Constitution Of 1876 Analysis Sample Paper

As Texas Democrats acquired control of Congress in 1873, they saw the opportunity to draft a new constitution for the state. It was expected that the new document would restrict the state government’s power and give power back to the citizens of Texas. The Constitution of 1876 is the sixth Constitution under which Texas had been governed since the point when the state acquired independence from Mexico in 1838 (Ericson and Wallace). Framed by the Constitutional Convention of 1876 and put into action on February 15, 1876, the Constitution remains the essential law of Texas since it includes important points that are unique to the state, many of which are associated with its remarkable history. It was written shortly after the state government was under the rule of Edmund Jackson Davis between 1870 and 1874. The state has undergone significant changes, such as the limitation of the state government power, the rise of agricultural interests, as well as the rising role of the economy in the government. Some of the significant examples regarding how the federal government was restricted include the creation of a plural executive, a mandated and balanced state budget, the move of legislative sessions away from annual to biennial sessions, the election of state Judges by the population, as well as the voting on the ratification of amendments to the Constitution (Ericson and Wallace).

As with many US state constitutions, The Constitution started with an extensive bill of rights, declaring Texas to be an independent state that only subjects to the US Constitution, which suggested that all free people had equal rights. In addition, it explicitly established the division and separation of powers. Some of the provisions embedded into the Constitution can be traced to both Mexican and Spanish influences. Among such are sections that deal with land laws and related titles, the relief of debtors, marital relations, adoption, judicial procedures, as well as water and mineral rights (Ericson and Wallace). Besides, some of the atypical provisions in the Constitutions can be linked to the influence of Jacksonian agrarianism as well as frontier radicalism, which had become popular in Texas when it had initially become a state and then broadly supported by a large portion of immigrants to the state before the Civil War. Such influences have enabled the development of sections that prohibit banks and require significant separation between church and state that was already established in other states.

Under the greatly centralized and somewhat autocratic administration of Edmund J. Davis as well as fellow radical Republicans, the Reconstruction had initiated provisions for decentralizing the state government. Upon getting both executive and legislative government branches under control, the Democratic party aimed to eliminate the ineffective Constitution of 1869 with the one established in 1874. The party wanted all officials to be elected for shorter terms and have lower salaries as well as facilitate the abolition of the registration of voters, the control of schools locally, the limited power of both the governor and legislature, lower taxation, as well as much more (Ericson and Wallace). The legislature was expected to be made up of two parts, a thirty-one-member Senate and a one-hundred-fifty-member House of Representatives. Both representatives and senators and had to serve four- and two-year terms, respectively, which significantly limited their power in the state. The legislature was expected to gather biennially and could not incur liability greater than “$200,000 and could not have an office for more than two years and was mandated to levy taxes on all property proportionate to their value” (Ericson and Wallace).

In general, the Constitution of 1876 went hand-in-hand with the opinion of the public during that time. It helped provide for biennial legislature sessions, lower public officials’ salaries, a less costly court system as well as a school system with increased segregation. Besides, the document was important for supporting the rights of the rural population that engaged in subsistence farming; however, it did not favor the urban, commercial, and industrial society. Any changes to the Constitution were made through “amendments submitted to voters by consent of two-thirds of each member of the house of the legislature as well as approved by a majority of those who were voting” (Ericson and Wallace). The majority of the amendments that had been carried out concerned the legislature, state finances, education, and the judiciary. The changes to the legislative affairs have mainly eliminated the existing limitations imposed on legislative action. Alterations related to provisions of public educations had also destroyed the original restrictions and allowed for the broadening of the public education system. Provisions associated with the financial system of the state have been modified to enable the implementation of new programs of expenditure as well as the exploitation of new revenue sources. Other changes to the document were instrumental in relieving many of the detailed burdens imposed on the office of the governor, altering the methodology of municipal corporation chartering, as well as establishing a continuously expanding range of specially allocated funds in the state’s treasury.

Works Cited

Ericson, Joe, and Ernest Wallace. “Constitution of 1876.” TSHA Online, Web.

Negligence – Medical Malpractice

Introduction

Negligence is a serious concern especially in the medical field and it continues to gain greater importance in medical malpractice cases in several nations ranging from the Asia, the US, and Europe. There is a concern of patient-doctor interaction with two dominant models. The first deals with the doctrine of liberty of the patient, thereby addressing issues of informed consent. The second model entails autonomy of the practitioners. Negligence in medical law is a crucial topic and in Britain, it has become a dominant feature in the medical profession. It has since been emphasized in creating strict modern law based on the famous Bolam principle. This principle proclaims that a doctor is not liable for the offense of negligence if he/she acted according to the acceptable practices regarding a certain treatment and given alternatives as well as the risks so that the patient can rationalize and reach a decision. This is more of the informed consent doctrine.

