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LS 101 Final: Practice Essay Questions

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Legal Studies
LS 101
Patrick Watson

Essay Questions Write a brief essay discussing (a) mediation and (b) arbitration as techniques for resolving conflicts/disputes in modern society. What are the advantages and disadvantages of each? How do each compare to legal/formal adjudication through the court system? Use the problems associated with divorce (the division of assets, support, custody etc.) to illustrate your answer. Mediation  mediation involves a 3rd party -> attempting to find compromise  non-coercive; can only use persuasion to influence the final outcome  does not impose a decision  works best only if both parties are willing to work out a reasonable settlement  cooperation  compromise can lead to mutual satisfaction  mediator is a facilitator and a guide  2 ways to settle dispute -> 1. convincing the parties that it is in their own interests to do so -> 2. rights-based mediation; specialized knowledge and gives the partied an initial assessment of their respective positions with regard to existing rules, regulations and laws Arbitration  3rd party in a dispute -> can make a final and binding decision  can impose a solution  parties must agree beforehand that the arbitrator’s decision will be final  rights based and adversarial  held in the same manner as a civil trial  emphasis on the legal rights and duties of the parties  not to seek compromise or ensure the mutual satisfaction of the parties - both are faster than a civil trial and usually reduce costs significantly - they strive for compromise while adjudication can lead to a clear cut winner and loser - couples who use mitigation are less likely to go back to court and are more satisfied with the results; better relationships with ex-spouses - Write a brief essay discussing the role of lawyers with respect to their obligations to clients including: partisanship, competence, loyalty, candour, proactivity, and confidentiality. Give two examples of situations in which lawyers can find themselves in an ethical dilemma in relation to any of the above. Please use examples to illustrate your answers Role of lawyers: (3 Aspects) 1.As a representative of clients  Lawyers have taken on clients and decided to act as their representatives; have a set of obligations to clients  must advise their clients about their legal rights and responsibilities; course of action and consequences  must advocate their clients’ position and defend their interests in a vigorous and competent manner  must negotiate on their clients’ behalf 2.As an officer of the legal system  lawyers must act within the law and show respect for the legal system and to all the players (judges, juries, clients, witness, lawyers etc.)  must make use of legal procedures in a legitimate and non-abusive way  must act in a way that does not bring the administration of justice into disrepute 3. As a public citizen  must seek to ensure that access to the law is made available to as many people as possible (poor and disadvantaged)  contribute to the reform and improvement of the legal process  must support efforts to ensure that the legal profession fulfills its civic and public duties Traditional Role • professional person who is hired by a client to represent their interests • “hired hand” • operating model on which lawyers are trained and function • lawyers are professionals who have acquired specialized knowledge and expertise -> use on behalf of their clients Obligations: 1. Partisanship - acting in a fiduciary capacity in relation to client interests - clients have a right to receive a higher standard of attention -> because of an imbalance of power - lawyers must act with good faith and loyalty to the client - client’s interest above and beyond 2. Competence - must deliver services in a conscientious, diligent, and efficient manner - lawyers are expected to be competent lawyers in a like situation - should only accept cases in their area of expertise; be up front with their clients and their lack knowledge 3. Loyalty and Conflicts of Interest - must be loyal to their clients and place their interests above all else - prohibited from engaging in conduct that jeopardizes the client’ interests - complete disclosure to clients about conflicting interests that exist or are likely to arise 4. Candour - must deal with clients in an open and honest way - provide candid advice and guidance to clients on all legal and professional matters including the merits of the case and the probable outcomes - should not overstate the merits of their case -> refrain from bold and confident assurances that mislead clients - must disclose all costs 5. Pro-activity - duty to actively pursue their client’s interest - must be pro-active rather than reactive - pursue their clients’ case vigorously even if it involves asking certain distasteful questions - must represent their clients by fair and honourable means - duty to treat the court with respect and courtesy 6. Confidentiality - lawyer client privilege - obligated to hold in strict confidence all information from the client - obligated by contracts with the client and professional codes - covers all communications between clients and themselves and lawyers are relieved of this duty only through the client’s waiver or the court’s order - under evidentiary rules, lawyers are entitles and required to keep confidential all communication between clients and themselves - law of evidence, communications between lawyers and their clients are privileged and impose on lawyers a duty not to reveal them Compare and contrast the following theories of law and social order. Discuss how law evolves and how it contributes to social order in each of these three models.  