The pros and cons of the law reform commission recognising the doctrine of unfairness in contract law for consumer protection in Irish Law - Free Essay Example

Sample details Pages: 9 Words: 2642 Downloads: 9 Date added: 2017/06/26 Category Law Essay Type Argumentative essay Did you like this example? 2. Content: Using your own words, briefly explain your understanding of the essay title and the issue you are being asked to address. What exactly is the essay title asking you to do? In my opinion the essay title was asking for me to research other jurisdictions for evidence of a doctrine of unfairness, how it is stated and used in said jurisdiction. Don’t waste time! Our writers will create an original "The pros and cons of the law reform commission recognising the doctrine of unfairness in contract law for consumer protection in Irish Law" essay for you Create order I think that it also called for a comparison to be drawn between the already in place unfairness doctrine elsewhere with consumer protection legislation in the Irish legal sphere, this legal comparison and contrasting would also encompass how the new doctrine and the Law Reform Commission would interact, this being if the LRC would deem it necessary, or completely redundant, and whether it would officially bring a doctrine of unfairness into Irish law or leave it up to judicial decisions to use something of its kind in deciding cases. 7. Overall: Having read the essay Marking Standards, what do you think would be a fair mark for this essay? Explain your reasons. I would give my essay 60% because my essay is adequate but not as good as I had hope I would make. This essay will discuss the pros and cons of the law reform commission recognising, within the law, a doctrine of unfairness for contracts with the aim for consumer protection, debate whether or not a doctrine of unf airness in Irish law is necessary and should said doctrine be welcomed or not. A legal doctrine is a framework, set of rules or procedural steps often established through precedents from cases in the common law, through which judgments can be determined in a given legal case. Now, due to our understanding of a doctrine, this essay can consider the necessity of the unfairness doctrine in Irish law and consider, with reference to previous cases and consumer protection acts already in place, the possible positive or negative ramifications of the inclusion of this doctrine. Overall, the aim of this essay is to discuss the Unfairness doctrine and validate or oppose its introduction to Irish Law. The doctrine of unfairness is a doctrine in United States trade regulation law under which The Federal Trade Commission (FTC) can declare a business practice à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚  because it is overbearing, oppressive or inimical to consumers even though the practice is not, an antitrust transgression, a commencement of antitrust infraction, a violation of the essence of the antitrust laws, or a misleading or deceptive practice.[1] To begin, the doctrine of unfairness was first authoritatively recognized in American law in Federal Trade Commission v. Sperry Hutchinson Co., 405 U.S. 233 (1972) although earlier Supreme Court decisions had suggested it in obiter dicta. In the Stamp Company case, the FTC were suing Sperry Hutchinson Trading Stamp Company for what they thought was an à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚  practice. This practice was suing à ¢Ã¢â€š ¬Ã…“trading stamp exchangesà ¢Ã¢â€š ¬Ã‚ . Businesses set up for to allow customers, for a fee, to exchange one type of stamp for another, so as to consolidate all their stamps into one set / brand instead of a few. SH did this so as to suppress what they called à ¢Ã¢â€š ¬Ã…“traffickingà ¢Ã¢â€š ¬Ã‚  of their stamps, which, under their terms and conditions, customers do not own but only have the right to just paste the stamps into the booklets and to redeem said booklets at their SH redemption centre. Thus meaning that customers were not allowed to buy, sell, swap or exchange their SH stamps. The FTC were of the opinion that this was à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚  as it did not allow for consumers who wished to spend their stamps, or their equivalent in monetary amounts, on the essentials such as shoes, food, rent etc. rather than the à ¢Ã¢â€š ¬Ã…“luxuryà ¢Ã¢â€š ¬Ã‚  items that the SH centres offered, such as blenders and food processors, to do so. This case was taken as far as the United States Supreme Court where it was decided in favour of the FTC. Thus leading to the creation of the Doctrine of Unfairness in United States Trade Regulation Law. However, though this doctrine has been utilized in this specific case, the use of the unfairness doctrine has been limited and in some cases, for example R. J. Reynolds Tobacco Co. v. Federal Trade Commission, 192 F.2d 535 (7th Cir. 1951) the doctrine of unfairness was not used at all. This could possibly sway our overall perception of the doctrine as the American legal system have decided that utilizing the unfairness doctrine may not have been necessary or indeed warranted plus, in a situation involving Irish law, we must also consider the currently in place sections of consumer and contract law such as the Sale of Goods and Supply of Services Act 1980 and the Consumer protection acts that are