Research question

What regulations are there to take care of the errors and adverse mistakes in medical practice? Most of the people do not clearly understand medical malpractice and therefore, ends up suffering in silence since they cannot place complaints to the authorities, (Currie and Watterson 163). Medical malpractice is the negligence to health conditions by the medical practitioners and this is simply a form of tort and hence a moral wrong or unethical practice (Currie and Watterson 163). Such negligent behaviour in most of the healthcare facilities usually results in serious health condition like total disability and even death from conditions that could otherwise be treated (Mason, McCall-Smith and Laurie 67).

Significance of Knowledge

The medical practice is a complex field as it deals with human life. More importantly, when the knowledge is obtained, people will be in a better position to determine the type of treatment they want and also to inform the authorities when such malpractice is committed (Leape 3). Some studies have shown that most of the main causes of injuries in medical practice are due to systemic factors and individual faults of practitioners as well as policymakers (Frech, Hamm and Wazzan 693). Understanding how the malpractices take place or how the mistakes are committed will go a long way in helping to create safer care from practitioners (Mason, McCall-Smith and Laurie 67).

Literature

In medical law, a contact is a promise made between two parties to be fulfilled according to the presiding conditions and is enforceable by the law (Bhullar and Gargi 196). The contract can either be implicit or explicit. In medical care practice, assuming the responsibility of taking care of a patient counts as a contract even when there is no written document for the contract signatories (Dimond 65). There is usually an implied contract from the moment the doctor begins examining the patient. To desist from carrying out some specified issues is a crime or breach. In essence, all the civil laws are regarded as tort statutes or contract laws (Leape 3). Liability also arises from committing Fiduciary. Neglecting duty can bring about criminal liability as well. Duty- the liability here is not mainly due to the outcomes of intentional damage to the accord or some evidenced mistake like negligence, Tort law explains this as breach of an obligation to act with caution, or the failure to act as a sensible and practical person would have done under same conditions (Dimond 65).

Medical law requires that government regulations be put in place to try and protect the public from potential danger that may result from the doctors’, nurses’ or other practitioners’ carelessness (Bhullar and Gargi 196). Malpractice has been described in four basic elements and these are the basis of the formation of both federal and state laws in the medical care (Pozgar 47). The following are the terms;

  1. Duty: each medical practitioner assumes responsibility (duty) of the patient when he/she begins the consultation, diagnosis or starts to treat the patient (Graham 41). The law states that the – duty comes to play from expressed or implied agreement;
  2. Breach: this is violation of the contract, generally it is assumed that once the practitioner has taken duty to diagnose the patient’s condition, any incorrect diagnosis is a breach of duty payable and yet to be paid to the patient (Avraham 183);
  3. Casual Connection: if the doctor fails to obtain correct diagnosis (breach of duty), the duty payable and yet to be paid to the patient and as a direct and proximate source of the breach, results into harm (Graham 41).
  4. Damages: this is the consequence of wrong diagnosis, the patients incurs damage in terms of disability, extra expenses or even death (Moore et al 245). It could be mental, physical or functional loss to the person getting care (Moore et al 245). These damages are in most cases assessed in terms of monetary value by the legal systems for compensation (Fleming 816).

Methodology

This is a process of studying medical law on medical malpractice especially the negligence aspect of it. For this reason, several sources will be used in this study to give wider coverage of the topic. Both qualitative and quantitative methods will be used in the study.

Data Collection

This being a synthesis study, identification of the previous stories, paper reviews and the analyses of existing law will form the basic form of collecting data. The researcher shall visit some important sites that offer relevant information about medical law to get an insight of what has been happening on the scene. The researcher will also carry out interviews about the conduct of the medical practitioners to get the update information from informants as they understand the tort of negligence in medical practice (Nayak 17).

Data Presentation

The problems will be introduced in the first part of the results to provide information about the problems of safety of patient especially when negligence tort is breached (Robinson and Cahill 78). There will also be the part regarding the law as instituted by the government, dissonance between understanding how the mistake came about and how negligence law applies. On the part of the reviews, basic concepts will be analyzed and given the proper reasoning to ensure safety and application of tort law.

