The Litigation Versus Transactional Laws Law Essay - Free Essay Example

Sample details Pages: 12 Words: 3674 Downloads: 2 Date added: 2017/06/26 Category Law Essay Did you like this example? One of the hardest things to sort out in law school is whether to choose a litigation or transactional career.  [1]  The question seeks an answer as graduation approaches and a choice needs to be made by the young legal eagle as to which road he would want to tread upon. Upon graduation from law school, it is common to have some vague or otherwise highly focused notion, of the substantive direction one sees his career progressing. Regardless of whether it projects towards a large firm rotating between departments or at a smaller firm earmarked for a specific practice, the process of identifying the specialty pursued begins. Don’t waste time! Our writers will create an original "The Litigation Versus Transactional Laws Law Essay" essay for you Create order There is real pressure to define the career as a transactional, litigation, tax, real estate or intellectual property attorney.  [2] It is not uncommon to be unaware of the terminologies questioned in this paper. Transactional law refers to the various substantive legal rules that influence or constrain planning, negotiating, and document drafting in connection with business transactions, as well as the law of the deal (i.e., the negotiated contracts) produced by the parties to those transactions.  [3]  Kenneth N. Klee  [4]  in his paper on TEACHING TRANSACTIONAL LAW  [5]  defines transactional law as law focusing primarily on the parties or their professionals in the formation, negotiation, documentation, or consummation of business deals.  [6]  Transactional lawyers therefore must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowledge of the law.  [7] On the other hand, the word Litigation in common parlance, refers to a controversy before a law court or simply put a lawsuit  [8]  . Bouvier  [9]  called it A contest, authorized by law, in a court of justice, for the purpose of enforcing a right.  [10]  The British Columbia Supreme Court held; The term litigation encompasses the act of carrying on a legal proceeding. A legal proceeding connotes the resolution by a judicial tribunal of an issue between two parties.  [11]  Litigation  lawyers are attorneys who work mainly with lawsuits and the main duty of a  litigation  lawyer  is to take a lawsuit to court and try to win the case. Sometimes,  litigation attorneys  settle cases out of court, but most lawsuits they receive will be handled by them in court.  [12] The author wishes to untangle the chords winding up the legal fraternity because this author ha s found that most attorneys fail to appreciate how important it is to decide at the earliest stages of their careers on the substantive area of law they want to pursue.  [13]  This involves understanding the exact nature of the work, the long term limitations, opportunities presented by a particular discipline and the environment best suited for their personal and professional development. The MacCrate Report, published in 1992 by an American Bar Association recognized that in the forty years preceding the Report there had been a marked growth in demand for legal services in the business community as, economic activity vastly expanded, new business enterprises multiplied, and the number of transactions in every segment of the economy proliferated.  [14]  That is, the Report illustrated the growth in the business sector of the economy which directly contributed to the increased need for lawyers skilled in business and transactional law. It is out of such a backdrop that the debate was fuelled and the common option of litigation was being questioned. The familiar qualm of what career option would be superior, floated about and answers such as whatever you want or whatever youre good at or whatever your personality traits fit, etc  [15]  did not fit the bill quite well with those who sought firm substantive answers. The author would substantiate his verdict, by analyzing the pros and cons associated with the nature of work in the two fields, the current standing of the two choices and the future implications of the crossed swords on the bearer. Law School Education For over 100 years, law schools have used the case method to teach legal theory and litigation-oriented courses.  [16]  For various reasons, law schools have emphasized the role of lawyers as litigators and have provided legal training accordingly.  [17]  Since the emphasis was clearly laid down on litigation, very little has ever been taught about the transactional aspect of law. The casebook method is the primary method of teaching in the first year of law school.  [18]  The method focuses on court cases for which litigation has already occurred. The casebook method continues to be the major teaching routine beyond the first-year curriculum as well.  [19]  By emphasizing cases through the casebook teaching method, law school depicts the typical lawyer as a litigator, rather than as a transactional attorney.  [20]  Whether the law school subject is a litigation-related subject, such as torts or jurisprudence, or a transactional subject, such as contracts, th e casebook method is the pedagogy of choice.  [21]  Throughout the years at law school, course offerings lean primarily toward litigation-oriented subjects.  [22] Various legal luminaries have registered dismal towards the law schools stance on dispersing education. Eric J. Gouvin, Professor of Law, Western New England College School of Law believes that Law school, at least the way its mostly taught, does not tell much about the way the transactional practice works.  [23]  This is because of case study. Cases are always about litigation  [24]  and even contracts class, as usually taught, is something of a bait-and-switch. Not only is the case book methodology criticized for its inclination towards the litigation face but also for many other reasons. The Clinical Legal Education Association criticizes the case method approach because; abuse of this method contributes to the damage that the law school experience unnecessarily inflicts on many students.  [25]   This sort of methodology puts the onus on the student to step out of the path he has treaded upon for years at law school if he wants to go into a transactional practice.  [26]  A transactional practice demands a separate set of skills. The casebook method alone will not help a young lawyer identify, evaluate, and manage business risks, structure agreements, negotiate terms, and draft documents for complex financial transactions. Traditionally, young lawyers are expected to learn these challenging skills in practice potentially a missed opportunity for the legal academy.  [27] Today, the law schools stance has moderated. The number of law schools offering contract drafting has risen markedly.  [28]  As have the transactional clinics and transactional externship.  [29]  The age old path of litigation is being questioned and transactional Law seems to be the answer to many. Law schools have attempted to respond to the call for transactional lawyers in a variety of wa ys; from bridging transactional law with the traditional law school curriculum; to developing stand alone Deals or Business Planning courses  [30]   a number of law schools have developed innovative programs in transactional law.  [31] History has shown the partiality litigation had received in the eyes of the law schools across the globe, but the time has come where transactional law has stepped on the pedal and is on a constant rise. A 2000 survey by the Young Lawyers Division of the American Bar Association supported the premise that a significant number of attorneys were engaged in transactional practice.  [32]  In a survey to which 850 young lawyers responded, half of the respondents indicated that the greatest percentage of their work time was spent in the areas of general corporate law, commercial law, and personal injury defence.  [33]  Thus, both the MacCrate Report  [34]  and other available statistics support the assertion that transactional practice is more than alive and well; it is equal and perhaps dominant to litigation practice. Career Profile Before the debate proceeds, it is quintessential to understand the two fields of law and what they hold. No debate is successful without completely understanding the alternatives beforehand.  [35] Litigation lawyers are attorneys who work mainly with lawsuits. The main duty of a litigation lawyer is to take a lawsuit to court and try to win the case. Sometimes,  litigation attorneys  settle cases out of court, but most lawsuits they receive will be handled by them in court. There are two types of litigation- Civil and criminal. A  criminal litigation  lawyer works on state or federal prosecution cases, while a  civil litigation  lawyer  may specialize in one specific area or work in many areas that could include landlord-tenant, contract breaches or personal injury lawsuits.  [36]  All matters typically on course for law suits arising out of an adversity between two or more parties are handled by litigators. They deal with s tatutory, case law, regulatory research, brief and motion writing, taking depositions, declarations, requests for documents, etc. It has been defined as; performing the act of, diligence but of a different nature all related to responding to requests from the other side or as a matter of fact gathering information for the case at hand. The tasks involved, are diversified. Litigation attorneys often conduct an initial case investigation to determine in the plaintiffs case if enough evidence exists to file a lawsuit and in the defendants case what evidence exists to defend a potential suit. The work involves drafting a variety of pleadings and motions on behalf of the plaintiff or defendant. Plaintiff attorneys will draft summons and a complaint to commence the lawsuit while defence attorneys collaborate with the client to investigate the allegations put forth by the lawsuit and formulate responses. Litigation attorneys also draft a variety of motions including motions to strike, dismiss, amend or change venue and motions for judgment on the pleadings. At trial, in certain countries, litigation attorneys conduct  voir dire  [37]  , select a jury  [38]  and present their case in court. Litigation attorneys present opening and closing statements, examine and cross-examine witnesses and craft a persuasive story for the fact-finder (judge or jury) through testimony and evidence.  [39] Transactional Law, follows a different methodology and scope altogether. For a number of businesses, a working relationship with a transaction  attorney  is a must.  [40]  The On-The-Job requirements include, advising the client, implementing the business objectives of the client, safeguarding the interests of the client, limiting risk to the client, providing general and transactional business advice, negotiating business and documentation issues, and drafting relevant documents.   The transactional lawyer must focus on business issu es that affect the client, bring forth relevant business developments and enunciate on previous experiences related clients subject matter at hand.  [41]  The Work involves understanding the clients priorities in all these respects, what the client considers non-negotiable, and the degree to which the client may concede on a particular issue as this may be a critical part of the negotiation process, particularly in terms of the overall relationship of issues and objectives in a specific matter and even in connection with a series of related or even unrelated matters. It is also an essentiality to have an expert status in the drafting, execution, and administration of such important business documents as deeds for real estate, employment contracts,  merger  documents, and even in the transfer of  intellectual property  and  trademarks  from one entity to another. The obligation on the transactional attorney is to ensure that the documents drafted precisely convey the intentions of the  corporation and are worded in a manner that is acceptable to local customs and all provisions set forth in local law.  [42] The distinction between the two fields is stark and clear. One of the basic divisions in the practice of law is between litigation and transactional law.  [43]  This division or demarcation is bought out as early as in Law School since litigation tends to involve the LAW a lot more.   The number of occasions for going to the library and doing extensive research on a legal issue is far greater in litigation whereas research on an issue in the transactional side, rarely turns into a work product in the way a brief springs out of the cases  [44]  . Most of the medium and large firms consist of at least two major departments, transactional and litigation. The practice groups in a transactional department may include merger and acquisition work, private equity, and real estate transaction s while the litigation department, may include employment, securities, product liability, intellectual property, and insurance.  [45]  While, Litigation attorneys  [46]  , or litigators, deal with the judicial process, with civil disputes or criminal cases that are headed to court,  [47]  transactional lawyers  [48]  provide advice on how to structure a business and evaluate ventures and coordinate with other specialists, like tax lawyers, employee benefits lawyers and real estate attorneys (who are all transactional lawyers), to serve the sophisticated needs of their corporate clients. Transactional lawyers provide day-to-day advice to their clients, and most of their work restricts itself to law firms.  [49]  When compared to their counterparts, Transactional attorneys work behind the scenes, writing contracts, doing real estate closings  [50]  and otherwise doing such legal work that would not involve going to court.  [51]  They aim to help clients avo id litigation through the preparation of complete contracts and through advising on how to follow the law. However, disputes and litigation are bound to arise in business, during the course of a transactional breech, misunderstanding and disagreements.  [52]  For every transaction gone sour, there is a litigator who will either take someone to court or make a buck defending a lawsuit.  [53] Also, Transactional attorneys most often work for companies or businesses, as most private individual clients dont require the services of transactional attorneys, ubi Litigation attorneys represent both individuals and corporate clients as private individuals may be involved in lawsuits as well.  [54]  The differences are aplenty, and the legal eagle needs to look deep into the career aspects of each profession before making a choice. The final Battle- Pros v Cons Considering the pros and cons of an issue is a very useful way to weigh the issue thoughtfully and reach an informed decision. By weighing the pros and cons beforehand, someone can consider potential objections to a point, as well as find ways to dismiss a counter-argument. Academicians across the globe have always emphasized on the importance of Pros and Cons in problem solving.  [55] The banking of the pros and cons of a career in litigation law against one in transactional law provides an in-depth analysis of the advantages and disadvantages one would face in pursuance of the same. Those considering a career in these fields should be aware of some of the daily routines.  [56] Litigation is an incredibly structured way to live out a career. This is in terms of cases having a beginning, middle, and end in a certain repeating pattern, the docket controlling life, and the relationship as a lawyer to the rules of advocacy, whether of argumentation or procedure. On the other hand, the setting of Transactional Law is such that there is the freedom to change almost anything, by crafting a new set of rules if accompanied by the right confidence and ability.  [57]  This freedom could allow for a greater arena of learning. The selection is left to the legal eagle based on the mind frame he approaches the work with and the intentions he has in place. Litigating provides for an opportunity to exercise well honed research and communication skills in an intellectually challenging atmosphere. The glamour quotient is indeed high but litigators face far less exciting challenges as well. Very few litigators would be actually involved in anything as sensational as the O.J Simpson trial  [58]  or the ground breaking Menaka Gandhi case  [59]  . On a daily basis, a litigators work is more tedious than glamorous and would involve great amounts of research and drafting (and re-drafting) legal technicalities.  [60]  Attention to detail is essential for a good litigator but appreciation for nuance and subtlety in the interpretation of a statute can at times seem like mere technical gamesmanship. Litigators should recognize and appreciate the adverse nature of their practice as there is no guarantee that the side represented by, would be right.  [61] Litigators have a significantly shorter shelf life in the lateral marketplace and must consider their future alternatives much earlier in their career than transactional lawyers. Unlike their corporate counterparts, senior level litigators looking to make a lateral move to a firm will experience an uncompromising preference for junior level talent and in-house or business side opportunities are not as readily available; leaving law firm partnership as one of the only realistic options for a senior litigator.  [62] Litigation involves research, analyzing statutes, pouring over contracts and reading cases. The intellectual know-how gained in the field study is immense and would certainly be satisfactory for someone interested in the same. There is never a dull moment.  There is research to do and memorials to write, but litigation is fast-paced and litigants are swept up by the wave. It involves intensive planning on how to beat the other side and litigants will have to use all their wits and heart and energy to see that plan through. All along, surprises and challenges and drawbacks will pop up and it can be a bit terrifying but it certainly isnt boring  [63]  . There is a challenge of constructing a persuasive argument and backing it up with supporting evidence and there is a personal satisfaction in being responsible for helping obtain something of value to the client. Many leading luminaries have always believed that while advocacy is indeed attractive, they can accomplish more with a field of law that focuses on building structures rather than challenging them. Transactions have more turn-around and a shorter time frame for completion, w hile litigation gets dragged on for years.  [64] Unlike litigation, transactional lawyers rarely do come out to the open and are hardly ever seen strutting down the long corridors of the court hall. Recognition is never on a public fore and they work in the back drop of the establishments operations. This could have an adverse effect on the minds of many as there is no appreciation for the work that they do. Also, in contrast with the litigants, transactional attorneys face quite complex and extensive rules, chiefly those concerning fiduciary obligations, misrepresentation and non-disclosure and if the transactional lawyer fails to perform loyally and competently, he must respond to the clients malpractice claims.  [65] The major advantage of transactional law versus litigation however, is that its much easier to transit out of it into business since the acquired skill set is more readily transferable to a non-legal business job, such as investment banking, private equity, and real estate development, providing a greater avenue of exposure and increasing mental security.  [66] There is also a strong presumption that the large law firm attract the best and the brightest, providing superior training and mentoring, which would transform the inexperienced into an exceptionally skilled attorney. While some may try to refute this presumption, it is indeed true that large law firms do attract the most sophisticated clients, handle cutting-edge transactions and manage the greatest deal flows. A combination of these ingredients on a consistent basis offers the greatest opportunity to develop transactional skills which are highly valued in the market.  [67] The opportunities available are wide. Transactional law offers a wide range of practice niches that allow associates to develop a specialized skill set that can enhance their marketability in the future. A practice niche can be focused exclusively for specific types of transactions, such as struct ured financed and derivatives work, or can be slightly broader to include a range of transactions, such as banking and securities work. It is also possible to create a niche in a particular industry sector, servicing clients in industries such as new media, manufacturing, intellectual property, or entertainment.  [68] A transaction attorney has a great deal of knowledge and skill that will help the client in dealing with difficult issues down the road when it comes to commercial property  acquisition or business contractual deals. Many can attest that a competent transaction attorney will easily spot irregularities and thus save the client more money than the attorneys fees could ever equal.  [69] When it comes to the monetary aspect of each career option, transactional lawyers and litigators may work for the same kind of clients and earn the same kind of money.  [70]  However, litigation is recession-proof.   While corporate work slows down in an economi c downturn, litigation doesnt.   People sue each other in good times and bad.  [71] Whether this should be a deciding factor weighing on the prospective lawyers decision is debatable. But most definitely the monetary aspect of the career needs to be held at sight. Conclusion So, the answer is definitely not whatever you want or whatever youre good at. It is important to choose a field of law much suited to your style and after adjudicating on both the fields in an unbiased manner. The beauty of law lies in its ability to defy the stereotype image set by the society. There are awkward, shambling, and seemingly disorganized people who are in fact brilliant litigators and who dont fit any of the stereotypes of the typical brash litigator. There would be the typical, dapper, brash attorney, who is almost a comical caricature of the hard-driven, testosterone-fuelled litigator, who is a laughingstock and doesnt get very far in the profession because nobody can take that combative stuff seriously. There would also be the normal, friendly, average-seeming person who, despite his mild manner (that would lead to a presumption that he is better suited to transactional practice), is immensely successful as a litigator. Law practice, when viewed from up close, h as a way of evading all the categories that popular culture uses to understand it. There are no rules that can adequately explain success or failure in law practice. The reason this author has infringed upon the area of debate is because it is critical to begin at the earliest stages, not only to appreciate the exact nature of the work involved in each area, but also to understand the range of alternatives that each substantive area of the law will offer in todays market.  [72]  Unqualified notions on the superiority of one field of law over the other would be injustice to the cause and this author has tried to provide substantive information pertaining to the two fields without prejudice and hopes that he has been able to grant a verdict in the CAREER SUITE!

The School to Prison Pipeline - 2688 Words

The School to Prison Pipeline: The Criminalization of American Students The School to Prison Pipeline: The Criminalization of American Students Kimberly N. Wright Western Governors University Introduction Your permanent record! The thing that was held over most of our heads when we were in school. Your teacher or maybe your parents threatened that your bad behavior was going to end up on your â€Å"permanent record† and ruin your life. We shrugged them off, thought they were being dramatic or crazy and didn’t think much of it. Unfortunately for some students, the School to Prison Pipeline is making the threat of a bad permanent record all too real, as well as the consequences behind it. What is†¦show more content†¦School data suggests that the decision to suspend or excel a student depends on several factors including prior history of the student, particulars of the situation, and the teacher’s ability to manager classroom behavior (Skiba, 2003). However observations of classroom behavior show that the majority of students removed from urban classrooms were not primarily due to dangerous or major infractions of disciplinary policies and usua lly they weren’t even the worst offenders. Often times it’s the student’s needs and the school being unable to meet the student’s needs that lead to the student being disciplined. Kids who are behind academically, and unable to perform at the same level as their peers often act out in frustration or humiliation (Noguera, 2003). Once these students are labelled as difficult, incorrigible, and unteachable they tend to believe these things about themselves and act out more in class which leads to a cycle of discipline that can ultimately lead to permanent expulsion. For some of these students, these continued rule violations lead to run-ins with the police and the criminal justice system. School administrators who are at times frustrated themselves from failed attempts to steer children from a â€Å"bad path† don’t realize that in throwing their hands up and giving up on these students, are in a way helping shuttle students from school to the penitentiary (Noguera, 2003). Another strike against students who are already onShow MoreRelatedThe School For Prison Pipeline1834 Words   |  8 Pageskeeps being repeated. That cycle is known as the school-to-prison pipeline where students are punished based off the policies that have been made by the school districts and court of law. Consequently, minorities have been disproportionately punished by schools and the justice system. You may be aware that the funding towards the school district is underfunded which leads to less resources and policies that enforce inequality of race throughout the school system. For example, 30 teachers had to be laidRead MoreThe School