Assessment Of The Validity Of Legal Realism Philosophy Essay

Assessment Of The Validity Of Legal Realism Philosophy Essay The turn of the 20th century instigated the rejection of the formalism movement of John Austin, Jeremy Bentham, John Mill and David Hume. Realists sought to put in its place a more sociological account of the law in action.  [2]  The three leading members of the American realist movement were Oliver Wendell Holmes Jnr,  [3]  Jerome Frank  [4]  and Karl N. Llewellyn.  [5]  67 Principles Realists were preoccupied with empirical questions such as attempting to identify the sociological and psychological factors influencing judicial decision making.  [8]  One could argue that their implicit conceptual loyalties were positivist in theory, as they did not reject the notion that courts may be constrained by rules. However, realists did argue that the Courts exercise discretion much more often than is generally supposed.  [9]  Further they denied the naturalist and positivist views that Judges were influenced mainly by legal rules, they (realists) attach greater significance to political and moral intuitions about the facts of a case.  [10]   II American Realists A. Oliver Wendell Holmes Jnr Oliver Wendell Holmes Jnr (Holmes) could be called the intellectual and spiritual father of American Realism, and played a fundamental part in bringing about a changed attitude to law.  [11]  Holmes attempted to formulate a theory of law that was both responsive and stable for the changing nature of modern life.  [12]  13He commenced with the fundamental question of liability: What duty do human beings owe to one another?  [14]   Formalist legal doctrine held that there could be no liability without fault, that people should not be held responsible for acts that they did not cause or over which they had no control.  [15]  16Holmes considered an alternative to this intent standard that If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor (ie. strict liability).  [17]  Holmes argued that the proper object of the law was to publicize social duties by giving individuals a fair chance to avoid harm before being responsible for it it was not to instil individual morality through punishment.  [18]   Holmes believed in defining the law by reference to what the Court actually said it was, to consider what the law is, not what it ought to be.  [19]  He famously declared The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.  [20]   Further, Holmes introduced the bad man. As a moral skeptic, Holmes stated if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.  [21]  Holmes defined the law in accordance with his pragmatic judicial philosophy. He believed that legal developments could be scientifically justified: the true science of law consisted in the establishment of its postulates from within upon accurately measured social desires instead of tradition.  [22]   B. Jerome Frank Jerome Frank (Frank) has been described as the most radical of the American realists.  [23]  Frank believed that there are two groups of realists, rule skeptics who regard legal uncertainty as residing principally in the paper rules of law and who seek to discover uniformities in actual judicial behaviour, and fact skeptics, who think that the unpredictability of court decisions resides primarily in the elusiveness of facts.  [24]  The former, Frank proposes, makes the mistake of concentrating on appellate courts, whereas it is to the actions of trial courts that attention should be most directed.  [25]   Frank believed that for most realists, in their preoccupation with appellate courts, missed the important aspect of unpredictability in the judicial process: the elusiveness of facts.  [26]  Thus, the various prejudices of judges and jurors  [27]  often crucially affect the outcome of a case.  [28]   Further, the main impetus of Franks attack was directed against the notion that certainty could be achieved through legal rules.  [29]  Frank believed this to be absurd.  [30]  Frank stressed that the text-book approach, which treats the law as no more than a collection of abstract rules, is grossly misleading and that much of legal uncertainty is inherent and not due to deliberate mystification.  [31]  We want the law to be certain, Frank stated, because of our deep need for security and safety which is endemic to children.  [32]  As a child places his/her trust in the wisdom of his/her father, so we seek in the law and other institutions a similarly comforting security.  [33]   C. Karl N. Llewellyn Karl Lleyellyns (Llewellyn) most noteworthy contribution to realism is his functionalism, which perceives law as serving certain fundamental functions.  [34]  35For Llewellyn, an institution is an organised activity which is built around doing a job or a cluster of jobs. A major institutions job cluster is fundamental to the continuance of the society or group in which it operates.  [36]  If society is to survive, certain basic needs must be satisfied, which engenders conflict which must be resolved.  [37]   Much of Llewellyns interest has been focussed on what Llewellyn calls the ways in which in various types of community the law jobs are actually carried out.  [38]  Law Jobs are the basic functions of the law, which, for Llewellyn, are two-fold: to make group survival possible, but additionally, to quest for justice, efficiency and a richer life.  [39]   Law jobs are identified as being the: disposition of troubled cases; preventive channelling and the reorientation of conduct and expectations so as to avoid trouble; allocation of authority and the arrangement of procedures which legitimatize action as being authoritative; net organisation of the group or society as a whole so as to provide direction and incentive.  [40]   Llewellyn sees these law jobs as universal  [41]  and regards the most important job the law has is the disposition of troubled cases.  [42]  He puts forward his theory of them as a general framework for the functional analysis of law.  [43]  The first three law jobs describe bare bones law, but out of them may emerge, although Llewellyn gives no indication how, the additional questing phase of the legal order.  [44]   Further, in addition to major institutions, there are also minor institutions such as crafts which consist of the skills held by a body of specialists,  [45]  handed down from generation to generation by a process of education and practical example.  [46]  The practice of law is the practice of a set of crafts, and of these one of the most important is what is called the juristic method.  [47]   In the common law, says Llewellyn, the practice of the courts has fluctuated between two types of style which he names the Grand Style and the Formal Style. The Grand Style is based on an appeal to reason and does not involve a following of precedent; regard is paid to the reputation of the Judge deciding the earlier case, and principle is consulted in order to ensure that precedent is not a mere verbal tool, but a generalisation which yields patent sense as well as order.  [48]  Policy, comes in for explicit examination and the Grand Style is also categorised by resort to what Llewellyn calls situation sense.  [49]  The Formal Style is not so concerned with social facts.  [50]  Its underlying notion is that the rules of law decide the cases and policy is for the legislature not for the Courts.  [51]  This approach is authoritarian, formal and logical.  [52]   In the early nineteenth century, the Grand Style was employed, although, from the middle of the nineteenth century Llewellyn detected a shift towards the Formal Style.  [53]  However, by the middle of the twentieth century evidence shows a shift back to the Grand Style, a development which Llewellyn applauded by remarking as the best device ever invented by man for drying up that free-flowing spring of uncertainty, conflict between the seeming commands of the authorities and the felt demands of justice.  [54]   III Critics of Legal Realism Critics have branded legal realists as anti-democratic and totalitarian.  [55]  56Their core claim being, according to author Brian Leiter, that judges respond primarily to the stimulus of facts decisions are reached on the basis of a judicial consideration of what seems fair on the facts of the case, rather than on the basis of the applicable legal rule.  [57]   Further, Frank has been characterized as the prime representative of the radical tendency in American legal realism the realist who turned his back on legal rules and declared them to be well nigh valueless.  [58]  This characterization became official, as it were, with the publication of Professor Harts  [59]  (Hart) The Concept of Law in 1961.  [60]   In distinguishing formalism and realist rule-scepticism, Hart criticizes the rule-sceptics for focussing only on the function of rules in judicial decisions and ignoring those secondary rules which confer judicial and legislative power.  [61]  Hart found Franks work to be illustrative of the sceptical tradition in American legal realism,  [62]  although Frank himself distinguished scepticism as to rules and scepticism as to facts, declaring himself to be a fact-sceptic.  [63]   Llewellyns work has also attracted criticism from a number of standpoints.  [64]  From insisting on the universality of his law jobs, Alan Hunt argues that he  [65]  stumbles into a major theoretical deficiency of functionalism of imposing on disparate phenomena, from different societies and different historical periods, an a priori unity.  [66]  Further, William Twining (Twining) concedes that the Grand Style/Formal Style dichotomy has its drawbacks for it may be dangerous and misleading to pidgeon-hole judges or courts into styles as it is to lump jurists into schools.  [67]  68 IV Support for Legal Realism Holmes was concerned with promoting a new and more experimental and constructive attitude to social life and thought, but avoided making any specific proposals as a programme to be realised.  [69]  Author, John Dewey praised Holmes on this very ground, because he had no social panaceas to dole out, no fixed social programme, no code of fixed ends to be realised.  [70]   However, in Twinings view the main achievement of the realist movement was to concretise sociological jurisprudenceà ¢Ã¢â€š ¬Ã‚ ¦.  [71]  The relationship between the realist movement and sociological jurisprudence is a strong one.  [72]  Its connections with psychology, anthropology, economics and sociology are clear.  [73]   Further, author Brian Leiter (Leiter) sought to remedy many of the myths and misconceptions surrounding American realism.  [74]  Leiter challenges the view that realism is a  [75]  jurisprudential joke, a tissue of philosophical confusion.  [76]  Leiter maintains that it is time for legal philosophers to stop treating realism as a discredited historical antique, and start looking at the movement with the sympathetic eye it deserves.  [77]   Leiter believes that Harts sweeping dismissal of rule scepticism as the claim that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and predictions of them,  [78]  is an unfair misrepresentation of its members contributions to legal theory.  [79]  Thus, by demonstrating the limitations of a doctrinal account of law without a proper empirical investigation of the manner in which legal doctrine functions in society, the American realists unquestionably paved the way to the sociological approach to the law.  [80]   V Assessment of the validity of Legal Realism American Legal Realism in most of its manifestation, albeit that it was sceptical, can be described as fairly mainstream, it was not radical or subversive, it simply asked one to examine the law a practical phenomenon, rather than as an idealised natural law or legal positivist edifice. It is an antidote to the declaratory theory of law that asserts that law is determinate and certain and based on legal principles and the doctrine of precedent. Although, one may regard realism as shallow today, to assess the validity of legal realism, one must judge the pragmatic movement by its fruits, such as the impact it has had on legal education, the judicial process, legal anthropology, legal history, and legal sociology. In many respects sociological jurisprudence is an outgrowth of legal realism. Sociological jurisprudence developed from the same impulse to study the way the law works in an empirical or scientific experimental method. Further, realism indirectly engendered two movements Jurimetrics  [81]  and Behavouralism. These movements have taken over from where legal realism left off, for whilst the realists had some inspired ideas, developed a number of theoretical models, and urged us to exploit the social and technological science, these newer movements are firmly established within the mainstream of the social sciences and use techniques associated with them freely and to valuable effect.  [82]  