Expected Results

The outcome for this study is expected to show that patients and doctors understand the relationship that they share and the way they have to interact. Furthermore they are expected to understand the law that deals with negligence (Gilmour 117). The research is expected to reveal that Medical practitioners (doctors and nurse) owe high duty to their clients who are in this case the patients than to the public in general (Burnard and Chapman 43). By virtue of patient-nurse relationship, the practitioners owe their clients duty of care which include keeping their information private, attending to them and offering the necessary and relevant type of service the patients wants. Breach of these could result in the crime of negligence which is law enforceable (Burnard and Chapman 45). The use of professional knowledge and skills in the medical profession is a test of if there was an incidence of neglect or not. This is because the normal people (laymen) cannot perform such responsibilities (Hiltz 55). If a nurse fails to prescribe properly or a doctor does not measure up to the required standards, this calls for adjudging for negligence. The hospitals have well documented proper guidelines of practice and these are usually used as evidence against cases of negligence (Burnard and Chapman 45).

Discussion

To attain a successful implementation of the negligence law in medical practise, the patients should be able to establish what is counted as satisfactory service (Montgomery 83). In this manner, the doctor is said to owe duty to the patient that conforms to certain standards in professional field (Dimond 45). The doctor or nurse will be derelict and breaches duty if they fail to offer certain services or do some unprofessional service (McHale, Fox and Tingle 67). The patient is entitled to place a lawsuit if he/she suffered damages following the encounter and that it was the doctor’s conduct that translated into the damage as a proximate cause (Montgomery 83). Failing to offer the evidence of the above elements, will amount to a failed case against negligence (Dimond 45).

Patients have to understand that criminal negligence is a serious crime and that it is not just about compensation since not only did the medical practitioner make a wrong diagnosis or give wrong treatment but this is also a show of very gross ignorance on the part of the professional. For this reason, a medical practitioner can face criminal suit for causing injury to the patient (Burnard and Chapman 78; Pozgar 19).

Conclusion

Addressing the medical law that deals with negligence is critical in ensuring that there is provision of safe patient care. This should be client-centric and should be the major objective in the medical sector in many places. The safety of the patient is a serious concern while providing for better health services since it’s the patient who spends the money and who need the services. Furthermore service providers are under obligation to take care of the patients by oath. The criminal justice system is mandated to ensure that justice is served but the major issues that arise are the balancing of rights of the defendant against what the society’s interest in punishing felons found guilty of criminal offense is. In general, to ensure that the patient’s rights are not infringed or to help improve the health services, law regulation is not the only alternative. Furthermore it is not the best either. Currently many critics of law enforcement have proposed the enhancement of the doctor patient relations, which is a better way of managing medical malpractice. If this can be entrenched in the medical practice, chances are that the doctors and nurses would practice professional and appropriate healthcare service provision.

Works Cited

Avraham, Ronem. An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments. Journal of Legal Studies, 36.2(2007): 183–229.

Bhullar, David and Gargi, J. Medical Negligence – Majesty of Law – Doctors. JIAFM, 27.3(2007): 195-199.

Burnard, Philip and Chapman, Thomas. Professional and Ethical Issues In Nursing. 3rd Ed, Edinburg: Ballière Tindall, 2003. Print.

Currie, Lynne and Watterson, Linda. Challenges in Delivering Safe Patient Care. Comments on a Quality Improvement Plan, Journal of Nursing Management. Blackwell Publishing, 15. 2(2005): 161 – 169.

Dimond, Bernard. Patients’ Rights, Responsibilities and the Nurse. 2nd Ed. Salisbury: Quay Books, Mark Allen Publishing Ltd, 1999. Print.

Dimond, Bernard. Legal Aspects of Nursing. 4th Ed. Harlow, Pearson Education. 2005. Print.

Fleming, John. The Role of Negligence in Modern Tort Law, Virginia Law Review, 53. 4(1967): 815-846

Frech, Henry. Hamm, William and Wazzan, Paul. An Economic Assessment of Damage Caps in Medical Malpractice Litigation Imposed By State Laws and the Implications for Federal Policy and Law. Health Matrix Cleveland, 16. 2(2006): 693–722.

Gilmour, Joan. Patient Safety, Medical Error and Tort Law, an International Comparison Final Report. Ottawa: Health Canada, 2006. Print.

Graham, Randal. Legal Ethics, Cases and Professional Regulation. London, Oxford University Press, 2004. Print.

Hiltz, D’Arsey. Medical Malpractice; Issues and Law. New York: Nova Publishers, 2004. Print.

Leape, Lucian. Errors in Medicine. Clinica Chimica Acta, 404.1(2009): 1 – 7.

