This article is written by Satyaki Deb, an LL.M. candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. In this article, we will discuss what is the US tort of negligence from an analytical perspective, the standard of care, duty of care and remoteness, its elements, the differences between actual causation and proximate causation, the defenses under the US tort of negligence and proof of negligence.

It has been published by Rachit Garg.

Introduction

Prominent legal scholars often say that the law of torts is notoriously hard to define. One of the most accepted definitions is that tort law is the law of civil wrongs. Another class of scholars believes tort law to be a law of remedies. But such definitions have some flaws, and debating which definition is the best is beyond the scope of this article. So it is best to go with the most prominent definition and delve into the nuances of the tort of negligence.

Negligence is a type of tort that is used to hold people liable for their careless actions or omissions. Negligence is a form of civil wrong, and it is the basis of many personal injury suits. In the US, negligence is a tort, and it is the basis of many civil actions. In this article, we will discuss what is the US tort of negligence from an analytical perspective, the standard of care, duty of care and remoteness, its elements, the differences between actual causation and proximate causation, the defenses under the US tort of negligence and proof of negligence.

Analysis of the tort of negligence

The US tort of negligence is a legal doctrine that holds people liable for their careless actions or omissions. The various elements of negligence are duty, injury, breach under the US tort of negligence, actual causation, and proximate causation.

In the US, negligence is a civil wrong, and it is based on the concept of foreseeability. A person is liable for negligence when they fail to act in a reasonable manner and someone else is injured as a result. Negligence can be intentional or unintentional, and a person can be liable for negligence even if they did not intend to cause harm. The following headings will take the reader into the finer facets of the tort of negligence from an analytical perspective.

Nature of wrongdoing: differences between torts of trespass and negligence

It is one of the most confusing concepts in tort law and is best understood with an illustration. When A is using B’s property without B’s permission, then to determine the tort, the intent of A becomes significant in determining the nature of wrongdoing or tort. So, if A uses B’s property without B’s permission for A’s own purposes, it shall be the tort of negligence. On the contrary, if A is going about his business and ends up using B’s property without any such intention, then it shall constitute the tort of negligence. Thus, if one party, for his own purpose, appropriates the other party’s property without his permission in furtherance of his purpose, it is a tort of trespass. But if the tortfeasor, while pursuing his own purpose, ends up interfering with the victim’s purpose by inadvertently (i.e., without intent) using up the victim’s property and preventing or encumbering the victim from carrying out his purpose, then it shall be a tort of negligence. So, the main difference is the type of wrongdoing and how liability is set up as a result.

Another illustration will make the fine difference in the nature of wrongdoing clearer.

If X while driving his car bumps into Y’s car on purpose, it shall be a tort of trespass as X while carrying out his purpose used Y’s car in furtherance of such purpose without Y’s permission. But if X bumps into Y’s car without any intent to do so because he is late for his office, then it shall be a tort of negligence as while carrying out his own purpose, i.e., to reach the office fast, Y ended up hitting or using X’s car. In other words, making contact with X’s car was not Y’s purpose.

The crucial element of intent to determine the nature of the wrongdoing can also be verified from the presence or absence of recklessness. Recklessness is a prime component of the tort of trespass but irrelevant in the tort of negligence. This is because being reckless is a state of mind of the tortfeasor that demonstrates his awareness regarding his intent or choice to put another person’s property at risk. On the contrary, such is not the case with negligence because, in this wrongdoing, the interference is inadvertent and does not involve any choice or intention of the tortfeasor to cause such interference to the victim’s property.

Factual causation and loss

Besides the presence or absence of intent in the mind of the defendant, another pertinent distinction is the presence or absence of damage suffered by the plaintiff, which separates the tort of trespass from the tort of negligence. In other words, for the tort of trespass, proof of damage is unnecessary, but for the tort of negligence, proof of damage is a must. If, on the street, you are accidentally pushed aside by someone, it shall constitute a tort of negligence only if you suffer some damage, i.e., only if your purpose is encumbered by the defendant’s action of pushing you accidentally. Otherwise, if you are not constrained in a manner that hinders your purpose, mere pushing will not be actionable under the tort of negligence.

From the above discussions, it is becoming increasingly clear that this “purpose” is very important, as it is crucial to see if the defendant has hindered the plaintiff’s purpose. So, this “purpose” is generally given a very wide interpretation. The broad concept of purpose in the scenario of the tort of negligence can be better explained with the following illustrations:

Illustration (i):  C has bought a clock and has strung it up on the wall. D negligently strikes it down from the wall. The clock is still functioning, but its paintwork got a few scratches. Here, C does not suffer any damage, as C’s purpose of watching time has not been hindered by the negligent act of D. So, D has not committed tort of negligence on C.

Illustration (ii): C has bought a new car. He already has an old but functional car in his garage. C only wants to drive his new car and is determined never to use his old car again. D negligently destroys the driveability of C’s old car by dropping acid on its bonnet. Here, D shall be guilty of negligence because D impaired C’s purpose of driving the old car in the relevant sense even though, in reality, C may not drive it again. So, the point that these illustrations aim to drive home is that the purpose shall be that the plaintiff can relevantly have and not merely the purpose the plaintiff chooses to pursue.

Another pertinent nuance exists, and this facet of damage shall highlight the intricacies of the tort of negligence in a finer sense. Only that loss shall be considered for which the plaintiff had some sort of entitlement. In other words, the tort of negligence can be committed only if the plaintiff was entitled to the means of which the defendant deprived him. The following illustrations will clarify this nuance further:

Illustration (iii): In the first case, A cuts the power cable to B’s TV set negligently thereby preventing B from watching his TV. In the second case, A negligently cuts the power cable of the electric supplier C, who supplies electricity to B’s house. In this second case, the power cable that was cut belonged to C and not B, though in effect, B failed to watch TV. In the first case, A has done tort of negligence to B by preventing B from realizing his purpose but in the second case, B did not own the power cable of C and so B had no entitlement to C’s power cable directly. Thus, in the second case, A will have committed a tort of negligence only against C and not against B. Hence, it can be stated that pure and relational economic losses are not recoverable under the tort of negligence, as held in various cases like Robins Dry Dock & Repair Co. v. Flint (1927), Spartan Steel & Alloys Ltd v. Martin & Co (Contractors) Ltd (1973), Murphy v. Brentwood District Council (1991), etc.

Standard of care

The following points will briefly discuss the standard of care in conjunction with the tort of negligence, first from a negative perspective and then from a positive perspective of standard of care:

The basis of fault standard

It has been portrayed before how the defendant, while pursuing his own purpose, hinders the purpose of the plaintiff (without intent), causing damage to the plaintiff, and this constitutes the tort of negligence. But it is often seen in cases related to the tort of negligence that if the defendant is stopped from pursuing his purpose to protect the purpose of the plaintiff, then the defendant ends up suffering because his own purpose got hindered. This brings us to the fact that, usually, the interests of the parties are symmetrical in nature, which leads us to question when one person is entitled to pursue his purposes at the expense of another. So, logically and from the point of equity, both parties must enjoy equal and maximum freedom, and to this end, both parties have the duty to exercise the standard of care of an ordinary reasonable person or the law of negligence’s objective standard of care. The subsequent discussion aims to shed further light on this symmetrical standard of care nuance.

In the case of Vaughan v. Menlove (1837), when the defendant had built a haystack next to the plaintiff’s barn and the defendant’s haystack caught fire, destroying both the haystack and barn, the Court insisted on judging the defendant from the perspective of an ordinary reasonable man with an objective perspective, indifferent to the personal perspectives of the parties. This approach respects the equal and maximum freedom of both parties.

Likewise, the peculiarities of the plaintiff are irrelevant too under the tort of negligence. In the case of Rogers v. Elliott (1888), the plaintiff lived close to the church of the defendant. The plaintiff went into convulsions every time the church bell was rung because of some peculiarities of his own. The plaintiff alleged that under these circumstances, the ringing of church bells should constitute a tort of negligence. But the courts ruled in favor of the defendant because otherwise, the defendant would have been strictly liable for the mere causation of injury. In other words, the defendant was held not liable under the tort of negligence, as an ordinary, reasonable man would not have been affected by the ringing of bells.

Despite the apparent risk of reiteration, a landmark case in this regard simply cannot be left out, for the same will magnify the nuance herein more precisely. In the case of Bolam v. Friern Hospital Management Committee (1957), the plaintiff had agreed to undergo a medical operation, and the surgeon allegedly did the operation poorly, resulting in the plaintiff’s injury. So, here, should the standard be that of an ordinary, reasonable person or an ordinary, reasonable surgeon? If the impugned surgeon’s conduct is compared to that of an ordinary reasonable person, then she is not at fault. But if she is compared with an ordinary, reasonable surgeon, then only the impugned surgeon can be truly judged with regards to being negligent or not. The scale from an ordinary, reasonable person to an ordinary, reasonable surgeon shifts because, here, the engagement between the patient and the surgeon happened only because the surgeon represented herself to possess some special skill beyond that of an ordinary, reasonable person.

Reasonable care and remoteness

The above discussions may make one ponder if the individual peculiarities of the parties are irrelevant, then how will the courts determine whether the defendant was negligent? The following discussion on the positive side of the standard of care will aim to answer the same, firstly from a UK (Commonwealth law) perspective and secondly from the US perspective.

In the famous Wagon Mound (No.2) case, Lord Reid held that the negligence of the defendant should be determined based on the degree of risk she created. This level of risk should be determined by the likelihood of the risk materializing as well as the seriousness of the consequences in the event the risk materializes. Lord Reich went ahead to differentiate between fantastic or far-fetched risks and real risks. In his Lordship’s opinion, a defendant cannot be held liable for fantastic or far-fetched risks. In other words, only the real risks are actionable against the defendant. This brings us to the concept of “remoteness,” where remote, far-fetched or fantastic risks are not actionable.

His Lordship further divided real risk into two sub-categories, viz- small risks and substantial risks. A defendant shall no doubt be responsible for any substantial risk caused. But in cases of small risks, the defendant is negligent unless the burden of eliminating the risk is high.

In the US, Learned Hand J., in the case of United States v. Carroll Towing (1947), propounded a formula to determine the negligence of the defendant. The elements of the formula are, viz-

• The probability of the risk materializing (P).
• The seriousness of the risk if it materializes (L).
• The burden of eliminating the risk (B).

The formula to determine negligence in the US is:- B<PL (Hand’s Formula). In other words, the defendant shall be liable if he creates risk where the probability of the risk materializing (P) multiplied by the seriousness of the risk if it materializes (L) is greater than the burden of eliminating the risk (B). Thus, if B<PL then it would have been efficient (in the economic sense) for the defendant to have prevented the risk from materializing. Here, if the defendant fails to be so efficient, then he shall be liable because the expected social cost of the accident was less than the expected social cost of the precautions to prevent the accident. This level of efficiency or precautions that a defendant needs to exercise so that B≥ PL is the standard of reasonable care. And based on the foregoing discussions, it is stated that this standard of care is objective in nature.

Duty of Care

The duty of care under the topic of the tort of negligence is best explained with the aid of two landmark cases in this regard, viz- Donoghue v. Stevenson (1932) and Palsgraf v. Long Island Railroad Co. (1928).

In Donoghue v. Stevenson (1932), the defendant made ginger beer and was irresponsible regarding its drinkability. The plaintiff drank the same, was injured, and later found a snail in it. It was held that the defendant owed a duty of care to the plaintiff and was guilty of negligence. The defendant’s irresponsible actions posed a risk, and that risk materialized, causing a serious consequence like injury to the plaintiff.

The Palsgraf case was different, though. Here, the persons for whom the defendant was responsible had pushed a man into a train that was moving out of the station. That man was carrying firecrackers, and upon being pushed, the box of firecrackers he was carrying fell to the floor and exploded. This caused scales at the far end of the platform to fall down and injure the plaintiff. The defendant was held not guilty in this case as the injury was far-reaching or fantastic in nature and not real. In other words, the defendants, though they had acted negligently, were held not guilty because they owed no duty of care to the plaintiff at the far end of the platform. The duty of care cannot be remote in nature, or else it would be too harsh on the defendant.

Elements of tort of negligence

The foregoing discussions have brought before us the elements of the tort of negligence, which are simplified and portrayed below:-

Duty and Injury

The first element of negligence is duty. Under the US tort of negligence, a person has a duty to act in a reasonable manner and to take reasonable precautions to prevent harm to others. This duty is based on the concept of foreseeability. If a person fails to act in a reasonable manner and someone else is injured as a result, then that person may be liable for negligence.

The second element of negligence is injury. To be liable for negligence, a person must have caused injury to another person. The injury must be a direct result of the person’s negligent action or omission. The injury must be more than mere emotional distress, and it must be a physical injury or financial loss.

Breach under the US tort of negligence

The second element of negligence is a breach under the US tort of negligence. A person is liable for negligence if they fail to act in a reasonable manner and someone else is injured as a result. This means that the person must have breached a duty to act in a reasonable manner. To determine if there has been a breach of duty, the court will look at the standard of care that a reasonable person would have exercised in the same circumstances.

The court will also consider factors such as the person’s knowledge, experience, training, and any special circumstances that may have impacted their ability to act in a reasonable manner. If the court finds that the person failed to act in a reasonable manner and someone else was injured as a result, then the person may be liable for negligence.

Actual Causation

The third element of negligence is actual causation. To be liable for negligence, a person must have caused injury to another person. This means that the person’s negligent action or omission must have been the actual cause of the injury. The court will look at the facts of the case to determine if the person’s action or omission was the actual cause of the injury.

If the person’s action or omission was not the actual cause of the injury, then the person may not be liable for negligence. The court will consider factors such as the timing of the action or omission, the nature of the injury, and any intervening forces that may have contributed to the injury.

Proximate Causation

The fourth element of negligence is proximate causation. Proximate causation is a concept that holds people liable for the foreseeable consequences of their actions or omissions. This means that if a person’s action or omission was the foreseeable cause of an injury, then the person may be liable for negligence even if their action or omission was not the actual cause of the injury.

The court will look at the facts of the case to determine if the person’s action or omission was the foreseeable cause of the injury. The court will consider factors such as the nature of the injury, the timing of the action or omission, and any intervening forces that may have contributed to the injury.

Differences between Actual Causation and Proximate Causation

Actual causation and proximate causation are two different concepts under the US tort of negligence. Actual causation is the concept that holds people liable for the direct consequences of their actions or omissions. This means that if a person’s action or omission was the direct cause of an injury, then the person may be liable for negligence.

Proximate causation is a concept that holds people liable for the foreseeable consequences of their actions or omissions. This means that if a person’s action or omission was the foreseeable cause of an injury, then the person may be liable for negligence even if their action or omission was not the actual cause of the injury.

Defenses under the tort of negligence

There are several defenses under the US tort of negligence. These defenses include contributory negligence or comparative fault, illegality, and voluntary assumption of risk.

Contributory negligence is a defense that holds that a person is not liable for negligence if the person who was injured contributed to the injury. This means that if the person who was injured was partially at fault for causing the injury, then the defendant may not be liable for negligence. Some US states, like  Alabama, Maryland, North Carolina, etc., prefer the term “comparative negligence” or “comparative fault.” In other words, comparative fault is a defense that holds that a person is not liable for negligence if the person who was injured was partially at fault on his own for causing the injury to himself. Basically, not only the defendant but also the plaintiff were negligent. In such cases, the plaintiff cannot claim full damages from the defendant for negligence. To the extent the defendant was negligent, causing injury to the plaintiff, the courts may award damages to the plaintiff. Relevant case laws in this regard are Davies v. Mann (1842), Butterfield v. Forrester (1809), etc. 

Illegality may appear as a complex prima facie defense to the tort of negligence, but in practice, it is very simple. If the defendant negligently hindered the plaintiff from pursuing his illegal purpose, then the plaintiff cannot claim damages for the same. Suppose A negligently drops acid on B’s car, destroying its drivability, but B used such a car for delivering cocaine. B cannot sue A for damages that prevented him from carrying forward his cocaine business, but B can sue A for just the car.

Voluntary assumption of risk is a defense that holds that a person is not liable for negligence if the person who was injured assumed the risk of the injury. This means that if the person who was injured voluntarily accepted the risk of the injury, then the person may not be liable for negligence. This is because, though the defendant may have encumbered the purpose of the plaintiff, the plaintiff here voluntarily shared a purpose with the defendant where risk was an integral element. A relevant case highlighting illegality as a defense to the tort of negligence is Hall v. Herbert (1993).

Proof of negligence

According to the case of Huff v. Austin (1889), the presumption of law is that every person performs his legal duty. So, the plaintiff who is asserting negligence against the defendant has to prove that the defendant was negligent throughout the case, contrary to other cases where the burden of giving evidence may shift from one side to another during the progress of the trial and the plaintiff has to satisfy the judge on the basis of the balance of probabilities.

There is another aspect to how this presumption operates when a contract is broken. For example:- a stage-coach upsets, or a railroad train is suddenly jolted, or a steamship is thrown with extraordinary force against a wharf, or a train is derailed by the obstacles on the track or by defective rails or defective rolling stock, and a passenger is injured. The accident itself affords prima facie evidence of the carrier’s negligence, for he contracted to carry the passengers safely. In the event a servant of the same carrier had been harmed in the same accident then the fact of the accident in itself will not carry any presumption of negligence on the part of the employer and the victim (employee) would be bound to prove that the employer had been guilty of negligence as held in Patton v. Texas & Pacific Ry. Co. (1901).

The following are the relevant matters of law that are evaluated in a case of negligence:

• All questions of duty- was the duty owed to the plaintiff, was it within the hazard? And the like.
• The standard of care – what is the standard, and is there any evidence of failure to conform to it?
• The remoteness of the damage – whether the damage was too remote and what principles to be applied to determine remoteness of damage, whether any evidence was there for such damage, and whether any recognized heads of damage have not been taken into account.

The following are the pertinent matters of fact that are evaluated in a case of negligence:

• Resolving conflicts in the evidence and determining what the circumstances were and what the parties did.
• Evaluating the conduct of the parties in the light of the facts found and deciding whether it constituted a failure to take care, having regard to the standard of care required of the defendant.
• Deciding in the light of the facts found whether the damage was caused by the defendant and the extent of the damage, and the assessment of the damages. 

Res Ipsa Loquitur

The doctrine of res ipsa loquitur traces its origin back to the landmark case of Byrne v. Boadle (1863) (“The Falling Flour Barrel case”), where Chief Baron Pollock made this Latin remark to an off-hand remark of a counsel, and this was soon elevated to the stature of a principle. In this case, the plaintiff had been injured by a barrel of flour that fell from a window above the defendant’s shop. The defendant did not explain how the accident or incident occurred. The assessor had granted a non-suit. On appeal to the Court of Exchequer, the defendant’s counsel contended that the plaintiff was bound to give affirmative proof of negligence, and there was no such evidence unless the occurrence is of itself evidence of negligence. In response, Pollock CB said that “there are certain cases of which it may be said res ipsa loquitur and this seems one of them…” 

The procedural part of this doctrine was beautifully laid down by Erle CJ in Scott v. London & St Katherine Docks Co (1865) in the following words:- “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

But it is pertinent to note that this principle of “the thing speaks for itself” about negligence is to be applied rarely and not routinely. This is because of the logical reason that if every time an injury in itself, divorced from all its surrounding circumstances spoke of negligence, the same would be grossly unfair on the defendant or the alleged tortfeasor. A plaintiff who shows that he was injured by the falling of a flour barrel on the street from above or by the falling of a toll gate while he was passing underneath the same makes out a prima facie case of negligence, whereas if the plaintiff shows injury by the bursting of a boiler or engine or the bursting of a fly-wheel used by the defendant, etc., he does not make out such a  case. This is because the first set of cases affords a just ground for a reasonable inference that, according to ordinary experience, the accident would not have occurred except for want of due care by the defendant, while in the later set, they do not warrant such inferences.

Conclusion

In conclusion, the tort of negligence in the US is a legal doctrine that holds people liable for their careless actions or omissions. Negligence is a tort, and it is the basis of many civil actions. Some of the prime elements of negligence are duty, injury, breach under the US tort of negligence, actual causation, and proximate causation. There are also several defenses under the US tort of negligence, such as contributory negligence or comparative fault, illegality, and voluntary assumption of risk.

If you have been the victim of negligence, it is important to speak with an experienced personal injury attorney as soon as possible because negligence is a serious issue. An attorney can help you understand your rights and help you determine if you have a case.

Frequently Asked Questions (FAQs)

Can I sue for damages if I am partially at fault or negligent?

Generally speaking, the courts will judge what percentage was your fault. This is commonly called comparative negligence. Thereafter, if it is less than 50%, then you will get damages only to the extent the defendant or tortfeasor was at fault. For example: if you are at 25% fault, you will get damages (compensation) to the extent of 75% of your damage.

What do I need to show in court to prove negligence?

In order to prove negligence in court, the following needs to be proven:

• The defendant had a duty to use reasonable care towards you.
• The defendant had breached that duty by acting unreasonably or negligently.
• The defendant had caused you injury by acting unreasonably or negligently.
• The injury caused by the defendant was foreseeable in nature.

Who has the burden of proof to prove negligence in court?

The plaintiff or the alleged victim has the initial duty to prove a prima facie case of negligence against the defendant. Civil cases have the “preponderance of evidence standard” and the same applies to torts. There is no need for a higher burden of “beyond reasonable doubt” as expected in criminal cases.

What is the statute of limitations for negligence claims?

The statute of limitations for negligence claims usually varies from one state to another and is different for private parties and government bodies or agents. For example:- the limitation period for negligence causing personal injury is four years in the State of Nebraska and two years against government bodies or agents. It is always advised that you contact an attorney immediately if you are injured to preserve all your legal rights before they are barred by law.

How can I claim damages for negligence by federal employees?

Under the FTCA, 28 U.S.C. §§ 2671-2680, individuals who are injured or whose property is damaged by the wrongful or negligent act of a federal employee acting within his or her official duties may file a claim with the government for reimbursement for that injury or damage.

References

• https://www.jstor.org/stable/1119989?searchText=US%20tort%20law%20of%20negligence&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DUS%2Btort%2Blaw%2Bof%2Bnegligence&ab_segments=0%2FSYC-6744_basic_search%2Ftest-1&refreqid=fastly-default%3A1cbbc1d0ca2e9598f84b99068dbce1be 
• https://www.jstor.org/stable/1071415?searchText=US%20tort%20law%20of%20negligence&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DUS%2Btort%2Blaw%2Bof%2Bnegligence&ab_segments=0%2FSYC-6744_basic_search%2Ftest-1&refreqid=fastly-default%3A1cbbc1d0ca2e9598f84b99068dbce1be 
• https://www.jstor.org/stable/1336621?searchText=US%20tort%20law%20of%20negligence&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DUS%2Btort%2Blaw%2Bof%2Bnegligence&ab_segments=0%2FSYC-6744_basic_search%2Ftest-1&refreqid=fastly-default%3A1cbbc1d0ca2e9598f84b99068dbce1be 

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This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of the strict liability under US Tort Law, including its various forms, examples, defences provided to the defendant, and important case laws.

it has been published by Rachit Garg.

Introduction

Tort law basically deals with various wrongful acts done by any person that violate some legal rights vested in another person. Its purpose is to provide relief to the injured party, to impose liability on the responsible party, and to deter others from doing that harmful act. Typically, the plaintiff was provided with damages or monetary compensation in the form of relief. Common law is the main source used by judges for the interpretation of its nature and scope.

