The Use of Biochemistry in Forensic Science

The Use of Biochemistry in Forensic Science Biochemistry is of great utility for Forensic Science investigations, with the biochemical technique of DNA fingerprinting being of particular importance. The development of the biochemical techniques for DNA sequencing allowed the genomes of organisms to be sequenced (Berg et al, 2002: Prelude). As a result, genetic markers can now be used to identify individual members of a population (James and Nordby, 2005: 283). This capacity is clearly beneficial in forensic investigations. However, despite their utility, biochemical techniques must be applied with caution in forensic science. The results of biochemical techniques used in forensic science can have serious implications for the lives of individuals. I will demonstrate both the value and limitations of using biochemistry in forensic science through focussing upon the use of Low Copy Number (LCN) DNA typing in forensic science. LCN DNA profiling Introduction The development of LCN DNA profiling provided forensic scientists with the capacity to analyse minute quantities of DNA. The technique is sensitive enough to analyse just a few cells (Gill, 2001: 229). This technique is therefore of particular benefit when investigating serious crimes for which there is limited evidence available (FSS, 2005a: no pagination). An example is provided by the forensic investigation which followed the 2001 murder of Peter Falconio in Australia. The evidence base was severely limited as no body was found. However, very small quantities of DNA were discovered inside the hand ties which had been used during the attack and on the gear stick of the victims van (FSS, 2005: no pagination). The use of LCN DNA profiling enabled this evidence to be linked to Murdoch, who was already suspected of the murder (FSS, 2005: no pagination). LCN DNA analysis was also crucial in solving a documented murder in Northern Italy. Although no trace evidence was discovered on the victims body or at the scene of the crime, a search of the victims car provided blood stains, sweat and skin samples. The small amounts of DNA yielded by these samples provided profiles which were identical to that of the saliva obtained from the suspect (Pizzamiglio et al, 2004: 437). When confronted with this evidence, the suspect confessed the crime (Ibid.). The biochemical technique The increased sensitivity of the LCN technique is achieved by increasing the number of polymerase chain reaction (PCR) amplification cycles used (Gill, 2001: 229). Although optimum efficiency is attained by using no more than 28-30 PCR amplification cycles (Ibid.), a variety of studies have yielded useful results using more cycles. Findlay et al (1997) obtained profiles from single cells by using 34 cycles; Wiegand et al (2000) analysed epithelial cells which had been transferred from the assailant during strangulation using 31 cycles and Van Hoofstat et al (1998) analysed fingerprints from tool grips by using as many as 40 cycles. The increased sensitivity offered by this technique is incredibly beneficial for forensic science investigations. The key tenet of forensics is: every contact leaves a trace (Locard, 1910). By enabling the analysis of barely visible samples, LCN DNA profiling increases the investigative power of forensic science (Hoffman Wulff, 2006: 2). However, with this increased sensitivity comes increased risk of misinterpretation. For example, the highly sensitive technique may reveal DNA from sources other than the sample analysed and the results must be interpreted with extreme caution (Gill, 2001: 229). The limitations of the technique will now be explored in detail. Limitations of the technique 1. Experimental errors Due to the increased number of PCR cycles used for LCN DNA profiling, there is an increased likelihood of experimental errors, which may significantly affect the DNA profiles obtained (Budowle, 2001). These experimental errors include: preferential amplification of alleles (causing allele drop out), the appearance of false alleles when stutters are preferentially amplified and the preferential amplification of alleles which are present because of contamination (Gill, 2001). As a result of these experimental errors, it is difficult to validate the results of LCN DNA typing (Budowle et al, 2001: 2). Because experimental errors occur randomly, the results of LCN DNA profiling are not reproducible and replicate analyses can produce different DNA typing results (Gill, 2001). In addition, because the established interpretation thresholds for DNA analysis are too large to apply to the LCN technique, there is no stochastic threshold for use when evaluating the results of LCN processing (Hoffman Wulff, 2006: 2). Thus, the number of alleles required in order to establish likeness is open for debate (Budowle et al, 2001). 2. Contamination Alongside awareness of the possibility for experimental errors to reduce the accuracy of LCN DNA profiling, it is important to consider the impact of evidentiary contamination. There is a high risk of DNA contamination before, during and after the forensic event under consideration, which reduces the accuracy of the technique. Although there is also a risk of contamination when undertaking standard DNA analysis, it has less impact upon the results of the profiling. As adventitious transfer and contamination usually involve only low levels of DNA, their effect upon the profile obtained by standard DNA analysis is minimal (Gill, 2001: 231). However, in LCN DNA analysis, the low levels of DNA from contamination pose a far more significant problem. As the essence of the technique is the detection of minute levels of DNA, there is a far greater likelihood of contamination DNA having a substantial effect upon the profiles obtained. Due to the sensitivity of the technique, both background l evel DNA and DNA from casual contact will be detected (Budowle, 2001: 2). This is most problematic, as these contaminants cannot be removed physically or statistically. Because there is no way that the movements and contacts of the victim before, during and after the crime event can be assessed and accounted for, the possibilities of adventitious transfer cannot be directly ascertained (Gill, 2001: 230). The possibility of secondary transfer ought to also be acknowledged. Theoretically, secondary transfer means that extraneous DNA could be carried by the perpetrator and deposited at the crime scene. Van Oorschot and Jones demonstrated that DNA can be transferred from objects to hands (1997). Although the likelihood of such transfers is contested, such secondary transfers could result in the deposition of a multi-source sample at a crime scene (Phipps and Petricevic, 2007; Ladd et al, 1999). It may be very difficult to establish whether a true mixture of DNA profiles exists when using the LCN technique (Hoffman Wulff, 2006: 2). Therefore, it is important to acknowledge that evidence may include a mixture of DNA profiles, which may include disinvolved individuals, the perpetrator and crime scene investigators (Gill, 2001: 230). Such a possibility greatly complicates interpretation and means that the results obtained could well be flawed. When the results provided by the technique may a ffect the liberty of an individual, it is particularly important