This assignment requires you to read “Moral Criticisms of the Market” by Ken S. Ewert Note that in his article, Ewert is defending the free market from “Christian Socialists.” He states their position and then gives a rebuttal. Do you agree with the critique of the market in Ewert’s article? Why or why not? Read carefully and offer cogent reasons.
Consider the context of the article; the Berlin Wall fell months after the article was published. The USSR followed shortly thereafter.
SAMPLE ANSWER
The Free Market System
In his article Moral Criticisms of the Market, Ewert (1989) looks at the condemnation of the free market by Christians as morally wanting and criticizes it. I agree with this article on various points.
First, he accepts that most systems accommodate selfishness. It is for this reason that both a socialist and a capitalist will both take a bribe. However, the free market system does not encourage selfishness. Instead, the free market system promotes competition. Competition on the other hand, competition has been shown to promote productivity. It is of course the intention of every system to encourage productivity.
Second, the free market encourages free choice. This way, it does not encourage individuals to market their products selfishly but rather gives them a chance to act as they please. The socialist approach on the other hand gives the will to a central system. This system is to blame for the Berlin wall. The Berlin Wall was intended to divide the socialists in Germany from their capitalist counterparts (Taylor, 2007). It took away the concept of free will from individuals forcefully. This implies that capitalist systems are more likely to promote free will and peaceful co-existence than socialist ones.
Thirdly, the socialist systems are intended to benefit one party while neglecting others. The alternative to the free market is the state-led systems. These systems often permit for the creation of channels that promote the oppression of certain individuals rather than others. This implies that they are more likely to be oppressive compared to capitalist systems.
Finally, the free market does not give any reasonable economic power to the wealthy. The economic power it confers to the wealthy is the ability to negotiate. Since they have money, they are able to offer better terms to those from whom they are buying from. It does not however promote cases of slavery and oppression.
for this paper, the writer has to follow proper instructions and use examples that have been giving to complete this paper. The paper has to be in the format of the examples, but must be writing base on the propose policy proposal that we are working on that is also included hear in the instructions and the questions.
Policy Change Options
Three existing policy change options include incremental change, major change, or to do nothing. An incremental change, like most U.S. health policy change, would occur when policymakers limit themselves to a small subset of strategies to account for a lack of time or capacity in a highly complex and resource-intensive decision (Mason, Leavitt, & Chafee, 2014). A major change would include a larger-scale, more radical policy change. Finally, selecting the option to do nothing means that no change will be made to the policy.
Reference
Mason, D., Leavitt, J., & Chaffee, M. (2014). Policy & politics in nursing and healthcare (6th ed.). St. Louis, MI: Elsevier Saunders.
Explain three pros and three cons for each policy change option relating to your propose policy change proposal hear below.It is critical that the pros & cons are clearly writing in an expository manner with just enough information to understand your change.
The public policy problem is that section 2713 requires organizations to provide their workers with birth control as part of their insurance coverage. The public policy question is: should the federal government mandate that organizations can choose whether or not to provide contraceptive services to employees as part of their insurance coverage? The public policy resolution is an amendment to section 2713(a) (4) of PL 111-148 that would say: organizations – both for-profit and non-profit organizations – have the option of either offering their employees birth control as part of their insurance coverage or not to offer contraceptive services (Cauchi, 2014).
Here is an example of what the response is supposed to look like, but it should be based on the above propose policy change and not the one use hear in the example. This example is just to show the writer how to response to the paper. It is critical that the pros & cons are clearly writing in an expository manner with just enough information to understand your change.
Example of the pros and cons and how the paper will look like at the end, but it should be based on the above propose change.
Pros and Cons for Policy Change Options
Pros for the Option to Do Nothing
1. If nothing is done, the training demonstration program will offer support to family nurse practitioners.
2. If nothing is done, there will be no additional funding required.
3. If nothing is done, the policy will be implemented without delay.
Cons for the Option to Do Nothing
1. If nothing is done, nurse practitioners specializing in adult/gerontological care will not be included as part of the training demonstration program.
2. If nothing is done, the training demonstration program will only offer support to family nurse practitioners.
3. If nothing is done, there may not be an increase in adult/gerontology nurse practitioners to care for the rapidly growing elderly population.
Pros for the Incremental Change Option
1. An incremental change will allow for more time and resources to support the amendment.
2. An incremental change will allow for greater success in producing a nurse work force specializing in adult/gerontological advanced practice care.
3. An incremental change will allow the government time to make adjustments to the budget in order to support the inclusion of adult/gerontological nurse practitioners in the grant demonstration program.
Cons for the Incremental Change Option
1. An incremental change may allow for policymakers to repeal section 5316 of the PPACA.
2. An incremental change will take a longer period of time to implement than a major, radical change, or the option to do nothing.
3. An incremental change will require increased spending as the amendment will be evaluated and adjusted after implementation.
Pros for the Major Change Option
1. A major change will provide clinical training for adult/gerontological nurse practitioners, enabling them to serve as primary care providers in federally qualified health centers and nurse-managed health clinics.
2. A major change can be implemented immediately.
3. A major change will result in an increase in adult/gerontology nurse practitioners to care for the rapidly growing elderly population.
Cons for the Major Change Option
1. A major change may encourage nurses to pursue a career as an adult/gerontology nurse practitioner who are not committed to practicing in the specialty.
2. A major change will result in an immediate increase in government spending within the grant demonstration program.
3. A major change will result in opposition from advance nurse practice specialty groups (other than family nurse practitioners) who wish to be included in the grant training program.
Policy change is the action of changing how a particular task is done. The change can be incremental, major, or plainlyto do nothing at all.Adopting any of these change options has both pros and cons, though in varied measures.
Pros for the Option to Do Nothing
By doing nothing, the decision will save money, especially for the organization to carry out the incorporation of the provision of contraceptives to its employees. An example is when Obama ignored all the warnings from the medical trusteesabout the Medicare being expensive.
In addition, not to do anything will ensure that organizations do not experience deficits every year due to supplementary medical insurance trust fund. This could lead to the organizations not being financially stable.
Moreover, the ‘to do nothing’ will save the future of the organizations. By providing contraceptives to its employees, the organizations might experience double the debt it already has.
The ‘not to do anything’ approach will prevent fiscal imbalance in the organization. The organization will not reduce employees’ salaries in order to provide the contraceptives to every employee(Mason, Leavitt, &Chafee, 2014).
Cons for the Option to Do Nothing
If nothing is done, the company will not spend any money on offering contraceptives to its employees
In addition, the employees will not receive the contraceptives from their employers, hence, not enjoy complete health insurance cover.
Moreover, the organization will not be able to control the birth rate of its employees, hence, leading to increase in expenditure.
Pros for Major Change
Major change will ensure that more organizations are adopting the public policy of providing contraceptives to their employees.
In addition, major change will provide more sensitization to the organization on the relevance of providing contraceptives to its employees. This will in turn enhance more provision of health care.
It will also ensure immediate implementation of the public policy, hence, faster provision of the healthcare.
Cons for major change
Major change will translate to opposition from some of the organizations, which do not have enough funds to provide each employee with contraceptives as part of their insurance policy.
In addition, it will also mean more expenditure on the part of the government in providing contraceptives to nonprofit organization.
In addition, it will promote provision of contraceptives to the employees by the organizations whose interest is not in the provision of such services.
Pros for Incremental change
When companies adopt the incremental change in implementing the public policy, it will allow for more time and resources to support the policy of every organization providing contraceptives to its employees.
In addition, the whole process of providing contraceptives to every employee as part of the health insurance policy will be very successful in both the profit and nonprofit organizations
Moreover, the organizations will have more time to make adjustments to their budgets to cover for all the employees. This will ensure no stopping in the whole exercise of providing contraceptives to its employees.
Cons for incremental change
Incremental change will allow the legislators convenient time to amend the policy to suit all the organizations in the provision of the health care insurance cover to its employees.
Consequently, incremental change will consume more time in its implementation as compared to major change and not to do anything change.
In addition, the whole process is very expensive due to many changes from time to time. This might lead to the whole process of implementation not being very successful (Cauchi, 2014).
Tort as a law jurisdiction is a civil wrong that unfairly makes someone else suffer resulting in legal liability for the individuals who commit the tortuous acts. Although most of the crimes may be torts, the cause of lawful action is not unavoidably a crime, as harm might be due to negligence that does not amount to criminal negligence. The casualty of the harm can regain their loss as breakages in a lawsuit. In order to prevail, the claimant in a lawsuit should show that the actions were the legally recognizable source of the harm (Lahe, 2013). The correspondent of tort in civil law influences is delict.
Legal injury is not limited to physical injury and can include economical, emotional, or reputational injuries as well as infringements of property, privacy, and constitutional rights. Torts encompass such wide topics as false imprisonment, auto accidents, false imprisonment, defamation, copyright infringement, and product liability (toxic torts) ( Lahe, 2013). While most of the torts are as a result of negligence, tort also recognizes intended actions, where an individual has deliberately acted in ways that harm other people. This allows recovery without the demonstration of negligence.
Tort law is dissimilar from criminal law in the following ways: First, torts may result from negligence but not intentional or criminal actions. Another reason is that tort lawsuits have a lower weight of proof such as prevalence of evidence beyond a reasonable distrust. In some cases, a plaintiff can triumph in a tort case even if an individual who caused the loss was acquitted in the early criminal trial (Lahe, 2013). Therefore, most crimes are caused by tort but the commission of the tort is not regarded as always a crime.