Governance Failure at Satyam

Analyzing the first aspect listed above, seems that Astray scandal originated, in first lace, due to a lack of moral and ethical standards from the company top management, as well as the board of directors, which have worsened, rather than mitigate, agency conflicts between shareholders and managers. Many were the evidences In this sense, from the bribery charges, that led to a ban from the World Bank, to the unsuccessful attempt to acquire a construction and a real state firms owned by the company promoters' relatives, in a clear sign of conflict of interests, that was originally approved by the board.In fact, if was not for the whistler's, no en knows how far they would go with the sham. Someone could argue that an exacerbated focus on short-term performance, the competitive market environment, and consequent pressure from analysts to meet market projections and maintain the company share prices overvalued, motivated the directors to start the results embezzlement process, pledging to do this to protect the firm from a potential hostile takeover.However, obviously none of these should be an excuse to neglect their duties towards various stakeholders. Besides this, it is difficult to believe that none of hose involved in the fraud did not earn any personal financial benefit, as stated by Mr.. Raja on his letter. Even that they did not have sold their stocks position, most likely their compensation package was more generous than It should have been, once misrepresented results excelled market expectations through the years.In fact, analyzing the evolution of promoters' stake in the company over the years indicates that they enriched at the cost of outside shareholders. Regarding the failures In control functions ? Internal Controls, External Audit and the Board of Directors ? we would analyze each level separately. The internal audit and other internal control functions, such as controllers and compliance, were clearly very ineffective but, despite their import ance, I will focus the analysis on the other two levels.From the external auditors' perspective, It Is difficult to understand how PWS did not raise any â€Å"red flag† with such an elementary fraud as cash balances misstatement. Any reasonable company would either invest this large cash in projects or distribute as dividends to the shareholders, instead of retaining it. Specifically this point could be easily validated through a reconciliation against a statement Independently received from the bank.This is a strong evidence, as the case suggests when highlight the increment In audit fees, they were in collusion with company management in executing the fraud. A good practice that could mitigate the risk of this happen is a mandatory external audit rotation, as determined by Serbians-Solely, Implemented In US after Enron scandal. Finally, the board of directors failed under any aspect of their fiduciary duties – loyalty, care and supervision.There are several evidences they were 1 OFF ineffectiveness of the audit committee during the years the fraud took place is one of these evidences. Another one was the prompt approval of the merger proposal without further background check. To prevent these issues, some measures such as to have audit committee composed only with independent directors, and set in place proper channels to report misconduct by anyone in the company could be implemented. Besides, the role of independent directors may be revised on a regulatory level, expanding civil and criminal liability over those.