Of Prison Pipeline Essay2154 Words   |  9 PagesThe school-to-prison pipeline in the United States is a figure of speech used to describe the increasing patterns of interaction students have with the juvenile and adult criminal justice systems as a consequence of procedures used by many school systems. A specific procedure would be the zero t olerance policies and the use of officers in schools. Currently in today’s American schools many children of color are being unfairly judged and treated by the public school systems zero tolerance policiesRead MoreThe School Of Prison Pipeline Essay1441 Words   |  6 Pagespublic schools around the country is the school to prison pipeline epidemic. The school to prison pipeline is a term used to describe how students are being pushed out of public school and into the criminal justice system. This epidemic is a result of the education system’s zero tolerance policy that enforces harsh punishments for misbehaving students. Although its goal was to eliminate misbehavior, studies have shown that the increased disciplinary actions have resulted in a modified school environmentRead MoreThe School For Prison Pipeline978 Words   |  4 Pageswhat has become a pressing question, is what is to become of the future if our youth are behind bars instead of in schools? Youth tod ay are being pushed into the criminal justice system at an alarming rate. This issue is known as the school to prison pipeline ─ the rapid rate at which children are pushed out of schools and into the criminal justice system. The school to prison pipeline is a term that came into use by activists in the late 1970’s and has gained recognition throughout the years as theRead MoreSchool to Prison Pipeline1948 Words   |  8 Pagesï » ¿ Topic: School-to-Prison Pipeline Research Paper What is meant by the school-to-prison pipeline? What are ways to address this problem? The school-to-prison pipeline is a devastating part of reality for all too many students. The pipeline in definition is simply a term representing the tendency for certain students to easily end up in prison during or shortly after schooling. To decrease this tendency, it is important that teachers are aware of the issue andRead MoreSchool to Prison Pipeline2888 Words   |  12 PagesSchool-to-Prison Pipeline: Does the Current Educational System Demonize or Criminalize Our Youth? In today’s society our children go down one of two paths: become successful or become criminals. The question then must be asked: have we allowed our children to be tracked down such opposite paths by using discipline as an excuse? There may well be an argument that ultimately the school and prison system have nothing to do with one another; however, I believe they have become one in the sameRead MoreAlternatives For School And Prison Pipeline962 Words   |  4 PagesAlternatives to School-to-Prison Pipeline Changes to Viewing the System This problem in Americas school system does not have to continue this way. There are changes that can be made and policies that need to be changed in order to provide the proper access to education for all students. The Association of Mexican America Educators presents research done with educators of low-income Latino students and what they believe needs to be changed to provide well for students. The article shares four mainRead MoreBreaking The School Of Prison Pipeline859 Words   |  4 PagesBreaking the School-to-Prison Pipeline How would you feel if the outcome of your interaction with authority depended on whether you were black, Latino, or white? Unfortunately, police brutality is the sad reality that many black and Latino boys experience in their childhood. The disadvantages of their upbringing results to the reinforcement of societal restrictions on their success. On a positive note, education becomes salvation to marginalized group because it provides them means to escape theRead MoreThe Juvenile Justice School To Prison Pipeline634 Words   |  3 Pagesrelationship between educational institutions and the juvenile justice system which was once created to protect children, has displayed an ultimatum for minors through â€Å"zero tolerance† policies which results in sending individuals through the school to prison to pipeline. Studies have shown that these zero tolerance policies are not beneficial to students or the educational environment that should be guaranteed to children. Opponents argue that the policies promote safety, but through this research it canRead MoreLiterature Review Of School To Prison Pipeline970 Words   |  4 Pagessimilar to my question, â€Å"How is School to Prison Pipeline affecting juveniles around the United States?†. In 2014, Fader wrote an article called A Promising Approach to Narrowing the School-to-Prison Pipeline: The WISE Arrest Diversion Program. In the article, it mentions how the school to prison pipeline came about and how hard it is for a student who enters the school to prison pipeline to get out of it, there’s a stigma to the kids once they have entered the pipeline. By having an afterschool program

A duty of care was owed by Aldi Supermarkets - Myassignmenthelp.Com