References
Lahe, J. (2013). The Concept of Fault of the Tortfeasor in Estonian Tort Law: A Comparative Perspective. Review Of Central & East European Law, 38(2), 141-170.
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Application of Standards of Care and the Nurse Practice Act to Advance Practice Nurses Involved in a Legal Action
Before completing this paper , it is important that the write understand very well the Nurse Practice Act that’s is use in the U.S because it will be discuss base on the fact that it happened hear in the U.S . It is critical to discuss every details that’s mentioned in this case hear and also use case laws and pear review articles to supports the facts.
Describe the case below and discuss the standard of care that the parties will be held to in this case. How will the standards of care and the Nurse Practice Act be applied in a court of law if the case is sued?
Hear below is the case to be use for this paper . let the writer take time to look at it and respond to the above questions according using case laws to support his augments.
People Involved in Case:
Yolanda Pinnelas-patient
Betty DePalma, RN, MS-nursing supervisor
Elizabeth Adelman, RN, recovery room nurse
William Brady, M.D., plastic surgeon
Mary Jones, RN-IV insertion
Carol Price, LPN
Jeffery Chambers, RN-staff nurse
Patricia Peters, PharmD-pharmacy
Diana Smith, RN
Susan Post, JD-Risk Manager
Amy Green-Quality Assurance
Michael Parks, RN, MS, CNS-Education coordinator
SAFE-INFUSE-pump
Brand X infusion pump
Caring Memorial Hospital
Facts:
The patient, Yolanda Pinellas is a 21-year-old female admitted to Caring Memorial Hospital for chemotherapy. Caring Memorial is a hospital in Upstate New York. Yolanda was a student at Ithaca College and studying to be a music conductor.
Yolanda was diagnosed with anal cancer and was to receive Mitomycin for her chemotherapy. Mary Jones, RN inserted the IV on the day shift around 1300, and the patient, Yolanda, was to have Mitomycin administered through the IV. An infusion machine was used for the delivery. The Mitomycin was hung by Jeffrey Chambers, RN and he was assigned to Yolanda. The unit had several very sick patients and was short staffed. Jeffery had worked a double shift the day before and had to double back to cover the evening shift. He was able to go home between shift and had about 6 hours of sleep before returning. The pharmacy was late in delivering the drug so it was not hung until the evening shift. Patricia Peters, PharmD brought the chemotherapy to the unit.
On the evening shift, Carol Price, LPN heard the infusion pump beep several times. She had ignored it as she thought someone else was caring for the patient. Diana Smith, RN was also working the shift and had heard the pump beep several times. She mentioned it to Jeffery. She did not go into the room until about forty-five minutes later. The patient testified that a nurse Updated: June 2014 MN506- Unit 9 Page 3 of 5
came in and pressed some buttons and the pump stopped beeping. She was groggy and not sure who the nurse was or what was done.
Diana Smith responded to the patient’s call bell and found the IV had dislodged for the patient’s vein. There was no evidence that the Mitomycin had gone into the patient’s tissue. Diana immediately stopped the IV, notified the physician, and provided care to the hand. The documentation in the medical record indicates that there was an infiltration to the IV.
The hospital was testing a new IV Infusion pump called SAFE-INFUSE. The supervisory nurse was Betty DePalma, RN. Betty took the pump off the unit. No one made note of the pump’s serial number as there were 6 in the hospital being used. There was also another brand of pumps being used in the hospital. It was called Brand X infusion pump. Betty did not note the name of the pump or serial number. The pump was not isolated or sent to maintenance and eventually the hospital decided not to use SAFE-INFUSE so the loaners were sent back to the company.
Betty and Dr. William Brady are the only ones that carry malpractice insurance. The hospital also has malpractice insurance.
Two weeks after the event, the patient developed necrosis of the hand and required multiple surgical procedures, skin grafting, and reconstruction. She had permanent loss of function and deformity in her third, fourth, and fifth fingers. The Claimant is alleging that, because of this, she is no longer able to perform as a conductor, for which she was studying.
During the procedure for the skin grafting, the plastic surgeon, Dr. William Brady, used a dermatome that resulted in uneven harvesting of tissue and further scarring in the patient’s thigh area where the skin was harvested.
The Risk Manger is Susan Post, J.D. who works in collaboration with the Quality Assurance director Amy Green. Amy had noted when doing chart reviews over the last three months prior to this incident that there were issues of short staffing and that many nurses were working double shifts, evenings and nights then coming back and working the evening shift. She was in the process of collecting data from the different units on this observation. She also noted a pattern of using float nurses to several units. Prior to this incident the clinical nurse specialist, Michael Parks, RN, MS, CNS, was consulting with Susan Post and Amy Green about the status of staff education on this unit and what types of resources and training was needed.
Resources
Hunt, J. A., & Hutchings, M. (2014). Innovative group-facilitated peer and educator assessment of nursing students’ group presentations. Health Science Journal, 8(1), 22–31.
Essentials of Nursing Law and Ethics
Chapter 2: “Regulation of Nursing Practice”
Chapter 4: “Standards of Care”
Chapter 33: “Contracts”
Chapter 48: “Social Media and Online Professionalism”
Chapter 50: “Maternal and Fetal Rights”
SAMPLE ANSWER
Legal Malpractice or Negligence Case Fact Pattern
Introduction
Medical practitioners in their line of duty engage in legal malpractices or even neglect their role in provision of quality services to their patients. Upon performing these malpractices and acts of negligence, a patient can sue the nurse in a court of law (Yonda- Wise, 2014). The nurse can be charged for violating the Nurse Practice Act and negligence of the Standards of Care. The following discussion describes a certain case and how standards of care will be held in this case. The paper also indulges to argue how Standard of Care and Nurse Practice Act can be applied in a court of law if the case is sued.
Description of the Case
The case involves a 21-year-old female, Yolanda Pinnelas, who is admitted for chemotherapy at Caring Memorial Hospital. Mary Jones inserted the recommended Mitomycin using IV and it was hanged on using an infusion machine. The situation at the hospital was that there were limited staff, and the pharmacy delayed in delivering the drug on time so that it was not hung until evening by Jeffrey. In the evening, Carol Price heard the infusion pump beeping severally and ignored. Diana Smith, still on the shift, heard of the beeping and informed the RN in charge, but did not go into the patient’s room until about forty-five minutes later. The patient was not informed of what had happened. It was reported of Infiltration on the IV after it was stopped. During this time, the hospital was trying a new ‘safe infuse’ device. When putting it into practice, the supervisor, Betty DePalma, did not take note of the name and serial number of the pump. The pump was neither isolated nor maintained and eventually led to its dismissal. After all this malpractices and negligence, Yolanda, develops necrosis of the hand. During harvesting of the skin to remedy the problem, Dr. William Brady caused further scarring of Yolanda’s skin.
Standard of care violated in the case above
The main element of violating standard of care in this case is negligence. In the case above, Patricia Peters neglected his role in providing drug on time (Lilley, Collins, Snyder & Savoca, 2014). Jeffrey in charged did not hang the infusion at the appropriate time (Carol, 2011). Mary Jones was first to hear the beeping of the infusion machine, but did not bother about. Although Diana smith heard the beeping and informed the RN in charge, he did not go into the room immediately (Masters, 2014). In addition, the RNs did not take the initiative to inform the patient about her treatment process. Betty DePalma depicts some elements of negligence when he could not take note of the name of the devise and its serial number when testing it.
Legal implications of the malpractices and negligence
This scenario will be judged in rhyme with case law of ‘Monk vs. Doctor’s hospital’ where the facility and the physician were found negligent when an application of a surgery resulted in a patient burn (Wojcieszak & Houk, 2006). Another case law that can be applied to the case above is ‘Llyod Noland Hospital vs. Durham’. In this case law, the court ruled that the staff failed to administer a standing order of preoperative antibiotics to a patient (Wojcieszak & Houk, 2006). All the cases relate to Yolanda’s case where negligence of the hospital staff led to her developing necrosis of hand. The implication will be that Yolanda will be compensated while the medical practitioners involved in the negligence will either be suspended, fired, or their licenses revoked.
Conclusion
In summary, malpractices and negligence in provision of services in hospital can lead to legal implications. RNs stand chances of being sued for the failure to observe and perfect standard of care. This is because the society expects services from them to be ideal. Susan Post is likely to be fired on sleeping on her job. William, Army, and Michael can be sued for complicating the health of Yolanda.
References
.Carol B. Liebman, (2011). Medical Malpractice Mediation: Benefits Gained, Opportunities. Journal for legal and contemporary problems in nursing
Lilley, L. L., Collins, S. R., Snyder, J. S., & Savoca, D. (2014). Pharmacology and the nursing process. St. Louis, Mo: Elsevier/Mosby.
Masters, K. (2014). Role development in professional nursing practice. Burlington, MA: Jones & Bartlett Learning.
Whitehead, D. K., Weiss, S. A., & Tappen, R. M. (2009). Essentials of Nursing Leadership and Management. Philadelphia: F.A. Davis Co.
Wojcieszak, D & Houk, C. (2006). The sorry works! Coalition; making the case for full disclosure. Journal on Quality and patient Safety.
Yonda- Wise, P. (2014). Leading and managing nursing. St. Louis, Mo: Elsevier Mosby.
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1. The Copyright Term Extension Act (CTEA) was passed in 1998.
What are the purposes of the act? Specifically identify the copyright extension for both individuals as well as the corporations?