The consensus model  The pluralistic model  The conflict model Consensus Model  value consensus  based on the assumption that society is held together by a system of common values  common values gives legitimacy to government and transforms power into authority  fosters respect for the law and our social institutions such as the police  justification for laws and law enforcement  what the people want Basic Principles - social order is based on consensus and people are committed to a unifying set of values - values internalized through socialization and give rise to social order as people conform to norms - personal satisfaction and status from conforming to society’s norms and values - law reflects collective will of the people - members of a society agree upon the basic definitions of right and wrong - law serves all people equally Pluralistic Model  interest theory  recognizes the existence of a multiplicity of social groups -> different and competing interests and values  Complex society -> competing value systems that give rise to deviant conduct, alternative lifestyles, crime etc  people don’t agree on right or wrong but can agree upon a conflict resolution mechanism for resolving disputes  legal system is a mechanism used to resolve disputes in our society  social order evolves because people find that they can only achieve by cooperating with others  conflict exists over substantive issues but there is consensus over the need to settle differences in peaceful manner through respect for the law and legal process Basic Principles - society composed of diverse social groups -> economic, gender, age, race etc. - conflicting definitions of right and wrong within in groups - various groups have different values, goals, and interests -> can create conflict - collective agreement on the mechanisms for dispute resolution - all groups agree upon the establishment of a legal and political system where conflicts settled peacefully - in everyone’s interest to conform to norms, values and laws - legal system is value-neutral and exists as a value-free framework -> disputes can be settled fairly and peacefully - legal system concerned with the best interests of society - contributes to this well being by providing a peaceful forum for the settlement of conflict Conflict Model  coercion theory  social order is the result of power and coercion  Society is characterized by conflict and hostility -> people are compelled to comfort to laws because of threats and coercion  conflict and disorder -> reference to the competition for power and scarce resources  those in power eventually impose their will through laws and law enforcement on those who are less powerful  change in society results from successful struggles for power by certain groups who then impose their will on others  society is characterized by class conflict because the powerful monopolize society’s wealth  reject assumption that society is based upon a shared consensus  a feature of any complex society is the presence of conflict between competing groups who differ from each other in terms of wealth and social power  emphasizes the coercive and repressive nature of the legal system  legal system is not a tool for dispute settlement -> a mechanism used by those with political and economic power to advance their own interests  law represents the interests of those with power to make and enforce the law Basic Principles - society is composed of diverse groups who compete for scarce resources - differing definitions of right and wrong - conflict between social groups is one of political power - an imbalance of political power -> those who have it struggling to maintain it -> those who do not have it struggling to obtain it - law is designed to advance the interests of those in power - law is a value-neutral forum to dispute settlement - law is designed to serve specific groups -> not the society as a whole - goal is those in power to prevent change and maintain status quo - totalitarian societies rely on coercive systems and social controls Write a brief essay discussing the following: 1 Definition of a tort 2 Basic proofs required to succeed in civil litigation (torts) 3 Defenses to torts 4 Court judgment - remedies Definition of a Tort: - deals with situation in which one party has caused harm or injury to another party or their property - refer to a breach of legal duty with liability for damages - used in the absence of a contract - attempt to use the civil law to bring a private action to seek compensation for the injuries suffered - attempts to compensate for private wrongs - issues, losses, and injuries that arise in the absence of a contract - result from harmful or negligent behavior on the part of the defendant - intentional torts -> refer to actions that are wilful, deliberate and conscious -> person need only intend the act and not the harm that results from them to be liable - negligence -> actions that are inadvertent rather than wilful or deliberate Basic Poofs: (5) elements that must be present for a negligence suit to be successful 1.Duty of care • court must decide whether or not there was a duty on the part of the defendant to be careful 2. Fault (or breach) • determined whether or not the defendant’s behavior fell below that standard and constitutes • determine if a person has maintained an appropriate duty of care is whether or not the harm was