...Alston v. Advance Brands and Importing Company (Page 65) 1. Given the courts reference to the rights of parents in the case of Alston v. Advance Brands and Importing Company, I do not feel there is any alternative theory. This is because, the plaintiffs cannot demonstrate that they have standing because they cannot show redressability or a remedy. 2. If Alston had been the parent of a smoker who suffered a smoking-related illness, Alston still could not allege an injury despite the fact that several different brands of the cigarettes contributed to the injury. There was no law broken by the manufacturer but by both the third-party seller and the underage purchasers. Brower v. Gateway 2000, Inc (Page 74) 1. The way that I would rewrite Gateway’s clause to be sure that it would be judged by the New York courts, would be first to not ask for arbitration before the ICC. Simply make the terms tolerable for the plaintiffs who seek protection of their rights. Furthermore, if the courts find that the defendants are liable then all fees should be refunded. 2. A. In this case the practical implication of Gateway’s loss is that their arbitration clause is unreasonable and burdensome to plaintiffs, it favored Gateway and it chose ICC as the arbitration forum. B. If Gateway had prevailed; it would have changed the cost-benefit analysis involved in deciding whether to settle the case because most of their computers cost less than the required amount from both parties. DiMercurio...
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...Due Process Clayton Cullins 01/04/12 CJS 220 Mr. Samuel P. Cervera Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Due process balances the power of law of the land and protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law. Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process), so that judges - instead of legislators - may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions. This interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. In the criminal justices, Due process can be in applied in court cases. In criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Most of these rights have been incorporated under the Fourteenth Amendment to the States. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived...
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...Describe the concept of due process: Due process is a legal term from the government. It is a principle that the government must respect the legal rights of an individual according to the law. This due process holds the government to the law of the land protecting people from the states power. This is kind of a way of limiting what the government can and can’t do in efforts to make them not be unfair to the people. I read this and I feel that it helps explain what I am trying to say a little more clearly. "The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., 125 So. 2, 7 (Fla. 1929). The constitution states only one command twice. The Fifth Amendment says to the federal government that no shall be “deprived of life, liberty or property without due process of law”. The Fourteenth Amendment uses the same eleven words called Due Process Clause and it is used to describe the legal obligation of all states. Basically they are giving an promise of assurance that all levels of the government must operate within the law and provide fair procedures. Describe three of the legal defense. The three defenses that I would like to describe would be the insanity defense, self-defense, and the entrapment defense. The insanity defense is the defendant claims that because of mental health problems they were not responsible for their actions. The insanity defense is based on...
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...160 Ohio App.3d 634; Ricker v. Fraza/Forklifts of Detroit; | |[pic] |[pic] |Page 634 |[pic] | RICKER, Appellant v. FRAZA/FORKLIFTS OF DETRIOT, Apellee. [Cite as Ricker v. Fraza/Forklifts of Detriot, 160 Ohio App.3d 634, 2005-Ohio-1945] 2005-Ohio-1945 Court of Appeals of Ohio, Tenth District, Franklin County. No. 04AP-582 Decided April 26, 2005 LAZARUS, Judge. {¶1} Plaintiff-appellant, J. Griffin Ricker, appeals from a decision of the Franklin County Court of Common Pleas, dismissing his complaint against defendant-appellee, Fraza/Forklifts of Detroit ("Fraza"), for lack of personal jurisdiction. {¶2} Ricker initiated this action with a complaint seeking damages for breach of an oral contract to provide insurance consulting services. The complaint alleges that Ricker is an insurance consultant with his principal place of business located in Hilliard, Ohio, and Fraza is a Delaware corporation with its principal place of business located in Roseville, Michigan. The complaint further alleges that, in 2002, Fraza hired Ricker to provide insurance consulting services, and agreed to pay Ricker $30,000 if business insurance was obtained through the efforts of Ricker. Such payments would apply to subsequent annual renewals of insurance. Ricker obtained insurance coverage for Frazer from Universal Underwriters Group for 2002. Fraza paid Ricker for his consulting...
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...hostile, as a mob met the youths. The trial judge appointed “all members of the bar” for the purpose of the arraignment. The defendants themselves were illiterate and “ignorant”. They were all tried separately, each trial lasting a day, convicted, and sentenced to death. Issue- Whether the defendants had sufficient counsel. Whether the Due Process Clause of the Fourteenth Amendment had been violated. Held- No. The Court noted that when counsel was in place that neither the defense counsel nor the court could say what a prompt and thoroughgoing investigation might disclose as to facts as there had been no proper investigation, and no opportunity to do so. Given the hostile circumstances, the illiterate status of the defendants, the close surveillance, their isolation from their families, and that they stood in deadly peril of their lives, the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process. Discussion- The necessity of counsel is so important and urgent that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth...