currently used in Irish law and the impact that a doctrine of unfairness may have on cases in which both our current laws and the unfairness doctrine can be applied. Overall, the Doctrine of Unfairness, though valid in certain situations may be overlooked entirely given the correct circumstances in favour of a more clear and decisive ruling. However would a similar Doctrine of Unfairness be welcomed, or even be necessary in modern Irish law? There are pros and cons to this which we shall discuss i n due course throughout the essay. In the creation of a doctrine of unfairness we must firstly decide as to whether the doctrine would be created to protect consumers from the unfairness of the bargain, which can be identified by use of rules, or from the unfairness of the outcome of said bargain, which is difficult to define. What is à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚ ? Unfairness in a bargain can be identified and set down in a set of rules, but unfairness in the outcome of a bargain would be ambiguous, uncertain and difficult to resolve. Any rules on this would be decided by a judge in a given court and could change upon appeal if the judge in the appeals court does not uphold the previous judgeà ¢Ã¢â€š ¬Ã¢â€ž ¢s decision. It could also be decided by the Law Reform Commission if they, upon reviewing the law, decided that a Doctrine of Unfairness would be needed or helpful in Irish Law. However, if an Irish judge should make the decision of creating such a doctrine to apply to a case before them, if it is poorly thought out, or the case is too ambiguous so as to allow the undue application of this doctrine to a wide number of cases the courts will see, it could lead to a floodgate effect. A floodgate effect is situation in which a small action, in this case a decision on a case, can result in a far greater effect with no easily discernible limit, this being the foreseeable forced application of the newly created doctrine of unfairness to cases where previously no such principle or rule would have been applied. Overall, the inclusion of the unfairness doctrine would require a clear and concise definition of what is unfair with regard to both the bargain and the result of the bargain and, as such, may lead to an inundation of cases regarding unfairness which in the eyes of the law may be deem permissible under the definition of unfairness. To consider the introduction of the Unfairness Doctrine, we must first take into consideration the Law Reform Commis sion which is an independent law making body that was established under the Law Reform Commission Act 1975. The functional purpose of the law reform commission is to keep the law under review and, in accordance with the provisions of the 1975 act, shall undertake examinations and conduct research with a view to reforming the law and formulate proposals for law reform. The Law Reform Commission Act 1975 defines law reform to include the development of law, the codification of the law and the revision and consolidation of statute law. This means that if a judge were to recognise a doctrine of unfairness in the law it would need to be recognised and codified by the law reform commission before passing into the law. Although judicial decisions would set legal precedent, to allow the Unfairness Doctrine be passed into Irish law, the Law Reform Commission would, first and foremost, have to define what is deemed to be fair and unfair within the boundaries of contract and or consumer law, n onetheless, the view of what is deemed to be fair varies from person to person and this may lead to varying interpretations of the doctrine and eventually the complete misuse of the doctrine over time. That notwithstanding, one could argue that the rules for statutory interpretation could be applied when considering how to use the unfairness doctrine. The use of the golden rule, the mischief rule and the literal rule. However, before these rules can be applied there would have to be concrete legislation set down to state what is believed to be à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚  and this needs to be done with great care and certainty. In the determination of what should be deemed à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚  we could follow what the United States has already decided. Both jurisdictions, the United States and Ireland, are common law jurisdictions and so Federal Trade Commission v. Sperry Hutchinson Co., 405 U.S. 233 (1972) and R. J. Reynolds Tobacco Co. v. Federal Trade C ommission, 192 F.2d 535 (7th Cir. 1951) have persuasive precedents within Irish law even without a doctrine of unfairness explicitly written into the law. Essentially, if the Law Reform Commission were to include the doctrine a necessity to define unfairness would occur and such a process would not be considered ergonomically sound and require frequent review if introduced to Irish law. Looking at this doctrine as applying solely in cases that are incontrovertibly similar to the Sperry Hutchinson case the use of statutory interpretation methods as mentioned above could disallow the misuse or misapplication of the doctrine. The golden rule is a rule of statutory interpretation which allows a judge to change from the normal meaning given to a piece of law so as to avoid an absurd ruling resulting. This could be used to great effect