In American jurisprudence, torts have been categorized into three groups: 

1. Intentional torts: Wrongs that have been done with the intention or the knowledge of a certain outcome.
2. Negligent torts: Wrongs caused due to lack of reasonable care, which a defendant was obliged to take.
3. Strict liability torts: Wrongs that do not depend on the intention of the defendant or the degree of care the defendant used; they only focus on the result caused due to a certain act or omission.

Strict liability torts

Generally, some degree of fault at the hands of the defendant is necessary to hold him/her liable for any wrong. If not, then some level of breach of duty must exist, for example, in negligence cases. But strict liability torts make an exception to this general rule. Strict liability torts are those for which a person may be held strictly liable for some action or omission, regardless of their mental state or intention while committing the wrong. It means “liability without any fault.” Here, the liability is based on the level of harm the defendant caused by his/her actions/omissions, even though there is no defendant’s fault at all. 

In American tort law, there are three main categories of wrongs for which one can be strictly held liable.

1. Where the defendant was in possession of dangerous animals, and it escaped and caused damage,
2. Where the defendant was engaged in abnormally dangerous activities that caused damage,
3. Defendant’s liability for damage caused by their products.

Possession of certain animals

Possession of wild and dangerous animals like tigers, lions, snakes, and exotic species of animals can be dangerous enough to cause significant damage to life and property. These animals are wild, vicious, and unpredictable in nature. The owner of these animals keeps them at their own risk and, hence, bears an implicit liability for any harm caused by such animals later on. Even if the keeper does not have any knowledge of the propensity of the harm caused or has taken utmost care in the prevention of such harm, they would be held strictly liable.

One-free-bite rule

Usually, strict liability rules are restricted to the possession of wild and dangerous animals. But they can extend to domestic animals or animals who were not known to be ordinarily dangerous in the case if the owner knew that such animal has vicious or dangerous propensities. 

According to the “one-free-bite rule,” an animal’s first bite is not liable under strict liability; it will come under ordinary negligence rules. But an animal’s later attacks will come under strict liability. For example, if a domestic dog has previously attacked people and again attacks several people, the owner of such a dog will be held responsible under strict liability.

In the case of Brown v. City of Alexandria (1969), the son of Mr. Brown, Michael, was bitten by a chimpanzee kept in the Alexandria City Zoo. Before this incident, this chimpanzee also bit off the thumb of one employee while feeding the animal. The trial court held the city liable and negligent and granted damages to the plaintiff because the city had reason to know that the animal was dangerous.

Abnormally dangerous activity

The rule of strict liability usually applies to cases where the defendant was engaged in “abnormally dangerous” or “ultra-hazardous activities.” This involves those activities that have a foreseeable risk of injury or damage to life or property, even if the parties involved have taken reasonable care and caution. 

Any activity is said to be abnormally dangerous if the following conditions are satisfied:

1. If it involves serious risk to any person or property, even if utmost care and caution were exercised,
2. If it is not a matter of common usage.

Although every state has its own criteria for defining “abnormally dangerous,” there are some activities that are universally considered so. For example, the blasting of dynamite tends to be universally labeled as abnormally dangerous, as it involves a substantial risk of harm to a person or property regardless of the degree of care exercised.

The activity need not be rare, but it should not be carried out by the majority of people on a regular basis. For example, driving a car is not a job carried out by only a few people and, therefore, cannot be considered an abnormally dangerous activity. But activities involving the use of harmful chemicals, dangerous weapons, explosives, and other activities like burning fields, digging canals, storing dangerous substances, etc., can be considered ultra-hazardous activities. Moreover, the damage caused to the people are not limited to physical injury; they also include emotional damage and damage caused to business profits.

In the case of Halpert v. Ingram & Greene, Inc. (1972), Dr. Halpert, a dentist, filed suit for damage caused by six-month blasting near his dental clinic for preparing a site for construction. The frequent blasts sometimes shake the building in which the plaintiff carries out his profession. One day, a rock from an explosion propelled and shattered the plaintiff’s window. These types of minor incidents caused him various business losses. It also caused him emotional damage as he became increasingly nervous, anxious, and tense in anticipation of the blasts. The court said, “Since blasting involves a substantial risk of harm no matter the degree of care exercised, we perceive no reason for ever permitting a person who engages in such an activity to impose this risk upon nearby persons or property without assuming responsibility therefor.” Therefore, the Court agreed to grant him damages in the form of compensation.

Products liability

The “product liability” rule is applied to the manufacturers or sellers of the products, who are assumed to be strictly liable for any damage caused by their products. This liability arises when damage is caused to any person by a defective product. Anyone who is hurt by such a defective product can recover compensation from the manufacturer or seller of the product. Even so, there is no need to show negligence on the part of the seller or manufacturer. The proof that the product was defective and that it had caused harm was sufficient to make a case under the strict liability doctrine.

Important elements for upholding product liability:

1. Selling of product by the defendant and use of that product by the plaintiff,
2. The defendant is the commercial seller of that product,
3. An injury caused to the plaintiff,
4. The product was defective at the time of the sale,
5. The injury was the result of the product’s defect (whether actual or proximate).

There are two main categories of product liability:

Manufacturing defect

A “manufacturing defect” refers to a mistake made in the process of making or manufacturing a certain product. In this case, the manufacturer can be held liable even if there is no fault or negligence on his/her part. Leaving screws in the soda can, giving rancid food that causes food poisoning, or having a defect in the car brakes are some classic examples of manufacturing defects.

In the case of Greenman v. Yuba Power Products, Inc. (1963), the plaintiff brought an action against the retailer and the manufacturer of a Shopsmith, a power tool that caused him an injury on his forehead due to its defective design. The Court held the manufacturer strictly liable because it was proved that the power tool had a hidden defect that caused injury to the donee. The Court further stated that it was sufficient that the plaintiff was injured as a result of the product’s defect while using it in an intended manner. 

Breach of warranty

A breach of warranty arises when the manufacturer or seller implicitly or explicitly guarantees something about the product and fails to act in that manner. In that case, the manufacturer or seller can be held strictly liable for sustained injuries.

In the case of Denny v. Ford Motor Co. (1995), the plaintiff sustained injuries when she was driving a car, the Ford Branco II, and a rollover accident took place when she applied the brakes to avoid a deer. Denny and her spouse filed suit against the manufacturer of the vehicle, claiming strict product liability and breach of the implied warranty of merchantability. The Court concluded in the case that, though the claim for strict liability was not viable, the manufacturer was liable for its breach of warranty that the vehicle was “merchantable” and “fit” for ordinary purposes.

Test to determine product strict liability

In the case of Tincher v. Omega Flex (2013), the Supreme Court of Pennsylvania stated that the plaintiff must prove that the product is in ‘defective condition’ by showing that-

1. The danger is unacceptable and unknown in the eyes of ordinary customers, or
2. In the eyes of a reasonable person, the danger or seriousness of the harm caused by the defect outweighs the cost of taking precautions.

Consumer Expectation Test

This test asks the question of whether a consumer would generally anticipate such a defect in the product and its potential to cause injury. Under this test, the product is considered defective if a reasonable person contemplates such a defect. This test is usually used in cases of non-complex products and was originally applied to manufacturing defects, but now it also applies to design-defect issues as well. For example, a reasonable consumer might expect that the car will not explode on its own. If a car was made with an open and exposed gas tank, a reasonable person would determine that it is a defect.

In the case of Calles v. Scripto-Tokai Corp. (2007), the consumer expectations test was used to determine whether the “Aim N Flame” lighter was unreasonably dangerous. In this case, a 3-year-old child used the lighter when her mother was away and fired the premises, which resulted in injury to her twin sister, Jillian, who later died in hospital. The Court applied the test in this case and concluded that the “Aim N Flame” lighter was not an unreasonably dangerous product as it performed in the way an ordinary consumer would expect- produce a flame when used in a reasonably foreseeable manner by a child.

Risk-Utility Test

This test usually assesses the product’s risk in comparison to its utility. It is generally a cost-benefit analysis. Under this test, a product is considered defective if a reasonable consumer founds that the probability of the product causing harm is higher than the costs of taking precautions. This test implies that the manufacturer will be liable if the seriousness of the injury is greater than the cost of changing the design to a safer one. This test is generally used in cases of design defects.

In the case of Scoby v. Vulcan-Hart Corp. (1991), Scoby, a restaurant employee, slipped in the kitchen and got injured when his arm was submerged in a deep-fat fryer containing hot oil. He claimed that there was a design defect in the fryer and that it should have had a cover to prevent his injury. The Court affirmed that in such cases where the product’s mechanics were “simple” but obviously dangerous, the risk-utility test should not be employed. Hence, it was concluded that the product was not defective.

Defenses to a strict liability rule

In strict liability cases, the defendant is held liable for harm caused even if there is no fault or negligence on their part. But there are still defenses left that the defendant can use to save him/her from liability. These defenses depend on the facts of each case. 

Certain examples:

• In the dog bite case, the defendant can prove that the plaintiff itself trespassed and provoked the dog.
• In an abnormally dangerous activities case, the defendant can prove that the plaintiff itself acted in a negligent manner.
• In a product liability case, the defendant can show that the plaintiff misused the product.

Generally, three defenses are available to the defendant:

Assumption of the risk

This defense requires the defendant to prove that the plaintiff knew and acknowledged the risk posed by a certain condition and still voluntarily assumed the risk. In such a case, the plaintiff cannot hold the defendant strictly liable for any harm. For example, if a plaintiff engaged in an ultra-hazardous activity, knowing the risk involved in it, he/she will be barred from obtaining any compensation for the damage caused as a result of it.

Comparative fault

This defense focuses on the harm caused as a result of the plaintiff’s own fault. If a plaintiff contributes to the infliction of such harm or damage, the court reduces the damages in proportion to the harm caused by the plaintiff itself. The defendant only needs to prove the plaintiff’s negligence. For example, in ultra-hazardous activity cases where the accident was caused by the plaintiff’s negligence. It also applies where the plaintiff, while crossing the road in the wrong manner, is hit by an over-speeding car.

Misuse/abuse of the product

Strict liability applies in cases where the plaintiff has used the product in a reasonable manner or in an intended manner. It means the defendant may avoid liability if he/she proves that the plaintiff used the product in the wrong manner. For example, if the plaintiff used a flavoring substance in a huge quantity and not in the manner or quantity cautioned on the product’s label, and this caused food poisoning to the plaintiff, the defendant would not be held liable as the plaintiff abused the product by not using it in an intended manner. Moreover, if the plaintiff used detergent to clean his electronic equipment, which caused him damage, the defendant would not be liable as the plaintiff clearly misused the product.

Comparison with strict liability in English law

Rylands v. Fletcher (1868)

The doctrine of strict liability originated in the English case Rylands v. Fletcher (1868), in which the House of Lords recognized the “strict liability” rule, also known as “no-fault liability.” In this case, the defendant constructed a reservoir over his land to provide water to the mill. The shafts used in it were old, due to which when water was filled in the reservoir, the shafts burst, and water flooded the plaintiff’s mine on the adjoining land. Even though the defendant had no knowledge about the shafts and they occurred due to the negligence of independent contractors, the defendant was held liable. The court observed, “a person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril.”

Essential elements

Under the English common law, there are three essential elements for the application of the rule of strict liability:

Dangerous thing

This rule necessitates that some dangerous thing must be brought to his own land by the defendant. It can be a dangerous animal, tree branches, harmful gases or chemicals, electricity, a large quantity of water, explosives, etc. It must be something which, when escaped, causes mischief to other persons. 

Escape

There must be an escape of that dangerous thing from the control of the defendant. Therefore, if the poisonous tree branches escape to the neighbor’s land and the cattle on the neighbor’s land die as a result of it, the owner of that tree will be strictly held liable (Crowhurst v. Amersham Burial Board 1878). But in the case of Ponting v. Noakes (1994), where a horse intrudes on the boundary and dies by nibbling the leaves of a poisonous tree there, the owner of the tree cannot be held liable as there is no escape.

Non-natural use of land

It is essential to impose liability under strict liability that there must be non-natural use of land by the defendant. In the Rylands v. Fletcher case, the collection of water in the reservoir in a huge quantity is held to be a non-natural use of land. “Non-natural use of land” in this context means what an ordinary person is not likely to do on his/her land. For example, growing poisonous trees on their premises is a non-natural use of land.

Exceptions

In the Rylands v. Fletcher case, the court also laid down some exceptions where the rule of strict liability would not apply. 

Plaintiff’s own fault

Damage incurred by the plaintiff’s own fault is considered a good defense in a strict liability case. Here, the defendant cannot be held liable because damage was sustained due to the plaintiff’s own fault. In the case of Ponting v. Noakes, the plaintiff’s horse itself intruded onto the defendant’s land and died as a result of eating poisonous leaves; therefore, the defendant cannot be held liable.

Act of God

An Act of God or any occurrence due to the course of nature is considered a defense against liability under the strict liability principle. In the case of Nichols v. Marsland (1876), where the defendant created an artificial lake on his land from the natural stream, and after extraordinarily heavy rainfall, the embankments ruptured, and the stream of water washed away the plaintiff’s four bridges. The plaintiff sued him for damages. The Court held that the defendant was not liable as the accident was caused due by an Act of God. 

Consent of the plaintiff

The consent of the plaintiff is also a defense against the application of the rule of strict liability. It is based on the principle of “volenti non fit injuria” (to a willing person, it is no injury). According to this, a person who voluntarily or knowingly exposes themselves cannot bring charges against another person or recover damages. In the case of Carstairs v. Taylor (1871), water stored on the upper floor, possessed by the defendant, leaked and caused damage to the goods kept on the ground floor, occupied by the plaintiff. As the goods were kept for the benefit of both the defendant and plaintiff, the defendant was not held liable because consent is implied where the dangerous thing is for the “common benefit.” 

Act of the third party

In cases where the damage has been caused due to a third party other than the plaintiff and the defendant, the defendant cannot be held liable for the damage caused. Such a person should neither be an agent of the defendant nor have the defendant any control over them. In the case of Box v. Jobb (1879), where the defendant’s reservoir overflowed due to the blockage of the drain by strangers, the defendant was not held liable.

Statutory authority

According to this exception, any act done by the statutory authority that caused damage would not come under the ambit of the rule of strict liability. It means statutory authorities cannot be held strictly liable for any damage caused due to any dangerous thing. In the case of Green v. Chelsea Waterworks Co. (1894), a water main belonging to the company, which had a statutory duty to maintain the continuous supply of water, burst without any negligence from the defendant’s side, and the plaintiff’s land was flooded as a result of it. It was held that the company was not liable as it was engaged in performing a statutory duty.

Analysis

The American courts often cite the case of Rylands v. Fletcher as the origin of the rule of “abnormally dangerous activity,” but in American jurisprudence, it is not necessary for the defendant to carry out such activity on his/her own land. However, it is required that some activity involving “unnatural use” or “anything not of common usage” take place.

Strict liability vs. negligence

Tort law contrasts strict liability and negligence by identifying different standards for each of them. In both cases, whether a negligence or strict liability case, the plaintiff is entitled to recover damages in the form of compensation from the defendant. In both cases, the defendant attracts liability without committing any fault and without having any intention to cause harm. The only difference is that in a negligence case, the plaintiff has to prove the fault or breach of their duty to hold the defendant liable, whereas, in the case of strict liability, the harm caused itself is sufficient to hold the defendant liable.

In negligence cases, there are four essentials that need to be fulfilled:-

1. The defendant must have a certain duty of care,
2. There must be a breach of this duty by the defendant,
3. Injury caused to the plaintiff,
4. The injury was the result of the defendant’s breach of duty. 

The defendant has a “duty of care” to that degree, which a prudent person is likely to exercise in similar situations. For example, drivers have a “duty of care” to run their vehicles at a moderate speed and obey traffic rules. Here, a breach of duty will occur when the driver violates traffic signals due to which injury was caused to the plaintiff. It generally includes cases like road accidents, medical malpractice, slip and fall cases, or wrongful death.

On the other hand, strict liability does not involve any “level of care” employed by the defendant to hold them liable for the harm caused. Even if the defendant exercised a reasonable amount of care while performing any activities, they would not be excluded in a strict liability case. 

Conclusion

Strict liability theory rests upon the moral principle that “one who has caused the harm must pay for it.” It depends upon the severity of the harm caused to the plaintiff, regardless of the fault or negligence on the defendant’s part. In American jurisprudence, it falls into three categories, that is, wild animals, abnormally dangerous activities, and defective products. Each category has its own essentials to prove the case, and their defenses vary from case to case. The plaintiff, in order to prove the case, only has to show the connection between their injuries and the defendant’s dangerous activity or defective product. There is no need to prove the defendant’s fault.

Frequently asked questions

Is copyright infringement a strict liability tort?

Although there is a general belief that copyright infringement is a strict liability tort, the reality is the opposite. Liability for copyright infringement requires four elements to be fulfilled: conduct (act of copying), outcome (similarity), harm (harm to the market), and a fault (failing to comply with the standards). Hence, copyright infringement is a fault-based tort and not a strict liability tort.

Do dog bite cases come under the purview of strict liability torts?

Generally, in cases that involve the domestication of dangerous animals like snakes, tigers, crocodiles, wolves, etc., and harm caused to the plaintiff due to these animals, strict liability directly applies. But in cases involving animals like dogs, cats, etc., that are meant for domestication, strict liability only applies if the defendant has knowledge of the injury that such an animal can cause. For example, if the defendant’s dog has previously attacked a child and again attacks a lady, that lady can hold the defendant strictly liable as he has knowledge of the danger that his dog can cause.

How to prove strict liability torts?

Proving strict liability in torts can be easier than proving fault liability or negligence. But it doesn’t mean that there is no requirement of evidence for holding the defendant liable. The plaintiff in such cases must show:

1. There is an injury to him/her, 
2. The defendant’s dangerous actions or the defective product has led to this injury.

Without demonstrating the defendant’s fault, the plaintiff can claim damages as long as the case falls under strict liability rules and his/her injury was proved to be a result of the defendant’s conduct or defective product. 

References

1. https://btlj.org/data/articles2015/vol30/30_1/0305-0384_Goold_WebPdf.pdf 
2. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=13835&context=journal_articles  
3. https://www.law.cornell.edu/search/site/strict%2520liability?query=tort%20or%20negligence 
4. https://www.law.cornell.edu/wex/strict_liability 
5. https://lawshelf.com/shortvideoscontentview/strict-liability-in-tort-law 
6. https://thepearcelawfirm.com/risk-utility-test-determining-design-defects/ 
7. https://www.forbes.com/advisor/legal/personal-injury/strict-liability/ 
8. https://www.legalmatch.com/law-library/article/strict-liability-tort-defenses.html 
9. https://www.shouselaw.com/ca/blog/strict-liability-vs-negligence/ 

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This article is written by Satyaki Deb, an LL.M. candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. It deals with the basics of patent search briefly and delves into a step-by-step guide on how to conduct a patent search for US patents.

It has been published by Rachit Garg.

Introduction

Patent search and analysis have become a profession beyond a mere skill in this 21st-century world, which is witnessing a floodgate of inventions in various fields. Not only are there so many inventions but the inventions are rapidly becoming more complex and are often overlapping apparently and/or at their cores. So, to deal with these complex inventions and their maze of potential patent protections, patent search is a crucial tool in the arsenal of patent attorneys, inventors, investors etc.

Patent searches are usually conducted for various purposes, like deciding the future course of R&D, reducing the risk of patent litigation, chartering the best course to protect and exploit a patent portfolio, deciding new products for the market, gaining new insights with regards to licensing or M&A opportunities, etc. Based on these purposes, there are various types of patent searches possible, viz- validity search, infringement search, clearance search, patent landscape search, etc. Elaborate discussions on each of these types of patent searches are beyond the scope of this article, for the same on its merits calls for a separate, comprehensive discussion of its own. The present article will aim to conceptualize the basics of patent search briefly and delve into a step-by-step guide on how to conduct a patent search for US patents, an easily learnable skill for any beginner, irrespective of their technical or non-technical backgrounds. Fundamental prior concepts of patent law like novelty, non-obviousness, industrial applicability, etc., although not an absolute prerequisite, will enhance the learning process for US patent searches.

Basics of patent search

Beginners are advised to do a simple search before moving forward with an advanced search in the patent databases. A simple search can be conducted by putting in the patent number, inventor name, assignee name, date, citation, and legal status in the patent office databases or other free/subscribed patent databases. The advanced search usually gives the option of combining search options, like combining abstract and claims, etc. The following screenshots from the Google Patents database will portray what is a simple search and an advanced search better.

Fig. 1: Simple Search

Advanced search: By clicking the red encircled advanced search options at the bottom of the simple search page (Fig. 1) on Google Patents, one can move to advanced search and reach Fig. 2. Below is a screenshot (Fig. 2) of the same, and the red markings show where one can combine multiple search options for better results.

The green markings indicate the search box where you can put in the best-suited keywords for your invention (explained later elaborately) by putting in individual and/or combined conditions like inventor name, assignee name, patent office, legal status, etc.

Databases for search

The objective of the patent search is to be conducted in a database that contains all the relevant patent documents from around the world. Based on the type of patent search, the databases need to be chosen, and the best ones are the subscribed patent databases like Orbit (Questel), PatBase, Patseer, etc. because of their tons of premium features like user-friendly user interfaces, analytical data, charts, timely updates, analysis support, etc. Some of the leading free patent databases are Google Patents, Espacenet, Patentscope, Lens, etc.

Simple search

This is the simple search discussed above, and below is the most common type of simple search conducted.

Keyword search

Keyword search is the most basic process of patent search. But despite being the most commonly used and basic search, if it is not done in a structured and systematic way, one will not get any worthwhile results. So, firstly, to do a structured keyword search related to an invention, it is best to make a table (as illustrated in Fig. 3) and do it. In the table, keywords and their synonyms indicating both the structural and functional aspects of the invention should be used. For best results, synonyms of the decided keywords should be chosen from a broad, narrow as well as related perspective.

Concept (different structural and functional aspects)	Synonym	OR	Synonym	OR	Synonym
Concept 1
AND
Concept 2
AND
Concept 3
AND
Concept 4

Fig. 3: Structured Keyword Search

To aid this structured keyword search, various operators like Boolean operators and Proximity or Wildcard operators are also used. Such operators along with their meanings are portrayed below (Fig. 4):

Operators	Meaning
Boolean Operators
OR+	Grouping operator	Broaden search retrieve results containing any of the keywords.
AND	Combining operator	Retrieve results containing all of the keywords.
NOT	Excluding operator	Retrieve results that don’t contain the term following it.
Wildcard Operators
$ *	Open truncation	String of characters of any length.
?	Limited truncation	Zero or one character.
“ ”	Compound search	Retrieves documents with the compound words.
( )	Parenthesis	Combining keywords with different Boolean operators.

Fig.4: Operators and their meanings

Limitations of keyword search

As stated before, keyword search is the most basic form of patent search and thus has some limitations, such as often inaccurate terminologies, different official languages in patents, varying detail levels of descriptions of patents, etc. which prevent getting the best patent search results. So, to overcome these problems, classification search is used too and every patent office has its own patent classification system.