2. The Act has also been called the Mickey Mouse Protection Act? Why? Specifically identify the threats companies like Disney faced and continue to face.
3. How does this act specifically tie into the public domain?
SAMPLE ANSWER
Copyright Term Extension Act
The Copyright Term Extension Act was enacted in 1998 for purposes such as providing sufficient copyright protection for American works and more so, to have a continuation of economic benefits when copyrighted work are exploited. It also brought about job creation. With the provision of adequate copyright protection, an important foundation is not only for the present times, but also for the future. Less incentives will be experienced for individuals who wish to become creators. It would also be fair deal to protect the works of authors for their descendants. This would work by having the authors’ copyrights remain valuable resources for their families. For individuals, the copyright would go for 50 years plus the author’s life, while 75 years are awarded to corporates.
The nickname “Mickey Mouse Protection Act” was brought about by the Disney Company strategically lobbying for the Act, which as a result of delayed streaming and production of the Mickey Mouse movies. Efforts trying to prevent the Extension Act from being passed came from all sides, which caused a threat to the success of the term. For some, the extension Act meant more costs to the American people, which did not get any benefit as per their thoughts. Companies faced the claim that the legislation was totally unconstitutional in accomplishing the State’s mandate to bring about improvement in science and arts. To support this, they argue that majority of the works only fetch profits during the first years and go dormant when pushed off the market, thus extending the term has no economic benefit. Copyright protection does not last for life. This means that copyright does grow old and eventually dies, and the efforts falls to the public.
The Act ties to the public domain in that when a work enters it, it means the public can modify and own it, therefore, giving it a new look or a new sense as per their preference. The work can be used without permission from anyone as it is owned by no one. The extension Act had it that no new works would be pushed to the public domain until 2019. The Act also ties to the public domain in that works without proper copyright notice were included in it too. All published works ought to be published and if not, the work was put into the public domain
This paper is a continuation of 111489, but I have revised the introductory paragraph that your writer wrote since he really did not understand what to do and by the time you send the revised version from the new writer, it was past due so I did not use it as you will see hear if you take time to read the paragraph below. The writer will have to take time read the entire assignment requirement and respond accordingly. It is a very easy paper if proper instructions are followed. The writer must take note of every aspect of this paper and respond to all the different sub headings using the template provided before. Note that every aspect of this paper is critical so the writer must pay attention , and also note that it is require that he write a summary at the end and not a conclusion because as I mentioned before this paper is a continues paper and we will put it together section by section each week.
3. Write the body of the proposal.
The public policy problem is that section 2713 requires organizations to provide their workers with birth control as part of their insurance coverage. The public policy question is: should the federal government mandate that organizations can choose whether or not to provide contraceptive services to employees as part of their insurance coverage? The public policy resolution is an amendment to section 2713(a) (4) of PL 111-148 that would say: organizations – both for-profit and non-profit organizations – have the option of either offering their employees birth control as part of their insurance coverage or not to offer contraceptive services (Cauchi, 2014).
After the introductory paragraph above, create headers for social, political, economic, legal, and ethical issues, as well as the stakeholders. Write one paragraph for each type of issue with citations and references for each describing how the issue would support or not support your proposed amendment.
Start each issue section like this example and write each section in 4 to 5 sentences with cites and references- you may use the links provided in the resources for cites and references:
The legal issue that would affect passage of the proposed amendment is that the U.S. Supreme Court ruled the law constitutional and the payment mandate a tax because (you fill in this after reading about it).
Here are the topics to cover under each issue section. Be sure to say how the issues support passage of your proposed amendment and if the issue does not support passage of your proposed amendment, how you plan to get Congress to vote to pass the amendment into law anyway.
Legal Issues
Write about the 28 states that have filed suit against the federal government to repeal PL 111- 148 claiming the law is unconstitutional. Be sure to include the status of the lawsuit in the U.S. Supreme Court and the effect this would have on getting your proposed amendment passed if the law is ruled unconstitutional or constitutional
Political Issues
Write about the Senate and House bills in Congress to repeal PL 111-148 and the effect repealing the law would have on getting your proposed amendment passed.
Economic Issues
Write about the trillion dollar U.S. budget deficit, budget cuts to entitlement programs like the one you may propose, and spending cuts as well as increased taxes to balance the Congressional budget and the effect this would have on getting your proposed amendment passed.
Social Issues
Describe why the proposed amendment is good for all Americans and why Americans would support the amendment to Congressional stakeholders to vote for it.
The last issue is a little different so you will write it like this:
Ethical Issues
Choose one ethical principle and use it to convince stakeholders why your amendment should pass. Begin the paragraph like this instead of like the other issues:
The ethical principle that supports passage of the proposed amendment is (insert principle) because (insert why) (cite).
Stakeholders
Then list the stakeholders who have a stake in seeing your amendment pass or fail and in one sentence describe the role of each stakeholder- remember nurses would be an American voter.
You would use a numbered list for clarity.
Use these stakeholder groups
1. Politicians because a politician would vote to pass, not pass, or table the amendment.
2. The American voter who would support or not support the amendment to politicians.
3. Political Activists who demonstrate for or against the amendment.
4. Political Lobbyists who lobby for or against the amendment.
Next write a summary (not a conclusion): Summary
First write about what the section of your proposed amendment says. Then write how the amendment would change the section. This is a summary (not a conclusion) that describes the section of the law you chose and why the amendment is important to America from a social, economic, political, legal, and ethical point of view. In this section, you would “sell” the amendment to stakeholders. So talk about the social, legal, political, ethical, and economic issues that support passage of the amendment to the stakeholders.
On the last page list references in the most recent version of APA format and remember for every reference there needs to be at least one citation in the body of the paper.
References Note:
References will come from your class textbooks and reliable internet websites and be no older than 2010.
Resources to be use
Landmark: The inside story of America’s new health-care law and what it means for all of us
• Chapter 9: “On the Front Lines”
• Chapter 10: “Preventative Measures”
• Chapter 11: “In the Workplace”
• Chapter 12: “Medicaid’s Expansion”
• Chapter 13: “Paying for It”
• Chapter 14: “The Abortion Fight”
• Chapter 15: “The Rest of the Story”
• Conclusion: “Judging Success”
Mason et al.: Policy and politics in nursing and healthcare
• Unit 4: “Policy and Politics in the Workplace and Workforce” (Chapters 47–53)
• Unit 5: “Policy and Politics in the Government” (Chapters 68–73)
The public policy problem is that section 2713 requires organizations to provide their workers with birth control as part of their insurance coverage. The public policy question is: should the federal government mandate that organizations can choose whether or not to provide contraceptive services to employees as part of their insurance coverage? The public policy resolution is an amendment to section 2713(a) (4) of PL 111-148 that would say: organizations – both for-profit and non-profit – have the option of either offering their employees birth control as part of their insurance coverage or not to offer contraceptive services (Cauchi, 2014).
Economical issues
The economic issue that would affect passage of the proposed amendment is the dollar-trillion budget deficits that are continuously witnessed in the U.S. According to the treasury department, the federal debt is over 16.7 trillion (Desilver, 2013). Despite coming with free packages such as preventive health care, the initiative, which offers tax credits to small employers that provide health insurance for workers who earn relatively low average wages has not seen major success in the recent past (Owcharenko & Nix, 2012). Currently, there are plans to inject over $14 billion into the scheme over the next ten years.
Political issues
The political issue that would affect passage of the proposed amendment is that the Act states that ‘The law creates a new nationwide requirement for health plans to cover essential health benefits and preventive services, but does not allow stakeholders to opt out of covering items or services to which they have a religious or moral objection, in violation of the Religious Freedom Restoration Act (Public Law 103–141)” (Hass, 2012). Because the government has exempted faith-based organizations from the preventive health care, there is still an outcry from the same quarters over signing of Form 700, which requires the services to be provided by a third party.
Legal Issues
The legal issue that would affect passage of the proposed amendment is that the U.S. Supreme Court ruled the law constitutional and the payment mandate a tax because the rising health care costs and its unpredictability had become burdensome for employers, thus, providing the same for employees at a minimum cost would have been welcome (Newman, 2014) . Later on, 28 states (out of which 26 were enjoined) filled a suit seeking nullification of the Act. The case was based on two main issues: the Act is undermining the sovereignty of the individual states and it also heaps unfair financial obligations to state governments. In 2014, the Supreme Court also allowed religious based organizations to opt out of the free birth directive in the ACA in the popular Hobby Lobby case (Kessenides, 2014).
Social Issues
The social issue that would affect passage of the proposed amendment that would allow the U.S. government to provide quality healthcare to women while at the same time respecting religious inclinations creates a lot of controversies. Religious groups do not seem satisfied by the government’s exemption because it requires third parties to offer contraceptive medication that they view as immoral (Lederman, 2014). The signing of Form 700 or writing of a special notification letter also brews tussles as most people view it as committing to immorality. Faith-based organizations have come out in arms against these provisions.
Ethical Issues
The ethical principle that supports passage of the proposed amendment is the principle of individualism because it emphasizes on individual consumer’s choice in any circumstance whether for education or health care services (Williams et al., 2011). The power of choice will enable women working in religious based organizations choose programs that suit them.
Stakeholders
Politicians – because a politician would vote to pass, not pass, or
table the amendment.
The American voter, who would support or not support the amendment for politicians.
Political Activists, who demonstrate for or against the amendment. An example would be Teamsters PAC, which deals with labor issues hence the welfare of employees.