Mason, Ken. McCall-Smith, Alexander and Laurie, G.T. Law and Medical Ethics. 6th Ed. London: Butterworth, 2002. Print.

Mason, Ken, McCall-Smith, Rita and Laurie, Graeme. Law and Medical Ethics. 6th Ed, London: Butterworth, 2002. Print.

McHale, Fox and Tingle, John. Law and Nursing. 2nd Ed. London, Butterworth – Heinemann, 2000. Print.

Montgomery, Joseph. Health Care Law. 2nd Ed. Oxford: Oxford University Press, 2003. Print.

Moore, Philip, Adler, Nancy and Robertson, Patricia. The Effect of Doctor-Patient Relations on Medical Patient Perceptions and Malpractice, West J Med, 173. 4(2003): 244-250.

Nayak, Richard. Medical Negligence, Patients’ Safety and the Law, Regional Health Forum- Law Journal, 8. 2(2004): 15-21.

Pozgar, George. Legal Aspects of Health Care Administration, Sudbury, MA: Jones & Bartlett Publishers, 2006. Print.

Robinson, Paul and Cahill, Michael. Law without Justice. Why Criminal Law Doesn’t Give People What They Deserve. Cambridge, Harvard University Press, 2005. Print.

The Legal Principles And Their Contribution To Business

Identification and application of the legal principles are significant for businesspersons. Practical, realistic, case-study approach will contribute to future prosperity and reduction of conflicts. To know the legal environment of business is very useful in terms of understanding both rights and obligations. Constitutional concepts and clauses along with activities of administrative agencies are very important for business activity.

Under the Constitution the national government possesses the authority to undertake actions to perform its enumerated powers. All other powers are given to state governments. They regulate affairs within their borders and have police powers. “Fire and building codes, anti-discrimination laws, parking regulations, zoning restrictions, licensing requirements, and thousands of other state statures covering virtually every aspect of life have been enacted pursuant to states’ police powers” (Cross and Miller 106).

Privileges and immunity clause obviates one state imposing ungrounded restrictions on citizens of another state. Conveying property, seeking employment, or addressing the court system exemplifies prevention of discrimination in every state. The full faith and credit clause guarantee that wills, contracts etc. will be respected by other states. “…any judicial decision with respect to such property rights will be honored and enforced in all states” (Cross and Miller 107). These clauses concern very mobile citizenry of the USA.

The commerce clause delegates the power of regulating commerce and movement of goods to the federal government. It concerns both commerce within and commerce among the states. The supremacy clause establishes the supremacy of the federal law over the state law. The taxing and spending powers belong to the Congress. The Constitution declares the uniformity of excises, imposts and taxes throughout the whole state.

Freedom of speech is restricted only when the speech harms the good reputation or incites others. Commercial speech or advertising is not as extensively protected as noncommercial speech. A lot of issues concerning electronic leaflets and junk mail arise in this sphere.

Society faces many social, economic, and technological issues, which cannot be given a detailed description by laws. “Therefore administrative agencies have been created by legislative acts known as enabling acts, whereby the government – federal, state, or local – delegates some of its authority to the agency” (Emerson 32). Agencies administer the law in a particular branch. They provide expertise and sound resolutions in particular cases, monitor violations and perform the functions of the judicial system more quickly. The functions of the agencies include “advising, reviewing, supervising, rule making, investigating, prosecuting, adjudicating” (Emerson 33).

Federal Reserve Board, Federal Trade Commission, Securities and Exchange Commission are examples of federal independent agencies. They should have open public meetings and agendas. State administrative agencies take precedence over conflicting local regulations and statutes, and are at the same time inferior to regulations of the federal administrative agencies. Numerous executive agencies are “subject to authority of the president, who has the power to appoint and remove officers of federal agencies” (Cross and Miller 7).

Thus, we see that legal environment of business is rather complicated. The Constitution and administrative agencies occupy a leading position in legitimate regulation. Division of powers among the federal and state branches of the government influence business activity in its legal sphere. Knowing the major area of responsibility of each branch will help organize and protect the business. De factor rights and responsibilities of every businessperson imply progress or decline of business activity. Thus, collaboration and consulting legislative authorities is extremely important.

Works Cited

Emerson, Robert W. Business Law. New York: Barron’s Educational Series, 2003.

Cross, Frank B., Miller, Roger LeRoy. The Legal Environment of Business: Text and Cases : Ethical, Regulatory, Global, and E-Commerce issues. Mason, OH: South-Western Cengage Learning, 2009.

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