Classification search

As the name suggests, classification search is conducted by the classifications attributed to every patent application and granted patents. These classifications are basically codes that patent authorities assign to organize the lakhs of patent applications pouring into their offices. These codes are methodically applied based on their structural features, functional features, intended use, etc. There are some prominent classification systems that are used around the globe, viz: International Patent Classification (IPC) system, the European Classification (ECLA) system, the United States Patent Classification (USPC) system, the Cooperative Patent Classification (CPC), and the Japanese File Index and F-Term (FI/F-Term) classification system. Discussing each of them is beyond the practical scope of this article. The USPC and CPC, being relevant to the topic, will be discussed in relative detail.

The codes used for the classification of patents are hierarchically arranged, such that the topmost level contains the broadest category of inventions and the same decreases in number to the bottom. In other words, as one goes further down the codes, the inventions become more precise, the likelihood of their similarities increases, and naturally, the number of inventions decreases from the top level.

United States Patent Classification (USPC)

The USPC, or the United States Patent Classification system, is the classification system used by the United States Patent and Trademark Office (USPTO) to categorize patent documents into small categories based on their similarities. The common subject matter binds like inventions together. Each of these subject matter divisions is divided into two categories, viz class (major component) and subclass (minor component). The major component, i.e., class, generally distinguishes one technology from another, whereas subclasses generally distinguish on the basis of structural features, functional features, and processes within a particular class. The USPC encompasses 450 classes and more than 150,000 subclasses. A class-subclass pair uniquely identifies a subclass within a class.

There is also an interesting usage of dots that help categorize subclasses effectively under classes and/or subclasses. The same has been illustrated in Fig. 5 with the aid of the following example. For example:-  In Fig. 5, we can see that Class 2, which deals with “apparel” (class title), has some subclasses like 456 (body cover), 457 (hazardous material body cover), etc. The dots in front signify which subclass belongs to which subclass and are known as indentation levels, as one dot means indentation level 1, two dots mean indentation level 2, and so on. These dots are significant as they are the sole determinants that decide which subgroup is hierarchically superior. Lesser dots mean it is superior, and no dots mean it is the mainline under the class. One dot subclass will belong to the immediately preceding mainline, a two dot subclass will belong to the immediately preceding one dot subclass, and so on. In other words, the mainlines are the most hierarchically superior subclasses under a class, the one dot subclasses are hierarchically superior subclasses to the two dots subclasses, and so on.

So, in this Fig. 5, we can see the following:-

• The green highlights show the mainline subclasses and orange highlights show the one dot subclasses.
• Subclass 456 (body cover) with one dot belongs under mainline subclass 455 (guard or protector).
• Subclass 457 (hazardous material body cover) with two dots belongs under subclass 456 (body cover), which has one dot.
• Subclass 459 (shoulder protector) which has one dot belongs under mainline subclass 455 (guard or protector).
• Subclass 461 (both shoulders) with two dots belongs to subclass 459 (shoulder protector) which has one dot.
• Subclass 462 (vest type) with three dots belongs to subclass 461 (both shoulders) which has two dots and so on.

Cooperative Patent Classification (CPC)

The Cooperative Patent Classification (CPC) is a bilateral system of patent classification jointly developed by the USPTO and EPO to harmonize their respective classification systems (USPC, ECLA, and ICO) into a single system based on the International Patent Classification (IPC). The CPC is by far the most efficient form of patent classification, as it is built on the best practices of the USPTO and EPO. Moreover, the CPC is administered by the WIPO, and the CPC has more than 250,000 entries, which is significantly more than the USPC, ECLA, or IPC. This makes the CPC the most efficient and precise form of patent classification. The USPTO’s CPC scheme is available here.

Limitations of classification search

Classification search, though better than keyword search, has its own limitations like lacking definite classes for emerging new technologies, degree of subjectivity in the allocation of these classification codes by patent examiners (as in it is often seen that similar inventions are getting different codes in different patent offices) etc.

Combination search

To get over the limitations of keyword search and classification search, a combination search (Fig. 6) comprising both of these searches is the best method to do a patent search.

Fig. 6: Combination Search

Resources for US patents search

The USPTO has provided many resources to aid the patent search of anyone, ranging from beginners to professional patent agents. They are discussed briefly as follows:

Patent Public Search

This Patent Public Search is the new and feature-loaded portal where users can do their patent search. Beginners or users looking to do a quick search are advised to do the “basic search.” Rest can do the ‘Advanced Search’ where patent queries can be smoothly made to filter patent search results by parameters like databases, assignees, etc., and even organize documents through tagging. Beginners are strongly advised to tinker with this portal’s features to master the US patent search gradually.

Global Dossier

In this global age, an invention needs to be patented in multiple jurisdictions (since patent rights are territorial rights). So, while doing patent searches, it becomes imperative to track the patent family too. Through this secure  Global Dossier service, users can easily access the file histories of related patent applications at participating IP offices (which currently include the IP5 offices) and thus see the patent family information and documents regarding a specific patent application. This service has features like options to download documents in an application, save documents in search sessions and review them later, access Office Action Indicators etc.

Patent Application Information Retrieval (PAIR)

As the name suggests, Patent Application Information Retrieval (PAIR) helps users check, retrieve, and download information regarding the filing status of patent applications in a safe, simple, and secure manner.

Public Search Facility

This Public Search Facility is a physical facility center of the USPTO located in Alexandria, VA that provides the public with patent (as well as trademark) information in a variety of formats like online, microfilm, and print with the aid of trained staff if required. This facility is not available on weekends and functions between 8 a.m. to 5 p.m., Monday to Friday. 

Patent and Trademark Resource Centers (PTRCs)

Patent and Trademark Resource Centers (PTRCs) are local search resource centers where users can go and access patent (and trademark) information with the help of trained professionals. It must be noted that these trained professionals can help with patent searches, etc., and that it is very natural to seek help for the same, but since such professionals are not attorneys, their advice does not constitute legal advice. 35 USC 12 authorizes the USPTO for the nationwide distribution of patent and trademark information to cater to the needs of the public at large. One can find their nearest PTRC here.

Patent Official Gazette

Each Tuesday, the USPTO publishes (only in electronic format) the Patent Official Gazette, which contains the list of each patent issued that week. Users can search this gazette on the basis of classifications like CPC, USPC or types of patents (like plant patent or design patent or utility patent), index of patentees etc.

Common Citation Document (CCD)

The Common Citation Document (CCD) is a part of the greater harmonization and integration efforts in the global patent scenario and aims to provide in a single page the search results produced for the same invention by various patent offices. This helps the users by providing them single-point access to up-to-date citation data involving the family members of a patent application at the IP5 offices.

Search Published Sequences

The Publication Site for Issued and Published Sequences (PSIPS) of the USPTO is a power-packed tool that provides sequence listings, tables, and other metadata for published US patent applications and granted US patents. The PSIPS offers a search option by document number as well as by date range. But all such sequence listings (SEQ ID NOs.), tables, and other metadata are available to the user for viewing but not downloading.

Patent Assignment Search

The USPTO’s Patent Assignment Search is an excellent tool for users to search which patent document has been assigned to which party. Changes in ownership of patent documents can be easily searched through this search portal of the USPTO. In this regard, it is pertinent to note that this search portal only caters to issued and published patent documents and not pending or abandoned patent applications.

Patent Examination Data System (PEDS)

Users often require to search and download patent data in bulk, and the Patent Examination Data System (PEDS) is one of the best options available for the same. The entire data system is stored in the Amazon Cloud, and users may download the entire dataset (close to 100 GB) or narrow down results by using filters available on the portal and then download relevant data sets. Thus, the PEDS helps a public user to search, manage, and download bibliographic data in bulk at any given period of time.

Step-by-step guide for US patent search on USPTO

The following is a step-by-step guide for US patent search:-

Keyword search: decide terms describing your invention

This is the method by which users should determine the terms that best describe their inventions. For this, they are advised to take the help of Fig. 3 in this article to do a properly structured keyword search. The following guidelines or questions can help identify the best-suited keywords:

• Find the purpose of the invention as in does it have a utility; if yes, what is such utility? If not, is it an ornamental design or not?
• Find if the invention is a product or a process.
• What physical components constitute the invention?
• What are the technical keywords that best describe the nature of the invention? If necessary, consult a technical dictionary or thesaurus to figure out the appropriate synonyms.

Here, as a search sample, we are going to take a tipping semi-trailer that can carry fly ash to a destination and on the return journey can carry bags of cement in the same semi-trailer, thereby reducing pollution and also saving money. By applying the above guidelines and questions, we can figure out the following suitable keywords, viz:-

• Purpose: The invention solves the problem of high costs and environmental pollution by empty return journey after delivery of fly ash by transporting back bags of cement in the same semi-trailer.
• Invention: The invention consists of both products and processes that eliminate the wastage of money and reduces environmental pollution during empty return journeys of semi-trailers after delivery of fly ash.
• Components of the invention (including technical terms): semi-trailer, hydraulic ram (to tilt the semi-trailer), plurality of manholes on the semi-trailer (to load in fly-ash), a discharge cone (to unload fly ash at the delivery station), plenum assembly (to fluidize the fly ash), plurality of slidable carriages on rail assembly inside the semi-trailer (to carry bags of cement in return journey).

Access and review Cooperative Patent Classification (CPC) using USPTO’s Find It Fast search feature

In this step, the user is advised to go to the USPTO site and click on the “Find It Fast” tab as highlighted in orange color in Fig. 7. Thereafter, the user should go and click on the “Classification” option as highlighted in yellow in Fig. 7. 

After clicking on the “Classification” option, the user will be directed to a new page that will look like Fig. 8. There, the user can see two search options available, viz- “Classification Symbol Lookup” and “Classification Text Search.” Users are advised to put the keywords obtained  in the previous step in the search tab of the classification text search. It can be seen that in this sample search, the keyword “semi-trailer” (highlighted in yellow in Fig. 8) has been used to search in the classification text search. So, in this step, we are using keywords to get the most appropriate classification.

The search results look something like Fig. 9. The first search result (highlighted in yellow) looks promising and suitable for our sample invention, so it is selected. If the users’ search results are not satisfactory, they should keep changing their keywords from the list of keywords made in the previous step to get the most suitable search results.

After the first link is clicked, the B62D’s scheme will open up, and in there you need to scroll down and find the most suitable and specific classification that best describes the invention. In Fig. 10, it can be seen that B62D 21/05 appears to be the most specific and suitable classification for the invention.

Review classification definition

After selecting the most specific and suitable classification, it is imperative to review the classification definition. In Fig. 10, it can be seen that some blue “D”s are there to the left of some classifications. Users should go to the closest D to which this classification belongs and see the definition to verify if they have indeed chosen the most specific and suitable classification for the invention. So, in this manner, Fig. 11 shows the definition of the B62D 21/00. The definitions may have important search notes and suggestions for further searching.

Retrieve and review patents using CPC classification

After obtaining the most specific and suitable classification for the invention, it is time to search for more patents that are similar to our invention. For this, users should go to the  USPTO site and click on the “Find It Fast” tab as highlighted in orange in Fig. 7. Therein, the user should go to the first option under “Patents,” which is “Patent Public Search,” and click on it. From there, the user will be directed to a portal that gives the option of “basic search” or “advanced search.” New users are strongly recommended to get used to basic search first before delving into advanced search, considering the increasing complexities. So, herein, the sample search will show the basic search only. As seen in Fig. 12, a basic search has been conducted with the suitable classification chosen before, i.e., B62D 21/05. If prompted, remove any space between the classification and search for B62D21/05 and hit search. A lot of times, officers in the patent offices denote patent documents by more than one classification because of the overlapping nature and complexity of an invention. In that case, two classifications can be used for a search by using the AND operator.

After hitting search, the search results will look somewhat like Fig. 13. The user can scroll through them and preview or download the relevant patent documents.

Conduct an in-depth review of patents selected in the previous step based on their front-page information

From the previous steps, the user is advised to select the relevant patent documents meticulously based on the bibliography data available on their front page. After this, the user can see the diagrams, the written description, the enablement, the best mode, etc. to see the similarities with the chosen invention and accordingly download and save them based on the objective of the patent search.

Options for broadening the US patent search

If a user is not getting satisfactory results from the above steps, then the following steps can help the user attain his/her objectives by broadening the patent search:

Supplement the search using new/other keywords

The user should restructure their keywords selected and make a new table of keywords based on Fig. 3 while using more suitable technical words to describe the invention. Even appropriate technical phrases can be used with truncation symbols, as shown in Fig. 4.

Broaden the patent search with U.S. Patent Classification (USPC)

The user may note down the USPC codes by selecting the “All USPC” check box in Fig. 8 and repeat the steps thereafter using USPC too.

Search for foreign patents and published patent applications using the CPC classification

The user may search for foreign patents and published patent applications using the CPC classification at  Espacenet. 

Search for Non-Patent Literature (NPL)

Non-Patent Literature (NPL) like journals, books, technical catalogs, conference proceedings, etc. can be conferred by users too, if necessary with the aid of PTRC staff. 

Hire a registered patent attorney or patent agent to review the patent search

USPTO’s online roster can be referred to by any user interested in hiring a patent agent or patent attorney to discuss their inventions based on their objectives.

Practical exercises for US patent search

Patent searching is a practical skill and logically demands some practical exposure to try the newly acquired patent searching skills. The following are a few practical exercises that one can work on to test their patent searching skills with respect to US patents:

• Identify the patents related to self-driven cars from USPTO. List the major assignees and the areas. Prepare a summary of the trends in the development of self-driven cars and recent innovations.
• How many patent applications and granted patents does Apple have? Are there any joint assignees for its patents? If so, who are they and what are the technologies that are covered by such inventions? Identify the application to the granted patent ratio for US patents of Apple using USPTO.
• Identify the number of applications and granted patents related to human stem cell treatment equipment from the US for the past five years. Plot a graph for the application to the granted patent ratio for the five years.

Conclusion

Patent search is a very technical topic and should be given due time to master. The aforementioned basics of patent search and steps to conduct such a search with respect to US patents should be adequate for any user, irrespective of their prior skills, to try out this important and interesting skill. But it is imperative to remember that patent searching at a professional level is mostly conducted on paid patent databases (as mentioned before), and patent searching is another ocean in itself. This article is the first step for anyone to grasp and perform the basics of patent search for free (with a focus on US patents) and self-teach themselves the further finer nuances of patent search that had to be left out from here for practical reasons.

References

• https://www.uspto.gov/patent 
• https://www.uspto.gov/web/patents/classification/ 
• https://ppubs.uspto.gov/pubwebapp/static/pages/landing.html 
• https://www.uspto.gov/learning-resources 

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This article is written by Shraddha Jain, a student of the Institute of Law, Nirma University, Ahmedabad. In this article we will discuss the concept of intentional tort; we’ll learn what an intentional tort is, as well as examples and common types of intentional torts. The article further discusses the essentials, damages, and defenses used in intentional tort along with the precedents set by the courts in various judgments.

It has been published by Rachit Garg.

Introduction

Tort law is used in the United States to restore damages done to an individual by someone else’s action that falls below a minimum standard of care imposed by the civil courts. Torts can be of three types, i.e., intentional tort, negligent tort, and strict liability tort. An intentional tort occurs when a person performs an act with the intention of inflicting hurt or injury on another person. The mentality or intent of the wrongdoer distinguishes this type of tort from the other two, negligent and strict liability torts. In a negligent tort, the individual committing the tort did not intend to cause injury and in a strict liability tort, the individual is held accountable irrespective of intention or safeguards are taken. In this article, we will focus on intentional tort, how it originated and how it evolved through time from various judgments.

Origin of intentional tort

In the late nineteenth century, Frederick Pollock and Oliver Wendell Holmes presented a comprehensive theory of intentional tort, which became recognized as the ‘prima facie tort doctrine’ by the courts. However, before the late 1800s, tort law did not have a classification known as ‘intentional tort.’ A theory established by Oliver Wendell Holmes and refined by various academics, most notably Frederick Pollock and Melville Bigelow, divided tort law into three categories: intentional conduct causes of action, negligent conduct causes of action, and strict liability causes of action. The notion of intentional tort started with this scheme.

In the modern sense, the ‘classic’ intentional torts are intentional intrusions with the individual, such as assault, battery, or false imprisonment, as well as intentional disruptions of personal property and real property. However, before the late nineteenth century, neither of these torts included intentional harm by the defendant as a component. Before Holmes conceived of American tort law, all classic intentional torts relied on strict liability.

What is an intentional tort 

A tort is defined as an act or omission that causes injury or harm to another individual and constitutes a civil wrong for which courts impose liability. In the context of torts, ‘injury’ refers to the violation of any lawful right, whereas ‘harm’ refers to a monetary loss or damage that an individual experiences.

Torts are classified into three types: intentional torts (e.g., striking someone on purpose), negligent torts (e.g., causing an accident by not obeying traffic laws), and strict liability torts.

An intentional tort is a sort of tort that can only emerge from the defendant’s intentional behavior. According to the particular tort, either generic or specific intent must be established.

Consider the scenario of a mechanic placing an air conditioning unit on a third-floor balcony as an illustration of how intent is required in any intentional tort. If the unit drops from his grasp and breaks the arm of a lady passing below, it is not constituted as an intentional tort. The mechanic could still be held accountable for the damages if he had exercised greater caution; however, this would be on the basis of carelessness, which is a distinct area of tort law. If, on the other hand, the mechanic spots a doctor going down the road and pushes the air conditioning unit, causing it to drop on and paralyze the doctor, this would constitute an intentional tort.

The distinction between intentional and unintentional torts is based on public policy issues. One of the law’s key purposes is to prohibit socially destructive behavior. Because the injury is more closely tied to someone’s acts in situations of intentional torts than in instances of negligence, the law normally sanctions a more severe penalty in cases of intentional tort. In intentional tort cases, for example, courts are more likely to order the defendant to pay punitive damages to the plaintiff, in addition to compensating the plaintiff for his or her pain and suffering, in order to punish the defendant for his or her illegal behavior. The purpose is to prevent individuals in similar situations from acting, so they think twice before acting.

Examples of intentional tort

Some examples of intentional torts are as follows:

1. A child named A kicks B during recess, causing significant injury because B already has a handicap. A is unaware that B is handicapped, but he is aware that striking someone may cause suffering. This is intentional tort because A ‘intended’ to kick B and knew the ‘act’ would cause damage. The ‘real cause’ of the damage wouldn’t have happened if A had not pushed or struck B.
2. A and B get into an argument, and A smacks B in the face, breaking his nose. A feels bad because, while he was angry and planned to punch B, he did not mean to fracture his nose. B wins his lawsuit against A for medical expenses connected to the injuries. The court determines that, although A did not mean to break B’s nose, he did intend to hit him and was aware that doing so may result in damage.

Essential elements of intentional tort

To establish an intentional tort, the plaintiff must establish that the defendant acted with the explicit intent to conduct the actions that inflicted the injuries or damage. The defendant is not required to understand that the act will cause harm; only that the act will have consequences is required. Certain factors must be present in order to effectively sue another individual for intentional tort:

Usually, intentional torts contain the following elements: intent, act, result, and causation.

Intent

The concept of “intent” under Restatement (Second) of Torts § 8A requires that the person either wishes for or believes that the outcomes of his actions are essentially certain to occur. This component normally requires the defendant to want or know with a high degree of confidence that certain events will happen as a consequence of his actions. As a result, for the objectives of this Section, the word “intent” always encompasses either want or awareness with a high degree of certainty.

The intention to commit an intentional tort does not need to be malicious. The purpose for which the law is looking is merely the desire to perform the act. If we revert back to the air conditioning case illustrated shortly before, it makes little difference from a legal point of view whether the mechanic dropped the unit intentionally to injure the doctor or if he just intended for the unit to tumble down in front of the doctor as a prank to scare him. Because the unit was dropped on purpose, the law deems it an intentional tort, even though no injury was intended.

On the contrary, if the defendant’s only fault is that he ought to have known better, he will not be held accountable for an intentional tort. This may happen if, unlike the cases above, A fires a pistol in a remote region of the desert for entertainment, not intending to hurt anybody, but the shot does hit somebody. A had no intention or awareness of a substantial likelihood that somebody would be hit in this circumstance. He might, however, be held accountable for another tort, namely negligence, but not for an intentional tort.

Transferred intent

The legal concept of “transferred intent” states that intention can be transferred from one plaintiff or tortfeasor to another. In tort law, transferred intent is commonly applied in five areas: battery, assault, false imprisonment, trespass to land, and trespass to chattels. Generally, any desire to commit any of these five torts that results in the commission of any of the five tortious actions is regarded as intentional conduct, regardless of whether the actual target of the tort is someone different than the initial intended target.

For example, if D meant to commit the intentional tort of assault, but his actions instead or additionally result in battery, he will be held accountable for battery even though he did not intend to do it.

Act

The act requires the individual to commit an act that causes harm or injury to another person. Acting does not consist of considering or planning to do an act; an actual act has to be performed. The conduct that gives rise to the defendant’s liability should be performed voluntarily. The constituents of an act differ depending on the tort at hand, but they all involve voluntariness. For example, if A experiences a muscular spasm that causes his arm to fling out to his side and strike B, who is seated beside him, any claim B brings against A for battery will be dismissed due to a lack of the essential act, that is, the act was not performed voluntarily.

Result

This component often relates to harm. This means that some harm or damage has to occur as a result of the act done. But in some of the intentional torts, such as trespass to land, it is not necessary to prove that actual damage or harm has been caused as a result of the act.

Causation

Here, causation means that there has been a violation of a legal right or that actual injury has been caused as a consequence of an improper act or omission. It means there should be a real or proximate connection between the harm caused (the result) and the act done. This element requires the plaintiff to demonstrate that the injuries or harm would not have happened if the defendant’s conduct, or causes, had not occurred.

Common intentional torts 

Intentional torts are unjust acts committed by someone who plans, executes, and is fully conscious of their conduct. Battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress are examples of common intentional torts.

Let’s discuss each of these common intentional torts in brief.

Battery

Battery is an intentional tort claim that occurs whenever anyone knowingly and unfairly affects another individual. Battery is the legal word for hitting anyone or otherwise touching someone in an objectionable way with the intent of causing another person to be afraid of such contact. Battery occurs whenever anyone punches, pushes, kicks, pinches, strikes, or slaps another person.

Example: A acts with the aim of making contact with B without B’s agreement, and detrimental contact occurs.

Assault

An assault is defined as an attempt at the battery or frightening damage when no battery occurs. An assault occurs when one person acts intentionally in such a way that another person reasonably expects (or fears) damaging or offensive touch. The focus of this offense is the stress, mental discomfort, emotional trauma, and other adverse consequences caused by the defendant’s activities.

For example, if a person shouts, “I’m going to stab you,” but there is no weapon available, this might not be deemed assault since there is no true intent to inflict damage at that time.

If Draco fires his wand at Harry, but Harry jumps just in time and the impact is felt by Hermione by mistake, English law (and American law) would shift Draco’s intent from the goal to the true victim of the crime. As a result, Hermione might sue Draco for violence and any resulting damages from the assault.

False Imprisonment

The act of confining any person against their will without legal permission is referred to as “false imprisonment.” A person is not permitted by law to limit the mobility of another person without that person’s permission. A defendant may be held accountable for false imprisonment if he or she imprisons the plaintiff or restricts his or her right to movement by using real force or threatening force.

Example: If a security guard or a police officer imprisons a person for an excessive period of time because of their appearance or usage of religious symbols, then this detention would fall under false imprisonment.