so as not to create injustices for either concerned party. The Mischief rule would a rule that would also be used to great effect as with the golden rule. The Mischief rule is where the judge would look are the aim of the doctrine of unfairness to determine what mischief it was created to redress and then from this the judge can apply the doctrine to the case if they deem it necessary or appropriate to do so. The Literal rule, is a rule that could be detrimental to the use of this doctrine if the doctrine is not correctly set out with a clear and unambiguous meaning as it is interpreted using the ordinary meaning of the words and language in the statute / legislation unless it is explicitly stated that certain words in the context have alternative meaning. Comparing the Doctrine of Unfairness with Irish legislation allows us to see what effect the doctrine could have if it were to be recognised in Irish law. With consumer protection legislation already in the law this comparison will allow for us to see if there is any necessity for the introduction of an Unfairness Doctrine. The Sale of Goods and Supply of Services Act 1980, as a significant piece of legislation and an intrinsic part of every contract, ensures that all goods and services are of merchantable quality, fit for purpose, Conform to the sample given and are as described, these four elements are the conditions, contestably, that most people would think of when considering how a contract might be considered to be unfair, from this, one could conceivably say that there is no room and no need for another piece of legislation of a similar nature like this doctrine. Despite this frame of mind, it could also be said that there is room for an unfairness doctrine under certain circumstances if it can take less precedence than already in place legislation. For example, if a company such as Sperry Hutchinson Co. were to be making their stamps and these stamps were to dissolve or diminish in quality to the point of uselessness solely from their one use with the purpose of being placed in an SH stamp book, then it would violate the Sale of Goods and Supply o f Services Act 1980 for not being of merchantable quality nor being fit for purpose, thus rendering the using of the unfairness doctrine moot. However, if, like in the original case Sperry Hutchinson Co. had only à ¢Ã¢â€š ¬Ã…“unfairà ¢Ã¢â€š ¬Ã‚  policies / practices not regarding production of their stamps but regarding the distribution and movement of the stamps once the public have them in their possession, then this would be a situation where no current legislation would apply and so could open up a place for utilizing a Doctrine of Unfairness. A Doctrine of Unfairness would need to take less precedence than legislation already in place in cases where the two pieces of legislation would be able to both be used. As the Sale of Goods and Supply of Services Act 1980 is a mandatory part of every contract unless it is explicitly state in the creation of the contract as an express term that it will not apply, this should take precedence over any following legislation. Thus openin g up an area of law an Unfairness Doctrine can be left to solely apply, business practices and policies within contracts rather than product or production based transgressions. It is the duty of the judiciary to decide on cases that are brought before them in the fairest way they can, being as strict or as lenient as they have to be with the respective cases. Even without the Law Reform Commission deciding to officially adopt a Doctrine of Unfairness within the Irish legal sphere, as previously stated, judges have the ability to use the precedent from American cases such as the SH and the Camel Cigarette Advertising Cases because American Cases have persuasive precedents. The significance of this is that the decisions of these cases are not binding on any judge in Ireland but, as both the United States and Ireland are common law jurisdictions judges can apply an American legal stance to an Irish case it they deem it fair and appropriate. In summary, the creation and utilisatio n of a Doctrine of Unfairness in Irish law could be argued easily either for or against. Due to the current state of consumer protection law the doctrine can mostly be thought of as unnecessary except in very specific cases that could very easily be decided in the same way it would with an Unfairness Doctrine without one. As consumers we would all like to be more and more protected against unfair and unjust practices used by companies, and conglomerates, and even each other when we buy from and sell to them. However from the look of its use in US law it would, more likely than not, go unused for a great amount of time either that or it would create an unceasing number of cases coming to court that would succeed because of ambiguity in the creation of the doctrine. Bibliography FTC v. Sperry Hutchinson Co., 405 U.S. 233 (1972) R. J. Reynolds Tobacco Co. v. Federal Trade Commission, 192 F.2d 535 (7th Cir. 1951) Sale of Goods and Supply of Services 1980 Michael D. Scott, à ¢Ã¢â€š ¬Ã…“The FTC, The Unfairness Doctrine and Data Security Breach Litigation: Has the Commission Gone Too Far?à ¢Ã¢â€š ¬Ã‚  (2007) https://ssrn.com/abstract=1012232 accessed 25/02/2015 Ernest Gellhorn, à ¢Ã¢â€š ¬Ã…“Trading Stamps, S H, and The FTCs Unfairness Doctrineà ¢Ã¢â€š ¬Ã‚  Duke Law Journal Vol. 1983:903-958 John Harrington, à ¢Ã¢â€š ¬Ã…“Up In Smoke: The FTCs Refusal to Apply the Unfairness Doctrine to Camel Cigarette Advertisingà ¢Ã¢â€š ¬Ã‚  Federal Communications Law Journal (1995) Vol. 47 Issue 3 Art. 5 593-610 [1] Federal Trade Commission v. Sperry Hutchinson Co., 405 U.S. 233 (1972)