reasonably foreseeable 3. Loss, damage, or injury • must be present for liability for negligence to be imposed • plaintiff must demonstrate that they suffered some sort of loss or injury 4. Causation • established to show that the damage or injury was directly caused by the conduct of the defendant 5. Contributory Negligence • no prejudicial conduct on the part of the victim Defenses to Torts Accident  defendant could not reasonably force the danger, had no control over the incident, could not have avoided it with the greatest of care and skill Necessity  refers to self-preservation or the preservation of others Lawful Authority  police use force in making an arrest; can use this as a defense to an assault Self Defense or Defense of Property  can be used in both criminal and civil cases for charges of assault Consent as a Defense  courts exempt liability when the victim consents to the actions of the defendant Voluntarily assume the risk  can be disqualified from seeking damages  reluctant to use this against a victim unless they give up any claim to damages Court Judgments - Remedies - defendant is found by the court to be responsible for the plaintiff’s injury -> victim can relieve damages - damages consist of a financial award or compensation to redress the harm or loss suffered Special damages -> calculated precisely General damages -> awarded when it is difficult to precisely determine loss or injury - pain and suffering often determined by a schedule worked out between insurance agencies and lawyers Punitive or Exemplary damages -> rare in Canada; meant to punish defendants and to make an example of them; intention is to deter defendant and others from similar actions Injunction -> court orders that the defendant cease his/her wrongful conduct Replevin -> judge can also order the defendant to return goods to their rightful owner Write a brief essay discussing the following:  Definition of a contract  Basic principles underlying a contract  Bilateral and unilateral contracts  Vicarious and joint liability Definition of a Contract - An agreement between two or more parties that is binding in law - Generates rights and obligation enforced by the courts - Normal method of enforcement -> action for financial damages for breach of contract -> court can compel performance by the party in default - Basic Principles Underlying a Contract 1. Always about commercial relationships 2. Courts assume that you mean what you say 3. If it looks like an agreement, it is one 4. Courts are not concerned about the fairness of a contract 5. Written contracts carry great weight 6. We often have little control over the content of most contracts Bilateral contract -> involves promises by each party Unilateral contract -> involve one party promising to do something in exchange for an act of the other party; ex. offering an award Vicarious liability -> involves situation in which a person is held responsible for the actions of others; ex. People in your employ/ under your command Joint liability -> situations in which several people are held as jointly responsible for the harm committed; ex. Partners in business Write a brief essay discussing the following: • Differences between criminal and civil law • Actus reus and mens rea • Intentionality and recklessness • Offences of strict and absolute liability - regulatory offences Criminal vs. Civil Law Criminal Law - Crime is an offence against the public as represented by the government - Main goal is punitive -> punishing those who break the law; aim is to deter other from crime and to protect society - Criminal acts are the most serious breaches of society’s laws -> wrong immoral - Apply to all citizens equal in the eyes of the law - Law is enacted and on the books - Fair and impartially; no prejudice - Criminal Code of Canada direct officials of the criminal justice system - Criminal laws; highly symbolic and represent society’s view of behavior - Conviction carry heavy stigma - Attributes personal responsibility - Highly punitive - Sentences or incarceration or conditions; can impose severe limits on one’s freedom Civil Law - One person (the plaintiff) sues another person (the defendant) for damaged as the result of an injury caused to the former by the latter - Can attribute either individual responsibility or collective responsibility for the crime - Can sue individual, corporation, or the government - Very little stigma compared to criminal law - Designed to compensate victims for their injuries at the hands on another - Aims to redress personal injury - Deal with injuries that are defined as torts to occur because of non-fulfilment of a contract Torts -> issues, loses, and injuries that arise in the absence of a contract; result from harmful or negligent behavior on the part of the defendant Contracts -> written or verbal agreements in which one party agrees to supply goods an/or services in exchange for payment or something else of value Actus Reaus and Mes Rea - Crown must prove that the accused committed the act with intent and is guilty beyond a reasonable doubt - Actus Reus - The act - Refers to the prohibited harms and can be an act or an omission and which must be voluntary Mens Rea - The intent - Person’s state of mind when they committed the offence and refers to the guilty mind Intentionality - Commits a criminal act knowing that it is wrong and with an intention to do so and an intention to cause the consequences - Foresees and intends the consequences - Acted with forethought and malice and premeditation - Highest degree of culpab
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