Robert Kagan and His Qualifications - Essay Example

? Law Channels of Distribution Number Discussion One: Section A Robert Kagan (1995) identifies four factors as playing a powerful role in the rapid growth of legislation over the last few decades: the intensification of international economic competition; rapid technological change; a growing concern with the environment; and an increased geographic mobility. Nevertheless, Kagan postulates that more focus should be directed to the third. However, from a personal standpoint, it may be in order to part ways with Kagan, to evince the first agenda (the social, political and economic forces that explain law and institutional forms) as being the most dominant in socio-legal research and the most compelling. The standpoint immediately above is worthy of credence, based on the fact that man’s gregarious nature and subsequent human interaction may be social, economic or political in nature. However, man’s environment is graced with inadequate resources, yet man’s relations are competitive in nature, since man has a strong innate drive towards self-preservation. In turn, there is need for legislation, to curtail chances for man unfairly exploiting, harming and endangering his fellow man, or the environment, as he interacts with fellow man, the environment, or both (Ginsburg and Kagan, 2005). One may also repudiate Kagan’s standpoint on the account that it assumes a one-way flow of effects, in the relation between legal processes on social life. Because of this, Kagan’s standpoint assumes that legal processes affect man’s social life, while the fact of the matter is that social life also pervades and seriously affects legislation. This standpoint is also underscored by the fact that legislations are always made in accordance with socio-cultural customs and not to expunge socio-cultural customs. For instance, stealing or/ and negligence of tort may not be wrong because they are merely proscribed by the law, but because they contravene the dictates of universal law and natural justice. The laws of natural justice and the universal law are universally distributed across all cultures and are enshrined in societies’ socio-cultural values. In fact, it is in order to turn around the problem and posit that it is social life which births legislation. This is because man’s social life includes all functions that he dispenses within the auspices of the community, whether these functions are legal, economic, or cultural in nature. Section B Robert A. Kagan and His Qualification to Speak To Such an Issue According to Kagan (2009) himself, Robert A. Kagan graduated with a Bachelor’s degree in Harvard University (1959), an LL.B from Columbia University (1962) and a PhD from Yale University (1974), before he began lecturing political science at the Berkeley Law University of California in 1974. He would later proceed to become a member of the Boalt faculty in 1988. He has also served as the Director of the Center for the Study of Law and Society between 1993 and 2004. Kagan has also serves as a visiting scholar at Ohio State University, Oxford University, the Russell Foundation, the Netherlands Institute for Advanced Study and the Center for Advanced Study in Behavioural Sciences. Kagan has also made several publications which are cited as authority. Thus, it is fitting for Kagan to speak of these things pertaining human interaction and legislation due to his authority in the related field. Discussion Two: Answers and Opinion: Section A It is clear from the account provided that there are traces of negligence on the side of different parties involved. The owners are negligent of failing to verify the security agents’ skills. Patrons always fought 2-3 times a night and this therefore demanded thoroughly skilled bouncers, yet Calvin Hollins Jr. and Calvin Hollins III did nothing about this. The owners also failed to place proper infrastructure in E2 nightclub, in relation to: people who fell to the bottom of E2 nightclub stairway; the absence of alternative security facilities such as safety exit door; signs leading to the safety exits; and independent sources of lighting. The same owners failed to place strict security measures and protocol on nightclub fights: patrons always had 2-3 fights a night, and the owners of E2 should have therefore improvised anti-fights measures. Had this war been the first one, Hollins Jr. and Hollins III may not have been culpable, but this is not the case (Kiernan, 2003). Employees of Hollins Jr. and Hollins III working at E2 nightclub may also be held liable for negligence since there were seven of them (a number adequate to stop the fight at its nascent stage) but they did not stop the war from becoming full-blown. In fact, Navarro seems to have acted all by himself, attempting to break the fight. The fact that these employees owed the patrons duty of care underscores the extent of their negligence. However, this standpoint may only be annulled if information showing the security employees’ timely intervention is adduced. The club attendees may not be wholly lumped together for negligence: there are victims and instigators of violence in the group. Harmless victims are not legally responsible. However, legal action may be taken on the aggressors and the woman who fired the pepper spray, if they are identified and found to have been compos mentis during the incident. Section B The people in the club may be classified as a rowdy crowd. Contributory and comparative negligence may be attributed to this crowd (Prosser, 2008). Section C Hollins Jr. and Hollins III may have committed gross negligence, since their failure to institute safety measures (not verifying the security team’s skills and not placing safety infrastructure and anti-fighting protocol and policies) at E2 nightclub exacerbated the insecurity therein, and thereby leading to 21 deaths. The other six security officers also committed gross negligence through their inaction. However, Hollins Jr. and Hollins III may also assume vicarious liability on their employees’ behalf (Williams, 2008). Section D According to Punnakanta (2012), the burden of proof may be accounts from different witnesses and victims, and reports tabled by the police. The burden of proof can be established through timely police investigations. The information which the police will have come out with to sustain the case will be the burden of proof, which may further be subjected to cross-examination by the prosecutor and the defence. References Ginsburg, T. & Kagan, A. R. (2005). Institutions & Public Law: Comparative Approaches. New York: Peter Lang Publishing, Inc. Kagan, A. R. (2009). Adversarial Legalism: The American Way of Law. Harvard: Harvard University Press. Kiernan, J. V. (2003). Torts, Negligence, Duty and Recreational Injuries. Journal of Physical Education, Recreation & Dance, 74 (4), 18. Prosser, W. L. (2008). The Law of Negligence. Harvard Law Review, 52 (2), 342–343. Punnakanta, L. (2012). Space Torts: Applying Nuisance and Negligence to Orbital Debris. Southern California Law Review, 86 (1), 163. Williams, R. (2008). Rediscovering the Law of Negligence. The Cambridge Law Journal, 67 (3), 654 – 656. Read More