Political Lobbyists, who lobby for or against the amendment. An example would be the American Jewish Committee.
Summary
The public policy problem is that section 2713 requires organizations to provide their workers with birth control as part of their insurance coverage. The public policy question is: should the federal government mandate that organizations can choose whether or not to provide contraceptive services to employees as part of their insurance coverage? The public policy resolution is an amendment to section 2713(a) (4) of PL 111-148 that would say: organizations – both for-profit and non-profit – have the option of either offering their employees birth control as part of their insurance coverage or not to offer contraceptive services (Cauchi, 2014).
Amending section 2713 would mean that American women will have access to basic health care based on the options chosen. On the other hand, faith-based organizations will have the right to opt out of the preventive health care scheme for their female employees but continue to cover them for other services. This will also stop the politicking associated with the preventive health care service in that individuals will not have to sign Form 700, which most organizations view as committing an immorality.
Constitutional impediments and Commonwealth-State rivalry prevent Australia having effective national, corporate regulation
Is this statement an accurate description of the situation in Australia today? Discuss, in the light of recent reforms to the regulatory scheme and problems which may arise in the future.
Guidelines
The word limit is 2400 words. If the assignment exceeds the word limit by 100 words or less, there will be no penalty. If the assignment exceeds the word limit by more than 100 words, there will be a penalty of half a mark deducted for each extra 50 words or part thereof. Footnotes will not comprise part of the word count nor will a bibliography. If the assignment word count is well below 2400 words (2100 words or less) there will be penalty.
NB: Late assignments will be penalised as follows:
• Up to 3 days late 5% of the maximum possible mark awarded for the assignment
• From 4–7 days late 10% of the maximum possible mark awarded for the assignment
• From 8–14 days late 25% of the maximum possible mark awarded for the assignment
• More than 14 days late Not marked
Refer to the Rules concerning all assignments for the circumstances when these penalties may be waived. Remember that the extension to the submission deadline is exception rather than the rule and it can be granted only in exceptional circumstances.
The assignment may cover all unit objectives, though content will vary with the topic selected. In addition to matters developed in more detail below the marker will examine whether you have:
1. identified and clearly stated the relevant issues;
2. applied relevant legal principles to the resolution of these issues;
3. critically analysed deficiencies in the law and recommended appropriate changes to the law;
4. integrated and evaluated relevant knowledge from both the material covered in this unit and your own independent research;
5. developed and sustained a concise and convincing legal argument through to a logical conclusion;
6. correctly referenced and acknowledged sources;
7. fluent, clear, concise writing, not containing poor expression, grammar or spelling; and
8. answered the specific question asked.
It is most important that your assignment address the issues raised in your chosen topic. Think about the topic and make sure you understand what the topic is about before you proceed.
Marks cannot be awarded for irrelevant material, no matter how good that material is. The assignment should contain:
1. An introduction, clearly setting out the broad direction of the assignment, its objectives, any parameters of the assignment, and perhaps a summary of the arguments;
2. Presentation of argument, review of literature and compilation of evidence relevant to the topic;
3. Conclusion, clearly summarising the arguments or findings;
4. a reference list, setting out all the books, articles and other sources you have referred to in the course of writing the assignment. You need not have necessarily read each reference from start to finish, but you should have at least looked up each reference;
5. Accurate citation of your sources of information. Your written material must be presented in accordance with the most recent Australian Guide to Legal Citation (AGLC) adopted by this School (you can download a copy of the AGLC from ).
Students should note the following:
• Many people are not familiar with the requirements of assignments. Basically they are like any other piece of good writing. They must have a beginning, a middle and an end. They must be organised so that one point leads to another in a logical sequence. Headings and subheadings are usually of assistance to the reader, who should be easily able to ascertain the logic of your arguments. You should look at the articles you read in the course of your research as a model for style and organisation.
• Statements of fact must be supported by referencing in the proper form. Also arguments and ideas you are adopting or disagree with must be properly referenced. This is one of the most important aspects of your assignment, and severe penalties will be imposed if you do not reference. Be aware of the University’s and Law School’s rules on plagiarism. You should avoid over-reliance on only a small number of sources. You are expected to have read widely on the chosen topic.
• You are expected to employ your critical and analytical skills in this assignment. Avoid mere description or regurgitation and do not quote excessively. Generally speaking, no more than 10% of the assignment should be direct quotes or substantive copying of other people’s work. Both your observations and your use of other people’s writing should reflect this critical/analytical dimension. In sum, your intellectual input should be clearly discernible in the assignment.
• You are not marked for your political or social views or opinions, but rather for your ability to present coherent, rational and logical arguments, properly supported by authority.
• You are also marked for your ability to express yourself clearly, logically and succinctly. Poor expression, grammar and spelling will detract from your overall mark.
•Many students do not also realise that the more drafts of the assignment that are written, the better standard the final product will normally be. You should aim to find the time to complete at least two, if not three, drafts prior to handing the assignment in. This will be especially important in ensuring that the word limit is not exceeded.
Marking criteria
Important information: You are advised to consider the following information carefully before starting your assignment.
The assignment will be marked according to the following criteria.
Research (40%) You are expected to demonstrate a comprehensive review of the primary law sources (legislation, case law) as well as an adequate review of secondary sources (for example textbooks, journal articles, case commentary, explanatory memorandum, Law Reform Commission reports). Your research should be used to identify and clearly state the relevant issues and legal principles and support your analysis.
Analysis (50%) You are expected to analyse the information gathered and evaluate the relevant legal principles. You are expected to develop your argument logically through clear analysis and apply relevant legal principles to the resolution of issue(s).
Your analysis should also:
• integrate and evaluate relevant knowledge from the material covered in this unit;
• develop and sustain a concise and convincing legal argument through to a logical conclusion; and
• importantly, answer the specific question asked.
Technical aspects (10%) You are expected to:
• correctly reference and acknowledge sources;
• use fluent, clear, concise writing that contains clear expression, correct grammar, syntax, sentence structure and spelling; and
• Use headings and subheadings (where appropriate), an introduction, conclusion and bibliography or reference section.
Submission of assignments
All students are required to upload an electronic copy of their assignments via Turnitin. DO NOT send a hard copy of your assignment.
Assignments must be uploaded on or before the due date.
Your assignments must be submitted as either Word documents (.doc or .docx) or as text documents (.rtf). Please do not submit PDF files. Please discuss any other file format with your lecturer well before the due date.
You can start by discussing history. I would say it is advisable since the constitutional issues are highlighted by earlier cases. You may also discuss Commonwealth-State rivalry in other areas of law as Tax law but briefly just to make a point or compare with Corporate law related issues
SAMPLE ANSWER
Company Law
Introduction
The commonwealth (Federation) and the States have been engaged in rivalry since the inception f the Australian federation in 1901, which has only got more heated over the past years given that the High Court has continued to award more power to the commonwealth at the expense of the States. The commonwealth has continually used the powers of the Australian High Court in judicial interpretation of the constitution to exercise their constitutional power over the policies of the States. A clear example of such a case was in 1942 when the High Court upheld the decision by the commonwealth to levy taxes through the First Uniform Tax case so that it could finance the war effort become the sole collector of taxes across the whole federation (OBPR, 2008). The High Court cited section 51 (ii) within the constitution that gave powers to the commonwealth to levy taxes (OBPR, 2008). The key issue of contention is that in cases where there is a conflict between the commonwealth and state regulations, the relevant commonwealth laws are considered supreme in such situations. The rivalries between the commonwealth and the states and the impactof the constitution have created an untenable situation in Australia that impedes effective national and corporate regulation. This was true in the past and is still true today although significant steps have been taken to create reform and change within the regulatory system so as to improve the situation. This paper shall focus on the recent reform agenda pioneered by the Council of Australian Governments (CAOG) and its effect on Australia and its corporate regulatory environment.
Fiscal Imbalances between States and the Commonwealth
A common source of rivalry between the Commonwealth and the States in recent years has been regarding how the federal government gives funding to the States through awarding them various grants. Given that the federal government is the sole tax collector in the country, it has to find a way of redistributing the taxes collected back to the States so that they can provide essential services to their people (OECD, 2009). The federal government is required to fund various basic services such as the provision of services to the elderly including their health care, and at the same time, it is supposed to provide basic health services to the rest of the population, but the States governments are required to provide hospital services. This scenario indicates that the responsibilities of the federal government and the State government overlap and the two bodies have been known to commonly use this overlap to blame the other party for any deficiencies in the provision of health services. As this blame game rages on because of the rivalry between the Commonwealth and the States, ordinary Australian continue to suffer due to lack of some basic health services as they are being told that it is the fault of either the State or the federal government (OBPR, 2008). Similar blame game scenarios exist in the provision of other basic services, which lowers the service delivery aspect of both governments.
Harmonization of legal and regulatory requirements
The commonwealth and the State governments also have a lot of rivalry that arises out of the harmonization of the legal and regulatory requirements for businesses in the country that have acted as a significant barrier to the growth of the country’s economy. Research indicates that through harmonization, the country can generate significant GDP growth, growth in real incomes and create more jobs, which will reduce unemployment and raise the living standards of many Australians. The rivalry has acted as a significant barrier to harmonization with both governments wanting to be the superior partner in such partnerships and to get the best of the benefits that accrue from such partnerships instead of thinking about the benefits to ordinary Australians (OBPR, 2008). It has seen Australia continue to offer significant obstacles in terms of regulatory requirements when creating companies and when paying for licenses with many corporations being charged for licenses both at the State and the national level. Without the rivalry one can only imagine how far Australia would actually go in terms of being one of the most friendly nations to investors and businesses in the region and maybe even across the globe. Over time efforts to establish national trade authorities and organizations that mange trade on a national level through harmonization have been met with a lot of resistance by the State governments. This rivalry has resulted in the lack of implementation of most of the harmonization programs in Australia.
