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LS 101 Final Exam Review.docx

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University of Waterloo
Legal Studies
LS 101
Fred Desroches

LS 101 Final Exam Review The final examination is valued at 100% of the final grade and is made up of three (3) sections.  Section 1 consists of short answer questions (20%).  Section 2 consists of essay questions (40%).  Section 3 consists of 40 T/F M/C questions (40%). Section 1: Short Answer (20%) Section 1 will consist of 8 short answer questions. You will be asked to write brief explanatory notes on four of these concepts. Below are sample concepts and appropriate answers. Seven lines for each concept, focus on key defining components of each concept and provide a brief example or criticism of each. 1. Legal grounds for divorce in Canada  The Divorce Act allows couples to obtain a divorce on the grounds that there has been a breakdown of their marriage. Breakdown is established if: a. the spouses have lived separate and apart for at least one year b. one spouse has committed adultery or c. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.  Most persons simply live apart for a year to obtain a divorce. A person cannot prevent a spouse from obtaining a divorce. The fact that one only has to wait for one year means that Canada has a form of no-fault divorce. Some critics believe divorce is now too easy to obtain.  No fault divorce laws have shifted the focus of the legal process from the moral question of fault and blame to other issues such as marital property, custody, and support. 2. The consensus perspective on law  Value consensus theory suggests that laws represent the common morality or values of society and that laws gain legitimacy because most people support these moral values.  Research indicates that this is generally true of criminal law since there is widespread agreement that behaviours such as robbery, murder, theft etc. should be prohibited and punished.  Critics point out that most societies are heterogeneous, however, making it difficult to gain consensus on what civil and commercial laws should be (e.g., gay marriages).  In addition, certain criminal offences dealing with issues of morality such as prostitution and illicit drug usage do not have strong value consensus. 3. Basic proofs required to succeed in civil litigation (torts).  Torts refer to civil lawsuits based on losses and/or injuries that result from harmful or negligent behaviour on the part of the defendant.  Torts are used in the absence of a contract when one party (the plaintiff or victim) sues the other (the defendant) to gain compensation for injuries or losses suffered.  Most torts are based on negligence and require five elements (proofs) to be successful: (1) duty of care, (2) fault (breach of legal duty), (3) loss (or damage or injury), (4) causation, and (5) there must be no contributory negligence on the part of the plaintiff. Example: getting bit by a dog and suing the owner. Section 2: Essay Questions (40%)  The following are 12 study questions for the final exam. Write brief answers to two (2) essay questions from a choice of four of the essay questions listed below.  Answers will be limited to 1 1/2 pages (writing on every line) for each of the two essay questions answered.  Read and answer the questions and provide answers that are detailed, accurate, and clearly written.  No need for an introduction or a conclusion in your answers. Use the limited space allowed wisely. 1. Discuss mediation and 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 problems associated with divorce (the division of assets, support, custody, etc.) to illustrate your answer.  Mediation is a non-adversarial technique with a neutral third party that is placed between the disputants in order to assist the parties to come to an agreement. Mediation is non-coercive - the mediator acts as a guide and does not impose a decision on the parties and can only use persuasion to influence the final outcome. It works best when both parties are willing to work out a reasonable settlement of the dispute. The goal is cooperation, compromise and mutually beneficial solution, not competition and to win. It is typically done in private (closed) but may be open in some cases in which the mediator can quote either party in his/her report. Mediators are usually chosen because they have status, authority, or specialized knowledge. Mediators typically attempt to settle dispute in one of two ways: interests based mediation: convincing the parties that it is in their own interest to do so or rights-based: the mediator gives an initial assessment of the parties positions with regard to existing rules, regulation, and laws.  Arbitration - a third party is involved and can impose a solution on the combatant; the arbitrator makes the final and binding decision. The parties can choose the arbitrator and typically must agree beforehand that the arbitrator’s decision will be final and binding. Arbitration is rights based and often adversarial. Emphasis is on legal rights and duties of the parties and to ensure judgements are based on the law, rules, and regulations, not on compromising or ensuring mutual satisfaction of the parties. Arbitration hearings are often held in the same manner as a civil trial but are usually help in private.  