that limitations and possibilities for inaccuracy are acknowledged. Difficulties related to contamination are made even more significant as a result of the considerable lack of understanding about the issues of the transfer and persistence of DNA, which constrains scientists ability to statistically account for DNA contamination (Gill, 2001: 230). There are significant differences in DNA deposition between individuals and as some are better than others at shedding DNA, decay rates are unpredictable (Phipps and Petricevic, 2007: 167; Lowe et al, 2002). For example, Murray et al (2003: 780) found that good DNA shedders would come to form the major component of the DNA mixture found on a second hand watch strap after only several days. By contrast, poor shedders took as long as two weeks to comprise the majority of the DNA in the mixture (Ibid.). Similarly, van Oorschot and Jones (1997: 767) demonstrated that; when a number of individuals handled objects, the dominant DNA profile was not always that of the individual who last held the object. Rather, th e dominant DNA profile was dependent on the shedding ability of individuals (van Oorschot and Jones, 1997: 767). However, identifying individuals as being either good or poor shedders is not possible, because the shedding ability of a given individual does not remain consistent. Indeed, variable factors have been demonstrated to affect the amount of DNA deposition. Phipps and Petricevic (2007) established that DNA deposition is affected by factors such as whether contact is made by the dominant or non-dominant hand and the time since the hand was last washed. Therefore, as the transfer and persistence rates of DNA are impossible to establish, LCN DNA profiling cannot provide an indication of when DNA deposition occurred. As such, both awareness of and further research into the multiple factors which influence DNA shedding is required (Phipps and Petricevic, 2007; Hoffman Wulff, 2006). Further contamination can occur during the collection of evidence. Forensic evidence is generally collected in uncontrolled environments, by police officers whose training in preserving the integrity of biological samples is, at best, limited (Lynch, 2003: 96). This factor becomes especially problematic when using LCN DNA analysis, as the small sample size greatly increases the risk of contamination. Given that LCN DNA analysis ought only to be undertaken in sterile environments, where equipment and furniture must be frequently bleached, the quality of the collection of the sample is very important (Gill, 2001: 229). Although laboratory standards cannot be expected, the evidence must be reviewed with an acknowledgement of this limitation. In the UK, Regina v. Hoey in 2007 demonstrated the potential impact of these limitations. The basis for Hoeys 2003 conviction for 29 murders during the Omagh bomb attacks was the evidence obtained from LCN DNA profiling. However, the conviction was then overturned on appeal in 2007, as the appeal established that the DNA evidence had been handled in a thoughtless and slapdash fashion (Weir, 2007: 23). Although this example displays that evidence which has been treated incorrectly may be dismissed at appeal, it is crucial to note that evidence ought to be presented alongside information about the potential limitations of its accuracy, as grave miscarriages of justice may otherwise result. Due to the limitations of the technique, analysis of the results of LCN DNA analysis must only be done with an awareness of the special considerations about the potential inaccuracy of the technique (Gill, 2001: 229). It is crucial that both forensic scientists and courtroom staff are aware that LCN DNA evidence is inextricably linked to a higher likelihood of achieving adventitious likenesses or exclusions than standard DNA profiling (Gill, 2001: 230). This is clearly problematic when the results of the technique are being used legally, as incorrect outcomes have devastating and untenable consequences (Morgan and Bull, 2007a: 43). Although it may be possible to statistically account for experimental errors in the future, it will remain crucial to acknowledge the potential for personnel to make mistakes. In U.S. V. Llera-Plaza in 2002, an FBI scientist stated: error rate is a difficult thing to calculateà ¢Ã¢â€š ¬Ã‚ ¦ to say theres an error rate thats definable would be a misreprese ntationà ¢Ã¢â€š ¬Ã‚ ¦ the method is one thing, people making mistakes is another issue (Saks and Koehler, 2005: 894). 3. Problems with interpretation DNA profiles (both normal and LCN) are often not interpreted correctly. Although DNA evidence ought to only be used to exclude, matches are commonly referred to. For example, following the 1981 murder of Marion Crofts, the UK Forensic Science Service contended that a LCN DNA profile found on the victims clothing matched that of the suspect Jasinskyj (FSS, 2005). Similarly, in U.S. v. Byrd, a forensic scientist for Pennsylvania State Police testified that it was 99% likely that the DNA obtained from the murder implements matched the DNA of Byrd and his victim (Hoffman Wulff, 2006) Despite the fact that DNA analysis superseded techniques such as handwriting analysis and lie-detector tests which were less scientific, it remains important to acknowledge the errors of interpretation which may still occur with the newer techniques (Lynch, 2003). Although the methodology underpinning DNA analysis is scientifically sound and has a firm theoretical basis (Broeders, 2006: 152), using procedures which are commonplace in biomedical research (Lynch, 2003: 95); forensic science remains an applied science. As such, although the results of the biological process may be sound, the inferences made from these results could still be incorrect. This consideration is especially relevant for LCN DNA analysis, where an apparently matching profile can be obtained through contamination of the evidence. Matches and categorical identifications are impossible throughout the realm of forensic investigation, unless the number of potential sources is limited and known, (Broeders, 2006: 153). Although the probability of individuals exhibiting high levels of DNA similarities is considered to be vanishingly small (Broeders, 2006: 155), DNA characteristics are nevertheless class characteristics and thus cannot individualise (Thornton and Peterson, 2002). Only where reference to an indefinitely large set of alternative potential sources has been made, can the Huberian principle of individualisation be exercised (Broeders, 2006: 153). This invokes the classical induction problem, that individualisation from DNA analysis would require the analysis of everyone who has ever lived, is living and will ever live. As such, DNA can only provide a probabilistic conclusion that the profile matches that of the suspect (Broeders, 2006). However, correct forensic procedure would only ever assess the simila rity of DNA profiles after failing to exclude them (Budowle et al, 2001). As Stoney so eloquently highlighted, what made us ever think we could individualise using statistics? (1991: 197). Thus, using DNA profiling for identification rather than exclusion overlooks the very nature of DNA profiling as a classification process and also contradicts one of the key tenets of forensic science: when undertaking comparison