National partnership payments
The delivery of services in the states has been affected for a long time by federal-state relationship in the sense that whatever the state governments did was tied to the policies of federal agencies. The NPP programs through which the federal government funded most of the projects of the states was skewed in the favor of the federal government, which had excess control over what the states did with the funding as it usually had attached conditions. The states were extremely limited in the scope of independent choices they could make in terms of how they would spend the money they received from the federal government. However, in order for states to have autonomy in their affairs as envisioned in the constitution, the role of the federal government in deciding the policies of states should be non-existent or minimal at best (‘BEPS and recent developments in Australian corporate tax law,’ 2013). Efforts to create a more independent relationship between the federal governments and the states have faced challenges because of the existing rivalry with most of the proposed changes still not being implemented. A different funding program should be implemented in order to give states more power over the policies they implement by removing the attached conditions that were a part of federal funding. Such a strategy would ensure that states have more control over the delivery of services within their jurisdictions, which will increase innovation within the states and boost competition between states that will benefit all Australians.
Rivalries between heads of governments
Initially the Commonwealth was almost entirely responsible for meeting of heads of governments that discussed the reform agenda in Australia, which gave little room for the states to set their own agenda and fully express their needs and policies in relation to the federal government policies. The heads of agencies in the federal government would arrive at such meetings with their requirements for the state governments clearly outlined with little room for debate, which fueled the rivalry further. However, the COAG has strived to reverse this trend and create a new culture for such meeting between heads of governments by directly involving the heads of governments from the states, the territories and the commonwealth in the planning of such meetings (COAG, 2008). Other avenues for dialogue have also been created in terms of working groups and ministerial councils, which meet much more frequently than in the past where COAG meetings were only convened on an annual basis and were extremely brief (OECD, 2009). These frequent collaborative meetings have served to increase the cooperation between the state and federal governments, which has significantly increased the pace of reforms within the country. The establishment of a Center for the Australian Federation by the states in 2006 is a clear indicator of the increased role of the states in the reform agenda currently being implemented in Australia.
The Impact of Ministerial Councils
During the implementation of recent reform agendas, the role of the ministerial councils has taken center stage given that they are a direct way of ending state and commonwealth rivalry as they are usually made up of ministers from states, the territories and the commonwealth (OBPR, 2008). The impact of ministerial councils cannot be understated as they usually result in the adoption of specific policies by the states that quickly translate into legislations and finally into regulatory practices in the states and territories. The ministerial act as avenues for resolving any issues that arise between governments and the COAG has identified them as a crucial component of the efforts to implement the reform agenda within the states because of the authority of the members of such councils as representatives of their governments. Initially the ministerial councils were too many with some having overlapping roles and there was ineffective communication between the numerous ministerial councils which directly impeded the coordination of their activities and their effectiveness. However, the CAOG embarked on a project of streamlining the effectiveness of the ministerial councils and creating better integration firstly by reducing their number and redefining their scope and providing clear guidelines for their formation (COAG, 2008b). The ministerial councils have been vital in redefining the role of the states in creating their own policies, which has positively impacted the relationship between the states and the commonwealth by increasing the autonomy of the states (OECD, 2009).
Improved mechanisms for regulatory management
A crucial component of the rivalry between state and federal governments is the rising costs of compliance across various jurisdictions in Australia because of non-uniform regulatory schemes that lead to double taxation on businesses, thus hindering business competition. Although the federal government is the sole tax collector, businesses are taxed and regulated under the individual constitutions of each state or territory, which greatly increases their compliance costs across jurisdictions (OECD, 2009). In order to improve the regulatory management mechanisms, the CAOG got the three levels of government to agree to several guidelines that would govern the regulatory environment (COAG, 2008b). The agreement included the establishment of gate keeping or controls as a crucial component of the decision making process, use cost-benefit analysis as a method of improving the quality of decisions made by analyzing the impact of such decisions. The agreement also involved the establishment of better analysis of the cost of compliance resulting from new regulations on individuals, businesses and the community, while at the same time increasing the scope of the impact analysis performed for new regulations (‘BEPS and recent developments in Australian corporate tax law,’ 2013). These mechanisms are supposed to apply to all three levels of government and the ministerial councils as they create regulations within the recommended regulatory framework in order to eliminate all forms of rivalry between states, territories and the federal government.
Applying best practice principles in regulation
In order to create and implement equal regulatory requirements the three levels of governments agreed to abide by some principles that would ensure the equality of regulations across Australia based on principles of equality and fairness. Some of the guiding principles under this agreement brokered by the CAOG include establishing a credible case for action before attempting to create legislation to solve a particular problem, considering several feasible options before making a decision on the best option to adopt for the problem, and adopting only those options that have the greatest overall positive impact on the society (COAG, 2008). The three levels of government also agreed not to restrict competition unless it could be proven that the benefits of such a move on the community would be greater than the costs and that this was the only way such benefits could be attained. The governments should also guide those affected by certain regulations on how best to comply with the regulations so that the expected policy outcomes might be achieved, while at the same time the governments should keep regulations up to date and relevant over time. In case there are issues that are raised by several jurisdictions after a particular regulation is being considered for implementation, the ministerial councils should halt its processes and commission a review of the decision making process (OECD, 2009). If the review team finds faults with the process, the council has the option of using the findings and recommendations when making their final decision, but if they ignore the recommendations, the heads of government may take up the issue.
Working Arrangements that Facilitate National Reform
As coordination between the commonwealth and states increased significantly after the December 2007 elections the COAG created a set of guidelines that would guide the creating of appropriate working conditions for the Australian workforce under the renewed cooperation between the two governments. Some key areas of focus included health and ageing, business regulation and competition, and productivity agenda including training and education. Working groups were constituted by the CAOG to create proposals for the implementation of these strategies, which were headed by a minister of the commonwealth with their output being in form of proposals, and delivery objectives (COAG, 2008). Heads of treasuries complemented the working group as an independent unit chaired by the Commonwealth Head of Treasury where they worked out formulas for implementing the proposed financial plans (OECD, 2009). The major strengths of the working groups include the fact that they have a clear agenda, they have high ranking political leaders, they have adequate funding and well established secretariats, and are composed of high level commonwealth and state officials with relevant experience in setting policies. However, states have raised issues with the significant role played by the commonwealth as the leader, but they also appreciate that the commonwealth is leading the reform agenda.
Conclusion
In conclusion, the analysis of the issues at the core of the rivalry between the commonwealth and state governments and the reform agenda implemented by the CAOG indicate that the reform agenda has tries to resolve most of the issues that impede the establishment of a national corporate regulatory environment. I would like to point out that if the reform agenda is implemented fully by successful governments, they can prevent any future rivalries by preempting them and establishing structure to quickly resolve such rivalries in the future. I would also like to issue a cautionary word to the corporations that are relying on the reform agenda to rollout programs or expand operations across the country or even internationally that the pace of reforms is unpredictable. Reforms may be fast tracked by one government only for them to drastically slow down during successive administrations, which means that all corporations should plan for such eventualities in future. The rivalries between the three levels of government are not new to Australia, what would be new is if the current generation of leaders was able to completely resolve the rivalries and constitutional impediments to create a favorable corporate regulatory environment. The reform agenda discussed here holds the key to the desired corporate regulatory future, but Australian leaders must be willing to implement it fully to reap the maximum benefits for their efforts.
Reference List
‘BEPS and recent developments in Australian corporate tax law,’ 2013, International Tax Review, 24, 10, p. 15, Business Source Complete, EBSCOhost, viewed 21 August 2014.
Constitutional impediments and Commonwealth-State rivalry
Constitutional impediments and Commonwealth-State rivalry prevent Australia having effective national, corporate regulation.
Order Instructions:
Topic
“Constitutional impediments and Commonwealth-State rivalry prevent Australia having effective national, corporate regulation.”
Is this statement an accurate description of the situation in Australia today? Discuss, in the light of recent reforms to the regulatory scheme and problems which may arise in the future.
Guidelines
The word limit is 2400 words. If the assignment exceeds the word limit by 100 words or less, there will be no penalty. If the assignment exceeds the word limit by more than 100 words, there will be a penalty of half a mark deducted for each extra 50 words or part thereof. Footnotes will not comprise part of the word count nor will a bibliography. If the assignment word count is well below 2400 words (2100 words or less) there will be penalty.
Refer to the Rules concerning all assignments for the circumstances when these penalties may be waived. Remember that the extension to the submission deadline is exception rather than the rule and it can be granted only in exceptional circumstances.
The assignment may cover all unit objectives, though content will vary with the topic selected. In addition to matters developed in more detail below the marker will examine whether you have:
1. identified and clearly stated the relevant issues;
2. applied relevant legal principles to the resolution of these issues;
3. critically analysed deficiencies in the law and recommended appropriate changes to the law;
4. integrated and evaluated relevant knowledge from both the material covered in this unit and your own independent research;
5. developed and sustained a concise and convincing legal argument through to a logical conclusion;
6. correctly referenced and acknowledged sources;
7. fluent, clear, concise writing, not containing poor expression, grammar or spelling; and
8. answered the specific question asked.