Intentional Infliction of Emotional Distress

When a person consciously or negligently participates in excessive and absurd behavior that is very likely to cause significant mental distress, he is responsible for the intentional infliction of emotional distress (IIED). Excessive or outrageous behavior is difficult to define in precise words and is usually left up to the jury or court to determine, but it is widely defined as exceeding all imaginable boundaries of morality and being completely intolerable in a civilized society.

In one of the cases from early California, bill collectors frequently visited the debtor’s house and intimidated the debtor’s pregnant wife. They alleged, among many other things, that the woman would have to deliver her baby in jail. The wife miscarried and suffered from both emotional and physical consequences. The Court determined that the conduct of the collection company’s two employees was severe enough to establish the tort of intentional infliction of mental distress.

In another case, Roche v. Stern (New York), 1998, the corpse of decedent Deborah Roach was cremated, and a part of her remains was handed to respondent Chaunce Hayden. Against the family’s wishes, Hayden discussed Deborah’s demise and the disposal of her remains with cable talk show host and respondent Howard Stern in 1995. While examining various pieces of bone, the respondents offered remarks about the remains. Respondents were sued by appellants, the decedent’s family members, for intentional infliction of emotional distress. The Court reasoned that a jury could logically conclude that the component of outrageous behavior was satisfied as a matter of law because the ways in which the deceased’s remains were treated, for entertainment purposes and also against her family’s express desires, exceeded the bounds of decent behavior.

Fraud

Fraud is defined as a false or untrue depiction of a fact made with an awareness of its falsehood or even without belief in its truth, or a careless statement made with the intention of inducing a person or individual to act independently of it, with the consequence that the person acts on this and suffers damage and loss. In other words, the act of purposefully misleading another person or organization for monetary advantage

In the matter of R. v. Barnard, 1837, a buyer who misrepresented himself as a university member by wearing the university dress and cap to obtain money was held accountable since this behavior amounted to fraud.

A person portraying someone else passed the driving test in the case of Idrees v. Director of Public Prosecutions, 2011. The Court ruled that deceptive representation constituted fraud.

Defamation

Defamation is defined as any deliberate false statement, whether written or spoken, that hurts a person’s reputation; reduces respect, esteem, or trust in a person; or generates critical, hostile, or unpleasant attitudes or sentiments against a person.

For example, John said, “A stole a watch from B’s house,” if this statement is false, and making this statement harms A’s reputation or ability to work, then it will be considered defamation.

Invasion of privacy

Invasion of privacy is the unlawful intrusion into another person’s private life without their consent. The precise form of the invasion of privacy differs by nation; however, there are four sorts of breaches of privacy in general:

• Invasion of solitude, whenever anyone interferes with another person’s right to remain alone.
• Public publication of private information.
• Misleading light, in which an individual publishes incorrect but non-defamatory information about someone else in order to create a false impression about that individual; and
• Appropriation, which is the illegal use of another person’s image for profit.

For example, a neighbor might invade your privacy by peering through your windows or photographing you in your house.

Trespass

Trespass is defined by law as an unlawful entry onto land. Trespass was originally defined as an improper action that directly caused harm or loss, and it was therefore the genesis of tort law in common-law nations. Trespass is currently typically limited to concerns regarding real property. Trespass to land and trespass to chattels are the two types of trespass. Trespassing on land is defined as the intentional intrusion or use of another person’s property. Trespass to chattels is defined as the wrongful interception of another person’s personal possession (i.e., a car, an animal, a computer, an instrument, etc.).

Trespassing through obstruction on another person’s land can be classified as striking a nail into a person’s wall, placing anything against the plaintiff’s wall, planting trees on the plaintiff’s property, or installing any property on the plaintiff’s land, etc.

Conversion

Whenever anyone steals someone else’s property and transforms it into their own or otherwise destroys or ruins it, and because of this, the actual owner of that property is deprived of using it, then it is known as “conversion.”

For example, if someone takes another person’s horse to ride and then leaves him in an inn, it is a conversion because the owner may get his horse back but must pay for its upkeep.

Defenses to intentional tort

Some of the affirmative defenses that can be used in intentional torts are as follows.

Consent

Consent can be used to defend against any intentional tort, though the absence of consent is sometimes included in the definition of an intentional tort, such as trespass to land. However, in such cases, a lack of permission is not necessarily required to establish a prima facie case. As a result, it should be viewed as an affirmative defense.

Self-defense

Self-defense is the most popular general defense in tort law. It is self-defense when a defendant uses appropriate force to safeguard his body or property or the property of some other person and hurts another person, and there is not enough time to report the incident immediately to the authorities. The amount of damage done should be proportionate to the severity of the situation. Self-defense is a common defense against battery.

Defense of property

As it can relate to personal property, this is generally used as a defense to trespass to land or trespass to property.

Necessity

Necessity is commonly used as a defense against land trespass. There are two types of necessities: private and public.

Private necessity

Private necessity usually involves trespassing or tampering with another’s property by a person to defend himself or his property. For the duration of the emergency, one has the right to continue trespassing on or utilizing the person’s property. The private defense is a partial defense accessible to the defendant, which implies that if the defendant committed trespass and asserts the private necessity defense, he must still compensate for any damage to the plaintiff’s property caused by his trespass.

Public necessity

Any action performed by governmental authorities, officials, or private individuals to prevent a public tragedy that had the potential to affect the general population is referred to as a “public necessity.” This is used when a person commits trespass in order to defend a larger community.

It means that government officials who are in charge of discipline are permitted to use appropriate force in accomplishing their tasks. A police officer conducting an arrest, for example, is not responsible for battery if he or she uses appropriate force.

Damages in a case of intentional tort

Victims of intentional torts, like victims of other types of personal injury claims, are entitled to monetary compensation. Intentional tort damages may consist of compensatory damages like previous and future medical expenses, wage loss, future income loss, household expenses, suffering and pain, emotional anguish, loss of enjoyment of life, permanent impairment, deformity, etc., whether obtained by settlement or by the judge’s decision.

Intentional tort settlements are determined by a variety of criteria, including the extent of the injuries experienced, the costs of repairing the injuries and losses, and sometimes punitive damages are also given.

Physical or emotional damages

A person who suffers bodily or mental harm as a result of an intentional tort can seek both pecuniary and noneconomic compensation.

Economic (special) damage

Economic damages are frequently referred to as “special damages.” They pay the plaintiff for easily quantifiable losses. Medical bills, missed earnings, medication prices, and hospital equipment expenses are common examples.

General (noneconomic) damages

Noneconomic damages, sometimes known as “generic damages,” compensate the victim for harms that are more difficult to quantify. Common instances include pain and suffering, mental discomfort, the loss of life’s pleasures, etc.

Damage to the plaintiff’s property

If the sole harm is to the plaintiff’s property, the damages are calculated differently. The intentional tort of conversion is an excellent example, as follows: conversion occurs when one individual assumes or exerts authority over the personal property of another. A successful plaintiff in a conversion action can apply to the court to either receive the property back or force the defendant to reimburse the fair market value of the property. If the property has already been restored, the plaintiff is entitled to reimbursement for the property’s loss of use during the period it was transformed. The reasonable rental value of the comparable property might be used to calculate the loss of usage.

Punitive damages

Furthermore, the victim of an intentional tort may be entitled to seek punitive damages in some cases, which are meant to penalize the offender and discourage future conduct.

Punitive damages are intended to penalize an offender and dissuade others from acting so. They are not meant to recompense a plaintiff for specific harm.

State law governs whether punitive damages are admissible and, if so, under what conditions. Some states require the plaintiff to establish malice, which is a more difficult bar to meet.

Intentional torts : civil cases vs. criminal cases

Although there is some resemblance, criminal and civil cases (i.e., willful torts) are not the same. Criminal cases include crimes committed against society or the state. Sentencing is thus intended to penalize the criminal with penalties or prison sentences. Civil suits, on the other hand, entail a wrong committed against another person or private party. The basic purpose of civil litigation is to pay damages to the victim.

For the same behavior, the components of an intentional tort may coincide with the components of a crime. A criminal conviction does not normally preclude a lawsuit for intentional tort against the same person from being launched. To be convicted of a crime, the state must show the defendant’s guilt beyond a reasonable doubt. The burden of proof in a civil action is generally met by a preponderance of the evidence (more probable than not) or clear and persuasive evidence. This is why, in certain situations, a defendant found innocent by a jury in a criminal prosecution can be held accountable for damages in a subsequent civil lawsuit.

Intentional torts can sometimes coincide with criminal offenses. For example, a plaintiff may bring an action for damages for both assault and battery if they argue that the defendant both put them in dread of being hit and then struck them, inflicting physical injuries. A claim for intentional infliction of emotional distress may be made with other claims based on the plaintiff’s mental pain.

What’s the difference between negligence and intentional torts

A tort is an unlawful conduct that causes physical harm or property damage to another person. A tort claim is a legal action filed to recover compensation for injuries sustained or loss of property. Intentional torts demand that the person who committed the act do so on purpose. This distinguishes it from other torts, such as negligence. Negligence is described as the failure to exercise due care, which causes harm or damage to another.

The mental condition of the tortfeasor, or the person who performs the act, distinguishes negligence from intentional tort. An intentional tort implies that the tortfeasor acted with the intention to conduct the act or to cause harm to a person or property.

Negligence simply implies that the defendant did not behave with the utmost care that the legislation requires. Because the intention is immaterial, the absence of intention is not a defense to a negligence claim.

Consider the following example: A’s vehicle collided with B’s vehicle at a stop sign. A was negligent if she was just not paying attention to traffic. All drivers are required by law to keep a close eye out for other vehicles. A disobeyed her duties by colliding with B’s vehicle. It’s an example of negligence.

Consider A and B to be co-employees. A was angry because B received a significant promotion that she believed should have gone to her. A planned to get her revenge by smashing her vehicle into B’s vehicle. A committed an intentional tort (battery) by acting with the intention to crash into B’s vehicle and destroy it or maybe injure B.

Intentional tort: an exception to the Federal Tort Claims Act, 1946

The Federal Tort Claims Act (FTCA) empowers plaintiffs to bring and pursue specific types of tort cases against the United States, possibly resulting in monetary compensation from the federal government. The FTCA establishes a wide waiver of sovereign immunity for tort claims brought against the United States, but it also has a number of exclusions, as mentioned under 28 U.S.C. § 2680(a). The FTCA includes many carefully stated exclusions. The so-called intentional tort exemption is one of the more fascinating and controversial of these.

Subject to a substantial restriction, the intentional tort exemption typically protects the United States from claims deriving from assault, battery, false imprisonment, unlawful imprisonment, malicious prosecution, misuse of process, libel, slander, misrepresentation, deception, or interfering with contractual rights.

The intentional tort exemption has insulated the federal government from accountability for alleged serious acts of wrongdoing by federal agents. In one case, Hallett v. US Dept. of Navy, 850 F. Supp. 874 (D. Nev. 1994), a group of women who claimed to have been sexually harassed by navy personnel during the 1991 Tailhook Convention sued the US under the FTCA “for the sexual assaults and battery allegedly performed by Naval officers at the Convention social activities.“

The Court finally decided that the intentional tort exception barred the plaintiffs’ claims against the United States since the alleged sexual assaults were intentional tortious conduct.

Judicial precedents on intentional torts

On a regular basis, courts across the United States handle intentional tort cases, yet, some have helped set precedents for future judicial decisions. Some of these landmark cases are discussed below:

Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955)

The judgment in Garratt v. Dailey, 1955, is as follows:

Facts

It was a case from 1955 when a small kid named Brian snatched a chair from beneath Ruth Garratt as she sat down. Ruth collapsed and broke her hip as a consequence of Brian’s chair-pulling. Ruth sued Brian’s family, claiming that he behaved purposefully, causing her physical damage. The court ruled that, while Brian did not mean to cause harm, his actions did result in Ruth’s broken hip and awarded her $11,000 as damages. Brian’s family filed an appeal on the grounds that children under the age of five cannot be held guilty of deliberate harm. 

Issue

Does age play a role in evaluating whether an intentional tort is committed?

Decision 

The Court determined that age has no bearing on intentional tort. The Court determined that the statute of limitations for battery applies to adults and that the fact that the defendant was under the age of six at the time of the alleged battery had no bearing on the outcome. The only time the defendant’s age matters is when establishing what he knew, as well as his expertise, capacity, and knowledge.

Bettel et al. v. Yim, [1978] 20 O.R. (2d)

The judgment in Bettel et al. v. Yim, 1978, is as follows:

Facts

Howard Bettel and a group of friends walked into Ki Yim’s business in 1976. The worker asked the guys to leave when they began acting inappropriately. Instead of leaving right away, the boys proceeded to the entrance of the business and started tossing wooden matches on the pavement. One of the matches caught fire, starting a minor fire inside the shop. The worker and shop owner extinguished the fire while Yim restrained Bettel with both hands. Yim’s forehead struck the plaintiff in the face while he clutched Bettel, inflicting significant damage to his nose and causing the plaintiff to collapse to the floor. Bettel filed a lawsuit against Yim, seeking damages for the assault. Bettel’s parents also filed a lawsuit for more than $1,000 for claiming medical expenses.

Issue

Should an intended offender be held responsible just for the reasonably foreseeable effects of his purposeful use of force, or should he be held accountable for all repercussions resulting from his intentional act?

Decision

The court presiding over the case decided in Bettel’s favor, noting that the act fell within the notion of battery. Though Yim had no intention of hitting Bettel in the nose, he was aware that his actions might be harmful. Bettel received $5,000, while his parents received the amount required to cover medical bills. The Court ruled that an individual is liable for any harm caused by his or her actions, even if the harm was unintentional.

It is not an incident when anything occurs as a consequence of a sequence of circumstances intentionally put in motion by the defendant, and, at the conclusion of that sequence of events, the defendant performs an action that causes an unintentional injury. It is this behavior for which the defendant must take full responsibility.

The criterion of reasonable foreseeability, which guides negligence assessment, does not apply in the case of an intentional tort such as a battery. 

White v. Muniz, 999 P.2d 814

The judgment in White v. Muniz, 2000, is as follows:

Facts

Helen Everly, a Beatrice Hover Personal Care Center member, had Alzheimer’s disease. Helen hit a personal nurse named Sherry Muniz in the jaw during her stay at the care center. Plaintiff sued for assault and battery, but the Court sided with the old woman and her granddaughter. On appeal, the Court determined that even though a mentally incompetent adult was unable to recognize the wrongfulness of her actions, she should be held liable for an intentional tort. The Supreme Court overturned the lower court’s decision and restored the jury verdict.

Issue

Does an intentional tort need evidence that the tortfeasor intended not just to touch another person but also that the touch would be damaging or objectionable to the other person?

Decision

To recover damages under an intentional tort theory, the plaintiff has to show that the defendant, notwithstanding her nature, intended to produce both contact and offensive or hurtful effects by her act but not the actual injury. The Court ruled that the jury had found that no such intention existed.

Houdek v. ThyssenKrupp Materials, N.A., Inc., 2012-Ohio-5685

The judgment in Houdek v. ThyssenKrupp Materials, N.A., Inc., 2012, is as follows:

Facts

The employee, Bruce R. Houdek, was tasked with relabeling goods on warehousing and distribution racks, which forced him to operate in the same aisles as side loader operators. A coworker failed to notice the employee’s position in the aisle and pushed a side loader down the aisle, injuring him. The employee filed a lawsuit, alleging that his employer, ThyssenKrupp Materials N.A., Inc., intended to harm him by instructing him to operate in the aisle with the awareness that injury was certain or nearly certain to happen. The trial court granted summary judgment in favor of the employer.

The appellate court overturned the decision, finding that the terms used in R.C. 2745.01(A) were in harmonic dissonance with the meaning of “substantially certain” in R.C. 2745.01(B) and that the jury opted to assume that paragraph (B) was a scrivener’s mistake. As a result, the appeals court ruled that an injured employee might establish an employer’s intentional tort by demonstrating that the employer acted with the intention to damage the employee or with the understanding that the harm was almost certain to happen. The employer filed an appeal.

Issue 

Can an employee establish an employer’s intentional tort under R.C. 2745.01(A) by demonstrating that the employer acted with the intention of injuring the employee or with the knowledge that the harm was practically certain to occur?

Decision 

The judge decided in favor of the plaintiff, noting that there was no indication that the employer planned or foresaw damage occurring.

The Ohio Supreme Court ruled on appeal that the appellate court mistakenly found that the legal definition of “substantially certain” in R.C. 2745.01 derived from a scrivener’s error. The Court ruled that R.C. 2745.01 confined remedies against employers for intentional torts to situations indicating an intentional purpose to injure an employee. An injured employee’s only remedy, if there was no willful intent to hurt, was via the workers’ compensation system. The court upheld the trial court’s decision since there was no indication that the employer meant to damage the employee by instructing him to work in the warehouse aisle.

Conclusion 

Tort actions are how the typical American utilizes the court system and, combined with the breach of contract, form the great majority of civil proceedings in the American legal system. If the damage done to you is not a violation of the contract, it is most likely a tort, and you will seek tort redress.

Despite being classified as ‘torts’ alongside torts based on negligence, intentional torts are a totally distinct sort of action. Intentional torts come in a variety of forms. Some of these entail bodily harm or damage to a person’s property, character, emotions, or economic interests. In each case of intentional tort, the plaintiff must demonstrate that the defendant meant to cause injury, although the purpose to do harm does not have to be aimed at a specific individual or be malicious, as long as the resultant harm is a direct outcome of the defendant’s acts. Intentional torts frequently enable punitive penalties, are rarely dischargeable by bankruptcy, and need proof of malicious intent.

Frequently Asked Questions (FAQs) 

How can you establish an intentional tort?

To establish an intentional tort, you must show that the defendant acted knowingly in order to commit a hurtful act such as defamation or battery. You must demonstrate that you were hurt as a result of the defendant’s intended harmful activity and that you experienced losses for which you are entitled to compensation.

In intentional torts, what is the burden of proof?

In order to win a lawsuit based on an intentional tort, you must usually prove your case by a preponderance of the evidence. This means you must demonstrate that, more than likely, your version of the facts as stated is correct and qualifies you for reimbursement.

Who is responsible for intentional tort?

In most cases, the person who did the tortious conduct is held accountable for his or her acts as well as any resultant damages experienced by the victim.

However, if the antagonist(s) who performed the deliberate act did so while serving as agents of an organization, company, or other entity, that organization, company, or corporation might also be held accountable for the victim’s conduct and subsequent losses.

For example, a passenger and a public train conductor have a verbal dispute. The conductor violently assaults the passenger, fracturing his nose. The conductor represents the city as a governmental employee. As a result, the city may be held liable for the passenger’s medical costs and other damages.

References 

• https://www.findlaw.com/injury/torts-and-personal-injuries/what-are-intentional-torts.html
• https://www.law.cornell.edu/wex/tort
• https://www.nolo.com/legal-encyclopedia/what-intentional-tort.html
• https://www.rosenfeldinjurylawyers.com/news/what-are-intentional-torts/
• https://valientemott.com/legal-terminology/intentional-tort/
• https://www.alllaw.com/articles/nolo/personal-injury/intentional-tort-cases.html
• https://legaldictionary.net/intentional-tort/
• https://lawshelf.com/shortvideoscontentview/common-intentional-torts-part-1
• https://saylordotorg.github.io/text_introduction-to-the-law-of-property-estate-planning-and-insurance/s10-02-intentional-torts.html
• https://www.stimmel-law.com/en/articles/torts-negligent-and-intentional#:~:text=Intentional%20torts%2C%20in%20the%20United,plaintiff%20for%20the%20injuries%20caused
• https://www.lexisnexis.com/community/casebrief/p/casebrief-houdek-v-thyssenkrupp-materials-n-a-inc
• https://canliiconnects.org/en/summaries/31570
• https://www.lexisnexis.com/community/casebrief/p/casebrief-garratt-v-dailey
• https://www.lexisnexis.com/community/casebrief/p/casebrief-white-v-muniz
• https://www.fwlaw.com/insights/tort-law-united-states#:~:text=Tort%20law%20in%20the%20United%20States%20exists%20to%20redress%20damages,defined%20by%20the%20civil%20courts.
• Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 Hofstra L. REV. 447 (1990).
• David W. Fuller, Intentional Torts and Other Exceptions to the Federal Tort Claims Act, 8 U. St. Thomas L.J. 375 (2011).

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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the Rule of Law in the United States and aspects associated with it.

It has been published by Rachit Garg.

Introduction 

Generally speaking, the principle of the Rule of Law, as pronounced by Dicey, signifies the supremacy of the law and that no man is above the law. A collection of goals or principles known as the ‘Rule of Law’ that are intended to maintain justice and order in society. Every nation works to implement the concept of the Rule of Law, which is characterised by no one being above the law, treating everyone equally before the law, holding everyone accountable for the same laws, having transparent and fair procedures for enforcing the law, having an independent judiciary, and guaranteeing human rights to every individual. The Rule of Law’s effective enforcement, along with the government, also rests on the citizens of a nation, and therefore, without the latter’s role in the same, no country can continue to have a society governed by the concept of the Rule of Law. 

Pledging to uphold the law, judicial processes, governing bodies, signs, and signals stands as a prime duty of every individual. Imagine if everyone in your neighbourhood decided they did not want to be bothered with, for instance, traffic restrictions and lights. Your neighbourhood’s streets would swiftly degenerate into a chaotic and unsafe environment. Police personnel may be ignored entirely or overburdened while attempting to intervene. 

Americans “practically think and breathe in legal terms,” according to the Danish academic Helle Potsdam. Even before the United States became a country, colonists discussed how a new nation should be governed by laws rather than specific people like kings or queens, as they had seen in Britain and other countries. Thomas Paine, one of the colonists, published a booklet titled Common Sense in 1776 by modern standards which eventually became a best-seller. He explained how “law is king in America”. The protection of individual rights, due process of law, and judicial review are at the core of the Rule of Law in America. Thus, the Rule of Law with respect to the United States has been a long thought process. This article intends to discover the roots of the Rule of Law embedded in the soil of the United States, thereby focusing on current trends in this concept and how nations across the globe are drawing inspiration from the same. 

USA and the Rule of Law : the relationship

The Rule of Law framework in the United States was not developed by accident by its Founding Fathers. Before the United States was founded, there were numerous rule-of-law regimes. The Rule of Law system in the United States is quite similar to earlier rule of law systems, which is where the Founding Fathers got their inspiration from. The legal ancestry of the United States can be partially traced to ancient Babylon. The Rule of Law systems frequently focuses on issues such as who has the authority to rule, the legal foundations of the law, the structure of government, substantive and procedural legal obligations, dispute resolution procedures, and the repercussions of legal violations.

In the United States, there are two types of constitutional liberty: 

1. That which, in general, is framed by political checks and balances on government action, and 
2. That which, in particular cases of encroachment, is guaranteed by the guarding hand of judicial review of statutes, acts of administrative agencies, and lower court decisions. 

The outright rejection of specific powers, such as the ban on certain sorts of potential acts, and the general reservation to the people and the various states of any powers not expressly granted to the federal government are the “checks and balances” of the federal Constitution.

Examples of prohibitions that expressly limit the authority of Congress include those that forbid bills of attainder and ex post facto laws, as well as restrictions on the freedom of the press and the right to practise any religion. Similar limitations and denials of authority to the state executive and legislative branches are also found in other states Constitutions. The federal Constitution and the states generally follow the same pattern of restrictions on these local levels of sovereignty. This itself is responsible for upholding the spirit of the Rule of Law. 