of samples, exclusion should be sought rather than a match (Morgan and Bull, 2007: 86). As a result of the increased sensitivity of LCN DNA analysis and the risks detailed above, strictly adhering to the principle of exclusion is especially important. However, it is evident that current use of LCN DNA typing does not always fulfil this key philosophy of forensics. The expectation of obtaining DNA matches has been further complicated by the CSI effect, which has led to juries placing increased trust in the expert witness and contributed to the incorrect idea that forensic science is infallible (Morgan and Bull, 2007a). Although LCN DNA typing uses scientific techniques, in the courtroom credibility is fashioned and undermined in testimony (Lynch, 1998: 829). As the judge and jury are unlikely to be familiar with scientific theory and practice (Morgan and Bull, 2007a), the jurys status as a susceptible body of individuals, whose judgment may have been affected by media portrayals of powerful and successful forensic techniques becomes most significant (Morgan and Bull, 2007a: 44). Although courts tend to place their trust in the expert witness (Lynch, 2003), incorrect expert testimony has been cited as a contributor in 63% of wrongful convictions (Saks and Koehler, 2005: 893). Adherence to the exclusionary principle is therefore particularly impo rtant, especially due to the sensitivity of LCN DNA profiling. The CSI effect has also increased juridical expectation for evidence to be presented. Juries now often demand unreasonable levels of physical evidence in order to reach a verdict (Morgan and Bull, 2007: 84). Negative evidence expert witnesses may even be called upon to explain an absence of evidence in a trial (Hoffman Wulff, 2006). Indeed, the increased sensitivity of detection provided by LCN DNA analysis may act to further such expectations. However, it is important for forensic scientists and courtroom staff to remain mindful that contacts that are unrelated to the forensic event may have transferred enough DNA to be detected by LCN analysis. 4. The Courtroom Although DNA profiling utilises scientific techniques and may thus appear to be an objective procedure, the evidence itself remains silent and must be given a voice in the courtroom (Jasanoff, 2006: 330). As such, the objective science has to be represented. This need for representation renders the courtroom a sociology of knowledge machine, within which uncertainty can be produced (Lynch, 1998: 829). Indeed in 1995, U.S. v. Simpson, saw the defendant being exonerated after his star-studded legal team exploited every weakness in the process of evidence translation from crime scene to courtroom. (Jasanoff, 1998: 715). As there are so many limitations to consider where LCN DNA profiling is used, it is possible for lawyers to use strategically deployed language and powerful visualisations of evidence to dramatically influence legal proceedings (Jasanoff, 1998). There is therefore a strong argument for controls on evidence integrity and expert quality to be implemented, as seen in the U.S. legal system. Frye v. United States, 1923, constitutes the principal control on evidence in the American courts, defining expertise as: that which has gained general acceptance in the particular field in which it belongs (Saks and Koehler, 2005: 894). Regulations such as these are urgently required in the UK, where novel scientific techniques are currently accepted, without special scrutiny (Ormerod, 2002: 774). It is perhaps telling that LCN DNA evidence is considered admissible in UK trials, but used only as a last resort in a US criminal case (Hoffman Wulff, 2006: 4). Conclusion This essay has argued that, although biochemistry is undeniably of great utility for forensic science, the bridge between a laboratory science and an applied science must be carefully negotiated. This argument has been demonstrated through a focus upon the limitations of the use of LCN DNA profiling. However, although convicting a suspect solely on the basis of LCN DNA evidence would not be wise, doing so would also contradict a key tenet of forensic analysis: the need to employ a number of independent techniques (Morgan and Bull, 2007: 86). The limitations of LCN DNA analysis would be greatly reduced in significance if the findings are supported or contradicted by evidence from other techniques, as dictated by the philosophy of forensic science. This paper has demonstrated that the limitations of LCN DNA typing are considerable, however adhering to the tenets of forensic investigation will mean that these limitations are highly likely to become exposed or negated.

Womens Roles in Ancient Times Essays -- Females Sociology Sociologica

Women's Roles in Ancient Times For years, people have said that since the beginning of civilization our society has been patriarchal. This assumption is wrong. Archeological evidence proves that in the beginnings, the cultures were female-centered, with a creator goddess. Women's roles were valued as more important than men's role specially because they could give birth. Although this is true, no evidence suggests that these cultures had a matriarchal society. In fact, the evidence found supports the idea of a society where men and women worked side by side sharing the labor, with different roles or tasks, but all equally important. This idea declined over time until we got to the point where women were treated as slaves, and societies were completely male-centered. To prove that women did actually have a very important role in the beginnings of times, we will look at evidence from three archeological sites: Paleolithic Europe, the Neolithic "Old Europe" and the Neolithic Catal Huyuk. First, Paleolithic period in Europe which contains information for the oldest civilization we know up too now, covers the years 40,000 to 10,000 BCE. In this period, people saw the universe as an all giving mother, a very powerful force that gave life. The birth giving process, was looked upon as miraculous in this times, therefore women were venerated for them posses that ability. Evidence to support this theory, can be found in the paintings on the caves discovered in this site. Fist, in these paintings female figures or feminine symbols where always placed in the center, surrounded by the masculine symbols. Also whenever animals' drawings were found in those painting, they were often drawn with big bellies implying pregnancy. E... ...a society where women took on not only an important role, but perhaps the most important role that of the creator of life. However, as society developed and cultures were born the world changed, and we came upon what we have today. A world, where women not only do not have the important role it had before, but had to fight to get the minimal human rights that any human is entitled to. After generations, today we are able to support the importance of the role of women in the creation of many of the principal societies have been built upon such as agriculture and art. In spite of the many changes through the generations, there is one irrefutable fact that will always ensure the place of women in history, we will always be the giver-of-life. Even if that role has been cast down from that of a Goddess to that of an everyday woman, the miracle of it still remains intact.