My Personal Reflection On Micro Teaching - 982 Words

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Judge But, Beware Of Their Cover - 1899 Words

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The Fattest Country free essay sample

Because of its huge amount of fast food restaurants, America is the fattest country in the world. Americans spend more money on fast food than on magazines, movies, books, newspapers, and music altogether. The top four, billion dollar establishments starting with the most popular are Subway, McDonald’s, Pizza Hut, and Burger King. However, fast food restaurants cause more environmental damage in America than coal mining and oil extraction. It not only causes environmental damage but also damages to the health of animals, humans, and causes economic damage. For humans, the damage begins slowly, usually starting in childhood. When children get accustomed to the fun ritual of eating fast food, it establishes bad eating habits that carry on into adulthood. People who do not eventually break the habit of fast food addiction become part of the millions of obese Americans who are trapped in the greasy claws of the fast food industry. Young children unknowingly get caught in the illusion of fast food. Assistant professor of the Public Health Reducing Cancer Disparities program, Elva Arredondo said, â€Å"Findings from the [statistical hypothesis test] suggest that overweight children are more likely to recognize fast food logos, while the opposite was true of the normal weight children† (77). Some fast food consumption starts from logo recognition. â€Å"Children as young as 2-11 develop consumption preferences resulting from commercial exposure; at the same time, children in this age group develop strategies for purpose requests and negotiation† (Arredondo 77-78). These â€Å"preferences† put pressure on parents to buy more and more fast food for their child’s pleasure. The more parents buy this unnecessary pleasure for their children, the worse their economic status gets. 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According to a writer of Women’s Health Guide, Tracee Cornworth, â€Å"Eating fast food meals causes teens and young adults to gain more weight and face an increased risk of developing insulin resistance according to the results of a study funded by the National, Heart, Lung, and Blood Institute (NHLBI)†¦Ã¢â‚¬  Fast food not only promotes obesity, but it also serves diabetes on the side. â€Å"Obesity and diabetes is on the rise in this country, and this important study highlights the value of healthy eating habits,’ said NHLBI Acting Director Barbara Alving, M.D† (Cornforth). Cornforth affirms, â€Å"One reason for weight gain may be that a single meal from one of these restaurants often c ontains enough calories to satisfy a person’s caloric requirement for an entire day.† That is up to 2,000 calories eaten in one sitting! On top of all those calories from one meal, more calories are added with additional meals. Gender and socioeconomic status manipulate a person’s ability to oppose fast food, Cornforth declares, â€Å"Study participants included 3,031 young black and white adults who were between the ages of 18-30 from 1985-1986†¦According to the study, men visited fast food restaurants more frequently than women and blacks more frequently than whites.† Adults are fatter than they have been in the past twenty years, and they are still getting larger. Matthew Boyle, a senior writer of the Fortune magazine, says, â€Å"After all, two-thirds of American adults are now over weight, and the fast food industry has been targeted as the primary villain in the obesity crisis.† At least people recognize the culprit, but is that bringing about any change? According to Boyle, â€Å"In the past few years [the fast food industry] has been slapped with numerous amounts of lawsuits on behalf of overweight kids and has been the subject of powerful polemics in the media, such as the 2002 bestseller Fast Food Nation and recent documentary Super Size Me. Is it any wonder, then, that Wendy’s wants to put oranges on its menu?† Apparently, the problem is not that people do not recognize the â€Å"villain† in America’s health crisis. The issue is that although most know that fast food is not good for them, they eat it a nyway. The reasons for this â€Å"although I know it is bad, I will eat it† action are because of the persuasive advertisement of fast food, the accessibility and the inexpensive price. Boyle explains, â€Å"Kimberly Egan, a partner at the center for Culinary Development in San Francisco, who has done menu improvements for McDonald’s, Burger King, and Wendy’s rattles off words that give quality cues ‘slow roasted’, ‘tender’, ‘grilled’, ‘spicy’, ‘fresh cut’ [these descriptions are normally found on TV advertisements]. Egan says that fast food companies use these words to make people think fast food is healthier for them.† It is no amazement that people become subject to their cravings from advertisement with narratives like â€Å"slow roasted† and â€Å"tender.