All facets of American life are governed by the Rule of Law. For instance, traffic laws specify who has the right of way, and environmental laws and regulations specify what we are permitted to release into the earth, the air, and the water. Additionally, public health regulations on where and how we might associate with others have had an impact on the majority of us during the Covid 19 pandemic. The fact that America upholds the Rule of Law does not imply that our legal system is fault-free since no system affected and managed by humans is ever fault-free. One stark illustration is the fact that the US Constitution allowed slavery in some areas of the nation until the 13th Amendment was approved in December 1865 and that it barred women from voting in federal elections until the 19th Amendment was ratified in August 1920.

There have been many instances where the Constitution and other laws and regulations have been construed in ways that ultimately brought disgrace to the country, even when the literal text of the Constitution did not present an issue. For instance, the US Supreme Court declared in Dred Scott v. Sandford in 1856 that individuals of African heritage were never intended to be and could never be citizens of the United States. People of African heritage had “no rights which the white man was compelled to respect,” according to the nation’s top Court.

The Supreme Court ruled in Plessy v. Ferguson that States could segregate black people from whites for no other reason than the color of their skin in 1896, more than 30 years after the Civil War had been fought and 28 years after the 14th Amendment had overturned the Dred Scott decision by granting citizenship to African Americans. This ruling gave rise to the idea known as “separate but equal,” which, despite sounding somewhat impartial, was a moral and practical farce. But until it was overturned by the decision in Brown v. Board of Education (1954), separate but equal, remained the US law and the rationale for segregating students in some parts of the country in public places like restaurants, hotels, and public transportation until the Civil Rights Act of 1964 was passed.

Presidential disregard for the Rule of Law

1. Earlier, American Presidents frequently declined to enforce or submit to the law when it conflicted with their goals, which is another example of how little regard there was for the Rule of Law at the time. A great illustration is Worcester v. Georgia (1832), a case heard by the US Supreme Court. In one instance, Samuel Worcester, a missionary, intended to preach to the Native Americans in Georgia’s northern region, but Georgia law forbade all white males from residing there without a state permit. The state law was overturned after an appeal to the US Supreme Court, which ruled that any authority to give licenses pertaining to Native Americans was a federal one rather than a state power.
2. Only a few years after Worcester v. Georgia (1832), the then President of the United States disregarded the law once more. The Mormons, also known as The Church of Jesus Christ of Latter-day Saints, established many communities in Missouri in 1838. Lilburn Boggs, the Governor of Missouri, issued the Executive Order Number 44, which made it legal to execute Mormons inside the state’s borders, out of concern for the group’s expanding economic, political, and military influence as well as their unusual beliefs in Christianity. In retaliation, state militias killed numerous Mormons and drove them from their homes while destroying their property.
3. Following the Great Depression in 1929 as a result of the stock market crash, there was yet another striking instance of administrative disrespect for the law. In the 1930s, President Franklin D. Roosevelt sponsored a slew of radical economic laws that were intended, in his opinion, to jolt the slumping US economy out of its deep funk. Historians collectively refer to this set of economic laws as the ‘New Deal.’ But President Roosevelt was disappointed when the US Supreme Court rejected many important parts of his New Deal legislation. President Roosevelt sponsored the Judicial Procedures Reform Bill of 1937 in order to give him the power to appoint extra justices to the nine-member US Supreme Court, which he believed to be outdated and obstinate.

Sliding down of the Rule of Law based on circumstances in the US

1. Despite the fact that the US is founded and grounded in the Rule of Law, there have been other instances in which their legal system has supported actions that discriminated against individuals based on their ancestry or in which their government has engaged in other actions that are inconsistent with the stated core values of the country. For instance, President Franklin Roosevelt signed an Executive Order in February 1942, a few months after Japan attacked Pearl Harbour, authorising the relocation of all people of Japanese ancestry, regardless of citizenship or immigration status, to internment camps. The Supreme Court determined that the forced incarceration of Japanese Americans did not violate the American Constitution in the case of  Korematsu v. United States (1944). 

Chief Justice John Roberts eventually recognised that Korematsu v. United States (1944) was “gravely erroneous the day it was decided”. Additionally, the late Antonin Scalia of the Supreme Court stated that the Korematsu ruling “upholding the incarceration of Japanese Americans was unjust,” but he also noted that “it could happen again in wartime.” 

2. Americans’ devotion to their country’s ideals and the Rule of Law was under tremendous pressure during times of fear and national misery, including war. For instance, President Bush allowed the use of so-called “enhanced interrogation techniques” to interview detainees who were suspected of being terrorists following the 9/11 attacks. These improved interrogation methods are frequently referred to as torture. One would question how a country that takes pride in having legal systems that support individual dignity and the right to remain silent could possibly permit the torture of other people. The US has indeed done it, though, less than 20 years ago.
3. Several recent events have led to new questions about where America stands in terms of its dedication to the Rule of Law. The Black Lives Matter Movement spurred a worldwide and unprecedented investigation into the readiness and commitment of the American judicial system to save Black lives. How is it that the “country of the free and home of the brave” leads the globe in the number of prisoners it houses, and how is it that the jail population is disproportionately made up of African Americans? The COVID-19 pandemic-related rules and restrictions have also sparked discussion about their legality and justification. 

For instance, Bill Barr, a former US Attorney General, said in September 2020 that “this had been the largest encroachment on civil rights in American history, other than slavery, which was a different kind of limitation.” He definitely spoke for some people when he suggested that such limits were incompatible with American ideals and proper legal standards.

4. Last but not least, Senate Republican Leader Mitch McConnell addressed issues relating to the Rule of Law after the January 6, 2021 assault on the Capitol, which was intended to obstruct the Congressional counting of electoral votes in the 2020 Presidential election. He said, “… the mob was fed lies… they were provoked by the President and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the government.”

The American Constitution and the Rule of Law

The US Rule of Law is supported by the US Constitution. It declares that the law is supreme. As the Constitution grants power to both the people and the States, mentioning the phrase “We the people” is a crucial insertion in its Preamble. Notably, it does not emphasize individual rights, unlike the Magna Carta and the English Bill of Rights of 1689. Individual rights are certainly emphasized in the Bill of Rights, but those amendments were adopted after the Constitution was drafted. They are referred to as amendments to the Constitution for this reason. The supremacy of law was put into effect by the US Constitution through structure and procedures. Giving the government the authority to carry out its duties without fostering tyranny was of great concern to the Founding Fathers. They included procedures to guarantee the Rule of Law. Indeed, John Adams stated in the Massachusetts Constitution that “ours is a government of laws and not of men.”

The Constitution, which was drafted by a special convention in 1787, is the most obvious defence of the Rule of Law in the US. The cornerstone of American legal culture is this structure for efficient and constrained governmental action. The Supreme Court interprets and upholds the Constitution, which is pledged to by all public servants. The Supreme Court has the power to definitively interpret the meaning of the Constitution because it is “the supreme law of the land.” The Court may declare that legislation passed by the Congress, a state legislature, or an administrative decision is unconstitutional and, as a result, invalid, that is, without legal effect, in accordance with the institution of ‘judicial review.’

‘Due process of law’ refers to both formalities and content in the United States. A laissez-faire economy had its legal expression in ‘substantive due process.’ It is well known that since the New Deal era, when the laissez-faire economic system could no longer be supported, the idea of substantive due process has come under heavy scrutiny. The Diceyan notion of the Rule of Law, which places emphasis on the substance of the law and was also “the legal expression of laissez-faire” and which has also been questioned in England since the 1930s, is consistent with substantive due process. But since the 1960s, the Supreme Court of the United States has constructed substantive due process once more, and this time, not to defend property rights but to defend fundamental freedoms that aren’t expressly guaranteed by the Constitution.

The President serves for a four-year term, and each state has two senators, among other specific stipulations found in the Constitution. The Constitution, on the other hand, contains many more abstract ideas and notions that call for a careful and original interpretation. As a result, the Constitution grants Congress the power to regulate ‘commerce’ (sometimes referred to as ‘interstate commerce’) between the states, however, it is not clear exactly what this entails. The first 10 amendments to the Constitution, known as the Bill of Rights, were adopted shortly after the Republic was created and speak eloquently of ‘the freedom of speech,’ ‘due process of law,’ and ‘cruel and unusual punishment.’

Simple majority rule is not necessarily the foundation of the American democratic system. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was enacted because it was believed that principles like equal treatment, freedom of speech, and due process of law were so crucial that, without a constitutional amendment, no one, not even the majority, should be able to alter them. The Rule of Law is a principle under which all persons, institutions, and entities are accountable to laws that are:

1. Publicly promulgated,
2. Equally enforced,
3. Independently adjudicated,
4. Consistent with international human rights principles.

While hearing complaints made by minority organisations or individuals who may possess minority viewpoints, the courts play a crucial role in upholding the Rule of Law. The American form of governance places a premium on equality before the law so that courts may decide whether or not it is appropriate to hear arguments from all sides of a dispute when a majority violates the rights of a minority, whether intentionally or accidentally.

History of the development of the Rule of Law along with the American Constitution

1. The history of the United States demonstrates how difficult and occasionally harsh and turbulent efforts have been made to uphold the promise of the Rule of Law, as during the major conflicts between capital and labor in the nineteenth and twentieth centuries or the civil rights movement in the 1960s. Creating a legal system that would incorporate and benefit all people involved a lot of difficulties.
2. Despite the Declaration of Independence’s tenet that “all men are created equal,” the issue of slavery was not addressed when the Constitution was written and approved. Black Americans made up a sizable portion of those who were oppressed cruelly but legally. Slavery wasn’t the only issue, as in the nineteenth century, employers were given almost total power in the workplace while women’s rights to equal treatment were disregarded and rejected. This was done behind the ideological facade of “freedom of contract.”
3. However, the norm (Rule of Law) only calls for the constant execution of pre-established laws when it is strictly understood. The categories and rules don’t need to be scrutinised by the courts in any serious way. Therefore, even while the law may be made up of general principles that are consistently enforced, it may also be based on bigoted and prejudiced beliefs about women, racial groups, immigrants, or everyday laborers. This was an error in the history of the American Constitution.
4. The phrase ‘Rule of Law’ as it is used by followers of Anglo-Saxon law is not one that can be precisely defined to imply the same thing to everyone. For the purposes of the American analysis here, it is assumed to be the collection of principles of fundamental individual legal rights permeating institutions of government and endowed with the necessary authority for enforcement, as well as the processes by which such principles may be put into practice to give rise to those rights. These components of the law, namely, precepts, institutions, and procedures, serve to safeguard the fundamental rights and interests of the individual that society has secured. They do this by limiting the power of the state.
5. The Equal Protection Clause of the Fourteenth Amendment was subject to judicial interpretation in the decades that followed the Civil War. This view was constrained and formalistic for almost fifty years. For instance, in 1883, the judges supported legislation that prohibited blacks and whites from having sexual relations and getting married. Due to the statute’s equal application to both races and to all members of each race, they claimed the measure was constitutional. Thirteen years later, the Supreme Court ruled that “separate but equal” accommodations for blacks and whites on public transit and other facilities, such as public schools, satiated the requirement of equal protection.
6. It is challenging to claim that the judicial arm of the American government functioned as a co-equal branch before the middle of the 20th century. Instead, throughout the first 175 years or so of the country’s existence, the judiciary, which was in charge of upholding the law, was sometimes subject to the whims of the executive branch or was just ignored. The absence of monumental buildings for the judicial branch, current perceptions of the strength of the judicial branch in relation to the executive branch and an analysis of several instances in which various Presidents of the United States displayed disdain for enforcing laws that went against their personal beliefs all point to a lack of respect for the Rule of Law in the early United States.
7. By the middle of the 20th century, this idea of equal protection had undergone a significant revision. The Supreme Court revised its view of legal equality as a result of growing concern for civil rights, and it rejected unconstitutional legislation that was based on the idea that certain persons are inherently more deserving than others because of their color, sex, or ethnicity. The judges sought a fresh interpretation of legal equality that took into consideration opportunities missed and other social justice factors. They started to realise that if the law is oppressive in and of itself or does not account for oppression, then people are not equal before the law.
8. Federal common law, constitutional law, statutory law, rules and regulations issued by administrative agencies, as well as international agreements, make up the United States federal government’s Rule of Law. Furthermore, there are a number of state and local governments with distinct rule of law systems within the United States. Additionally, the federalist nature of American governance permits the coexistence of several systems of the Rule of Law. These systems are the federal government and the state governments of the United States.

The case of Brown vs. Board of Education and its contribution to the principle of the Rule of Law

It is impossible to pinpoint the precise turning point when the executive arm of the US government started to obey laws broadly and generally. Presidential acceptance of the doctrine of the Rule of Law most likely developed as a result of a combination of time, integrity, luck, political advantage, and significant social and cultural changes brought about by World War II. Presidents of the United States thus surrendered to the Rule of Law’s bridle beginning in the 1950s. The US Supreme Court’s ruling in Brown v. Board of Education (1954) was one of the turning points for the American Rule of Law.

In that ruling, the Supreme Court rejected the notion that racial segregation in public settings, including schools and other institutions, could provide equal protection under the law. The Court made significant efforts to defend the rights of minorities, women, and criminal defendants over the same time period. The Court regarded itself in its endeavour as an active force guiding the community toward a more complete realisation of its fundamental values:

1. The first lesson is that the American Constitution is restrictive in certain ways and liberal in others. In essence, the generations of Americans who are still alive today have decided to abide by the laws and ideas that their forebears created and accepted. This is a component of accepting a constitution. The Constitution further restrains persons in positions of authority from misusing the same, and this rule applies to all officials, including elected representatives of the people. As a result, democracy is constrained by a constitutional system and is held in check by the Constitution.
2. The Constitution, on the other hand, becomes laxer because it leaves a lot up to future generations. It is intended to serve as a foundation for the development of self-government. This means that each generation has the freedom to determine for itself what policies to pursue, as long as those policies do not contravene constitutional principles and laws. Another way that the Constitution became less rigid was by means of abstract sentences that were to be understood in the context of brand-new information and circumstances.
3. The Constitution’s twin message of scepticism and optimism is another important lesson from the aforementioned case. These two viewpoints are in opposition to one another under American law. What is most obvious in the law, a variety of tools to keep men in check, is supported by scepticism. Though more subtly expressed, confidence is nevertheless ubiquitous. It is obvious that anytime the Rule of Law depends on confidence, harmony, goodwill, and self-interest. The conflicting attitudes toward the law and justice are evoked by the themes of scepticism and faith. One perspective, grounded in moral scepticism, sees the law as a set of restraints. Without the law, there would either be anarchy, repression, or both. Its key duties include preventing misuse of power and maintaining peace. As an alternative, consider legislation as a means of achieving human aspirations. According to this perspective, legal experience suggests a certain level of order and social control. 
4. Where there is respect for the law, order cannot be bought at any cost. Costs are incurred, and expectations are raised. People believe that while maintaining order, police brutality should be avoided and daily necessities should be respected. The result is a vision of the law as a domain of value, focused on justice, fairness, and civic engagement rather than force, or even just coercion. Every legal system is a special fusion of doubt and assurance.

Rule of Law and its demise from 2016 onwards in the United States

1. Under former President Trump, respect for the law in the executive branch of the US government was fast declining. Through the Executive Order 1379644, President Trump attempted to impose a travel restriction on Muslims from a number of countries in response to terrorist threats. Then acting US Attorney General Sally Yates instructed the Justice Department not to implement the ban after US federal courts ruled that a number of the Executive Order’s sections were unlawful because they unfairly singled out Muslims from particular nations. According to Yates, the Executive Order’s consequences were in conflict with the “solemn duty of this institution (the US Department of Justice) to always seek justice and stand for what is right.”
2. Yates was abruptly fired by Trump, who called her comments a “betrayal” of the US Department of Justice. He then named a new Acting Attorney General to carry out his orders. Additionally, Trump stated that illegal immigrants may not receive the due process protections that the US Constitution expressly guarantees.
3. President Trump “explicitly advocated denying undocumented immigrants their right to due process, contending that anyone who cross the border into the United States illegally was to be considered as invaders and must promptly be deported without trial or an appearance before a judge” in June 2018. Trump’s demands would go against fundamental principles of the U.S. Constitution because everyone in the American territory has a right to due process regardless of whether they are citizens or not. While urgently required, widespread immigration reform is an issue for the legislative branch, it cannot and should not be settled by the executive branch acting in haste and unilaterally.
4. President Trump has faced accusations that he conspired with Russia to sway the 2016 presidential election in his favour ever since entering office. In order to look into these allegations, Robert Mueller, a former director of the Federal Bureau of Investigation (FBI), was appointed as special counsel in May 2017 by the Department of Justice. Despite Trump’s frequent claims that this probe was a “witch hunt,” Mueller and his team charged Trump’s campaign advisor Paul Manafort with engaging in questionable financial activities in Russia and Ukraine. Trump’s attorney, Michael Cohen had admitted guilt to several charges of unlawful business dealings that were directly connected to Trump’s 2016 presidential campaign.
5. Mueller had also uncovered a number of instances in which President Trump had obstructed the course of justice in relation to Russia’s inquiry. It was probably only a matter of time until President Trump was accused of criminal offences connected to his 2016 campaign, especially with Mueller’s Russia probe coming to an end. As a result, the US House of Representatives probably decided to start the impeachment process against President Trump, just as they did with President Nixon. To get ready for this challenging chapter in the United States fight for the Rule of Law, as Trump won’t go away lightly,  44 former senators from both the Republican and Democratic parties wrote to the then senators. They asked their modern counterparts to defend “the Rule of Law and their institutions’ capacity to act freely and independently.” For without the Rule of Law the rights and promises espoused by the United States are hollow.

Role of the US judiciary in upholding the Rule of Law

The Rule of Law legitimises the law of the land. It defines unambiguous standards of conduct, creates (or captures) precedent, and severely undercuts any claim of legal ignorance. Additionally, it holds everybody to the same standards even though many previous legal systems had different criteria depending on the status of the individual. For instance, men frequently had distinct privileges over women. The legal status of free people and slaves was distinct, while indentured servants frequently fell under entirely different categories. Systems of fairness (i.e., equal justice under the law) subsequently emerge when people are held to the same standards, at least for those who belong to the same class.

To guarantee that the Rule of Law is upheld, an independent judiciary is required. Judges who are independent of external pressure and influence can render fair judgments based only on transparency and the governing law. Judges resolve disagreements between parties and interpret and apply the law to particular matters that are brought before them when two parties are at odds.

The judiciary is frequently asked to uphold restrictions on the executive branch. The judiciary guards against abuses committed by other government agencies. It safeguards the rights of those unable to defend themselves, as well as minorities of all kinds, from the power of the majority. 

In a democracy, it is up to the legislature to create the rules and regulations that govern how society operates. The executive branch is in charge of governing society in conformity with the legislatively created legal framework (to the extent that state agents are required to carry it out). The judiciary’s role is to decide disputes between members of society and the state, as well as those arising within society. Judges are not law enforcement personnel, even if they are employed by the government. Judges are not prosecutors, and they neither make arrests nor seek to establish a defendant’s guilt. Their responsibility is to ensure that neither party is affected by the public’s opinion nor their own personal beliefs when following the rules of court proceedings.

You benefit daily from an open and accessible court system, even if you never have to use it yourself. Employers are required to abide by labour laws; drivers are required to observe traffic laws; landlords are not allowed to remove tenants without good reason; and supermarkets must make sure that no bad meat is being sold to customers. Your daily life might be very different if the judicial system weren’t able to enforce the rules against these acts.

If businesses could not rely on the courts to defend their rights, retail and trade would come to a halt. In actuality, businesses heavily rely on the legal system to defend their contractual and property rights. Legal and commercial responsibilities cannot be guaranteed to be upheld if businesses cannot depend on being able to turn to the courts when necessary. The judiciary is frequently asked to render a decision about the relationship between two, or possibly all three, powers of the state. The Rule of Law must be followed in all of this. The foundation of the Rule of Law is an impartial and effective court system. Therefore, the purpose of any independent and effective judicial system must be to guarantee the impartial, fair resolution of legal disputes while safeguarding the rights and liberties of everyone seeking justice.

Judicial power as a subject of the Rule of Law

In democratic states that are governed by the Rule of Law, the judicial branch of government is established as part of the constitutional framework. The foundation of judicial authority as a part of that Constitution is, by definition, just as legitimate and necessary a part of the democratic state as the other two component powers, assuming the constitutional framework of such a state is legal. All member states have some type of constitution that is recognised as the state’s legal basis in various ways (such as through long-standing custom or a public vote). 

All member states’ constitutions explicitly or indirectly recognise and establish the function of the judiciary, which is tasked with upholding the rule of law and making decisions by applying the law in line with legislation and case law. Therefore, the fact that a Constitution establishes a court to fulfill this function must in and of itself grant legitimacy to the judiciary as a whole. Each judge acts in accordance with his or her power as a member of the judiciary while rendering a decision in a case. Therefore, not only does the judiciary as a whole but also each individual judge have legitimacy due to the fact that the judiciary is a part of a state’s Constitution.

For the sake of upholding the Rule of Law as well as those who seek and demand justice, judicial power must be used. Because of this, the court must show the other branches of government and the general public how their power, authority, and independence have been used. The need for a more efficient judicial system has grown among users of the courts. Better judicial access has been deemed to be more significant. Aspects of proving ‘accountability’ include effectiveness and accessibility.

The other state powers must exercise the same level of responsibility and constraint as the judiciary. Above all, the state’s other powers must acknowledge the judiciary’s rightful constitutional role and make sure it has the resources it needs to carry it out. As essential to the health of a contemporary democratic state regulated by the Rule of Law as the duties of the legislative and executive branches of government are the roles of deciding all legal disputes and interpreting and executing the law.

The constitutions of each member state, which are all democracies with the principle of the Rule of Law, serve as the foundation for the legitimacy of the judiciary and of particular justices. The judiciary is established by the constitution, which grants ‘constitutional legitimacy’ to both the judiciary as a whole and the individual judges who execute their authority as members of the judiciary. Legislative or executive actions brought about as a result of changes in political power must not be allowed to compromise the constitutional validity of individual judges who have the security of tenure.

What happens when the judiciary itself fails in terms of upholding the Rule of Law

The judiciary in every state is considered the prime holder of the principle of the Rule of Law. Decisions pronounced by esteemed judges are considered with the highest regard in the state. When it comes to the United States, the judiciary has played a key role in upholding the supremacy of the law over everything, but the same judiciary has time and again come up with decisions that have not only questioned its integrity but have also had grave consequences on the citizens, owing to its binding nature on them. It is disheartening to note that the landmark decisions that have been discussed hereunder have all owed their source to the Supreme Court, which is considered to be the court of the highest regard. Therefore, decisions of the Supreme Court, which are not subjected to further appeals, contribute to the factor of being the Rule of Law in its entirety. 

Free blacks were not citizens of the US : Rule of Law in this regard

The US Supreme Court’s decision in the 1857 case of Dred Scott v. Sandford ruled that Black people were not to be considered American citizens and therefore were not allowed to bring legal claims before any court of law in the US. Dred Scott, a Black slave who sought to obtain his freedom by legal action, was rejected by the Court in the aforementioned landmark case.