Assignment On Aspects of Contract and Negligence for Business Essay

Introduction: A business organization has to face many criteria to conduct business in the worldwide business arena. Different domestic and international rules and regulations help to expand business and sometimes create barrier to the business. The law has an incredible effect over the business organization and others social working groups of the organization. Law helps to determine what is right or what is wrong for conducting a business organization. Contract is a part of the business transaction. Contract is an agreement between two or more parties each of whom has the intention to create a legal relation to have a lawful object between them. Contract is regulated by law that is enforceable by the court and legal jurisdictions. Contract is more used in the partnership business where each party has a common goal, trust one another and a specific time period. Q1.1: What are the essential elements of forming a valid contract? Explain the importance of each element by providing relevant legal principles derived from decided cases: An agreement that can be enforced by law is considered as a contract (Jones v.Daniel 1894). An agreement is enforceable by law when it fills up certain conditions that are regarded as essential element of valid contract. Essential elements are: Offer and Acceptance, Lawful Consideration, Intention to create Legal Relationship, Certainty: Offer Offer is crucial element for a contract, is very important that the offeror  to intend to for a term as an expression of willingness to enter in to a contract, contract which will became lawful upon acceptance. (Gibson V Manchester City Council (1979)1 WLR 294 HL) Acceptance An acceptance is a willingness that the offeree agree to all the terms of the offeror has made. Also the acceptance must be ‘mirror image’ of the offer. (Day Morris Associates v Voyce 2003 EWCA civ 189). If the offeree try to set up new terms on the offer, this normally is a counter offer which will kill the original offer. (Hyde v Wrench 1840). Lawful Consideration: Consideration is defined as an acts or a promise of a payment or charge or value which is called ‘Consideration’ made from promisor to the promise or both. (Currie v Misra 1875) An agreement should be based on the ‘freedom of contact theory’ of all parties. Free consent is hampered when coercion, mistake, fraud and misrepresentation are made. (Chappell & Co. v Nestle 1960 AC). Intention to create Legal Relationship: A legal relation is created through the agreement that is intended. An agreement to sell or buy a product is agreement intended to make legal relationship and is therefore contract. A contact may not be valid if the participants they are not intending to create legal relation. (Balfour v Balfour 1919). Domestic and Social contracts are not considered to be a legal relation. (Jones v Padavatton 1966). Also commercial agreements is normally considered that is made in a business context and automatically is an intention to create legal relation. (Case: Esso petroleum v Commissioner of customs and Excise 1976). Family agreements can be enforceable if there is a clearly made in to a ‘business contect’(Snelling v John G Snelling ltd 1973). Certancy As a contract to be valid it must contain terms of the contract and if a important term is hidden that contract will not be lawfull. Q1.2: Describe different types of contract usually undergone in business context. Critically analyze the legal impact of distance selling contract. Sales contracts, Employment contracts, Marketing contracts, Licensing Sales contracts are made between companies to companies and to private person to a  private persons, can be goods or services. Employment contracts is an agreement from employer to employee with terms of payments, benefits, period of time, rights and obligations. Marketing contracts are normally made from business to business or from persons to business to promote products and services to the general public or to business. Licensing contract is used normally to transfer rights to an individual to be able to licensee goods and services in regime of trade mark. Distance selling contract regulations: sellers give certain basic information to customer, deliver goods within 30 days, and provide customers a right to cancel their order. All business must comply with the ‘Sale of Goods Act’ Q1.3: Analyze the contrasting aspects of different kind of terms generally used in a commercial contract. 200 words The lawfulness of commercial contract based on different kind of terms. These terms are considered as implied and express terms. Four categories of implied terms (Porter v Tottenham U.D.C1915) are: Terms Implied by fact: Under this term court believe that both parties of the contract know about the fact. Terms implied in law: Under this term court indicate a specific law of defined type in the contract. That law protects the weaker party in the contract. Terms implied by custom: In this term, local custom is applied on the contract. Terms implied by trade usage: Terms regularly used in contracts within a particular business can be im plied on other such contract. Express terms are: a) Oral contract b) Written contract c) Parole evidence role d) Collateral contract There are three types of contractual terms: a) Condition: Major term of contract. Serious consequence occurs when it is broken. (Poussard v Spiers and pond 1876) b) Warranties: Under this term an affected party can sue for damage when it is breached but cannot terminate the contract. c) In nominate term: If this type of term is breached serious or negligible result can occur depending on the particular fact. ‘Implied terms are more sensitive to deal with than express terms in a business contract’ – how far would you agree with this comment? In contract implied terms refers to terms that are not directly written in the contract but are introduced into contract by the court or by statute. Express terms are conditions that are directly written and agreed by both parties at the time of contract made. As the terms are not mentioned in the contract, it is more sensible to deal with during conflict than express terms. Task 2: Application of Contracts in Business Situations Q2.1: (a) Green Pharma put an advertisement in a trade journal stating: ‘for the wholesale buyers only, our ‘new moisturizing creams’ are now at a special low price of  £10 per dozen.’ Mr Khan, one of Green Pharma’s trusted vendors, rushed to one of your show room and wanted to place a large order. Meanwhile the company made a new decision not to sell the creams any more. Mr Khan became cross and he wished to pursue a legal action against the company. Advice Green Pharma about the possible legal consequence. Justify your comments with reference to similar case precedents. In the given business scenario Green put an advertisement to sell its new moisturizing cream at a special low price Green Pharma was making only an invitation to treat. ((Partridge v Crittenden (1968) 1 WLR 1204). As a result Mr. Khan one of the trusted vendors rushed to one of the show room and wanted to place a large order but he was refused to give order. As a result he wished to pursue a legal action against the company. Mr. Khan wanted to make an offer to Green Pharma to buy the goods but was no acceptance from the company therefore was not valid contract, in event of seeking legal action from Mr Khan will not affect Green Pharma in any way legally. (b) You work into the night to complete ‘an important report’ for your immediate boss, Tania. Tania is very pleased with the report and says ‘I know you have worked very hard on this, I will make sure there’s an extra  £200 in your pay at the end of the month. Can you enforce this promise? 