It is most important that your assignment address the issues raised in your chosen topic. Think about the topic and make sure you understand what the topic is about before you proceed. Marks cannot be awarded for irrelevant material, no matter how good that material is.
The assignment should contain:
1. an introduction, clearly setting out the broad direction of the assignment, its objectives, any parameters of the assignment, and perhaps a summary of the arguments;
2. presentation of argument, review of literature and compilation of evidence relevant to the topic;
3. conclusion, clearly summarising the arguments or findings;
4. a reference list, setting out all the books, articles and other sources you have referred to in the course of writing the assignment. You need not have necessarily read each reference from start to finish, but you should have at least looked up each reference;
5. accurate citation of your sources of information. Your written material must be presented in accordance with the most recent Australian Guide to Legal Citation (AGLC) adopted by this School (you can download a copy of the AGLC from ).
Students should note the following:
· Many people are not familiar with the requirements of assignments. Basically they are like any other piece of good writing. They must have a beginning, a middle and an end. They must be organised so that one point leads to another in a logical sequence. Headings and subheadings are usually of assistance to the reader, who should be easily able to ascertain the logic of your arguments. You should look at the articles you read in the course of your research as a model for style and organisation.
· Statements of fact must be supported by referencing in the proper form. Also arguments and ideas you are adopting or disagree with must be properly referenced. This is one of the most important aspects of your assignment, and severe penalties will be imposed if you do not reference. Be aware of the University’s and Law School’s rules on plagiarism. You should avoid overreliance on only a small number of sources. You are expected to have read widely on the chosen topic.
· You are expected to employ your critical and analytical skills in this assignment. Avoid mere description or regurgitation and do not quote excessively. Generally speaking, no more than 10% of the assignment should be direct quotes or substantive copying of other people’s work. Both your observations and your use of other people’s writing should reflect this critical/analytical dimension. In sum, your intellectual input should be clearly discernible in the assignment.
· You are not marked for your political or social views or opinions, but rather for your ability to present coherent, rational and logical arguments, properly supported by authority.
· You are also marked for your ability to express yourself clearly, logically and succinctly. Poor expression, grammar and spelling will detract from your overall mark.
· Many students do not also realise that the more drafts of the assignment that are written, the better standard the final product will normally be. You should aim to find the time to complete at least two, if not three, drafts prior to handing the assignment in. This will be especially important in ensuring that the word limit is not exceeded.
Marking criteria
Important information: You are advised to consider the following information carefully before starting your assignment.
The assignment will be marked according to the following criteria.
Research (40%) You are expected to demonstrate a comprehensive review of the primary law sources (legislation, case law) as well as an adequate review of secondary sources (for example textbooks, journal articles, case commentary, explanatory memoranda, Law Reform Commission reports). Your research should be used to identify and clearly state the relevant issues and legal principles and support your analysis.
Analysis (50%) You are expected to analyse the information gathered and evaluate the relevant legal principles. You are expected to develop your argument logically through clear analysis and apply relevant legal principles to the resolution of issue(s). Your analysis should also:
· integrate and evaluate relevant knowledge from the material covered in this unit;
· develop and sustain a concise and convincing legal argument through to a logical conclusion; and
· importantly, answer the specific question asked.
Technical aspects (10%) You are expected to:
· correctly reference and acknowledge sources;
· use fluent, clear, concise writing that contains clear expression, correct grammar, syntax, sentence structure and spelling; and
· use headings and subheadings (where appropriate), an introduction, conclusion and bibliography or reference section.
SAMPLE ANSWER
Constitutional impediments and Commonwealth-State rivalry
Introduction
Australia is otherwise known officially as the Commonwealth of Australia. Australia is a federation of six states and several territories. The country formed a federation in 1901 after the adoption of a new federal constitution and has since functioned as a federal parliamentary democracy under a constitutional monarchy (http://www.asic.gov.au/). The federal system of government formed in 1901 has three branches namely the legislature, the executive and the judiciary. Executive power is vested with the sovereign (the British monarch) who exercises it through the Governor-General (www.comlaw.gov.au). The Governor-General is appointed by the monarch at the advice of the Prime Minister. The Governor-General can dismiss the Prime Minister if there are substantial grounds to do so. The Commonwealth of Australia has a legislature that is made up of a senate and a house of representatives. Each state in the federation has its own state constitution that guides that state’s legislature, judiciary and executive. These state constitutions however are required to be read subject to the federal constitution (www.comlaw.gov.au).
The impact of constitutional impediments and Commonwealth-State rivalry on effective national corporate regulation
The Australian constitution has a lot of safeguards that provide amble space for an effective national corporate regulation. The constitution provides that any state regulation that is inconsistent with any law that has been passed by the Commonwealth parliament is invalid to the extent of that inconsistency. This therefore ensures that no state regulation can be enacted that will hamper or hinder the functions of corporates from other states and free flow of goods and services (http://www.asic.gov.au/). This ensures therefore that all regulation is applicable throughout the commonwealth states without discrimination. The Commonwealth constitution prohibits establishment of taxes and custom duties among states. This ensures that taxes are uniform throughout the Commonwealth and tariffs are also uniformly set by the federal government pursuant to acts of parliaments enacted by the Commonwealth parliament and approved by the Governor-General. The Federal constitution also provides for free trade among states and prohibits any discrimination among states (http://www.uclaw.com.au/home/; http://www.asic.gov.au/).
According to Chapter IV of the Constitution (sections 81–105A), the constitution contains provisions to regulate trade and commerce throughout the Commonwealth states of Australia. Provisions in the current Australian constitutions enable the country to have a single trade area. The constitution ensures that custom duties are uniform and abolishes protectionist policies between states (MURRAY and PEETZ, 2013). This ensures that corporate regulation is applicable uniformly in all states in the realm. Section 88 of the constitution prohibits state parliaments from imposing custom duties while at the same time empowering the Commonwealth parliament to impose uniform customs duties. The same section of the constitution provides that trade among states in the Commonwealth of Australia shall be completely free. These provisions ensure that national corporate regulation in Australia is effective since it could be applied uniformly in all states (http://www.uclaw.com.au/home/).
The composition of the senate and House of Representatives is drawn from all the states that make up the Commonwealth of Australia. In the event of corporate regulation debate in the Commonwealth parliament each state is able to give its input equally through its elected representatives. Laws enacted must be passed by the senate and must be approved by the Governor-General. The monarch can also set aside a law if it is not in the interests of the national government. All these checks and controls ensure that corporate regulation is effective throughout Australia. The Commonwealth parliament has powers conferred by the constitution to make laws on a wide variety of issues that could impact on corporate regulation (http://www.uclaw.com.au/home/). These touch on taxation, bounties on the production or export of goods, borrowing money on public credit of the federal government, postal, telegraph, telephone, seaways, airways etc. Commonwealth parliament has powers to make banking laws that are applicable in all states. These powers are aimed at making uniform legislation that makes interstate trade uniform, free and fair. National corporate regulation is also anchored on these provisions (http://www.asic.gov.au/).
However, there are some impediments in the constitution that may make effective national corporate regulation impossible to achieve. The first constitutional impediment appears to be in separation of powers between the executive, the legislature and the judiciary. The Constitution in Chapters I, II, and III confer the legislature the power to make laws, confer the executive the power to administer these laws and carry out the business of government through government institutions and confer the judiciary the power to determine legal disputes through established court processes (http://www.uclaw.com.au/home/). There is however no strict demarcation between executive and legislative powers despite the structures set by the constitution. Sometimes the legislature delegates its legislative power to the executive but may thereafter disallow regulations that the executive makes. This causes confusion and is an impediment that prevents the country from having effective corporate regulation (http://www.uclaw.com.au/home/).
The next impediment is that even though the constitution confers power on the Commonwealth Parliament to make laws, this power is limited to particular subjects which include defense, external affairs, interstate and international trade, taxation, foreign trading and financial corporations, marriage and divorces, arbitration, interstate industrial conciliation and arbitration. This limitation places an impediment on the country in making effective national corporate regulation since it excludes such important areas as criminal law, education, environment etc. Some of these important subjects are handled exclusively by state constitutions which may vary depending on the state in focus (http://www.uclaw.com.au/home/). This hinders uniformity and may create confusion in its application. Under the federal system created by the Australian constitution, it guarantees the continuous existence of each state and preserves each of their constitutions. A state parliament is allowed to make laws on any subject whether corporate or not which is specific to that state and this creates an impediment to effective corporate regulation in Australia. This is because each state can modify or add to its existing corporate regulation and thus make it markedly different from what exists in other states. This would create confusion and make corporates undergo different pieces of regulation on similar issues depending on the state they choose to operate in (http://www.asic.gov.au/).
Unlike the Commonwealth parliament, it has been noted that state parliaments can pass a wide range of laws on the subjects of criminal law, education, roads etc. which would impact on corporate regulation in each state differently. It should be noted however that Commonwealth parliament has been regarded generally as superior to state parliaments. According to Section 109 of the federal constitution, if a valid Commonwealth law is inconsistent with a state parliament law then the Commonwealth law is operational and the state law is inconsistent and invalid to the extent that inconsistency (http://www.asic.gov.au/). As far as laws that are made by Commonwealth parliament is concerned, there is no conflict with state parliament laws as a result. The danger arises though where state parliaments make laws on subjects that Commonwealth parliament does not deal with and which have a bearing on corporate regulation. Such laws will impact corporates differently if they are different from one state to the next (TUSHNET, 2013).
