastal Georgia in 1948.  When his mother could no longer afford to raise him, Thomas was sent to live with his grandfather in nearby Savannah.  Influenced by his grandfather to seek a career in the ministry, young Clarence Thomas began seminary, but dropped out when he overheard a classmate making fun of the assassination of Dr. Martin Luther King, Jr.

Thomas then moved north to attend Holy Cross College in Massachusetts and subsequently, Yale Law School.  It was here that the man who would become Judge Clarence Thomas began to adopt conservative political views.  After graduating from law school, Thomas served a stint with the District Attorney of Missouri before moving to Washington and rising in the ranks with several appointments by Ronald Reagan – the most notable being the appointment to chair of the Equal Employment Opportunity Commission in 1982.

When Thurgood Marshall, the first African American U.S. Supreme Court Justice, announced his plans to retire, President George Bush sought to appoint Clarence Thomas to his seat.  The hearings that ensued were marred not only by opposition to Thomas’s conservative views, but mostly by the Anita Hill affair.  Anita Hill had accused Thomas of sexually harassing her when the two had worked together at the Department of Education.

Unable to garner enough proof, Anita Hill’s allegations failed to achieve the desired results and Clarence Thomas became the second African-American U.S. Supreme Court Justice in 1991.  Since then, Thomas has often sided with fellow conservative justice, Antonin Scalia, opposing decisions in favor of affirmative action and speaking out against Roe vs. Wade.  It is clear from Judge Clarence Thomas’s speeches and decisions that he is in favor of a limited government.

 

History and Purposes of the Trademark Law

Posted on by
Reply

Beyonce and Jay-Z have applied for a trademark for “Blue Ivy”, the name of their already famous baby.  At first blush, it sounds as if they were attempting to prevent other parents from imitating their dubious choice in baby names, but no.  The trademark law only applies if you are trying to make money using someone else’s logo, name, phrase or other identifying characteristic.  And making money is what it’s all about as Beyonce and Jay-Z contemplate using “Blue Ivy” as a trademark for all sorts of baby paraphernalia.

Though trademarks are perhaps the oldest identifiers of intellectual property, there were no official trademark laws until the late 19th century.  Trademark history annals suggest that the term “trademark” comes from the mark with which blacksmiths in the Roman Empire would brand their swords to forever herald their maker.  So it is perhaps no coincidence that our modern word “brand” has a dual meaning.

Perhaps the oldest claimant in trademark history is Lowenbrau, who claims to have held the famous lion trademark since 1383.  But it was not until very modern times when trademarks began to be imposed upon and trademark law became a necessity.

The purpose of trademark law is to prevent consumers from being confused about who is offering a particular product or service.  Infringements of trademark law can happen when someone tries to “pass-off“ their product as coming from an officially registered trademark company, or when another business entity tries to develop a trademark that comes too close to one that is already established.

Though the purpose of trademark law is to prevent confusion, the laws, uses and infringements of trademark law can be very complicated, but are needed in today’s world where infringement on intellectual property extends from books, to ideas, products, and even entertainment and software piracy.