Advantage of both is that they are faster than a civil trial and usually less costly.  Divorce - Mediation and arbitration would both be less costly that going to court. Canada's Divorce Act requires lawyers to mention mediation to clients. Research shows that couple using mediation and arbitration are more satisfied with the results, have better relationships with their ex-spouse, and mediation in particular does not have as much wear on the parties emotions (unlike the court). 2. Discuss the role of lawyers with respect to their obligations to clients, including: partisanship, competence, loyalty, candour, productivity, and confidentiality. Give 2 examples of situations in which lawyers can find themselves in an ethical dilemma in relation to any of the above. Use examples to illustrate your answers. Once a lawyer takes on a client they assume a set of special obligations to that client, they are required to put their clients' interests ahead of all others. They must inform their client of their legal rights and responsibilities, the possible courses of actions, and the likely consequences. They must advocate and defend their client and negotiate to get the best possible result. a. Partisanship - The lawyer is one sided and in favour of their client over all other people. The power imbalance between a lawyer and their clients imposes special duties on the lawyer to act in good faith and loyalty to the client. b. Competence - Lawyers must deliver services in a competent, diligent, and efficient manner. Lawyers can only accept cases in their areas of expertise, they must admit when they lack knowledge in an area. It's extremely rare for lawyers to be disciplined for lack of competence. They can't discriminate against people based on race, ethnicity, religion, etc. c. Loyalty and conflicts of Interests - be loyal to clients and place their interests above all else, cannot jeopardize their interests. Must make complete disclosure to the clients. d. Candour - must be open and honest with clients, advice and guide clients on all legal and professional matters including merits of the case and the probable outcomes. Must disclose all costs, must avoid bold or confident assurances that mislead the client or lead them to take inadvisable action. e. Pro-activity - The lawyer must actively pursue the client's interests, even if it means asking distasteful questions. Lawyers must be fair and honourable to their clients and treat the court with respect and courtesy (don't delay the proceedings, harass the other side, etc.) f. Confidentiality - All information given to them must be kept confident unless there is a client waiver or the court orders it. Communication between lawyer and client are privileged and lawyers can't reveal any information in any way that would disadvantage a client. Example 1: A lawyer can find themselves in an ethical dilemma in regards to loyalty and confidentiality. Remove evidence or turn it over to the court? For example, with the case of Paul Bernardo his lawyer, Murray felt it was his lawyer-client privilege to keep the video tapes that Bernardo had in his home confidential from the court and others. However, as the court ruled, these videos were not privileged because they pre-existed before their client-lawyer relationship. Murray concealed evidence and obscured justice, according to the court, but was maintaining confidentiality with his client, according to him. Example 2: from textbook? 3. 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 - based on the assumption that society is held together by a system of common values (common values give legitimacy to government and transforms power into authority). Argues that society is homogeneous (which critics disagree with). It fosters respect for law and social institutions such as the police.  Basic principles of a consensus model: 1- Social order is based on consensus and people are committed to a unifying set of values which are internalized through socialization. 2- People get personal satisfaction and status from conforming to society's norms and values. 3- Law reflects the collective will of people. The collective agree on basic definitions of right and wrong and the law puts this collective agreement into a written statement. 4 - The law serves all people equally (this gives the law more legitimacy). 5 - Disorder is really improper socialization (some people are committed to social values). From this perspective, crime results from the criminal and thus to fix the problem focus is on the criminal rather than on changing society. Pluralistic model - Societies are heterogeneous/pluralistic and multiple social groups exist with different and competing interests and values. This leads to dissensions, protests, deviance and crimes. People don't agree on the definition of right and wrong but they can agree on dispute resolution mechanisms: one being the legal system. In order to evolve, people need to cooperate and thus have mechanisms such as the government, courts, etc. to regulate potential conflict and provide social order. Despite the differences of social groups, they all benefit from resolving dispute in a peaceful manner through respect for the law and the legal process.  Basic principles: 1 - Society is composed of diverse groups. 