This old complex case that created a rift between the State and the judiciary, thereby dicing the application of the principle of the Rule of Law in the US, demands discussion as the facts surround one of the finest problems the world is facing even today, that is, racial discrimination. The Court’s ruling in Scott v. Sandford (1857) caused a political uproar, escalating tensions between the North and South and paving the way for the Civil War. Less than six months after the ruling, Justice Curtis resigned from the Court, unhappy with the political stance the Court had chosen and with his adversarial relationship with Justice Taney. His opposition was published as pamphlets and widely disseminated by abolitionists, but Curtis remained a reluctant hero for their cause and avoided getting involved in politics. He vehemently opposed the radical Republican program for Reconstruction after the war and stood up for President Andrew Johnson during his impeachment trial.

Background of the case of Dred Scott v. Sandford (1957)

1. On March 6, 1857, the United States Supreme Court ruled (7-2 majority) that Dred Scott, a slave, was not entitled to freedom because he had lived in a free state or territory (where slavery was illegal). Further, the Court had opined that African Americans were not and could never be citizens of the United States and that the Missouri Compromise (1820), which had declared all territories, west of Missouri and north of latitude 36°30′ free, was unconstitutional. The choice fueled the sectional debate and brought the nation one step closer to civil war. 
2. John Emerson of Missouri was the owner of a slave named Dred Scott. Emerson made a number of moves in 1833 while serving in the American military. He transported Scott from the slave state of Missouri to the free state of Illinois and then into the Wisconsin Territory (a free territory). During this time, Scott married Harriet Robinson, who later joined the Emerson family. Emerson got married in 1838, and in the early 1840s, he and his wife moved back to Missouri with the Scotts. Emerson passed away there in 1843.
3. Scott reportedly tried to retain his freedom from Emerson’s widow, who opposed the sale. In 1846,  Harriet and Dred Scott filed individual proceedings in the Missouri Court of St. Louis with the help of lawyers against slavery, and they became enslaved by living in free states and territories. It was later agreed that only Dread’s proceedings would proceed. The decision in this case also applies to Harriet. The case was long thought to be rare, but historians later showed that hundreds of liberation proceedings were filed by or on behalf of slaves in the decades leading up to the Civil War.

Decision given by the US Supreme Court in Dred Scott v. Sandford (1957)

1. The Court’s ruling, written by Chief Justice Roger Brooke Taney, was maybe his poorest work to date. He disregarded precedent, twisted history, applied a rigid rather than flexible construction to the Constitution, disregarded particular powers granted by the document, and misconstrued the meaning of other more cryptic clauses. The citizenship problem was where his reasoning was arguably the most perplexing. He acknowledged that African Americans might be residents of a certain state and might even be allowed to cast ballots, as they actually did in several states. However, he contended that state citizenship and national citizenship were unrelated and that since African Americans were not citizens of the United States, they were ineligible to file a lawsuit in federal court.
2. On Scott’s issue of freedom, Taney argued that he could not claim freedom because he lived in Illinois or Wisconsin. Whatever position Scott might have had in a free state or territory, after he returned to Missouri, his position was completely free, regardless of doctrine, “once free and always free”. He claimed to have relied on the land method.
3. Taney’s ruling was harshly criticised by two justices, John McLean of Ohio and Benjamin R. Curtis of Massachusetts. By demonstrating that African Americans had cast ballots in a number of states at the time of the founding, Curtis specifically refuted the majority of Taney’s historical arguments.

Present stance of Dred Scott v. Sandford (1957)

Taney is remembered today only because of his explicit support for slavery and the sneaky comments he made about African Americans. When he died in 1864, he was accused and injured in the north. No matter what else he did, his name had always been associated with the name of a slave who did not want more than his freedom.

In reality, Dred Scott was liberated, but not by a legal process. They were set free in 1857 after being later purchased by the Blow family (who had originally sold Scott to Emerson). The next year, Scott passed away in St. Louis from tuberculosis. Harriet Scott had survived until June 1876, when the Thirteenth Amendment (1865)  was passed and the Civil War ended slavery in the United States. 

Expansion of gun rights by the US Supreme Court : a thrive in the Rule of Law 

On June 24, 2022, the US Supreme Court ruled that a century-old New York law that required applicants to show ‘proper cause’ and ‘excellent moral character’ in order to carry concealed weapons in public for self-defence violated the Second Amendment and so had to be overturned (New York State Rifle & Pistol Association Inc. v. Bruen (2022)). The rule passed in 1913 infringed a person’s Second Amendment right to ‘keep and carry arms,’ according to the 6-3 decision, which had the conservative justices in the majority and the liberal justices in dissent. The decision also represents the broadest extension of gun rights since 2010, when the Supreme Court applied a 2008 decision recognising an individual right to bear arms for self-defence inside the home to all 50 states.

The decision made by the Supreme Court in light of gun rights draws discussion for the sheer fact that the same stands against constitutional principles. The Constitution of a State is considered to be the supreme law of the land, hence an infringement of the same results in a contravention of the principle of the Rule of Law. 

Background of the expansion of gun rights in the US

The decision comes in the wake of the recent mass shootings that left 10 dead in a Buffalo, New York, grocery store on May 14 and 19 children and two teachers dead at an elementary school in Uvalde, Texas, on May 24. The ruling is also anticipated to trigger a flurry of legal actions to ease current state and federal limitations on carrying firearms in five states, namely, California, Hawaii, Maryland, Massachusetts, and New Jersey.

Decision concerning the expansion of gun rights made by the US Supreme Court

1. In his majority judgement, Justice Clarence Thomas declared that New York’s licensing system was unconstitutional because it inhibited law-abiding residents from exercising their Second Amendment rights by requiring ‘proper cause.’ The opinion, written by Justice Thomas, does, however, allow that there might be some ‘sensitive places’ where firearms can be excluded, such as schools and churches, but it doesn’t specify where the line should be drawn, other than to say that a broad restriction like the New York law is unconstitutional.
2. Relevantly, Justice Thomas cited Dred Scott v. Sanford, the historic 1857 case that determined free blacks were not citizens of the United States, at the outset of his judgement. Thomas asserted that anybody has the right to “keep and carry arms wherever they went” in accordance with the US Constitution, citing former Supreme Court Justice Roger Taney as precedent.
3. Chief Justice John Roberts and Justice Brett Kavanaugh stated in a concurring opinion that they would support states’ rights to impose licensing, background checks, fingerprinting, safety training, and other restrictions on gun ownership. It was suggested that similar licensing legislation could be adopted by New York and other states.
4. According to Justice Stephen Breyer’s 52-page dissent, there have been 277 documented mass shootings since the year 2022 began, or more than one each day on average. He added that many aspects of the history of firearms and their regulation are confusing, conflicting, or debatable and that, as a result, elected lawmakers are better qualified than courts to assess the needs of society today.
5. Justice Alito criticised the dissenters in a concurring opinion for using the country’s gun violence to defend lawmakers’ freedom to pass laws like the permitting statute.
6. In a statement, President Joe Biden expressed his ‘sad disappointment’ with the choice and once more pushed states to modify their laws to reduce gun violence. He stated that this decision would cause great concern for everyone as it goes against both common sense and the Constitution.

Change in abortion laws in US and the Rule of Law : a twist in the tale

On June 24, 2022, the US Supreme Court overturned Roe v. Wade, a significant decision that had established the constitutional right to abortion in the US in 1973. The Mississippi legislation, supported by Republicans, forbids abortion beyond 15 weeks, and the Supreme Court upheld it in a 6-3 decision. This historic decision sided with the state of Mississippi in the extremely contentious case of Dobbs v. Jackson Women’s Health Organization (2022), in which the Court tried to overturn Roe v. Wade (1973) and criminalise practically all abortions occurring at and after 15 weeks of pregnancy.

As a result of Roe v. Wade (1973), the Court determined in Planned Parenthood v. Casey, 1992 that states cannot adopt abortion restrictions that place an undue burden on the individual receiving the abortion. The 1973 Roe decision and subsequent High Court affirmations of Roe, according to Justice Samuel Alito, “must be reversed” because they were “egregiously erroneous,” the justifications were “exceptionally inadequate,” and the results were so “destructive” that they constituted “an abuse of judicial authority.”

UN human rights experts have condemned the US Supreme Court’s decision to overturn Roe v. Wade (1973), a nearly 50-year-old legal landmark that safeguarded women’s freedom to choose to have an abortion, and they have also urged President Joe Biden to take all necessary steps to lessen its effects. According to the experts, what has occurred in the US is a major defeat for female equality and the Rule of Law. The US Supreme Court has revoked the legal protections required to ensure that women and girls in the US can live with dignity with the stroke of a pen and without sound legal justification. The experts described the decision as a startling and perilous reversal of human rights that will endanger the lives and health of women.

Legality of abortion in the US

1. The contentious decision has now turned the legality of abortion up to the States, which can now enact their own abortion laws without worrying about breaking Roe, which has for almost 50 years allowed abortions throughout the first two trimesters of pregnancy. 
2. Abortion rights advocates were upset and concerned about how the ruling would affect both patients and providers as 22 states would prepare to restrict or outlaw abortions when the Court’s draft opinion, written by Justice Samuel Alito back in May, was published.
3. The Mississippi decision is seen by pro-abortion activists as the end of the 50-year promise of national protection of reproductive rights, and they support letting each state decide whether to limit or outlaw abortion.
4. While the Court was still considering the issue, a number of states expanded their efforts to restrict abortion. Several states passed 15-week prohibitions that were similar to Mississippi’s, while Texas passed a six-week ban that Idaho and Oklahoma had already imitated.

Future of abortion in the US 

The federal government is thought to be the most effective way to prevent states from passing anti-abortion laws, as these laws are already being enforced in different parts of the United States. A majority of Americans believe that abortion should be legal under most or all circumstances. The House of Representatives and the White House both believe that abortion rights should be made available to their citizens, but if they pass an abortion rights law in the Senate, it is likely to be blocked by the Republicans. It is unclear at this point how the issue of women’s rights will play into the midterm elections, but it seems like time will ultimately be the deciding factor.

Conclusion 

A system of established laws that both the people and the government must abide by, allowing predictability and restraint of government activity, is known as the Rule of Law. People can learn what is expected of them in a society that operates under the Rule of Law. By offering techniques for resolving disputes, it offers a system that enables people of various cultures and faiths to coexist in harmony. The picture in the US with regards to the Rule of Law in recent times seems to be blurred because of the recent stance of the US Supreme Court in its decision-making. As the citizens alongside the government hope, better days are yet to come for the United States that rests on strong roots engraved under years of efforts of various scholars, writers, activities, and fighters who immensely contributed in setting up a robust Rule of Law system in the developed nation. 

References 

1. (PDF) The Rule of Law at Home and Abroad.
2. The United States and the Rule of Law in International Affairs.
3. The Rule of Law in the United States.
4. AMERICAN SOCIETY AND THE RULE OF LAW.

This article has been written by Pranav Patade.

It has been published by Rachit Garg.

Introduction

No matter how big or small, every business must eventually pay taxes to the government. That’s how a country gets funds for its various public functions. If you are a business operating in the United States of America, you must have been dealing with the Internal Revenue Service (IRS) for your taxes, so you may have some idea about the topic. Also, if you are planning to start a new business in the USA, this is an important topic for you to know about.

For some businesses, the Federal Tax ID [or Employers Identity Number (EIN)] may not seem important or necessary, but the benefits of having one outweigh the minimal amount of time it takes to get one. Also, it is free to acquire.

What is a Federal Tax ID?

IRS uses a Federal Tax ID also called EIN (Employers Identity Number) to identify your business uniquely among the other millions of small businesses in the USA. It is required on your financial documents like business tax accounts, tax-related documents, and business tax returns. It is also needed by many banks, financial institutions, credit card companies, and vendors. 

The IRS provides EIN free of charge to any business owner. The application process takes less than 10 minutes, and the number is assigned immediately. The IRS issues a printable copy of EIN information that you can use while applying for business loans, business bank accounts etc.

EIN or Federal Tax ID is also known by the following names:

• Business Taxpayer identifying number
• Tax ID number
• Federal Business Tax ID
• Business Tax ID
• Business Tax ID number
• Business Taxpayer ID number

Why is a Federal Tax ID number needed

Almost all forms of business organisations need an EIN. May it be a sole proprietorship, partnership, corporation, LLC, nonprofit, estate or trust.

Corporations: If your business is a corporation, it will need an EIN. Even if it is taxed as a “C Corporation” or an “S Corporation”, it will need an EIN.

LLCs: For LLCs with two or more owners, EIN is mandatory. If an LLC has only one owner, the IRS treats it as a sole proprietorship. All the income, loss and deductions are reported on the individual owner’s federal income tax return.

Sole proprietorship: Sole proprietorship with employees is required to have an EIN. But if your sole proprietorship does not have any employees, the IRS allows using your individual tax ID (e.g., SSN) as your EIN. But you may want to have an EIN for other reasons. Like a customer may want you to share your EIN instead of an SSN (Social Security Number). A bank may insist on having an EIN for opening a business checking account. Having an EIN gives credibility to your business which you will not get by using an SSN. It also helps protect the privacy of your SSN.

The IRS requires you to have an EIN, even though you are a sole proprietor, if:

1.    You have any employees;

2.    You have to file excise tax returns (e.g., alcohol, tobacco, firearms);

3.    You have a Keogh pension plan.

Apart from this, there are numerous benefits of having a Federal Tax ID which are discussed below.

Benefits of getting an EIN or Federal Tax ID

The following are the benefits of getting an EIN or Federal Tax ID:

1. Avoid tax penalties while filing business tax

In case you are required to have an EIN but have not got one yet, you must fill out a specific paper to notify the IRS. Failing to do so, IRS may not accept your filing, or you may even have to pay penalties for filing late returns.

There is a chance of an IRS audit if you have shown deductions under certain categories. By having an EIN this chance of IRS audit decreases.  

2. Prevent identity theft

EIN uniquely identifies your business among all other businesses in the USA. In a way, it separates your personal finances from your business finances. This helps you to keep your SSN secret as you are no longer required to share it with your clients or vendors that do business with you. Instead, you can provide your EIN.

By keeping your SSN private, you are lowering the chances of identity thieves stealing it and getting their hands on your hard-earned money 

3. EIN adds credibility to your business

In this competitive world, you need to have an edge to win over your clients. Establishing the credibility of your business is very important to secure new clients. An EIN gives you that credibility. If you are a freelancer or an independent contractor, having an EIN signifies that you have a serious business where you are dedicated full-time. It also signifies that you are a separate business entity rather than an employee of a small business. Having an identity as an independent contractor also opens new doors to business opportunities where your clients want to minimise legal responsibilities. 

4. Speed up business loan applications

Many lenders will not ask you for an EIN. However, they need you to have a business bank account with a certain number of deposits to have a loan. This ensures that you have a valid place to receive loan funds and make periodic loan payments. To get a business bank account, the banks will often ask for an EIN.

Some lenders may want to check your business credit while evaluating your loan application. Having an EIN helps you build credibility and secure more funds in the form of a loan. 

5. Helps with the opening of a business bank account

Many banks in the USA have stricter policies when it comes to opening a business bank account. Along with EIN, you must provide additional documents like the business’s formation date, location, legal business name and personal information about the owner. Once you open a business bank account, make sure it is only used for business purposes.

6. Building trust with vendors and suppliers

Having an EIN presents you as a serious business and makes it easier for your vendors and suppliers to trust you. Other businesses also prefer to do business with an entity having EIN.

These third parties might want to check your business credit before signing up to work with you. Wholesale distributors often require an EIN check before they will do business with a retailer. Having an EIN shows that you have a credible business and are a responsible person who will pay the vendor on time. 

7. Establish business credit

An EIN helps you establish a business credit history. Business credit history is similar to personal credit history. It represents your company’s performance in terms of bill payment and response to financial obligations. Your business has a commercial credit report similar to your consumer credit report. It contains your business’s credit accounts and their payment history. Business credit that is acquired through lenders and payments to vendors and suppliers show up in this report.

So anytime you apply for credit, your history is checked based on EIN. If your payments and performance are good, there is a chance of getting higher credit every time with a boosted credit score

8. Easy hiring of employees

A business is not required to have an EIN if it has no employees. But there is no harm in having one even if there is no immediate plan to hire employees. As mentioned above, EIN gives credibility of being a serious business. It not only works for winning new clients but also to attract people’s talent from the market. Eventually, you will have to hire extra hands to help you with your business as it grows. Also, an EIN helps you set up your payroll system as soon as you hire your first employee without delaying the hiring process.

9. Apply for licences

For your business, you may need licences to operate. To apply for one, you will need an EIN. This helps state and local authorities get information about your organisation and help verify that you qualify for the criteria to run a business in accordance with regulations.

10. Protection of assets from business losses

While doing business, there are chances of loss and the possibility of filing for bankruptcy. You may not expect this situation in your business, but if you do come across it, you will need an EIN to ensure that your personal assets are protected. An EIN separates your personal finances from your company’s finances, thus protecting your personal assets from business losses.

11. Get more options as an overseas entrepreneur

You will not have an SSN if you are a foreign national without US citizenship. Getting US citizenship is difficult and time-consuming. But this should not stop you from doing business in the USA. You can contact IRS and apply for an EIN. With EIN generated, you are now free to apply for a business credit card or open a new business bank account despite not having a Social Security Number. This gives you a competitive advantage over your peers and get you started with your business on US soil even before getting US citizenship. However, you will also have to satisfy other criteria to qualify as a US entity. 

How to get your Federal Tax ID or EIN

The best thing about getting your Federal Tax ID or EIN is that it is free to apply. In other words, you need not pay any fees to the US government to get your EIN. You can apply for your EIN by mail, online, fax or phone in case you are an international applicant. It is pertinent to note here that one can apply for only one EIN per day even if one owns multiple businesses.

The following things need to be disclosed to the IRS by any of the above modes, viz:

• Legal name
• Details
• EIN confirmation

Since the online mode is the usual preferred mode of application in this digital age, it is imperative to remember that you cannot save your midway EIN application. Your EIN application online session will expire after fifteen minutes of inactivity. So, it is crucial to finish your EIN application in one go. Also, it is a logical criterion to have your principal business on US soil if you apply online. The relevant link to apply online is here.

Conclusion

So finally, concluding the topic we have seen, what is a Federal Tax ID and its different aliases and how you can get one easily. Whether you are a corporation, LLC, or a sole proprietorship business, you need Federal Tax ID or an EIN. It has many benefits like avoiding tax penalties, preventing identity theft, adding credibility to your business, helping with business loans, etc. if you are planning to start a business in the USA or already have one you should consider opting for a Federal Tax ID given its benefits. 

References

• https://www.irs.gov/businesses/small-businesses-self-employed/apply-for-an-employer-identification-number-ein-online
• https://www.irs.gov/businesses/small-businesses-self-employed/employer-id-numbers
• https://www.nerdwallet.com/article/small-business/benefits-of-getting-an-ein
• https://www.wolterskluwer.com/en/expert-insights/business-ein-your-federal-tax-id-number

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This article is written by Ms. Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article gives an overview of the Stark law in the United States and also discusses the laws governing medical fraud and abuse in the US.

It has been published by Rachit Garg.

Introduction

Tony Stark? Iron Man? Avengers? Well, not really the context. Although, we can imagine Tony Stark making stricter and cooler laws if he were ever into medicine. Well, he was not. So, the government had to come up with its own set of laws. And before you assume, No! It is not in the memory of the bravest Avenger. In this article, we will learn about the ‘Stark’ behind the Stark Law. Were you team Ironman or team Captain America, though?

Medical fraud and abuse are strictly scrutinized and penalized in the US. Several legislations are enacted to protect citizens from medical fraud and abuse. One such law is the Stark Law. The Stark Statute and Regulations are collectively called the Stark Laws. Otherwise known as the Physician Self-Referral Law, the Stark Law is codified under Section 1877 of the Social Security Act (1935). The Stark Law prohibits self-referral of physicians under federal laws. The Stark laws guide the morality of physicians. They guide the physicians to work with integrity. They penalize unlawful self-referrals in the medical industry. They impose restrictions on unlawful financial transactions that the physicians might enter into. For Stark Law to be attracted, the action of the physicians must consist of certain elements that make it fall under a Stark Law violation. The basic elements of the Stark Law include a physician and a referral made by such a physician. Further, they must consist of the elements that make them a referral and not fall within the provided exceptions. The referral then must be for a Designated Health Service (DHS) to qualify for consideration under Stark Law. 

An overview of Stark Law

Stark Law does not consider referrals that do not qualify as DHS. They are only concerned about a referral for DHS. Further, the DHS entity and the physician who referred such treatment must have a financial relationship to attract violation. A financial relationship could be direct or indirect. It could be in the form of investment or compensation. It could be a direct interest from an investment or through a family member. Any referral made for DHS to an entity that does not hold a financial relationship with the physician does not amount to a Stark Law violation. 

Further, the Stark Law is applicable only when a claim for medical treatment has been collected from the federal healthcare programs. Stark Law is applicable when the entity or physician gains illicit profit from making improper claims from the federal Medicare programs. Additionally, there are several exceptions made for Stark Law’s application. Certain types of arrangements, compensation schemes, public welfare schemes, and personal contracts can be kept out of the ambit of Stark law. It has to be proved in a court of law that the said arrangement falls within the exceptions to the law. Stark law is a civil law in nature, and a violation leads to penalties (monetary compensation). It follows a strict liability model. Thus, the presence or absence of intention and knowledge plays no part in the implementation of the law. We shall learn about Stark Law in detail in this article. 

Stark Law : an insight

Medical fraud and abuse are strictly scrutinized and punished in the US. The federal government makes and enforces several laws to monitor and restrict medical abuses and fraud. These laws are civil laws and are penalized with monetary compensation. One such law that protects patients against medical fraud and abuse by physicians by referring them to other physicians or entities with whom they have a financial relationship is the Stark law. The Stark Law was enacted to fulfill the following objectives:

• It was enacted to ensure that patients are not abused by medical professionals for unrequired referrals. 
• It helps them to keep decisions regarding their medical treatments free from being influenced by the monetary gains of physicians. 
• This law is in place to prevent physicians from referring patients to medical treatments or services that they do not actually need. 

The US Department of Health and Human Services has included the Stark Law as one of the top most important laws in the US related to federal fraud and abuse by physicians. The Officer and Inspector General (OIG) of the US Department of Health and Human Services, the Center for Medicare and Medicaid Services (CMS), and the US Department of Justice have the right to enforce these laws. The Stark law is civil by nature. Violations are punished with penalties and not imprisonment or any other form of punishment prescribed for criminal offenses. 

A brief history behind the formulation of the law

Apart from its incorporation into the Social Security Act (1935), the Stark Law, also called the Ethics in Patient Referral Act (1989), became effective on January 1, 1992. It is named after Congressman Pete Stark, who first proposed and sponsored the law. This came to be known as the Stark I Law, which restricted physicians from prescribing clinical lab services for patients from an entity with whom the physician directly, or through a family member, had a financial relationship. 

In 1995, the Stark law was applied to laboratory treatments. Through phases of expansions and discussions in 2001, 2004, and 2007, the Stark I Law developed and expanded to include more services named Designated Health Services (DHS). This came to be known as the Stark II regulations.

Stark II Law

The Stark II Law expanded the Designated Health Services (DHS) and made several changes to the federal policies. It also removed the rule of “direct supervision” to a new system of a ‘more flexible supervision standard’ requiring ‘supervision under medical payment rules.’

