WEEK 1 CHAPTER REVIEW JOURNAL BL
Week 1 Chapter Review Journal BL
Question 1
In my opinion, if the Court were to hear a new flag burning case, it should follow precedent and find that setting the American flag ablaze essentially constitutes free speech and is secured by the U.S. constitution. This is more so the case given that in some scenarios, this may be the only powerful way to protest against certain ills or inefficiencies attributable to the government. For instance, when the government of the day has an ineffective or poorly implemented foreign policy, or when the government engages in brutal acts against the very people who elected it to power, mere street protests may not be sufficient to express displeasure. Protesters ought to be permitted to engage in an expressive form of symbolic speech in such a case and owing to the fact that the flag is essentially the countrys formal or official emblem, burning it could be perceived as the most appropriate form of symbolic speech.
It would also be prudent to note that although following a precedent could in some instances be sensible, there are some scenarios whereby decisions of higher courts ought to be adapted to reflect changing circumstances, i.e. at the societal level.
Question 2
There are a number of instances whereby a business ought to be held responsible (from a legal perspective) for the safety of customers. These will be explored below:
A business should keep customers safe from its own employees: Yes, a business could in some instances be held responsible for any harm occasioned by any of its employees...
This is particularly the case under a particular legal doctrine christened respondeat superior (Best and Barnes, 2007). There are, however, exceptions, i.e. in scenarios whereby the actions of the employee were purely independent.A business should keep customers safe from other customers: This is largely dependent upon the context. From a general perspective, a business has a responsibility to act in a responsible and reasonable manner to protect customers from harm or injury. Thus, for instance, an enterprise in the hotel industry could be deemed to have breached its duty of care if it installs faulty locks in cottages and a customer gains entry and sexually assaults another customer.
A business should keep customers safe from themselves. (Example: an intoxicated customer who can no longer walk straight.): In my opinion, a claim against a business on this front could only see light of day if it is proven that a business was negligent in some way or another. On this front, there are a total of four elements that, as Best and Barnes (2007) point out, must be satisfied. The said elements are: a duty of care, a breach of that duty, causation and damages (Best and Barnes, 2007, p. 311). Thus, in the example highlighted above, a business cannot be held responsible for the customers own actions unless it is proven that the intoxicated customer was injured as a consequence of the business failure to provide a safe environment.
A business should keep people outside its own establishment safe if it is reasonable to do so: A business cannot be held legally responsible for the safety of persons who are not within its establishment, i.e. persons who are a block away, even in those instances where it would be reasonable to do so.
Question 3
In reference to Stendhals assertion, it would be prudent to note that I am of the considered opinion that legal positivism is of greater relevance. This is more so the case given that it is a fact that human existence has been territorial since time immemorial. Thus, what applies to a specific culture could largely be impractical in some other settings. For this reason, we cannot have universal laws, i.e. within…
References
Best, A. & Barnes, D.W. (2007). Basic Tort Law: Cases, Statutes, and Problems. Wolters Kluwer.
Petersen, N. (2017). Proportionality and Judicial Activism. Cambridge University Press.
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