2 - They have different values and definitions of right and wrong which at times lead to conflict. 3 - There's a collective agreement for dispute resolution and a legal and political system for peaceful solutions. 4 - the legal system is value- neutral, and seeks to settle disputes fairly and peacefully. 5 - The legal system is concerned with the best interests of society and contributes to the well being of society by providing peaceful forum to settle conflict. Conflict Model - social order is the result of power and coercion. Society is characterized by dissension and conflict and people conform to laws because of threats and coercion. Conflict and disorder results from competition of power and resources. The powerful eventually impose their will on the less powerful through laws and law enforcement. Emphasizes the coercive nature of the legal system. Law represents the interests of those in power, not of a consensus about values or a mutually agreed upon dispute resolution mechanism. Class structure is key in determining political power.  Basic principles: 1 - Society is composed of diverse groups who compete for scarce resources. 2 - There are different definitions of right and wrong which conflict with one another at times. 3 - Conflict between social groups is one of political power - there's always an imbalance of political power (if you have it you struggle to maintain it, if you don't you struggle to obtain it). 4 - Law is designed to advance the interests of those in power, it is not impartial and does not serve the interests of society as a whole. 5 - A key interest of those in power is to prevent change and maintain the status quo.  Theory of crime - lower class people are driven to lawbreaking by economic oppression. Theory of Law - laws are based on the power of the ruling classes, not on consensus. Theory of social control - law maintains the status quo and punishes those who threaten the well being of the elite. 4. Compare and contrast the crime control model and the due process model of criminal justice. What are the advantages and disadvantages of each? How do the Charter and court decisions attempt to strike a balance between individual rights and the public interests? Use examples to illustrate your answer.  The Crime Control Model - Canada's value system supports the crime control model. This model assumes that crime and social disorder threaten our liberty and that freedom is only possible with social order (if we fail to control crime we will have a breakdown in social order). Maintaining social order and repressing crime is the most important function of the criminal justice system. The values of this system are respectful of authority. Society gives up some liberty in order to gain protection from crime and those who disrupt the social order. Liberty in a democratic society is never total, always constrained: freedom is absolute but has restrictions. This model places faith in the police force - they are the good guys and must be given the resources to manage crime (investigate, arrest, convict), They operate on a presumption of guilt. The law is one of the most significant resources - it gives the police the power necessary to do their job, laws should be enabling. Crime control model emphasizes social order, punishment and deterrence of criminal conduct, and concern for victims and victim rights. It also emphasizes the ends (protection of society and criminal convictions) and not the means. The rights of the public outweigh the rights of the individual. This model is conservative, harsh, and punitive in how it deals with crime and social deviance: summarized by the phrase: Throw the book at them. Disadvantage: leads to police deviance, abuse of the system, conviction of innocents. For example the Shoushen system in China is a form or administrative detention that detains thousands of Chinese for petty crimes in harsh conditions without any rights to a lawyer or a fair trial. The crime control model focuses on the whole of society and the due process model focuses on the individual.  The Due Process Model - The U.S. has long subscribed to a due process model of the criminal process and is emerging in Canada, it focuses on the individual. and the presumption of innocence. The greatest threat to our freedom comes from a misuse of power and authority. Distrust of authority, government, and the police and belief that their power should be limited and monitored. Protection of individual rights is given highest priority and are included in a charter of rights - these rights counterbalance the powers of the state. Individual rights help protect citizens from restrictive actions by people in authority. Focus on the means and the legal system (not the end results and police). Police operate under strict rule of law. The due process is formal, adjudicative, adversarial and is headed by an impartial tribunal, judge, or jury. Due process model will accept less efficiency in order to prevent mistakes, thus it is more expensive and time consuming, emphasized quality control over speed. Focus on legal guilt rather than factual guilt,. It is a liberal model and is summarized by the phrase: do it by the book. Advantages: protects ordinary individuals in their jobs from harassment and discrimination and misuses of power (people in authority positions are held responsible