Further, the concept of group practice was altered. This allowed the group practices to have more flexibility in distributing the income from DHS. It allowed the group practices to use cost revenue centers for different purposes. Under the direct supervision rule, whenever a physician in a group practice referred to another in their group, either of those physicians had to be physically present to supervise anything done by a non-physician. This mandatory requirement was changed by the Stark II proposal. 

The law prohibits physicians from referring healthcare services to entities where they gain direct or indirect financial benefits. This financial relationship can be direct or through a family member and is divided into two categories: 

1. The financial benefit from ownership or investment interests, and/or
2. The financial benefit from compensation arrangements. 

While the Stark I Law only covered clinical laboratory services, Stark II included radiology, ultrasound, physical therapy, occupational therapy, etc. The new rules also expanded rights and provisions for independent contractor physicians. 

Further, an exception of “fair market value” was added to the compensation arrangements under the financial relationship. This was added to the exception of services where the referred medical treatment is not vague but genuine. Pete Stark explained this exception by saying that no physician would refer someone for cataract surgery to gain benefits from the post-surgery lenses. Thus, the fair market value exception was added in the case of a genuine referral.

Essential features of the Stark Law

The intent of the legislation against medical fraud and abuse is to prevent people from suffering at the hands of physicians who try to get monetary benefits at the cost of their patients’ health, suffering, and life. The essential features, elements, and the primary intent behind making the Stark Law is to:

Prevent unnecessary use of medical services

When physicians refer their patients to certain healthcare services that are unnecessary and not truly needed as a part of their treatment, this leads to overutilization of medical devices and services. It also leads to unnecessary expenses incurred by both the patients and the state. The Stark Law aims to prevent this. 

Prevent unnecessary increases in costs for Medicare and Medicaid Services

Physicians who make referrals to retain financial gains from patients covered by state healthcare programs are covered under the Stark Law. This is when the Stark Law is applicable. Such unnecessary referrals put a monetary burden on the state’s Medicare and Medicaid programs and services.

Prevent harm that can occur due to unnecessary medical treatments

Referrals made by physicians for certain tests or treatments to be conducted on a patient who is not truly required to be performed on those patients lead to health compromises and risks. For instance, if a patient is referred for radiation therapy but does not truly require it, it will lead to several health issues for that patient. 

Prevent unfair and unhealthy competition in the medical industry

Illicit referrals by physicians also create a bad market condition. This has a tendency to corrupt the minds of genuine physicians who are trying to survive in the market. They may be driven by the desire to  make as much money as their competitors are making, making them resort to unfair means to do so.

Basic elements of the Stark Law

The basic elements of the Stark Law are as follows:

1. It applies to physicians in the medical industry,
2. A physician is disallowed under the law to refer a patient for medical treatment,
3. Such referral must be made to a business entity,
4. Such entity must be directly or indirectly related to the physician who referred the patient, 
5. The relationship between the entity and the physician must be financial in nature,
6. Referrals made must fall under the categories mentioned as Designated Health Services (DHS),
7. Stark law prohibits billing for medicare or insurance services in the case of an unlawful referral.

Violation of Stark Law

For punishing an act under the Stark Law, it is essential to first determine whether an act or referral is falling within the ambit of Stark Law violations. For a violation to attract the Stark Law, it must have the characteristic features, like referrals being made by physicians, that are regarded as unlawful and unethical under the Stark Law.

The violations are examined on a case-to-case basis. The Office of Inspector-General (OIG) of the Department of Health and Human Services conducts an assessment for violation of Stark law and prescribes the amount of penalty. The intention of the physician is immaterial in Stark law. Even an act done in good faith and without any mala fide intention does not protect the physician. Stark law imposes strict civil liability for violations. Further, not all referrals are violations of Stark law. A referral that does not fall within any of the categories of the DHS would not attract liability. CMS also allows providers to report Stark violations through a Medicare self-referral disclosure protocol. 

Consequences of violation of the Stark Law

Violation of the Stark Law is regarded as a civil wrong in the US. It is regarded as strict liability. Under the principle of strict liability, the person who violates the law shall be held liable and punished irrespective of the intention and knowledge he possesses. An improper or illicit referral is enough to establish liability. Physicians may be punished by banishment from federal healthcare programs. The following consequences follow the violations of the Stark Law:

Payment denial

When an act of a physician is categorized as a violation of the Stark Law by qualifying as a referral to a DHS entity, the Medicare program denies payment for such designated health services. The referral must first prove to have the elements that qualify it as a DHS. 

Payment refund

If a payment has already been made by a Medicare program for an act of self-referral by a physician that falls within the prohibited category of DHS, the payment is required to be refunded. The DHS entity that has received such payments must now refund the funds to the Medicare program. 

Monetary penalties

The Centers for Medicare and Medicaid Services (CMS) impose civil monetary penalties on a DHS entity for violating the Stark Law. When a physician refers to a prohibited self-referral and the DHS entity thereby receives payment from a Medicare program, with or without knowledge, it is subject to civil fines. The DHS entity is required by law to pay a penalty of $15,000 for each time such a payment is made or service is availed. Further, if the payment involves a circumvention of the law, it attracts a civil penalty of $100,000 for each circumvention. A circumvention is severely penalized since the doer had both intention and knowledge for doing so. Monetary penalties can go as much as up to three times the payments received by the DHS entity or any person deceitfully.

A prohibition from state healthcare programs

The person or entity who is found guilty of violating the Stark Law can be prohibited from availing benefits under the state healthcare programs and federal Medicare programs. 

Exceptions to the Stark Law

There are exceptions to the implementation of the Stark Law. These exceptions are embedded in 42 CFR Section 411.357, Chapter IV, Title 42 of CMS. These are:

Exception of personal service arrangement

One such exception [S.411.357, clause(d)] is the personal service arrangement exception. To be able to take defense under this exception, the following elements have to be proven:

1. The personal service arrangement must be in writing,
2. It must be duly signed by the parties to the arrangement, 
3. The written arrangement must specify the services for which the personal arrangement has been entered into, 
4. The written arrangement must specify all the services that the physician, a family member, or a referred entity shall perform,
5. It must be verified and established that the services entered into for the personal arrangement must be reasonable and deemed necessary,
6. The personal arrangement must be for at least one year,
7. The compensation for the personal arrangement must be pre-decided,
8. The compensation must adhere to fair market value standards,
9. The arrangement must not bear any ulterior motive,
10. The arrangement must not be for promoting the business of the referral entity,
11. The arrangement must not violate other provisions of the Stark Law,
12. The arrangement and its terms must not violate the laws of the state. 

Exception of physician’s services

When a physician refers to another, directly or under his supervision, to provide services to a patient, such referral would not amount to a violation of the Stark Law if both the physicians belong to the same group practice. [S.411.357, clause (d)(i)]

Exception of a prepaid plan

When an entity provides referral services via a contract made with such an individual, it does not amount to a violation of the Stark Law. Such a contract must be made as per Section 1876 of the Social Security Act of 1935. A contract or arrangement made based on provisions under Section 1833(a)(1)(A) of the Social Security Act of 1935 further attracts exception. Any other arrangement for prepaid payments under the Social Security Act (1935), entered between an enrolled individual and a physician that refers to an entity, shall fall under the exception to the Stark Law.

Per click leasing arrangements

Click leasing arrangements allow four exceptions, namely, the office space exception, the equipment lease exception, the fair market value exception, and the indirect compensation arrangement exception. As of 2009, physicians and DHS providers would not be permitted to enter into a click arrangement for office spaces and equipment leases. The Inpatient Prospective Payment System (IPPS), 2009 changed this exception. It removed the click arrangements for leasing pieces of equipment and real estate from the list of exceptions. [S. 411.357, clause (a)]

Percentage-based arrangements

Arrangements by physicians were given an exception for percentage-based arrangements on items and services. This was modified in October 2009. Except for the rental of office spaces and/or equipment, percentage-based arrangements on other items or services are no longer treated as an exception to the Stark law. However, the CMS is of the opinion that they could further relax the prohibitions on percentage-based arrangements beyond office space rentals and equipment. This relaxation will be allowed on billing services and other non-professional services under supervision. [73 F.R. 48433]

Exception on lithotripsy arrangements

As prohibitions on referrals under the Stark Law are limited to the components of DHS, it makes an exception for lithotripsy arrangements since they do not fall within the category of DHS. It was decided in the case of American Lithotripsy Soc. v. Thompson (2002) that lithotripsy would not be considered a DHS. Even a per-click leasing agreement would not apply to lithotripsy arrangements. [73 F.R. 48730]

Exception of professional courtesy 

Yet another recognized exception [S. 411.357, clause (s)] to the Stark Law is the exception of professional courtesy. CMS validates a professional courtesy arrangement for physicians and their family members. Professional courtesy arrangements must consist of the following elements:

1. The exception is applicable to all physicians in the medical fraternity,
2. This exception is applicable to all medical items and services provided by an entity, 
3. A professional courtesy arrangement must be made in writing,
4. A professional courtesy arrangement must get approval from a competent authority,
5. The arrangement under this exception cannot be availed by a physician or his family member who is already availing of healthcare benefits through the federal healthcare program,
6. Such an arrangement must not violate any law preventing medical fraud and abuse,
7. Such an arrangement must not violate federal laws.

Exception of retention payments

Under the provisions of this exception, a hospital or a medical service center empowered by federal law can make payments to physicians to retain them in a particular geographical area. This exception can be invoked when a physician has to relocate to an area 25 miles or beyond the entity’s geographical location. A bona fide intention has to be proven in writing and with certification. This area is determined by several factors, including the location of the entity, urban or rural areas, or areas facing a shortage of healthcare professionals. If a particular place has 75% of a physician’s patients, it would qualify to be a geographical service area under this exception. [S. 411.354, clause (t)]

Exception of mission support payments

DHS entities make mission support payments [S. 411.354, clause(c), 355(e)] to their registered users. These support payments may be used for causes like medical research, social work in the form of medical benefits to different communities, awareness and education, etc. All of these are covered under the Academic Medical Center (AMC) exception. It is treated as a safe harbor under the DHS, and thus, the ambit of this exception is wide. It must contain elements to prove the absence of a financial relationship between the paying entity and its beneficiary. The following elements have to be strictly proven to get benefits under this exception:

1. The entity should make mission support payments directly to the beneficiary,
2. The beneficiary affiliate’s ownership must not be vested in any related physician,
3. This payment is nowhere related to referral compensation made to a physician’s employees.

Exception for publicly traded companies

The ambit of financial relationships excludes ownership or investment made through the channels of stock exchanges. A purchase of shares and securities of the DHS entity from national stock exchanges would not be termed as a referral for financial benefit. These stocks may be purchased from NASDAQ or an automated dealer quotation system by the National Association of Securities Dealers (NASD). One prerequisite is that this entity must have $75 million or more worth of equity by the end of a fiscal year. [S. 411.356(a)]

Exception of isolated arrangements

Physicians may enter into a specific separate transactional arrangement [S. 411.357(f)] with a DHS entity if the following prerequisites are made:

1. The arrangement must be for a fair market value, 
2. The arrangement must not be for promoting the DHS entity’s business,
3. The arrangement must be fair and reasonable in a way that it would be held valid even in the absence of a referral,
4. No other transaction between the physician and the DHS entity should be made within 6 months from the date of fulfillment of the isolated arrangement. 

Isolated payments may also be made in the form of installments. Payments are secured, the amount is priorly fixed and it does not consider other businesses made using referrals. 

Other exceptions to the Stark Law are as follows

• Arrangements under which physicians get non-monetary remuneration in exchange for e-prescription information do not violate the Stark Law. [S. 411.357(k)] 
• Temporary moratoriums on physical referrals to certain specialty hospitals with which a physician has a financial relationship do not amount to a violation of the Stark Law. [S. 411.357] 
• A bona fide employment arrangement is an exception to the Stark Law. [S. 411.357(c)] 
• Ancillary services in offices come under the exceptions of the Stark Law. [S. 411.352] 
• Splitting benefits or profits among physicians of the same group practice would not be considered a violation of the Stark Law. [S. 411.357(h)] 

However, the exceptions are valid subject to their adherence to federal law and other necessary medical laws. These exceptions are allowed only when the minimum standards are met.

What constitutes a ‘referral’ under the Stark Law

A violation of the Stark law occurs when a referral is made by a physician. It is an essential element to establish a violation. Not every activity of a physician amounts to a violation. A referral is a must. A referral as per the Stark Law is determined when it possesses the following features and characteristics:

1. A referral is in the form of an order, a request, or a certification for a specific medical treatment. This can either be to prescribe medical treatment from an entity with which the physician has a direct or indirect financial relationship, or in the form of a prescribed consultation from another physician. 
2. A treatment performed or service provided by a physician himself does not amount to a referral to DHS. 
3. Some referrals from radiologists, pathologists, and radiation oncologists are not treated as referrals. A pathologist writing for a laboratory test or pathological examination is not a referral. A radiologist writing for a radiology diagnosis is not a referral. Prescribed radiation therapy is not a referral. These tests and services are not referrals when they are made through requests or consultations from another physician. Tests and services are not referrals when they are made under the supervision of another radiologist, pathologist, or oncologist in the same group practice. 
4. Any other compensation arrangement as provided under the exceptions of the Stark Law would not amount to a referral. 
5. The Stark Law applies only to those who are registered as federal Medicare beneficiaries. Referrals made to a patient that does not avail of federal healthcare services are not bound by the Stark Law.
6. Further, the Stark Law applies only to designated health services. It does not extend to healthcare services beyond DHS.

What constitutes a Designated Health Services (DHS) under the Stark law

The following constitutes a Designated Health Services (DHS) under the Stark Law:

1. Clinical laboratory services (Stark I regulations),
2. Physical therapy,
3. Occupational therapy,
4. Outpatient speech-language pathology services,
5. Radiology and other related services, except the following are DHS:

• X-ray, fluoroscopy, ultrasound, and other procedures that include the insertion of tubes or needles into the body,
• Imaging services that do not fall into the category of radiology under CPT/HCPCS codes of radiology.

6. Radiation therapy and services,
7. Durable medical instruments and medical services,
8. Parenteral and enteral equipment and supplies,
9. Orthotics and prosthetics services,
10. Health services at home,
11. Outpatient drug prescriptions,
12. Inpatient and outpatient medical services. 

Case laws

The Stark law has been functioning in the US for a long time. It has also been widely implemented, and violations have been penalized. The following case laws are instances of the application of the Stark Law in the US:

Amedisys Home Health Case (2014)

In a settlement, the Amedisys Home Health service provider agreed to pay $150 million because the service provider was found guilty of violating the Stark Law. The service provider had made unlawful referrals and taken money from the Medicare programs during 2008-2010. The home health service provider also violated the False Claims Act as they submitted false billings to the state Medicare program and received compensation. The US Department of Justice, while compromising this settlement, reiterated the importance of federal Medicare services. The Assistant Attorney General of the Civil Division stated that state money should go to quality home service providers. The home healthcare service provider had direct financial relationships with referring physicians who referred their services to patients. The physicians and this service provider shared financial gains from this arrangement. 

Halifax Hospital Medical Center case (2014)

In this case, the healthcare center was violating the Stark Law and other medical laws intentionally. They entered into illegal contracts with medical service providers. These contracts made provisions for illegal referrals and other financial bonuses. This money came from claims made to Medicare programs. The center had to pay a penalty of $85 million. The center had violated the Stark Law with mala fide intention and knowledge of doing so. It had made illicit contracts with 6 oncologists who referred patients to the medical center in exchange for bonuses and financial gains. This included tests and prescribing medicinal drugs from the center. This case included grave violations as it not only violated the laws intentionally but also put at risk on the lives and wellbeing of its patients. The center had also violated federal laws by paying some neurosurgeons more than what is determined as a fair market value. In 2013, the US District Court of Florida decided that the action of the medical center is a Stark law violation. In 2014, the medical center agreed on a settlement to pay $85 million as compensation. Thereafter, the center also entered into a Corporate Integrity Agreement with the US Department of Health and Human Services Office of Inspector-General (HHS-OIG). 

Baldwin Bone and Joint case (2019)

In this case, the healthcare company was alleged for making improper claims from Medicare services. The surgeons and therapists were prescribing healthcare treatments to patients but they were found to have not licensed their services. These were regarded as violating the Stark Law, and thus, had to pay a compensation of $1.2 million. The healthcare company also violated the False Claims Act. This was after a lawsuit was filed against the company by a former employee of the company in the Southern District of Alabama. The healthcare company had taken money illicitly from the state Medicare and Medicaid programs. The Defense Criminal Investigative Service also participated in the investigation process apart from the HHS-OIG. The Agent in charge of HHS-OIG stated that these referrals and claims harmed patients and put potential risk to their health. Additionally, they also harmed the beneficiaries of the state Medicare programs by wrongfully using state funds for Medicare and Medicaid Services.

Other laws dealing with medical fraud and abuse in the US

Medical fraud and abuse can cause potential risks to healthcare beneficiaries, and their well-being and incur losses to taxpayers and beneficiaries who avail themselves of state medicare services. The federation and federal laws entrust these physicians to provide honest services in the medical fraternity and make proper utilization of the federal healthcare programs in order to benefit those in need of it. While this is ideal, many physicians are also accused of conducting medical fraud and abuse. They cheat patients to gain monetary benefits by violating codes of conduct. They make improper and illicit deals and contracts with various service providers in the chain of providers in the medical industry in exchange for financial gains. These activities led to the need of forming laws to govern and restrict medical frauds and abuses in the US. 

Medical fraud is said to be conducted by physicians when they knowingly and intentionally make false claims to receive monetary compensation from the state Medicare services. This includes acts of referring, receiving, paying, or claiming money in form of kickbacks, referrals, or other forms of remuneration from federal healthcare programs. Some fraud includes physicians claiming more money than the fair market value of the service provided or treatment done. Fraud includes tampering with records to make illicit claims, referring designated health services to patients that do not need to undergo that treatment, and it also includes billing medicare programs for appointments even when the patient did not show up. Medical fraud and compromising with federal medicare programs is a federal crime in the US and it attracts civil liability, criminal liability, and administrative liability depending on the facts and circumstances of the case. 

Medical abuse essentially means the abuse of federal healthcare programs by making false claims. Unnecessary billings, false billings, billing higher than the charges incurred, tampering with codes, etc., are all forms of medical abuse. Thus, federal law had enacted legislation to deal with medical fraud and abuses, and punish for violations. 

Apart from the Stark Law that has been discussed broadly in this article, the following statutes deal with medical fraud and abuse in the US:

Anti-Kickback Statute [42 United States Code Section 1320a-7b(b)]

Unlike the Stark law, the Anti-Kickback Statute provides for criminal liability. It is a criminal statute. It prohibits illicit and illegal remuneration gained from patient referrals or through the services of federal healthcare programs. These services may include prescription drugs, medical tests, healthcare services, and supplies from the state for Medicare and Medicaid beneficiaries. The statute punishes illicit non-monetary benefits in the form of remuneration. These can be in the form of free services, rent-free stays, accommodations, travel expenses, meals, high compensation for basic healthcare services, consultancies, etc. Payment is done in the form of rewards in exchange for referrals. 

Under the Anti-Kickback Statute, these rewards for referrals are criminal offenses against the state and patients. These rewards for referrals are termed as ‘kickbacks’ under the statute. Receiving remuneration as well as soliciting such remuneration is an offense under this law. The Anti-Kickback Statute also imposes administrative liabilities. These punishments (criminal and administrative) are in the form of fines and imprisonment for a specific period, and sometimes lead to the federal state excluding these offenders (physicians and entities) from state healthcare benefit programs. The Civil Monetary Penalties Law prescribes a fine of $50,000 for each kickback and an amount equaling up to three times the value of the false gains. 

There are certain safe harbors that protect physicians from medical abuse and fraud laws in the US. If a healthcare contract is made in consonance with the safe harbor principles, the offender can escape liability as an exception. The safe harbor regulations have been enforced by the HHS-OIG. Contracts made under safe harbor principles should possess the following characteristics:

1. They must be made for a minimum of 1 year,
2. They must be made in writing,
3. They must be signed by both the consenting parties,
4. They must pre-determine the amount to be paid in the contract,
5. They must adhere to the fair market value principle,
6. They must not use this amount to increase the value of a business,
7. They must specifically state the services to be performed and their terms, and
8. They must be reasonable and fair, commercially. 

False Claims Act (31 United States Code Sections 3729-3733)

Whenever a physician makes false claims to state healthcare programs, he can be booked for violating the False Claims Act (1863). This legislation provides civil monetary penalties to physicians who are found guilty of violating federal law by making wrongful claims and gains. The False Claims Act protects the federal government from being falsely charged for money or services based on improper claims by fraudulent physicians. This Act makes it illegal for physicians to make claims that they know to be false about federal healthcare and Medicare programs. False claims made by physicians attract civil monetary penalties of $11,000 for each false claim or up to three times the amount claimed falsely. A person charged with a violation of the False Claims Act can be simultaneously charged with violating the Anti-Kickback Statute or the Physicians Self-Referral Law (Stark law). 

The False Claims Act imposes strict liability. This means that physicians guilty under the False Claims Act shall be held liable irrespective of having or not having an intention and knowledge of the fraudulent act. A wrong caused due to negligence or recklessness would also constitute an offense under this act. 

The False Claims Act makes a special provision for whistleblowers that allows individuals to report illicit claims or activities carried out by companies or individuals. These individuals can file and fight a lawsuit against the fraudulent individual or company on behalf of the United States, and they are further entitled to monetary rewards from the penalty paid by the erring party. Such whistleblowers could be present or former employees, partners, directors, staff, or competitors in the market. 

There are also provisions for the criminal False Claims Act that impose criminal liability and inflict criminal fines and imprisonment as punishment. People found guilty under these rules can be put behind bars for infringement. 

Exclusion Statute (42 United States Code Section 1320a-7)

The Office of Inspector-General of the Department of Health and Human Services, under the provisions of the Exclusion Statutes, excludes offenders of medical fraud and abuses from federal healthcare and Medicare programs. Under the Exclusion Statute, the following people are excluded from state healthcare programs:

1. Physicians who conducted Medicare and Medicaid fraud and other related offenses,
2. Physicians who are guilty of abusing or neglecting their patients and putting their lives at risk,
3. Physicians guilty of other healthcare fraud, theft, or financial misconduct, and
4. Persons guilty of unlawfully making, distributing, selling, or prescribing controlled substances.

The OIG has discretion in excluding physicians from federal healthcare benefits on the aforementioned grounds. These physicians would not receive any remuneration, compensation, or services from the CMS or other federal Medicare services. They cannot bill their patients’ federal Medicare programs. This includes a group practice, meaning a barred physician can neither bill patients directly through Medicare programs nor through group practices. Even a private prescription given to a patient would not be reimbursed by federal facilities. 

Civil Monetary Penalties Law (42 United States Code Section 1320a-7b)

Based on violations under various statutes and laws governing medical fraud and abuse, the OIG prescribes civil monetary penalties for the offenders. This varies with the gravity of the offense and the nature of the violation. Penalties are imposed on each act of violation and also as a whole. Penalties for each violation range somewhere from $10,000 to $50,000. The following could be termed violations that attract monetary penalties under the law:

1. When a physician intentionally claims compensation for a treatment or service that does not fall within the ambit of Medicare programs to be compensated.
2. When a physician violated the Stark law by referring patients for financial gains.
3. When a physician violates the Anti-Kickback Statute by taking unfair kickbacks.
4. When a physician violates the provisions of state Medicare and Medicaid programs. 
5. When a physician gives false and misleading information to patients, or in Medicare claims.
6. When a physician makes misstatements or misconduct in providing honest services.
7. When a physician’s personal contracts are not at par with medical laws or remuneration fixed is above the fair market value.