Synergetic Solutions Report

The Synergetic solutions simulation helps in deciding what steps need to be taken to help the company succeed in the networking solutions market. There were different strategies that could be implemented, and also actions plans to take in making the company successful. In cases where productivity increases absenteeism was on the decline. This simulation allows for the identification of internal as well as external forces or change in synergetic solutions. The forms of communication needed to implement changes, the different levels of resistance the company will face, and the strategies leaders will have to employ to manage the different levels of resistance. Internal and External ForcesCompanies deal with many internal as well as external forces on a day to day basis. External forces can include technology, customer demands, and competitors. Internal forces include working in a positive work environment, communication, and people within the company. Businesses including Synergetic ha ve to make sure they are able to keep up with all the latest technologies to keep their business ahead of others.Customer demand can put a lot of stress on companies from having to stay ahead of competitors. Competitors can keep companies on their toes, and since the next move is never known staying ahead of the game is a must. Positive work environment is important because the behavior of other employees can influence other individual’s behaviors. Communication is always a good thing and it makes people feel like they have a voice. Working with a great group of Factors to Implement ChangeKotter has eight steps that help when implementing change within a company.  First of all people would want to be given a great example of how change will be for the good of the company. In addition, leaders will need to have enough power and drive to actually make the changes. Employers should be able to create visions and set goals to ensure that visions will be reached in the long run.M anagement at synergetic solutions should communicate the vision as well as encourage others that it will work and they should go along with it. Rewarding individuals for jumping on board with changes and adhering to all its entities will make other want to jump on the band wagon as well. Companies must make all necessary changes to new vision so that it will be successful. Finally, reinforcing changes and demonstrating behaviors and success are important (Kotter).Changes to CompanyThere were three different scenarios where decisions for the company were based on my opinion. In September, strategies that would help the company would be to improve workflow efficiencies and employee interaction. We would also need to improve organizational effectiveness and employee well-being. Making these things happen would mean the company would need to hire two individuals with relevant experience and certifications in networking design technologies. In addition, the synergetic solutions would nee d to outsource non critical tasks and business processes to reduce effort expended on projects (University of Phoenix, 2002).For the month of December we are going to reorganize the organizational structure and hierarchy, and invest in new technologies and tools. Charting a restructure plan and holding meetings to allow employees to voice concerns, and scheduling training for employees that need addition attention will help the company overall. When productivity goes up the percentage of absenteeism decreases with shows everyone is willing to do the work (University of Phoenix, 2002). In the final month as the company improves project accountability and establish processes. We as a company are able to focus on project performance, and encourage process improvements (University of Phoenix, 2002).ResistanceSynergetic solutions may see resistance both on an individual level as well as group level resistance. In my opinion, when individuals go work for a  company they are assigned cer tain tasks to complete. Over the course of time they may feel these are the only things that should be done. When change comes to companies it makes people feel different kinds of ways in regard to change. On the individual stand point people are not willing to change because they are not sure of the outcome. Sometimes change is a good thing, while other times it can be bad for everyone.Five kinds of ResistancePeople have a tendency to resist things based off of things such as habits, fear of the unknown, feelings of security, many economic factors, and also group inertia. The saying goes old habits never die young, and this is something that many people may believe. When people become use to doing things one way, they are more reluctant to change. In addition, some employees may fear whether or not the change will be good or bad for them.Changes can also cause employees to lose the feeling of security within a place of employment. In addition, economic factors play a role in the as pect of if the new task assigned is not completed correctly jobs may be lost to individuals (Kotter). The final type of resistance is called group inertia and this happens when even though individuals may want to change, it is normal to just go along with group norms.Strategies to Manage ResistanceThere are ways to help aid in the process of making people feel better when being reluctant. Management can tell workers why they feel the company needs changes, and why those changes will be good for the company. If employees have questions they should feel comfortable coming to talk to management about things so it can be discussed further. Educating employees about all the necessary changes will allow employers to explain things, and point out all the positive reasons for change (Kotter). When employees are not comfortable with change offering training can be a great thing because it allows the opportunity to take on new things. An employee will be more likely to go along with change un der the leadership of they can trust.ConclusionThe results of my individual performance at Synergetic shows that my decisions lead to a total revenue growth of over 6,050,000 with a networking revenue of eighty percent. The message from Harold Redd, CEO says that by my  decisions the company has a launch pad to succeed in the networking solutions market. Even though not all the decisions made were the best, my ability to overcome those decisions. Leadership and ability to manage change has enabled the company to boost revenue. In addition, they are also now recognized as a â€Å"design hothouse in the industry† (University of Phoenix, 2002). The decisions made for company were not what everyone may think are right, but the simulation shows those decisions still got the job done.

Description Of A Database Management System - 1325 Words

Chris Velasquez MGMT 329 Final Research Paper to Pass A database is an organized collection of data. It is the collection of tables, queries, reports, viewings, and other objects. The data are typically organized to model aspects of reality in a way that supports processes requiring information, such as modelling the structure of a major business such as Walmart, and all of its data including things like their inventory, customers, and their employees. A database management system is a computer software application that interacts with the user, other applications, and the database itself to capture and analyze data. A general purpose database management system is designed to allow the definition, creation, querying, update, and administration of databases.The Database uses terms that are key for anyone to sift through the collection of data that any company or business collects. terminology consists of keywords that will help users select desired pieces of data. 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