100 words In the given situation you can’t make lawsuit against Tania although it is a oral promise that is done with spoken words. Tania makes a statement or promise which we can call consideration but that consideration was completed before Tania has made her promise. We called this situation past consideration so it can be a lawfull consideration (Re McArdle 1951). (c) Joe works in the purchase department of Green Pharma. He lives near to you. By an agreement he provides you with a lift to work in return for a contribution towards the petrol. Would this contract be legally enforceable? Justify your answer with legal arguments. In the above situation Joe can’t be enforced in this contract legally due to lack of intention to create legal relation, furthermore the agreement was done in a social context, if in event to seek legal action the court will not enforce this agreement (Balfour b Balfour 1919) Q2.2: Alban is the business development manager of Green Pharma. Four months ago he bought a ‘Landmaster’ car from Brenda’s Garage Ltd for use in his business activities. He paid  £12,500 for the car and was given a written guarantee in the following terms. ‘Brenda’s Garage Ltd guarantees that, for three months from the date of purchase, it will put right free of charge any defects in the vehicle which cannot be discovered on proper examination at the time of purchase. Thereafter all work and materials will be charged to the customer.’ The sales manager recommended to Alban that he should take out the ‘special extended warranty’ under which, for payment of  £350, the car would have been guaranteed in respect of all defects for a further two years, but Alban declined. Last week the engine and gearbox seized up. The repairs will cost  £2,000. Advise Alban. Would your answer differ if he bought the car only for his personal use? In the given scenario I think there would be difference between contracts whether it is made with personally or commercially. All contracts are made up with the essential elements. When Alban purchases a Landmaster car from Brenda’s Garage ltd for use in business activities, he made a legal contract through offer and acceptance, and a written agreement. It also includes the  consideration in the contract that defines each party to the agreement gets something. There was the existence of the certainty element of the contract through which Brenda indicates for three month from the date of purchase they will provide warranty service of the car. If Alban purchase the car for personal use he would make a contract with the seller of the by maintaining the element of the valid contract. Alban can not make a claim for compensation of the car if want it to do that because was outside of the warranty was given. Although if Alban would buy the car for personal use he has the right to l awsuit against the Brenda’ to recover the cost repair due to Sale Goods Act implied terms of satisfactory quality. Q2.3: Explain the effects of the following in the running of a Pharmaceutical company such as Green Pharma: a) Breach of conditions, and, innominate terms Breach of condition: Condition is the basic term of contract we also can call it hart of the contract. When condition is breached, the affected party can sue as well as end the contract and claim for damages. Warranty: Warranties as a secondary condition can be a specific kind of terms representation of fact that the law can enforce against the warrantors. If a warranty is breached the victim party can only demand for compensation but cannot end the contract, therefore Green Pharma offer replacements which will conduct to damages only. Innominate terms: As a result of such breach the innocent party is deprived of the whole benefit of the contract. The inexperience vendors will be entitled to repudiate the contract and to get compensations (Hong kong fir shipping co. ltd v Kawasaki kisen kaisha ltd (1962) b) Legality of exemption clauses. Please include relevant examples to explain different aspects of the terms. 200 words An exemption clause is a term in the contract made by one party to protect them from lawsuit done by other party for damage,loss,negligence or non-performance etc. It is done usually by the party who draft the agreement. For example, a digital camera shop use exemption clause in their selling document where they accept no liability for any damaged camera after selling it to customer. Thecourt generally describes exemption clauses narrowly to see if it is logical in specific perspective. An exemption clause can be included and bound into a contract if it is written in a signed contractual document; it does not fact whether  the party understands it. Task 3: Principles of Liability in Business Negligence Q3.1: In what aspects, liabilities in tort are different from contractual liabilities? Give examples of ‘duty of care’ in the context of someday- to- day situations. Explain the concept of ‘causation’ and ‘remoteness’ in the tort of negligence. 220 words Tortuous liability is more imposed in nature whereas Contractual liability is freedom. Contractual liability holds more privacy than liabilities in tort (Fleming, 1984). Sole proprietorship and Partner in partnership are responsible for the tort committed by them and torts committed by the business. In the contractual liability parties are engaged with one another by mutual consent which is conducted by the contract. On the other hand, the relationship in the tortuous liability is imposed by the law, the defendant must responsible the claimant a duty of care. The basic contrast between the contractual liability and the liability in tort is that the first is the result of agreement whereas the second is the result of law. Day to day examples of duty of care: a) Keepers of dangerous pets will hold a duty of care to people who will be likely to be affected. b) Lorry drivers owes a duty of care to his goods that it’s delivering. According to the law, duty of care is a legal responsibility that is applied on an individual requiring maintains a reasonable care during completing a specific task to overtake any acts that make jeopardize others. Duty of care is done by a employer to his employees, by a traffic police to the pedestrian, by a supplier to the manufacturer for the quality of the raw materials etc. Causation defines and determines the extension of liability. Causation is the indicator through which one party proves that another party makes loss to them that is considered before damages. It may be difficult to prove when there is more than one cause. Remoteness determines how much a defendant is responsible for his wrongful doings. A defendant must make up the damages or loss if it is within the reasonable consideration. Q3.2: Explain the nature of liability in negligence by giving reference to  different scenarios. Negligence is not intentional tort but accidental. Negligence liability holds that defendant know about the probable risk that can occur damage largely to the injured party. Here the injured party does not know about the risk before it happens. Negligence liability also assumes that the defendant has control power over the probable risk of harms that caused the plaintiff injury. (Lewis, R., Morris, A. and Oliphant, K.2006).For example, negligence liability occurs when a landlord sell a portion of his property to a customer although knowing about the legality problem in the property documents that may cause serious damage in future if any legal issues increases. In this situation