Questions: 1. Discuss about theA duty of care was owed by Aldi Supermarkets. 2. Discuss about theThe duty of care was breached by Aldi Supermarkets. Answers: Introduction Negligence is covered under the tort laws, which denotes the breach of duty of care, which a person had owed to another, due to undertaking such acts, which had the potential of injuring the other party (Harvey and Marston, 2009). The following parts analyse the case of Tamara in context of negligence and its different aspects. IRAC Analysis Issue 1 A duty of care was owed by Aldi Supermarkets. Rule 1 In order to make a claim of negligence, there is a need to clearly proof that a duty of care had been owed by the defendant to the plaintiff. For this purpose, reliance needs to be made to Donoghue v Stevenson [1932] UKHL. In this case, the court held that the manufacturer owed a duty of care to the consumer. This was because there was proximity between the two, where the actions of one could affect the other (Strong and Williams, 2011). Also, there was direct causation in terms of Donoghue falling sick due to consumption of adulterated drink owing to the dead snail found in the bottle. Here, the risk of contamination was foreseeable in nature also, resulting in duty of care being upheld (Lunney and Oliphant, 2013). Application 1 The given case shows that Aldi Supermarket was in proximity to Tamara and their actions had the impact of hurting Tamara. A wet floor has the foreseeability of injury taking place and thus had to be kept clean to avoid any incidents. Applying the case of Donoghue v Stevenson, Tamara was a consumer and care had to be taken towards her. Conclusion 1 Thus, a duty of care was owed by Aldi Supermarkets to Tamara. Issue 2 The duty of care was breached by Aldi Supermarkets. Rule 2 A standard of care has to be applied when the defendant performs the duty which they undertake. Where this standard of care is not applied, the duty of care is deemed to be breached. An example of this is Paris v Stepney Borough Council [1951] AC 367. In this case, the breach of duty of care was upheld when the council failed in providing the safety gear to their worker, which ultimately resulted in the worker being, blinded (Latimer, 2012). Application 2 In this case, Aldi Supermarkets failed in keeping the floor clean particularly when the floor was wet and a standard of care required to be adopted by the supermarket. This would be deemed as a breach of duty of care, particularly because Tamara fell down and got injured. Conclusion 2 Thus, the standard of care was not upheld, resulting in duty of care being breached. Issue 3 The injuries sustained by Tamara were not too remote. Rule 3 When a person is injured as a result of the undertaken negligence of the defendant, there is a need for the injury to be substantial. It is also important that the damage was foreseeable. In this context, the view of a prudent person has to be adopted as per Wyong Shire Council v. Shirt (1980) 146 CLR 40. This is in addition to the remoteness being an issue. The damages are not awarded where the chances of occurrence of the injury are too remote. Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2 is an example where the damages were not awarded as the damages were too remote. In order to establish if damages are to be paid to the plaintiff, but for test has to be applied based on Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428. In this case, it has to be analysed if the injuries would have taken place had the duty of care not been breached (Turner, 2013). Application 3 In the given case study, it has already been shown that the duty of care was contravened by Aldi Supermarkets. It is also clear that Tamara got injured and broke her back, which required her to go to hospital resulting in damages of $700,000. The slippage on wet surface is reasonable based on view of prudent person as per Wyong Shire Council v. Shirt. Also, the damages here were not remote unlike the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd. Lastly, the injuries would not have been caused to Tamara, had the standard of care been taken by Aldi Supermarkets. Conclusion 3 Thus, the damages sustained by Tamara were not too remote. Issue 4 Aldi Supermarkets can use contributory negligence against Tamara. Rule 4 When a claim of contributory negligence is raised by the plaintiff, the defendants also raise counter allegations, and in this regard, the defence of contributory negligence is of assistance. Contributory negligence shows the contribution of the plaintiff in the injury caused to them. And for giving proper justice to the matter, where contributory negligence is established, the damages awarded to the plaintiff are reduced by the court, on the basis of their own discretion, which is ultimately based on the degree of contribution made by the plaintiff towards their injuries (Dongen, 2014). Hamilton v Duncan [2010] NSWDC 90 is of assistance in this matter. This case had the plaintiff having the knowledge of the hole being present, which was deemed as contributory negligence (Bannerman, 2015). A key case matching the case study is that of Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust [2016] NSW 2016 888, where the plaintiff had slipped on wet tiles of the store and made a claim of negligence. In this, the speed of plaintiff was deemed as a contributory factor, resulting in damages being brought down by 10% (Devitt, 2016). Application 4 In this case, Tamara could be held