Laws touching on corporate regulation have to be approved by the senate and House of Representatives before it is made an act of parliament by the Governor-General. This provides for a lengthy process which may make amending unfavourable acts hard to achieve. Again, state rivalry may work against pieces of legislation drafted by professionals from different states. In situations where legislation is viewed as potentially benefiting corporates from one state and potentially able to give it a big lead in terms of resources, other states might gang up to oppose it even if it is potentially a nice piece of regulation that could benefit Australia as a whole in the long run (http://www.asic.gov.au/).
Actions of the judiciary have also made effective national corporate regulation a mirage. Recent judgments by the High Court have posed a challenge to federal structure of corporate law in Australia. Even though Corporate law in Australia has for many years been viewed as a federal law, it is a widely held view by many legal minds in Australia that corporate law is essentially made of up of laws specific to each state with some federal features. Each state therefore has a distinctive corporate law that has some features from the federation (http://www.asic.gov.au/). The High Court judgement in the case of New South Wales v Commonwealth (1990) 169 CLR 482 necessitated the requirement that states enact their own Corporations Acts but include some aspects of federalism. In this case the High Court considered section 51 of the federal constitution as an attempt to enact Corporations Act that would be applicable nationally. In this case the court held that matters to do with incorporation of companies are not one of the mandates of the commonwealth parliament and the power to deal with such matter lie with parliaments of each state. This judgement made it impossible to have a national corporate regulation (http://www.asic.gov.au/).
An attempt by the Commonwealth parliament to institute national corporate regulation in late 1980’s and early 1990’s (including incorporation of companies) was faced by persistent problems which included lack of a uniform administration by National Companies and Securities Commission and the Corporate Affairs Commissions of each state. It was also felt that the structure lacked adequate national government enforcement mechanisms. This problem led to negotiations between various state governments and the national government which saw each state being allowed to enact its own Corporations Act but required to add several federalizing features. Some of the federalizing features included enactment of the Australian Securities and Investments Commission as the national regulator (http://www.asic.gov.au/). The Administrative Appeals tribunal and the Commonwealth Ombudsman were mandated to be corporate regulators at the federal level. Australian Securities and Investments Commission, the federal police and the Commonwealth director of public prosecutions were given the mandate to investigate and prosecute offences under the various state Corporations Acts. Matters arising under the various state Corporations Acts were to be determined by the federal court. Even though the Commonwealth parliament in the High Court judgment in case of New South Wales v Commonwealth implied that it did not have the power to deal with the incorporation of companies a lot of effort in the form of federalizing features were put in place to have national corporate regulation in place (http://www.asic.gov.au/).
However, the authority of the federal High Court to determine cases involving Corporate regulation was thrown out in the case of Re Wakim (1999) 31 ACSR 99;17 ACLC 1,055 (http://www.asic.gov.au/). In this case the High Court struck down the mandate given after the New South Wales v Commonwealth case which gave federal court cross vesting legislation to determine corporate regulation matters. In the Re Wakim case, the high court held that it was unconstitutional for the Federal High Court to hear such matters as brought forward in this case under Chapter III of the Australian constitution. This position was held despite the fact that all state and commonwealth governments had agreed that the Federal court play a role of determining disputes arising under the State Corporations Acts. After this case state governments had to pass emergency validating legislation that upheld previous judgments made by the Federal court since they stood the risk of being declared unconstitutional and therefore null and void (http://www.asic.gov.au/).
The High Court decision in the Re Wakim (1999) 31 ACSR 99; 17 ACLC 1,055. Case had profound and far reaching consequences. All corporate regulation cases pending in the federal court had to be transferred to their respective state high courts with far reaching financial implications. Many state courts were at a loss as to what jurisdiction still remains with the federal court post Re Wakim case. Expertise which the federal court had acquired over the years was lost after this case. The Re Wakim case is not the only case that proved that constitutional impediments have continued to hamper effective national corporate regulation (RAMSAY, 2000). In the case of Bond v The Queen, the High Court held that the Commonwealth director of public prosecutions had no power to appeal against a state courts sentence for breach of the states corporations Act under the constitution. The only power that the Commonwealth director of public prosecutions, as regards to a sentence imposed for a breach of a state Corporations Act is to initiate and institute prosecutions for such breaches (LI, 2011). Another case in focus is the case of The Queen v Hughes. The high court judgement in this case received extensive coverage by the media. In this case prosecuted by the Commonwealth director of public prosecutions the Federal High Court found that Hughes by obtaining $300,000 from investors had breached the Corporations Act of Western Australia. The high court held that appropriate commonwealth legislation needs to be enacted that will be applicable to all states. Hughes was only able to be prosecuted because he had dealt internationally by investing money in the United States of America (LANSLEY, GIBSON and FOGARTY, 2002).
Conclusion
It is evident by reading the federal constitution that adequate clauses have been enacted which provide for uniform application of corporate laws throughout the states of Australia. The constitution clearly stipulates that states constitutions are to be read subject to federal constitution and any inconsistencies found in state constitutions are to be invalid to the extent of the inconsistencies. There are some clauses that can be misread and misinterpreted. One of which is the separation of powers which does not easily put a demarcation between executive roles and legislative roles (http://www.asic.gov.au/). Some recent court cases have also added into the confusion. The Re Wakim case is one such case in which the prosecutorial powers of the Commonwealth director of public prosecutions were put into curtailed. Several strategies have been advanced to resolve this mess. This includes holding a referendum to amend the constitutions to give the Commonwealth director of public prosecutions powers to initiate and institute prosecutions on breach of state Corporations Act (HUMPHRYS, 2013). The next method is by instructing state courts to refer such corporate regulation cases to the federal court for determination. This referral is allowed in the current constitution and is also tested and tried in the United States of America and found to be workable. The final method would be putting in place a split regulation that separates prosecutorial powers between the state governments and the Commonwealth director of public prosecutions. For instance the state courts could handle mergers, acquisitions, etc whereas the federal court handles cases arising from state Corporation Acts (HUMPHRYS, 2013)
References
HUMPHRYS, E., (2013). THE BIRTH OF AUSTRALIA: NON-CAPITALIST SOCIAL
RELATIONS IN A CAPITALIST MODE OF PRODUCTION? The Journal of Australian Political Economy, (70), pp. 110-129.
LANSLEY, A., GIBSON, B. and FOGARTY, M., (2002). Corporate governance in Australia. International Financial Law Review, , pp. 33-38.
LI, Y., (2011). The Relationships of Corporate Governance, Government Regulation and Performance of Small Manufacturing Business in Australia. Rochester: Social Science Research Network.
MURRAY, G. and PEETZ, D., (2013). RESTRUCTURING OF CORPORATE OWNERSHIP IN AUSTRALIA THROUGH THE GLOBAL FINANCIAL CRISIS. The Journal of Australian Political Economy, (71), pp. 76-105.
RAMSAY, I., (2000). States, commonwealth put on the gloves: Challenges to Australia’s federal corporate law. JASSA, (3), pp. 26-29.
TUSHNET, M., (2013). Constitution-Making: An Introduction. Texas Law Review, 91(7), pp. 1983-2013. www.comlaw.gov.au
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When a customer feels pressured into making decisions or taking action that he or she feels is inconsistent with what is right, ethical conflict is said to have occurred. Sales people are constantly faced with various ethical dilemmas as they interact with the customers, competitors, and employers. They are frequently exposed to high levels of ethical pressures than employees holding other positions in a company. This is as a result of the freedom they have, since they tend to work in relatively unsupervised settings. They are also responsible for the generation of a firm’s revenue, which may also be stressful.
Question 1
I disapprove of Wright’s sales tactic because the method being used is not ethical. The whole technique is based on dishonesty and deceiving the customer (Ferrell, Johnston & Ferrell, 2007). It also puts pressure on the customer to seal the deal immediately. Wright, however, is trying to cover up for it by giving directions that only customers who seem to want the product can be persuaded. Direction is also given that the technique will only be influenced for someone who actually needs the land. From this perspective, this sales tactic may be dismissed as moral since the customer indeed needed the land, and the sales person knew that the land would satisfy the client’s needs fully (Ruiz-Palomino & Martínez-Cañas, 2014).
Question 2
If I knew that the prospect in the case study would eventually buy the property or that it would be in the prospect’s interest to buy it, my moral assessment of this closing technique would not be affected. This is because I still think that it is morally wrong for salespersons to play with their prospect’s psychology through deceit, just to seal deals. Dishonesty is a factor that has been discouraged for a very long time, especially for salespersons (McClaren, 2013). There are no way the sales person will be in a position to know if that prospect actually needs the land. Hesitation does not mean that the land is needed; but that the client is not sure which one will fully satisfy his or her needs. Therefore, when the sales person uses Wright’s tactic, the pressure of missing out on a product is exerted on the prospect.
If the law allows three days for the prospects to change their minds, there will be reasonable grounds for complaining about the closing technique used against them. First, the sales person was being dishonest in the attempt of getting the prospect to sign the deal. Once the prospect realizes that all the phone calls and reference to headquarters were all face, dishonesty may be claimed. It is always important to be truthful about information given to the customer. This is very important because the client needs to feel confident about the company in case of complaints. Second, after a day or two, the prospect may discover that the product is not what he or she hoped for. However, after being pressured using illegal means, he or she ended up signing the deal. Therefore, the prospects may argue that they were pressured into purchasing a product they were not sure satisfied their needs.