the buyer of the property will know about the problem and damages after the occurrence happens. Another example, negligence liability occurs when a nurse does not mention the medicine to the patient who has no knowledge about the medicine causing the patient take wrong medicine. Q3.3: Explain the legal requirements to hold employers vicariously liable for the torts committed by their employees. Vicarious liability in English law is a doctrine that applies rigorous liability on the employers for the wrongdoing of their employees (CRC-Evans Canada Ltd. v. Pettifer1997). In this perspective, the person who is vicariously liable is free from blame although the person is legally responsible. An employer is vicariously responsible for doing the conduct of employees or a group of employees, agents, supervisors or managers, a person deployed by the firm disturbing a member, workplace participant etc. The provision of the vicarious liability refers to the to the legislation that applies if the person was an employee and not from a contractor or agency. (Mersey Docks & Harbour Board v Coggins and Griffiths Ltd 1947). We can consider tort of an employee if occurs to connection with the person’s employment. Without taking all responsibilities the employers may be held liable for the actions of the employees. (Limpus v London General Omnibus Co 1862) Also we may have another situation where the driver of a bus company is not in his course of employment where is injures passengers it can not be responsible for the accident. (Beard v London General Omnibus Co 1900) Courts attribute to the employer where the employers’ objectives do not reach in the absence of the employee’s serious risk which has committed. So,  there are some close connection between the tortuous act of the employee and the circumstances of his employment to establish a vicarious liability. Examples of vicarious liability are: employees seize the goods of the firm. Task 4: Application of Principles of Liability in Business Situations Q4.1: By applying the relevant legal principles answer the following: (a) what is the level of duty of care to be shown by (1) a learner driver (2) a Chinese herbal doctor working in England and (3) Junior doctor in a hospital? The duty of care refers to the principle that the duty to take responsible care to avoid foreseeable injury to a neighbor. A learner driver Must know the rules and regulations of the traffic and level of care is not been different from all other drivers. (Nettleship v Weston 1971). Understand the possible magnitude of the probable harm or injury occurred on roads. Know the importance of the social value of this activity. Chinese herbal doctor A doctor must mention reasonable harm and can not be considered a full doctor therefore is not grade of comparison. (Shakoor v Situ 2004). The relationship between the defendant and the claimant about proximate cause. A junior doctor To practice under the supervision of senior doctor (Bolam v Friern Hospital Management Committee 1957). Maintain reasonable standard of the profession. Avoid negligence actions for medical malpractices. Know the bad effect of malpractice that causes harm or injury. (b) Green Pharma engages Mr Ken, a local electrician, to rewire its office. Two weeks later Leo, a visitor, is electrocuted. Discuss Green Pharma’s liability in tort. Would your answer differ if Green Pharma put the following notice at the entrance: ‘Persons entering these premises do so at their own risk’? 125 words A tort liability is the legal obligation of a party which causes to suffer or loss someone as a result of a civil wrong or injury. Green Pharma has experience in defending clients, variety of personal injury. In this scenario it is found that one of the visitors has attacked by the electrocuted. There was a rule to set up a notice for awareness. But due to  negligence of the employee the notice was not hung. As a result, the Green Pharma is responsible for the accident of the visitors. The visitors can sue for getting the compensation of the damage. If there was the rule in the entrance: ‘Persons entering these premises do so at their own risk’. In this perspective the visitor should follow the notice in the entrance. If not follow Green Pharma will not responsible for the accident. The visitor cannot sue against the company for getting the compensation for the damage. Q4.2: (a) John is a van driver employed by Green pharma. While on his rounds, he stops to collect his own television from a repair shop. He parks his van carelessly and it moves off, injuring Kelly, a pedestrian. Is Green Pharma vicariously liable? Vicarious liability indicates a situation where someone is liable for the acts of another person. In this business scenario John is van driver employed by Green Pharma who use the van for his personal use to carry a television from a repair shop. As he parks the van carelessly that resulting injured Kelly a pedestrian, the pedestrian can sue against the Green Pharma because the owner of the van is the Green Pharma who not is vicariously liable for the injury of the pedestrian. Beard v London General Omnibus Co 1900 (b) Robert, who is a security guard in Green Pharma’s head office, has been encouraged by the company to keep order by force – if necessary. One night he grabbed one MrMattis on suspicion and stabbed him in the back. Discuss the potential vicarious liability of Green Pharma. 100 words Here Green Pharma plays the role of the employer and Robert is the employee of this. Green Pharma is vicariously liable for the act of the Robert because he has done the action encouraged by the company to protect his job. Seemingly, Green Pharma is free from the blame but it is legally liable for the negligence of the employee. As a result Mr.Mattis affected by stabbing can demand for the compensation that must be paid by the company. Many employers are not aware that they can be liable for a range of actions done by their employee in the course of their employment. Conclusion: To regulate and expand the business the importance of law is increasing day by day. The capacities and culture of the different organization and nations are not same. Law provides the fundamental understanding of the negotiation  deals that is required in the business. Legitimate contract helps to debate settlement of the business organization in the court by legal jurisdictions. Top management of a organization should know the reasonable information about the various elements of the agreement to understand and get important point in the business arena. References: 1. Burrows, A. (1995), ‘Solving the Problem of Concurrent Liability’ Current Legal Problems 103. 2. Fleming, J. (1984), ‘Comparative Law of Torts’ 4 OJLS 235. 3. Lewis, R., Morris, A. and Oliphant, K. (2006), ‘Tort Personal Injury Claims Statistics: Is There a Compensation Culture in the United Kingdom?’ 2 JPIL 87. 4. Markesinis, B. S. (1987), ‘An Expanding Tort Law – The Price of a Rigid Contract Law’ 103 LQR 354. 5. Stapleton, J. (1985), ‘Compensating Victims of Diseases’ 5 OJLS 248. 6. Whittaker, D.H. (1990) Managing Innovation: A Study of British and Japanese Factories, Cambridge: Cambridge University Press. 7. Wedderburn, Lord (1986) The Worker and the Law, 3rd edn, London: Penguin. 8. Waddington, J. (1992) Trade union membership in Britain, 1980–1987: unemployment and restructuring, British Journal of Industrial Relations, 30(2): 7–15. 9. Simpson, B. (1986) Trade union immunities. In Lewis, R. (ed.) (1986) Labour Law in Britain, 10. Oxford: Blackwell. 11. CRC-Evans Canada Ltd. v. Pettifer(1997) 12. Porter v TottenhamU.D.C(1915) Jones v.Daniel (1894) 2 Ch. 332].