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...Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 74457 March 20, 1987 RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents. Ramon A. Gonzales for petitioner. CRUZ, J.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike — but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the...
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...Mary a proprietor of a small business in Vermont specializes in the manufacturing of ski equipment and sales to Vermont ski resorts. Mary signed a contract with Froogle that allows Mary’s business to advertise on Froogles search engine. Mary is aware that Froogles headquarters is in California. Mary has never done business or been in California. All business relating to Mary is done directly on the phone in Vermont or via the internet. Two months after Mary signed the contract Froogle alleges that Mary violated the agreement between the parties and files suit in Superior Court for the county of Monterey in Salinas, California. Mary claims that the California court has no personal jurisdiction over her. Froogle claims California does have jurisdiction over her because she knowingly did business with a California Company. The issue in this case is whether Mary, resident of Vermont who sells ski equipmentin Vermont and maintains a website, is subject to the personal jurisdiction of a California court even though she has never been to California, and has no contacts there. In Gourmet Video, Inc. v. Alpha Blue Archives, Inc., 2008 U.S. Dist. LEXIS 87645 (D.N.J. Oct. 29, 2008), The plaintiff in this case is a New Jersey copyright owner who sued the defendant for violating the copyright act by selling the material via their website based out of the Northern California district. The defendant argued that the venue was improper and moved to dismiss the complaint. The court...
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...to understand the basis of the majority opinion and whether the arguments of the dissenting opinions are valid. Specifically, David wants you to answer the following questions: • The majority opinion concludes that “the right to marry is fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses… couples of the same-sex may not be deprived of that right and liberty.” What are the chief criticisms that Chief Justice Roberts’ dissent makes of the conclusion that the right to marry is a fundamental right? • Do you agree with the majority or with Justice Roberts on whether the right to marry is a fundamental right, and why? (Definition of “marriage” is part of Robert’s analysis of whether the right to marry is a fundamental right and is also part of the majority opinion, so you have to get into what the word “marriage” means) • Justice Thomas’s dissent states his view that substantive due process is wrong. He also says that, even if were “defensible”, “the concept of ‘liberty’ [that the majority opinion] conjures up bears no resemblance to any plausible meaning of the word as it is used in the Due Process Clauses.” What is Justice Thomas’s view of the meaning of “liberty”...
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...Volkswagen, Inc in New York, which at the time Mr. and Mrs. Robinson where currently residents. As they were traveling to Arizona to relocate, they were rear-ended by another vehicle. When the accident occurred the Robinsons realized that the Audi had a defect, which caused the doors to jam with the impact and the fuel tank position of the fuel tank caused a fire at the time of the accident. The Robinsons claimed that the major injuries sustained were caused by the malfunction and lack of safety from the vehicle. Issue (Legal & Court): Whether Oklahoma had in personam jurisdiction, even though the automobile retailer and its wholesale distributor did not have a residency connection with the state. The Court has to determine if the Due Process Clause is violated because of lack in meeting the “minimum contact” requirement. Holding: The U.S. Supreme Court reversed the ruling for Oklahoma to have jurisdiction, because the forum state did not have enough residency or a minimum contact with the defendant to meet the requirements to be considered a objective trial. Rationale section: (Why) The 14th Amendment limits a state’s power to judge a non-resident defendant without proper personal jurisdiction. This amendment provides protection against inconvenient litigation for the defendant located outside the state boundary. The Supreme Court used the principle of minimum contact to stablish whether the litigation would be fair and reasonable for the defendants. The court followed...
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...There are two models to the criminal process: due process and crime control. They serve as the basis for regulation and freedom as it pertains to the application of criminal justice and criminal law. The models are in constant opposition with each other to impose their importance to the system as it pertains to principles in the criminal justice process. Even with the dissimilarity between these two models of criminal law, they both have several positive traits. Similarities The due process and crime control models include an organized topic of standards key to the constitutional order on how criminal law is applied (Packer, 1968). “The machinery of criminal justice—police, prosecution, courts, and corrections—is the formal means by which order is maintained in our society” (Zalman, 2009, p. 4). The mechanics of the criminal justice system utilizes components from each model that are dependent on one’s own likings in regards to the criminal law procedure (Packer, 1968). Although these two models differ in principle, the commonality between them is the same. For example, both models consider the sanction of criminal behavior and recognizing a criminal are dissimilar procedures, when and if probable cause is found the criminal process may be put into effect and the judiciary system has an restricted authority of inquiry and arrest. They also form the basis for the function of the adversarial system, due process, and the defendant’s right to their day in courts (Zalman, 2009). ...