liable for contributory negligence as she rushed towards the isle on seeing the other consumer. She knew that running would be risky on wet tiles, as per Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust. As per Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust, the speed would be deemed as factor in her injuries and the damages would be reduced accordingly. Conclusion 4 Thus, Aldi Supermarkets can use contributory negligence against Tamara. References Bannerman, D. (2015) Contributory Negligence In "Slip And Fall" Cases - No Control Over The Plaintiff's Own Action Or Inaction?. [Online] Bannermans Lawyers. Available from: https://www.bannermans.com.au/insurance/articles/public-liability/331-contributory-negligence-in-slip-and-fall-cases-no-control-over-the-plaintiff-s-own-action-or-inaction [Accessed on: 10/01/18] Devitt, S. (2016) A slip up - shopping centre liable for slip and fall on wet tiles. [Online] Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=bdcef724-3c2e-482d-9d74-540bc1a44d6c [Accessed on: 10/01/18] Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff. Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford University Press. Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press. Strong, S.I., and Williams, L. (2011) Complete Tort Law: Text, Cases, Materials. 2nd ed. Oxford: Oxford University Press. Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.

Theoretical Framework Research Paper Example

Theoretical Framework Paper Gang membership had been examined and explained by two theoretical models, the selection theory, and the socialization theory. The selection theory says that youths join gangs because birds of the same feather flock together. Wherein, youths who have the inclination for antisocial behavior would naturally select youths who also exhibit antisocial behavior and band together to form youth gangs (Staub, 1996). On the other hand, socialization theory relies on the process of enculturation or socialization of the youth to antisocial behavior. The contention is that not all youths who join gangs are antisocial to begin with but had been socialized into behaving antisocially (Winfree, Backstrom, Mays, 1994). At the same time, selection theory and socialization theory further interact to explain gang membership and antisocial behavior in the sense that selection theory may explain gang admission, and socialization theory explains why and how gang members exhibit antisocial behavior. In this study, both the selection and socialization theory provide the perspectives at which gang membership will be examined. Research Hypotheses Based on the research questions of this study, it is hypothesized that the typical gang member will be male, between the ages of 12-16, youngest or an only child, Hispanic and Black American, high school drop-out and are interested in guns, cars, and girls. It is also hypothesized that gang members are recruited in their own neighborhoods and youth gangs follow initiation rites to test the prospective member’s willingness to join the gang. Moreover, it is also hypothesized that socio-economic factors, poor interpersonal skills and dysfunctional family systems, and poor academic performance would predispose the youth to join gangs. Lastly, it is hypothesized that psychological factors and socio-economic factors lead the youth to join gangs. We will write a custom essay sample on Theoretical Framework specifically for you for only $16.38 $13.9/page Order now We will write a custom essay sample on Theoretical Framework specifically for you FOR ONLY $16.38 $13.9/page Hire Writer We will write a custom essay sample on Theoretical Framework specifically for you FOR ONLY $16.38 $13.9/page Hire Writer Summary of Remaining Chapters This study aims to determine the factors that lead the youth to join gangs. This chapter had focused on providing the reader with the background of the study, the articulation of the research problem, the purpose and objectives of the study, the research questions and the rationale for each research question as well as the hypothesized outcomes of the study, the limitations of the research and the theoretical framework of gang membership. The second chapter will present and discuss the related studies and a review of the literature on gang membership. This chapter aims to provide the reader with an understanding of what has been found in the area of study and what still needs to be done in order to better understand the given problem. The third chapter will present the research methods and design of the present study, this chapter identifies and explains the data gathering and processing of the information that would answer the research questions of the study. This chapter would provide the reader the necessary detail that would enable others to replicate the study which is a key aspect of scientific inquiry. The fourth chapter will talk about the results of the data analysis and how it is able to answer the research questions and whether it proves or disproves the research hypotheses. The last chapter presents the discussion, conclusions, and recommendations of the study based on the results of the study. This section provides the reader with information on the implications of the research findings to the local community and to gangs in general.