† Boyle states that in September 2002 McDonald’s announced plans to change their frying oil, which would cut tra ns-fat levels 48% by February 2003. He also says that filling a typical fast food fryer with 35 pounds of partially hydrogenated vegetable oil costs about $13; filling it instead with reduced trans-fat soybean oil might cost about $20. Fast food’s unhealthy fat food is only cheap for customers as it is for them. People buy unhealthy food because it is easier on their pocket book than healthy food is. Next to obesity, fast food industries abuse their employees. According to Master of Science in Education, Jeffery Zurlinden, â€Å"Instead of hiring skilled, unionized workers, meat packing plants frequently recruit recent immigrants who are willing to work hard for low pay on assembly lines that turn live cattle into frozen hamburger at record speed.† Fast food industries may not being doing this horrid meat process themselves, but they are condoning it by purchasing the meat. According to Roger Horowitz, Associate Director at the Center for the History of Business, Techn ology, and Society, â€Å"†¦throughout the twentieth century, meatpacking left behind thousands of permanently damaged workers†¦the level of workplace dangers in meatpacking is no longer accurately reflected in government statistics.† .Not only are the employees getting harmed, but the meat also gets contaminated. According to Zurlinden, â€Å"Manure gets mixed with meat, contaminating it with salmonella and E.coli. Schlosser reports a US Department of Health (USDA) study that found 78.6% of ground beef contained microbes spread primarily by fecal material.† Sounds gross, does it not? Yet millions of unsuspecting people eat this â€Å"manure meat† everyday. No wonder these E.coli poisonings happen so frequently. About for 4% of people infected with E.coli develop hemolytic uremic syndrome [a disease that destroys red blood cells] and about 5% of children who develop the syndrome die† (Zurlinden). 4 and 5% may not seem like very much to some peopl e, but would anyone really want to risk their child’s life or their own over a hamburger or chicken nuggets? If there were 25,000 children in America who developed this disease each year, there would be 1250 dead children on a yearly basis! Adults are not the only ones hurt while working. Teens are also victim to pain while working for fast food companies. Zurlinden says, â€Å"Fast food runs on cheap labor, usually supplied by teenagers. Child labor laws that restrict work schedules are often ignored at fast food chains. Although part time employment can teach teenagers responsibility, teenagers who work are more likely to abuse drugs and get into trouble. They also risk getting hurt: Each year about 20,000 teenagers suffer work related injuries, about twice the adult rate.† Since fast food companies want cheap help, then why would they spend precious time and money properly training their teen employees? Some people may say that they have been eating fast food for ye ars and have never gotten ill from it. Yes, some may have done that, but there is always a first time, and why wait until the first time to understand the risk and do something about it? Some may say that fast food is easy to access and is good for on-the-go people. If one is eager to stop gambling his or her life for fast food and wants to eat healthy, there may be a better way to acquire quick meals; making a simple sandwich or slow roasting food for dinner, while one is away from home, are just some examples of how to avoid fast food. This epidemic should have been resolved long before today, but there is still a chance to save lives. Just imagine America losing its â€Å"fattest country† label, obesity rates dropping, and young children learning to live a healthier style of life. Fast food companies could stop condoning the dangerous meat packing industries and begin purchasing meat from organic farmers. They could cease advertising and selling unhealthy, greasy foods, an d start advertising healthy, fresh vegetables and uncontaminated meat. They could acknowledge child labor laws and create a safer working environment for teens. They could stop sugar coating the obesity issue with orange slices and get right to the nitty gritty. Works Cited Boyle, Matthew. CAN YOU REALLY MAKE FAST FOOD HEALTHY?. Fortune 150.3 (2004): 134-140.Academic Search Premier. EBSCO. Web. 9 Mar. 2011. Cornforth, Tracee. How Eating Fast Food Affects the Health of Teens and Young Adults.Womens Health Issues Womens Health Questions and Answers Womens Sexual Health. 30 Sept. 2010. Web. 09 Mar. 2011. ;http://womenshealth.about.com/od/girlshealth101/a/fastfoodteenwei.htm;. David Dozier, et al. Brand Name Logo Recognition of Fast Food and Healthy Food among Children.Journal of Community Health 34.1 (2009): 73-78. Academic Search Premier. EBSCO. Web. 9 Mar. 2011. Horowitz, Roger. That Was a Dirty Job! Technology and Workplace Hazards in Meatpacking over the Long Twentieth Century Horowitz 5 (2): 13. Labor: Studies in Working-Class History of the Americas. 2008. Web. 09 Mar. 2011. ;http://labor.dukejournals.org/cgi/content/abstract/5/2/13;. Zurlinden, Jeffrey. Fast Foods Hidden Dangers. Pope John Said It Best, Capitalism Without Responsibility 14 Apr. 2001. Web. 09 Mar. 2011. ;http://www.fa-ir.org/ai/fastfood_hidden.htm;.