Legal institutions in the financial market - Free Essay Example

Sample details Pages: 8 Words: 2476 Downloads: 5 Date added: 2017/06/26 Category Finance Essay Type Narrative essay Did you like this example? Legal Institutions and rules are essential to building up strong and vibrant financial markets. Do you agree? As has been acknowledged by many writers, financial markets rely on laws and regulations to ensure that financial transactions occur in predictable ways. This is important for the efficient functioning of markets, as the more confident the participants in said markets are in the laws governing transactions, the more likely they will be to invest, and the more significant their investments. Indeed, given that any free market economy is dependent on the repeated actions and interactions between buyers and sellers of goods and services, some legal protection for both will be vital to ensure that markets remain stable in the long term. However, the generally accepted view is that the law has historically needed to be well developed and consistently applied in order to generate this long term stability. Indeed, as early as the 18th century, Adam Smith (1776) argued that, in order to function properly, markets needed to be guided and regulated to avoid exploitation. Whilst Adam Smith is often cited as promoting minimal outside interference in markets, he nevertheless realised that the à ¢Ã¢â€š ¬Ã‹Å"Invisible Handà ¢Ã¢â€š ¬Ã¢â€ž ¢ needed a strong legal framework and basis in order to be effective. However, Chase (1971) argues that there are numerous laws and regulations which actually interfere with the efficient operation of many intermediaries in financial markets. Whilst Chaseà ¢Ã¢â€š ¬Ã¢â€ž ¢s (1971) work mainly focuses on laws affecting the depositing of funds, the laws as a whole place significant restrictions on new firms entering financial markets, place restrictions on mergers and acquisitions, restrict investment portfolio regulations, and often include mandatory, and inefficient, insurance programs to reduce the risk to external participants. Whilst supporters of these laws claim that they reduce the tendency for interna l participants to take excess risks with external participantsà ¢Ã¢â€š ¬Ã¢â€ž ¢ investments, Chase (1971) argue that they also reduce competition and innovation, thus acting to redcue the performance of markets. Hence, whilst they may increase the security and reliability of transactions, this is not necessarily good for investors who wish to voluntarily sacrifice security for additional performance. Further to this, Strahilevitz (2007) argues that laws and legal interventions can actually pose a threat to the development of more advanced forms of market activity, such as social production. Indeed, this argument is based on the fact that the existing legal and institutional framework actually acts to maintain the status quo, hence reducing the chance that initiatives such as social production will increase market participation and help reduce the gap between the rich and the poor. However, Walker (2000) makes the point that, whereas traditional markets involve exchanging goods o r services for payment, financial markets are fundamentally based on exchanging money in expectation of future rewards. These rewards may be interest, potential capital appreciation, or a right to future corporate earnings, but the key factor is that the promised returns must be creditable. As such, legal rules and frameworks such as bankruptcy provisions and loan securities, together with recourse to the courts should there be a dispute over a debt or a contract, are vital for ensuring this credibility. In particular, Walker cites and analyses the Asian financial crisis as an example of how inadequate security and creditworthiness in the global financial market triggered a major crisis. However, whilst Walker (2000) argues that the legal and regulatory framework should develop with the market, in order to support ongoing financial stability; this is often not what occurs in real life. Instead, regulations such as Basel II and Sarbanes-Oxley were created and enacted only in response to issues, such as the Enron fraud, as said issues arose. Indeed, there are growing arguments in favour of embracing the concept of the social market economy, whereby the market is regulated by social cohesion, with only a basic framework of legal rules and regulations. As such, the normalisation of transactions in the market is driven by shared cultural values and common interpretations of fairness and reliability. There is still recourse to the courts for any major issues encountered in the markets, but the spirit of the agreements between buyers, sellers and intermediaries is considered, rather than the letter of the agreements. As such, the market has more of a constitutional status than a legal and regulatory focus (Ebner, 2006). Whilst this type of market will likely require more conceptual development before it can be made viable on a large scale, it offers the chance to move away from constricting and reactive legal and regulatory frameworks and towards a more holistic m odel of the market. However, in the short term, it is clear that legal rules are still a vital component of a well functioning market economy. Gianetti (2003) argues that legal rules, along with firm characteristics and financial development, are vital factors in the raising of corporate finance; which in itself is a vital part of any financial market. As part of this argument, Gianetti (2003) demonstrates that rules providing a good level of protection for creditors increase the flow of capital within the market, particularly for unsecured loans or firms operating in volatile sectors. This is particularly important in developing nations, where their stock market is less advanced; as the majority of firms will unlisted and thus will need to raise more finance from debt, rather than equity. In addition, providing legal rules which support the rights of creditors, and provide functioning enforcement mechanisms, tends to increase the amout of long term debt available to firms (Giann etti, 2003). However, Bar-Gill and Fershtman (2004) argue that legal rules have a more important role than simply incentivising markets; rather the rules actually change participantsà ¢Ã¢â€š ¬Ã¢â€ž ¢ preferences and behaviours. As such, given that free markets invariably encourage participantsà ¢Ã¢â€š ¬Ã¢â€ž ¢ self interests, it is necessary to understand how laws and regulations affect preferences and behaviour, as well as how they affect outcomes. As such, Bar-Gill and Fershtman (2004) argue that legal rules must be created to address all individual concerns, particularly their concerns around being treated fairly, in order to encourage efficient and productive behaviour by market participants. As such, legal rules such as enhancing the remedies available to participants for breaches of contract will likely reduce the equilibrium preferences for fairness, as the participants seek contracts which are more advantageous for themselves. However, Kerwer (2005) argues that the e fficient regulation of financial markets needs to move away from rigid legal rules, and towards more voluntary and alternative options such as best practice rules and standards. This is based on the claim that, where these standards can be agreed, they can be highly effective in moderating behaviour, to a greater extent than rigid legal rules. In particular, standards have influence because they are based on the knowledge and expertise of the market participants, rather than being driven by outside institutional agencies, and will thus be more acceptable for states which want to maintain their regulatory autonomy. For example, the Sarbanes-Oxley legislation was passed by the US Senate, and thus creates problems for firms looking to do business in the United States, whilst being based in a nation which has not adopted the Sarbanes-Oxley requirements. In addition, Kerwer (2005) argues that global standard setters can often be held more accountable than regulatory institutions setting legal rules, as the standard setters will answer to the market, not to the government. This implies that standards could play an important future role in market regulation. Rodrik and Subramanian (2003) argue that institutions are vital to the development, regulation and maintenance of stable financial markets. However, they acknowledge that there is no one institutional framework which will be suitable for all