for their actions).. Disadvantage: rights of individuals are too often given priority over the rights of society, it is expensive and costs taxpayers millions of dollars to process criminals, it allows criminals to go free on legal technicalities, it places no emphasis on responsibility as a citizen, the judiciary has a lot of power, it has a legalistic bias (Supreme Court decisions are made on legal criteria without regard to social consequences). Canadians values are changing towards due process in everyday activities - police violations are overlooked less. BENEFITS OF THE CRIME CONTROL MODEL (Presumption of guilt)  Maintains social order  Better community protection  Sides with victims and victims’ rights  Less crime and less fear of crime - more freedom of movement  Fewer problems with social disorder  Better climate for business  Efficient and effective resolution of crime  Public faith and support of the police PROBLEMS  Overzealousness and police deviance  Mistakes and innocent people being convicted  Lack of accountability  Fewer rights for all citizens  Increased discrimination against minorities and the powerless (e.g., driving while black)  Tyranny of the majority (e.g., homosexual rights) BENEFITS OF THE DUE PROCESS MODEL (Presumption of innocence)  Protects individual rights  Empowers citizens against the state  Availability of the court system to protect abuse of powers  Protects minorities and the most vulnerable and powerless in society  Protections against the abuse of authority in workplace, school, criminal justice system, etc.  Helps to ensure police compliance with the law (less police deviance)  Requires police to be more thorough and professional  Fewer mistakes in convicting innocent  Assists the unjustly accused PROBLEMS  Victims less likely to see justice done  More guilty persons go free which may undermine faith in the criminal justice system  Critics argue that it leads to less deterrence and more crime  This can diminish freedom of movement because of fear of crime  More social disorder  Clogged courts  Greater expense and higher taxes 5. Write a brief essay discussing the Canadian Charter of Rights and Freedoms in relation to the following: a) explain the role of the courts in relation to the Charter. b) Explain why citizen rights and freedoms under the Charter are not absolute. c) Discuss equality rights under the Charter and what they mean in our everyday lives. Use case examples to explain your answers.  The Charter deals with matters between the public and the government and governs the manner in which government officials use their powers in their dealings with members of the public. It does not regulate the relationships between private citizens but it does play an important role and does impact them.  The role of the courts in relation to the Charter: prior to the charter in 1982, parliament was the supreme authority, with the charter the courts are given a veto over laws enacted by the fed or prov governments. It empowers judges to declare a piece of legislation as invalid if it infringes on an individual's rights as outlined in the Charter. The Charter's wording is very broad and unclear which empowers the courts to interpret it in individual cases. o Example: Although the court do not strike down laws often, one of the most famous and controversial instances in which they did involves abortion law. In 1988, the Supreme Court of Canada struck down Section 287 of the Criminal Code, which made performing abortions a criminal offence and only legal under certain conditions (ex: if it endangered the woman’s life or health). Despite this law, Dr. Morgentaler still performed abortions; this became a case and the Supreme Court ruled that Section 287 infringed on Section 7 (right to life, liberty, and security) and was thus unconstitutional. In 1992, the gov of Canada attempted to replace Section 287 but it was not approved by the Senate and now Canada is one of the few countries with no criminal laws prohibiting or regulating abortions. This case shows the power that the courts have and that exercising this power has undermined the right of an elected gov to govern.  Freedoms and rights under the Charter are no absolute. Section 1 of the Charter guarantees rights and freedoms but there are some reasonable limits that can be placed on those rights and freedoms by the government, but they must be justified. One owns rights are limited by the protection of other rights - your freedom to throw a punch ends where my nose begins. Ex: the provision regarding freedom of speech and freedom of expression: reasonable limits are imposed through laws that prohibit pornography, slander, and violence. Also, a fed or prov gov can invoke the notwithstanding clause and thus violate rights. Ex: Quebec gov in 1989 did this to permit only French-language signs in the province to preserve the French language.  Section 15: Equality rights under the Charter include: every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination (based on race, religion, sex, colour, age, mental or physical disability, etc.). Ex: in BC and Ontario provincial marriage legislation prohibiting same sex marriage was ruled unconstitutional because it violated section 15. 6. What is the definition of a tort? Wh
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