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...1. Define due process and its origins. Due process is defined as the administration of justice according to established rules and principles; based on the principle that a person cannot be deprived of life or liberty or property without appropriate legal procedures and safeguards. (Wilson, James Q. (2009). American Government (9th Edition). Ohio: Strayed University.) The origin of due process is generally understood to be found in chapter 39 of the Magna Carta. It is also found in the fifth and fourteenth amendments. Due process is cherished by conservatives as one as the most significant legal principles to emerge from the English common law tradition. (Carey, George W. (May 10, 2001). Due Process. In First Principles Journal. Retrieved November 4, 2012, from http://www.firstprinciplesjournal.com/articles.aspx?article=867&theme=home&loc=b). The fourteenth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The fifth Amendment states: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor...
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...Due Process Paper Due Process Paper Due process A New York State Supreme Court Justice traces the constitutional concept of due process to the English concept of "the law of the land" (W. McKechnie, 1914). Due process, is a judicial requirement stating that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual (Merriam-Webster). Due process of law is based on the idea that legal proceedings cannot interfere with life, liberty, or property unfairly. The Fifth and Fourteenth Amendments guarantee that one will be given notice of the proceedings and will have an opportunity to be heard prior to the seizure of life, liberty, or property.” Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land protecting individual persons from the state” (Wikipedia 2009). When a person gets harm by the government, the government has to follow the exact course of the law and if the government doesn’t follow, it will constitutes a due process violation that offends against the rule of law. Due process is traditionally divided into substantive and procedural categories. Substantive due process relates to general rights such as freedom of speech and privacy. Procedural due process relates to the right to an attorney, and other specifics associated with the procedures of legal proceedings...
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...The Due Process Clause of the 14th Amendment says that no state should deprive anyone of their constitutional right to life, liberty, or property, without due process of law. This process is basically a guarantee of fairness that is intended to serve two basic goals: to produce, through the use of fair procedures, more accurate results, to prevent the wrongful deprivation of interests, and to make people feel that the government has treated them fairly by, saying, and listening to their version of the story. It should be understood that fairness is comprised of many components: notice, an opportunity to be heard in a meaningful way at a meaningful time, and supported by a decision of substantial evidence. There are significant prescribed processes that must be followed to dismiss a teacher. In a litigious society where there is a heightened awareness of potential misconception, poor judgement and unlawful acts. Some believe these suggestions unreasonably interfere with a teacher’s style; however, teachers who refuse to become risk managers and blindly cling to the belief that because their motives are pure, they will not be misunderstood, do so at their own risk. This administrator has a twofold responsibility to protect the teacher and the student. Prudent teachers should take steps to protect themselves. In order to move forward with passing any sanctions on this teacher a thorough investigation must ensue. The investigative interview begins with the informant. It is prudent...
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...the Significance of Due Process. In my opinion of the case Mathews vs. Eldridge was a valid claim in such that Mr. Eldridge wanted to be heard and felt as if his social security benefits had been unjustly terminated. In review of the case it is found that the Mathews vs. Eldridge case established a new precedence in deciding if due process is appropriated. The result of the case was that there should be a balance between “the interests affected and the administrative burden.” (www.invisipress.com). Mr. George Eldridge had been a Social Security beneficiary from June of 1968 up until July of 1972. His original Social Security disability benefits were noted as being because of back strain and chronic anxiety, later Mr. Eldridge contended in a written reply to the administration, after being told his benefits were to become terminated, that he had spinal arthritis and that there was enough formal documentation to determine disability benefits presented at earlier dates. The agency proceeded to terminate his benefits and informed him that he had the right to file a rebuttal within six months to be heard for reconsideration. Mr Eldridge did not do so; though Mr. Eldridge had been offered a post-termination procedure in which an oral evidentiary hearing was to be included, he instead chose to bring suit and argued that Fifth Amendment Rights had been violated. The suit claimed that Mr. Eldridge’s benefits had been terminated in violation of the due process clause of the Fifth Amendment...
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...Due Process Crystal Groff Strayer University Professor Freeman Abstract We all wonder what the words life, liberty, and property derived from. In this paper I will be explaining what due process is and how it relates to life, liberty, and property. I will also explain where due process came from and what 2 amendments relate to due process. Before we start though I would like you to know that due process is there to protect the defendant under proving guilty. Define due process and its origin? Due process refers to a set of established legal principles, derived from the Constitution, that seek to protect the rights if citizens. It is done to insure that the government treats all the individuals properly and does not abuse there power by acting against the citizens in an arbitrary, oppressive, or capricious manner (WiseGeek, 2003). The most important fundamental level, is that it prohibits the government from taking any action against the individual that would result in the loss of liberty or property, without first making sure the individual notice of pending action, and has the opportunity to be heard. In every case, before the final decision can be made, the government has to provide the individual, through judicial or administrative procedures that are fair to the individual and impractical, and the ability to challenge the state action. The more serve the case of deprivation of liberty, the more rigorous the due process procedures afforded must be (WiseGeek...
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