settings, with many different nations having different institutional frameworks with varying degrees of success. Indeed, this is supported by Stephen et al (2005) who argue that whilst institutions are important in promoting entrepreneurial activity in both developing and developed nations, nations need to take a contingent approach to the development of said institutions. Stephen et alà ¢Ã¢â€š ¬Ã¢â€ž ¢s (2005) work supports the fact that legal rules and institutions need to protect creditors and investors, in order for financial markets and economies to grow. However, th ere are no such prescriptive solutions for the nature of the institutions needed to support this growth. This argument is further developed by Teubner (2002) who argues that the process of globalisation is deconstructing the traditional framework of legal and institutional norms; making pluralism a driving force in formation of global markets. As such, a new framework for legal and regulatory institutions is required if said institutions are to remain relevant in the modern global economy. A similar argument has led Ramirez (2007) to argue that the legal structure underlying corporate governance standards in the United States, and the wider world, needs to be altered to reflect this changing nature. In particular, the inherent nature of corporate governance implies that it should be based upon the verdicts and influence of the market. This implies that corporate governance best practice and à ¢Ã¢â€š ¬Ã‹Å"scienceà ¢Ã¢â€š ¬Ã¢â€ž ¢ should be used to largely replace the current ins titutional framework, as these institutions are largely driven by political concerns and are thus poorly equipped to impose relevant standards (Ramirez, 2007). In spite of the growing backlash against the institutional dominance of the financial markets, many academics continue to argue that legal and regulatory institutions are essential to maintain strong financial markets. This is largely due to the fact that institutions set up to protect investors have been shown to increase the strength of markets by reducing and controlling information asymmetries (Black, 2001). In addition, Musacchio (2008) argues that institutions are vital in ensuring continued creditor protections and the enforcement of financial contracts such as bond contracts. However, Musacchio (2008) also argues that institutions are somewhat constrained by past legal traditions, and thus have an inherent tendency to be backwards looking when attempting to regulate markets. Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Driscoll and Hoskins (2006) also recognise this backwards looking tendency, however they argue that this is largely restricted to government institutions. As such, they claim that markets are characterised and governed by both prices, and by market rules and institutions, with government institutions often undermining the existing system of market based regulation. However, it is important to recognise that some institutions do not always act to support the economy; rather they use the legal frameworks and existing institutions to act against the market for their own self interest. By far the most well known of these institutions are the trade unions, who have been argue to both promote and reduce levels of economic efficiency and social welfare in markets (Kaufman, 2005). This is because the trade unions are well versed in the rigid legal rules and regulations, and thus are able to use them to their advantage by arguing that the laws they are using are designed to increase social welfare. They also take advantage of the fact that many lawyers will be systematically optimistic about their ability to use the legal frameworks to their advantage in court. As such, they will frequently use the threat of litigation, and its associated costs, to force any opponents into a favourable settlement (Bar-Gill, 2006). This is argued to be due to the current design of the legal and institutional framework, which serves to support any court action against market participants, thus arguably decreasing the efficiency of the markets and placing a financial burden on participants. As such, it is clear from both sides of the argument that legal rules and institutions are essential components of a strong market. Without them, unscrupulous participants would be able to operate with impunity, breaking contracts and failing to repay loans. Whilst internal market regulations could impose penalties on these participants, without the backing of legal rules and institutions, there would be no effective way of enforcing these penalties. However, whilst there is a strong argument in favour of a strong, basic legal framework to protect creditors and enforce contracts, there is also an argument that any further regulation is better performed by market based institutions, rather than legal rules and government institutions. In particular, critics of legal regulation argue that the Sarbanes-Oxley Act in the United States has damaged the American financial markets, whilst the market based Financial Services Authority in the UK has helped increase the UK marketà ¢Ã¢â€š ¬Ã¢â€ž ¢s competitiveness by providing a more market based form of regulation (Bloomberg and Schumer, 2007). This market driven regulation also helps reduce the occurrence of corporate lawsuits in the UK, thus further reducing the burden on market participants. As such, whilst legal rules and institutions are vital parts of strong, stable markets, it is important to recognise that they should only form part of the overall market framework, and should not be used to the exclusion of other factors such as best practice, market standards and market based institutions. References Bar-Gill, O. (2006) The Evolution and Persistence of Optimism in Litigation. Journal of Law, Economics Organization; Vol. 22, Issue 2, p. 490-507. Bar-Gill, O. and Fershtman, C. (2004) Law and Preferences. Journal of Law, Economics Organization; Vol. 20, Issue 2, p. 331-353. Black, B. S. (2001) The Legal And Institutional Preconditions For Strong Securities Markets. UCLA Law Review; Vol. 48, Issue 4, p. 781. Bloomberg, M. R. and Schumer, C. E. (2007) Sustaining New Yorkà ¢Ã¢â€š ¬Ã¢â€ž ¢s and the USà ¢Ã¢â€š ¬Ã¢â€ž ¢ Global Financial Services Leadership. City of New York / United States Senate. Chase Jr., S. B. (1971) Financial Structure and Regulation: Some Knotty Problems. Journal of Finance; Vol. 26, Issue 2, p. 585-597. Cranston, R. (2003) Principles of Banking Law: 2nd Edition. Oxford: Oxford University Press. Ebner, A. (2006) The intellectual foundations of the social market economy. Journal of Economic Studies; Vol. 33, Issue 3, p. 206-223. Giannetti, M. (2003) Do Better Institutions Mitigate Agency Problems? Evidence from Corporate Finance Choices. Journal of Financial Quantitative Analysis; Vol. 38, Issue 1, p. 185-212. Kaufman, B. E. (2005) Historical Insights: The Early Institutionalists on Trade Unionism and Labor Policy. Journal of Labor Research; Vol. 26, Issue 1, p. 1-32. Kerwer, D. (2005) Rules that Many Use: Standards and Global Regulation. Governance; Vol. 18, Issue 4, p. 611-632. Musacchio, A. (2008) Can Civil Law Countries Get Good Institutions? Lessons from the History of Creditor Rights and Bond Markets in Brazil. Journal of Economic History; Vol. 68, Issue 1, p. 80-108. ODriscoll Jr., G. P. and Hoskins, L. (2006) The Case For Market-Based Regulation. CATO Journal; Vol. 26, Issue 3, p. 469-487. Ramirez, S. A. (2007) The End of Corporate Governance Law: Optimizing Regulatory Structures for a Race to the Top. Yale Journal on Regulation; Vol. 24, Issue 2, p. 313-359. Rodrik, D. and Subramanian, A. (2003) The Primacy of Institutions. Finance and Development; Vol. 40, Issue 2, p. 31-34. Smith, A. (1776) An Inquiry Into The Nature And Causes Of The Wealth Of Nations. London: The Adam Smith Institute. Stephen, F. H. Urbano, D. and van Hemmen, S. (2005) The impact of institutions on entrepreneurial activity. Managerial Decision Economics; Vol. 26, Issue 7, p. 413-419. Strahilevitz, L. J. (2007) Wealth Without Markets? Yale Law Journal; Vol. 116, Issue 7, p. 1472-1516. Walker, J. L. (2000) Building the Legal and Regulatory Framework. Building an Infrastructure for Financial Stability, Conference Series No. 44, Rosengren, E. S. and Jordan, J. S. (Eds) Paper presented at the Conference of the Federal Reserve Bank of Boston; June 2000, p. 31-66. Don’t waste time! Our writers will create an original "Legal institutions in the financial market" essay for you Create order