Question 3
There are many things which Jean needs to take into consideration before making any decisions. First, she needs to consider how her action will affect her future deals. No prospect would want to be associated with a dishonest salesperson. Lying about the presence of headquarters, and making fake phone calls to lure a client into signing the deal may easily backfire. If the client notices that all these were a lie, this may be the end of jean’s career. Second, as a sales person, Jean has the obligation to ensure that her actions are not interfering, in any way, with the rights of the customer. The customer has a right of making his or her own decision; the duty of the sales person is to help the customer decide on a product and finally make a purchase (Ross & Robertson, 2003). The duty of the sales person is not to pressure customers into purchasing the goods or services.
Question 4
Jean should give very little weight to self-interest in her deliberations since ethics suggest that a salesperson must always do what is best for his or her customers. It is not stated that she should also consider her own interests. If this code of ethics is considered, the sales person will be foregoing short-term profits but investing in long-term profits that may take longer to show (McClaren, 2013). The long-term benefits are always better because the sales person will eventually start gaining from referrals. Therefore, Jean should stick to her code of ethics and avoid doing what she thinks is wrong. She should always be honest to customers and refuse to pressure them into signing deals. Despite the fact that she is lagging behind, there is hope for more prospects in future because the few she has closed deals with will refer others to her because of her honesty and patience with customers.
Question 5
A rule utilitarian would encourage real estate agents in such a situation to follow a simple rule: “Happiness is not the rational end and purpose of human life and action; virtue is a better end or goal than happiness,” (Qtd. From Ferrell, Johnston & Ferrell 2007, p. 296). This rule implies that the sales person should not focus on his or her own benefits, but rather on virtue or goals. When this rule is followed, the real estate agents will always focus on taking the right actions and making good decisions for the sake of their customers, since the more loyalty there is, the better the performance of an organization.
The realtors’ professional code of ethics needs to reflect a lot on closing techniques. It should warn against using negative means of influence on prospects just to seal a deal. The rights of the customers must always be respected by ensuring that the closing techniques used are not going to disrespect these in any way.
Conclusion
The ethics of salespersons is a factor that will almost never be followed. This is because the job of salespersons has been closely associated with being dishonest, using pressure, and many more activities that ensure the customer signs a deal no matter what. This case study is basically an example of the decisions that salespersons have to make daily. At times, they are often pressured into using the wrong techniques to ensure they sign the deals. However, it is always advisable to use the proper means since the benefits associated with the latter outweigh its shortcomings.
References
Ferrell, O. C., Johnston, M. W., & Ferrell, L. (2007). A Framework For Personal Selling And Sales Management Ethical Decision Making. Journal Of Personal Selling & Sales Management, 27(4), 291-299.
McClaren, N. (2013). The Personal Selling and Sales Management Ethics Research: Managerial Implications and Research Directions from a Comprehensive Review of the Empirical Literature. Journal Of Business Ethics, 112(1), 101-125. http://www.doi:10.1007/s10551-012-1235-4
Ross, W. T., & Robertson, D. C. (2003). A Typology of Situational Factors: Impact on Salesperson Decision-Making about Ethical Issues. Journal Of Business Ethics, 46(3), 213-234.
Ruiz-Palomino, P., & Martínez-Cañas, R. (2014). Ethical Culture, Ethical Intent, and Organizational Citizenship Behavior: The Moderating and Mediating Role of Person-Organization Fit. Journal Of Business Ethics, 120(1), 95-108. http://www.doi:10.1007/s10551-013-1650-1.
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Policemen of the World Thesis and Outline
Due Week 7 and worth 70 points
After the Civil War and by the mid-20th century, the United States had become the dominant force in international relations. Some have argued that the United States’ military functions as the world’s “police.” This assignment covers the manner in which this shift occurred and the consequences the United States faces as a result of its status as “policemen of the world.” Using the Internet, research two (2) real-life international incidents from the past five (5) years in which:
The U.S. used military action abroad.
Controversy existed within the American public regarding U.S. involvement.
Controversy existed within the country or countries affected by U.S. involvement.
For the first part of this assignment you will create a thesis statement. A thesis statement is usually a single sentence somewhere in your first paragraph that presents your main idea to the reader. The body of the essay organizes the material you gather and present in support of your main idea. Keep in mind that a thesis is an interpretation of a question or subject, not the subject itself. (Note: Students please consult Stanford University’s Website with tips on how to construct a proper thesis, the webpage can be found at: http://www.stanford.edu/~steener/handouts/thesis.htm
For the next part of this assignment you will create an outline of the main points you want to address in this paper. This will serve as the basis for your Assignment 2.2 Final Draft. (Note: Please use the Purdue Owl Website to assist you with this assignment; this website can be accessed at: https://owl.english.purdue.edu/engagement/2/2/55/
Part 1
1. Write a thesis statement that is one to two (1-2) sentences long in which you:
State your opinion on the significance of the two (2) real-life international incidents that you have researched. Justify your response.
Part 2
2. Write a one to two (1-2) page outline in which you:
Determine two to three (2-3) international events from the past five years that can be traced back to a foreign policy created after the Civil War.
List three(3) aspects of US history since 1865 that has led to the US’s rise as a world super power policeman.
List three to five (3-5) international incidents since World War II where America has taken on a policing role.
List three to five (3-5) driving forces that fueled international policy decisions involving the international incidents you outlined previously. (Consider treaties, exit strategies, elections, wars, etc.)
Use at least three (3) quality references. Note: Wikipedia and other Websites do not quality as academic resources.
Your assignment must follow these formatting requirements:
Be typed, double spaced, using Times New Roman font (size 12), with one-inch margins on all sides; citations and references must follow APA or school-specific format. Check with your professor for any additional instructions.
Include a cover page containing the title of the assignment, the student’s name, the professor’s name, the course title, and the date. The cover page and the reference page are not included in the required assignment page length.
The specific course learning outcomes associated with this assignment are:
Identify and discuss the different ways that the Civil War, Reconstruction, and Industrialization after the Civil War have shaped America’s history.
Summarize and discuss the ways that formal policies of government have influenced the direction of historical and social development in the United States.
Recognize the major turning points in American history since the Civil War.
Use technology and information resources to research issues in contemporary U.S. history.
Write clearly and concisely about contemporary U.S. history using proper writing mechanics.
SAMPLE ANSWER
Policemen of the World Thesis and Outline
Two international events from the past five years that can be traced back to a foreign policy created after the Civil War include the 2011 U.S. military intervention in the Libyan crisis and the invasion of the Jordan-Syria border during the 2011 Syrian civil war (Ziadeh, 2011). In these two incidents, the United States operated in line with the premise that it is entitled with the duty to restore order and ensuring that democracy prevails.
Since 1865, various developments have taken place in the United States that have caused the country to rise to a world super power policeman. The country amassed a lot of power during the early 20th century which made it to influence other countries (Paul, 2011). The growth of the economy was one of the top aspects that facilitated the rise of the United States to a world super power policeman. The economic strength of the country made it to grow in superiority both regionally and in international politics. The economic power set the pillar and compelled leaders into pursuing major policies to boost it. The second aspect that led to the rise of the U.S. to a world super power policeman was the Spanish-American war of 1898. The U.S. explored and implemented various strategies in defense and driving the Spaniards out of Cuba. The U.S. demonstrated its superiority in defense and military by crushing the Spanish fleets at the Santiago Harbor. This triumph over Spain made the U.S. to be confident that no other country could afford to stop it from achieving anything. The third aspect that facilitated the rise of the U.S. to rise to a world power was the strategies adopted by the country’s leaders (Paul, 2011). For instance, President Theodore Roosevelt adopted deterrence and diplomacy strategies while advocating for war. He always chose preventive strategies rather than aggressive strategies in times of war. This made the United States to emerge as a country with the ability to solve disputes, and hence earned trust across the world.
There are various international incidents since World War II where America has taken on a policing role. One remarkable incidence was the military intervention in Korea between 1950 and 1953. The U.S. assisted South Korea when it was invaded by North Korea. This intervention was facilitated by the United Nations Security Council Resolutions. Approximately 300 U.S. forces were deployed to Korea to bring the conflict to an end. The second incident was the 1967 military intervention in the Congolese revolution where three military aircrafts were sent to help the Congolese central government in tackling logistics (Allan & Maslowski, 1994). The third incidence was the U.S. invasion of Afghanistan in 2001 after a terrorist event in an operation referred to as Operation-Enduring Freedom. The U.S. took an active role in fighting the Al-Qaeda and Taliban terrorists and supporters respectively. The U.S. has also take an active policing role in other countries such as Syria and Libya.
Various forces are attributed for fueling international policy decisions involving the international incidents such as the ones discussed in this paper. The intervention in Syria was facilitated by the desire to promote democracy. Another aspect that fueled the United States’ involvement in military intervention was the United Nations Security Council resolutions. The NATO treaties also played a significant role in propelling the U.S. to intervene in international issues. For instance, the intervention in Korea was driven by the desire to prevent war between Southern Korea and Northern Korea.
References
Allan, R., & Maslowski, P. (1994). For the Common Defense: A Military History of the United States. Simon & Schuster Adult Publishing Group.
Paul, A. (2011). Power and Connection: Imperial Histories of the United States in the World. American Historical Review, 116(5): 1348-1392.
Ziadeh, R. (2011). Power and Policy in Syria: Intelligence Services, Foreign Relations and Democracy in the Modern Middle East. London: I. B. Tauris.
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