Stark laws and Anti-Kickback Statute: distinction

Both the Stark law and the Anti-Kickback Statute protect against medical fraud and abuse by physicians towards their patients. These laws are distinct from one another in certain aspects, like:

Point of distinction	Stark Law	Anti-Kickback Statute
Nature of penalty	The Stark Law imposes civil penalties on offenders.	Liability under the Anti-Kickback Statute is criminal in nature.
Application	The Stark Law applies to physicians only when they possess a financial relationship with a DHS entity and thereby make referrals for monetary gains.	The Anti-Kickback Statute is applicable to all physicians alike.
Liability	The Stark Law imposes strict liability. Thus, it does not consider the intention and knowledge of physicians who have committed an offense under the law.	The Anti-Kickback Statute, on other hand, takes intention and knowledge into consideration. An offense is constituted only in presence of intention and knowledge.

Conclusion

Medical fraud and abuse are strictly penalized in the US. This is done through various laws, regulations, and legislation. One such law is the Stark Law, or the Physician Self-Referral Law. The Stark Law prohibits physicians from referring patients to designated health services from entities that a physician has a direct or indirect financial relationship with. This referral comes at a risk to the patient’s life and well-being and exhausts the resources of federal healthcare programs unnecessarily. This is why the Stark Law prohibits such acts of physicians by penalizing them with monetary compensation. The strictness of the Stark Law can be understood by the fact that it imposes strict liability on offenders. 

Frequently Asked Questions (FAQs)

Who is a physician under the Stark Law?

A physician within the ambit of the Stark law consists of a doctor of medicine, a doctor of osteopathy, a dentist (medicine or surgery), a doctor of optometry, and/or a chiropractor. 

Who qualifies as an ‘immediate family member’ under the law?

An immediate family member within the ambit of the Stark Law includes – a wife, husband, parent (adoptive or birth), child, stepchild, siblings, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or spouse of a grandchild. 

What is a ‘financial relationship’ under the Stark Law?

A financial relationship includes a direct or an indirect relationship. It can be in the form of investment interests and returns or in the form of compensation arrangements. It can be in the form of equity, debt, or other instruments.

How can one verify an act to be violating the Stark law, or falling within its exceptions?

The CMS makes provisions for determining whether an action is or is not a violation of the Stark Law. Physicians or other concerned persons can obtain written confirmation from the CMS advisory opinion process. The CMS determines whether it falls within an exception or constitutes a financial relationship. 

References

• https://khn.org/news/hospitals-accused-of-paying-doctors-large-kickbacks-in-quest-for-patients/ 
• https://www.pricearmstrong.com/practice-areas/qui-tam/medicare-fraud/Stark -law-anti-kickback-statutes/ 
• https://constantinecannon.com/practice/whistleblower/whistleblower-types/healthcare-fraud/anti-kickback-Stark / 
• https://www.wachler.com/Stark -law-anti-kickback-fraud-abuse-lawyers.html 
• https://www.healio.com/news/ophthalmology/20120331/Stark -i-and-ii-final-rules-released 
• https://kjk.com/2019/02/07/Stark -101-for-physicians/ 
• https://oig.hhs.gov/compliance/physician-education/fraud-abuse-laws/ 
• https://fentonlawgroup.com/news/understanding-the-Stark -law/ 
• https://www.goodrx.com/hcp/providers/Stark -law-basics 
• https://www.ssa.gov/OP_Home/ssact/title18/1877.htm 

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This article has been written by Oishika Banerji of Amity Law School, Kolkata. It discusses the concept of human rights with respect to the United States of America, while also highlighting the present scenario. 

It has been published by Rachit Garg.

Introduction 

It is an accepted fact that every individual deserves to be vested with a set of basic legal rights, regardless of their gender, color, nationality, ethnicity, language, religion, or any other distinction. Human rights cover a wide range of rights, such as the freedom from slavery and torture, the right to life and liberty, freedom of speech, and the right to a job and education, among many more. Therefore, human rights apply to everyone without exception. A cornerstone of the United States’ founding almost 200 years ago was the defense of basic human rights. Since that time, the promotion of respect for human rights, as outlined in the Universal Declaration of Human Rights (UDHR), 1948, has been a key objective of American foreign policy.

Supporting democracy helps to build a safer, more stable, and more affluent global environment where the United States may advance its national interests in addition to advancing such core American principles, such as worker rights and freedom of religion. The only national interest that contributes to the protection of all others is democracy. The United States employs a wide range of instruments to further its goal of freedom, including economic sanctions, multilateral participation, help abroad, reporting, and public outreach. To assist people in pursuing freedom, the United States Department of State collaborates with democratic allies, global and regional organizations, nonprofit groups, and involved citizens. This article discusses the concept of human rights with the United States as its backdrop, backed by recent scenarios with respect to human rights as well. 

What are human rights

Human rights are privileges that we enjoy merely by the virtue of being human; no state has the authority to bestow them. No matter our nationality, sex, ethnicity, race, color, religion, nationality, or any other status, we are all endowed with these universal rights. The most fundamental of them is the right to life, followed by those that make life worthwhile, including the rights to food, education, employment, health, and liberty.

The first legal declaration to outline the essential human rights that should be universally protected was the UDHR, adopted by the UN General Assembly in 1948. Every international human rights law is based on the essence of the UDHR. Its 30 Articles serve as the foundation for all upcoming and existing human rights conventions, treaties, and other legal documents. The International Bill of Rights is made up of the UDHR as well as the other two treaties namely, the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social, and Cultural Rights (ICESCR). 

Some of the possible fundamental characteristics of human rights have been listed below.

Universal and inalienable

International human rights law is built on the tenet of the universality of human rights. This implies that human rights belong to all equally. This principle is reiterated in numerous international human rights agreements, declarations, and resolutions after being initially highlighted in the UDHR. Human rights cannot be taken away by any external or internal forces. They shouldn’t be scrapped unless certain conditions are met and the proper process has been followed. For instance, if a person is found guilty of a crime by a court of law, their right to liberty may be limited.

Indivisible and interdependent

All human rights are interconnected and indivisible. This implies that without the other, one set of rights cannot be completely exercised. Progress in civil and political rights, for example, facilitates the practice of economic, social, and cultural rights, similar to how breaching economic, social, and cultural rights can harm many other rights.

Equal and non-discriminatory

All humans are born free and equal in rights, according to Article 1 of the UDHR. Article 2 prohibits discrimination and serves as the foundation for this equality. All international human rights law is based on the principle of non-discrimination. All significant international human rights treaties also include this principle. The International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) both include this as their fundamental focal point.

Both rights and obligations

At least 1 of the 9 fundamental human rights treaties and 1 of the 9 supplementary protocols have been ratified by every state. At least 4 have been ratified by 80% of states. This indicates that in accordance with international law, states are obligated to respect, defend, and uphold human rights.

1. States are required to respect human rights by abstaining from interfering with or restricting the exercise of those rights.
2. States are under the duty to protect persons and groups from violations of human rights.
3. States are required to act in a way that makes it feasible for people to enjoy their fundamental human rights under the commitment to fulfill them.

Relevance of human rights in the United States

Human rights in the United States are a collection of rights that are enshrined in the US Constitution, specifically in the Bill of Rights. Through a ratified Constitution, the federal government has promised unalienable rights to its people, including, to some extent, non-citizens. These rights have been developed over time through judicial precedents, legislation, and constitutional changes. Along with the mere existence of these rights, it is necessary to note that they have become more widely available over time. International human rights legislation is subject to the jurisdiction of federal courts within the United States as well.

The foundation of social justice is the upholding of human rights. The UDHR, 1948 prompted an ongoing discussion on whether or not governments have a duty to ensure citizens’ well-being by defending their social, economic, and political rights. Although political rights received quick acceptance, social and economic rights have trailed behind. The realization of social and economic rights (i.e., the right to work, health, income, housing, education, and employment) is seen by many Americans as being in opposition to the functioning of the market economy. Some people view social and economic rights as unattainable ideals. But the senior leaders of the nation have constantly pushed for an agenda of human rights, including social and economic rights, since the 1930s, if not earlier. Despite such powerful backing, those who prioritized business above people and/or compromised with racism affected the historical struggle to uphold human rights.

The fundamentals of American foreign policy are advancing democracy, freedom, and the protection of human rights throughout the world. The principles upon which the United States was established more than two centuries ago are consistent with those enshrined in the UDHR and other international and regional conventions. The US stands with those who aspire to live in freedom and with democratic governments that uphold fundamental human rights. Democratically run countries are more likely to maintain peace, thwart aggression, widen open markets, encourage economic growth, safeguard American citizens, combat international terrorism and crime, uphold human and worker rights, avert humanitarian crises and refugee flows, improve the environment globally, and safeguard public health.

Human rights are always a confluence of humanitarian concerns and strategic aims in US foreign policy. In other words, the United States seeks a mix of material strategic interests (promotion of human rights) and normative goals (preserving national security and strengthening economic relations). Initially, the US endeavored to ensure the factors of morality, the defense of individual rights, and the development of democracy when determining its foreign policy. After World War II, these initiatives gained more traction, and in the years following the Cold War, US foreign policy began to emphasize humanitarianism and overseas aid as crucial tools in avoiding civil wars and terrorist attacks. After the September 11 attacks, the George W. Bush administration and the US Congress revised their stances on the US’s place in the world and on promoting, defending, and preserving human rights.

The Bureau of Democracy, Human Rights, and Labor (DRL)

Respect for the rule of law, democratic institutions, and human rights are among the universal principles promoted by the Bureau of Democracy, Human Rights, and Labor (DRL). The DLR was established in 1977 to support the global advancement of personal freedoms and democratic liberties. It speaks to the essential liberties outlined in the United States’ founding documents, as well as the supplementary articles of the UDHR, and other international and regional agreements. To fight terrorism, the rise of authoritarianism and advance a free, peaceful, and prosperous world for the benefit of the American people, the United States supports the aspirations of individuals who yearn to live in freedom and under democratic governments.

The Bureau’s work promotes accountability, upholds internationally recognized labor standards, and advances the rights and equity of members of marginalized racial, ethnic, and religious communities, indigenous peoples, people with disabilities, and LGBTQI+ people. It also works to strengthen democratic institutions and confront democratic backsliding, and the democratic upswing. 

The DLR employs a variety of strategies to enhance freedom and democracy, including economic sanctions, multilateral involvement, assistance abroad, reporting, and public outreach. In order to support individuals seeking freedom, the United States collaborates with democratic allies, global and regional organizations, non-governmental organizations, and active citizens.

Current scenario of human rights in the United States

In terms of human rights, the United States has typically received high to fair ratings. For instance, the United States is ranked 1st for human freedom in terms of civil and political rights according to the Freedom in the World ranking, which is based in the United States, with 83 out of 100 points as of 2021.  

With a score of 72.74 out of 100 in the Press Freedom Index issued by Reporters Without Borders as of 2022, the United States is ranked 42nd out of 180 nations, with lower numbers signifying less press freedom.  With a score of 7.85 out of 10, the United States was classified as a “flawed democracy” in the Economist Intelligence Unit’s Democracy Index, placing it as the 26th most democratic nation in the world as of 2021.  According to the Human Rights Measurement Initiative, when compared to other high-income nations, the United States performs worse than average in terms of quality of life, safety from the state, and empowerment rights.

Despite receiving fair to high ranks in human rights assessments, the United States faces severe domestic and international criticism for its track record in this area. The existence of systemic racism, weaker labor protections than most western nations, debtors’ prisons, the criminalization of homelessness and poverty, invasions of citizens’ privacy through massive surveillance programs, police brutality, police impunity, and corruption, the incarceration of citizens for profit, the mistreatment of prisoners, the highest concentration of juveniles in any country’s prison system, and some of the longest prison sentences, are all targets of criticism.

Human rights situation in US foreign policy

Human rights have been called “the central preoccupation” of American foreign policy, according to Jimmy Carter. In addition, regardless of whether the nations they were dealing with were democratic or not, adversaries or allies, all US presidents used human rights issues sparingly and in accordance with American interests abroad. American leaders have used foreign aid to address security and humanitarian challenges in order to further the foreign policy objectives. Foreign aid has been utilized in an effort to combat communism, help its allies militarily and economically, encourage and boost economic development, safeguard economic and geopolitical interests, support democratic governments, advance human rights, and finally combat terrorism.

In essence, the contrast between the two objectives might be compared to that between liberalism and realism in US foreign policy. Strengthening economic linkages, sustaining national security, and enhancing material welfare is frequently absent from the advancement of human rights.

Realists in foreign policy hold that morality should support and be consistent with advancing national interest in a nation’s foreign policy; in addition, morality and national interest should be linked. The work of Henry Kissinger (1994), who argued that US foreign policy must foster stability and that the logic of power balance causes countries to seek materialistic objectives and prefer them to morals, is the clearest example of this point of view. On the other hand, liberalism (from a liberal perspective) views the advancement of human rights norms as a crucial component of a foreign policy that would guarantee national security and advance economic growth at home. When examining US foreign policy, it is evident that the nation pursues two different sorts of human rights agendas.

Historical overview of the relevance of human rights in US’s foreign policy

The history of the United States’ involvement with human rights is lengthy and convoluted. On the one hand, it has been important to the discipline ever since the post-World War II human rights legal framework was established. However, the US frequently argues that it is immune from the same rules that it consistently imposes on other countries.  Because of this legacy of exceptionalism, many Americans mistakenly believe that the country’s significant problems, such as mass incarceration, inadequate healthcare, or abuse of immigrants, are tied to internal legal or policy issues rather than to international human rights. However, certain supporters rooted in the United States have always believed that the fight for universal rights is mirrored in their quest for social justice. In the past few decades, the US human rights movement has gained power and momentum.

1. The late 18th century served as the historical foundation for the contemporary concern for human rights in the United States. Two key ideas that are rooted in American national experience are frequently mentioned in this country:

• The right to self-government,
• The right to religious freedom.

The Declaration of Independence and other important original texts, such as the US Constitution, represent this perspective. The right to life, freedom, and the preservation of property are all guaranteed by the Constitution of the United States, along with the freedom of religion, expression, the press, and communication. As a result, it is feasible to assert that the United States’ approach to dealing with human rights issues has historical roots.

2. The Committee requested that members of international organizations convene a series of meetings in 1973 because the United States was worried about “the pervasive violation of human rights and the need for a more effective response from the United States and the international community.” A new era in US foreign policy on the subject of human rights was inaugurated by the meetings held under the aegis of “Donald Fraser” and the policies approved by the Committee.
3. Additionally, the United States has been crucial in the creation of global human rights laws. One of the key contributions to the Administrative Court of Justice was President F.D. Roosevelt, the preeminent figure of the United States. Additionally, the United States has contributed significantly to the creation of human rights agreements like the Convention on the Rights of the Child and the CEDAW.
4. Freedom of speech and expression, freedom of religion, and freedom from fear were all mentioned in a 1941 speech by President Roosevelt. Jimmy Carter urged the US to uphold human rights and act as a role model and leader for other nations. In addition, George W. Bush discussed the connection between democracy and human rights in the US. He made the point that it is better to “influence the development of the principles of human rights in the international community” and that “with the approval of the International Covenant on Civil and Political Rights (ICCPR), the government can underscore the strengthening of democratic values through international law.”
5. Despite claiming to be a global leader in promoting human rights, the United States has a history of being less likely to see other nations ratify international human rights treaties. The United States has performed poorly, failing to uphold international human rights standards, creating a particular scenario for itself, giving help to nations that are not democratic, intervening militarily, enforcing sanctions, and even engaging in multilateral negotiations.

Legal frameworks governing human rights in the United States

1. The American Declaration of Independence was the first civic text to adhere to a contemporary definition of human rights, claims Human Rights: The Essential Reference. The right to keep and bear weapons, the freedom from torture, the prohibition against harsh and unusual punishment, and the right to a fair trial by jury are only a few of the unalienable rights recognised by the Constitution. As societal demands changed, constitutional modifications were passed. 
2. Not all human rights were listed in the original United States Constitution, which was acknowledged in the Ninth and Fourteenth Amendments. The Americans with Disabilities Act of 1990 and the Civil Rights Act of 1964 are two examples of human rights legislation that Congress enumerated many years after the Constitution was written. Case laws over time, notably those delivered by the Supreme Court of the United States precedent, define the extent of the legal protection of human rights provided by the US government.
3. The United States Congress, which has the authority to list such rights, and the Supreme Court, which has the authority to define rights that the law does not explicitly mention, are the two federal government forums where the discussion of what may or may not be a developing human right has been discussed. Additionally, individual states have frequently defended human rights that are not recognized at the federal level through legal action or legislation. Massachusetts, for instance, was the first state in the US to allow same-sex marriage.
4. The US constitutional law distinguishes between self-executing and non-self-executing treaties when referring to human rights and agreements that recognise or establish individual rights. Treaties which are not self-executing (e.g. the Geneva Convention), ascribe rights that may only be granted by law in accordance with the Constitution, must be put into effect by legislation before they may be incorporated into domestic law. The Constitution also stipulates that some situations, such as those that would compel the United States to declare war or appropriate cash, explicitly call for parliamentary consent.
5. Human rights treaties that impose a duty to refrain from behaving in a certain way or grant certain rights are typically regarded as self-executing and exempt from further legislative action. Constitutional scholars contend that acts of legislative non-recognition, in which legislative bodies refuse to recognise otherwise self-executing treaties by declaring them to be non-self-executing, violate the separation of powers because, under Article III, the judiciary, not Congress, has the authority to apply treaty law to cases before the courts.

This is a crucial clause in situations where Congress deems a human rights treaty to be non-self-executing, for instance, by arguing that it does not enhance human rights under domestic law in the United States. One such instance is the International Covenant on Civil and Political Rights, which was ratified with reservations, understandings, and declarations after more than two decades of delay.

6. A nation is not permitted to use provisions of its internal legislation or Constitution as an excuse for disobeying its responsibilities under the theory of  pacta sunt servanda. Therefore, even if a human rights treaty has not yet been put into law or is not recognised to be self-executing, it is nonetheless enforceable under international law and binds the US government.

Human rights in terms of equality 

Human rights in terms of equality range from racial and gender issues to those of disability, privacy, and the rights of an accused. Discussion surrounding the same has been provided hereunder.

Racial 

1. The United States Constitution’s Equal Protection Clause, found in the Fourteenth Amendment, ensures that “All Americans who are born here or who become citizens by naturalization are also citizens of the state in which they currently reside. No State should… refuse the equal protection of the laws to any individual under its authority “. A citizen cannot be denied the right to vote because of their “race, color, or prior condition of servitude,” according to the Fifteenth Amendment to the United States Constitution.
2. The Civil Rights Act of 1964 (CRA) was a landmark piece of American law that forbade discrimination on the basis of race and national origin in the workplace. The CRA has served as a model for later anti-discrimination laws, strengthened civil rights protections in a wide range of contexts, and is arguably the most significant civil rights law passed in modern times. The 1964 legislation gave those who had been discriminated against a path to seek punitive damages and full back pay.  The United States has anti-discrimination government enforcement authorities, such as the Equal Employment Opportunity Commission, in addition to private civil remedies.
3. Slavery was permitted in various American states up until 1865 when the Thirteenth Amendment to the US Constitution was ratified. Anthony Benezet founded the Pennsylvania Abolition Society in 1775 under the influence of the Religious Society of Friends, who held the views that all races were equal and that human slavery was inconsistent with Christian doctrine. Benezet called for a nonviolent resolution to the conflict between Native and European Americans and extended the acknowledgement of human rights to Native Americans. 
4. In the latter half of the 18th century, Benjamin Franklin was elected president of Benezet’s abolition society. Additionally, until the United States Supreme Court overruled this view in 1954, the Fourteenth Amendment was constructed to permit what was known as “Separate but equal treatment” of minorities, which led to the repeal of Jim Crow legislation. Before the Dawes Act of 1887 and the Indian Citizenship Act of 1924, Native Americans lacked citizenship privileges, even though they were original inhabitants.
5. Barack Obama became the first African-American president of the United States on January 20, 2009, following the 2008 presidential election.  President Obama said in his inaugural speech “A man who’s father might not have received service at a neighborhood eatery 60 years ago can now stand before you and take a most sacred oath. So let’s commemorate this day by reflecting on who we are and where we’ve come from.”

Gender 

1. The federal government and the states are forbidden by the Nineteenth Amendment from denying any person the right to vote because of that citizen’s sexual orientation. Given that each state sets its own suffrage requirements, this does not imply that all women will have the right to vote, but it does imply that states’ suffrage requirements may not bar women from voting because of their gender.
2. The United States has passed extensive CRA law that forbids gender-based job discrimination. The 1991 provision gave discrimination victims a legal path to pursue punitive damages and full back pay. The United States has anti-discrimination government enforcement authorities, such as the Equal Employment Opportunity Commission, in addition to private civil remedies. 
3. The United States also started an affirmative action program in 1965, which mandates that businesses not only refrain from discrimination but also provide protected groups preferential treatment in order to boost their numbers where they are deemed to be underrepresented. Affirmative action policies of this kind are also used in college admissions. 
4. Sexual harassment at work is regulated by law in the United States. Individual legal rights for those harassed at work exist in the United States since sexual harassment is a violation of civil rights. Women are not required to register with the Selective Service System in case of a military draft. However, men must register with the Selective Service System.
5. Muslim women make less money than other women, claims Eman Abdelhadi, an Assistant Professor at the University of Chicago. The US, a leading State in establishing international human rights standards, is allowing its women to lag behind, according to a report by the UN Working Group on Discrimination Against Women in Law and Practice, which is affiliated with the Office of the UN High Commissioner for Human Rights (OHCHR). The US is one of just seven nations, according to their statement, that has not ratified the CEDAW treaty.

Disability 

1. The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against those who have disabilities in the United States.  The ADA represented a significant movement in favor of employing people with disabilities in order to increase their labor force participation and lessen their reliance on government entitlement programmes. Punitive damages may be recovered by plaintiffs under the ADA, which modifies the CRA. Disability discrimination legislation in the US has greatly benefited by the ADA. ADA Title I was determined to be unconstitutional, but the Supreme Court expanded the protection to include those who had AIDS.
2. Federal benefits like Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) are frequently administratively viewed in the United States as being primarily or nearly exclusively the entitlement of impoverished US people with disabilities, and not applicable to those with disabilities who make significantly above-poverty level income. This is demonstrated in practice by the common occurrence in the United States where a disabled person on SSI who is suddenly employed and earns a salary or wage at or above the living wage threshold finds that their access to government benefits has ended because allegedly the new job “invalidates” their need for this assistance.
3. However, Achieving a Better Life Experience Act of 2014 (the ABLE Act) amended Section 529 of the Internal Revenue Service Code of 1986 to create tax-free savings accounts (ABLE accounts) for qualified expenses. With these accounts (each person is only allowed to have one account), individuals with disabilities whose condition started before the age of 26 can save up to $100,000 without jeopardizing their eligibility for social security and other government benefits.
4. Concerns have been raised that SSI benefits are unfair to people with disabilities, particularly those with mental disabilities who frequently lack the knowledge necessary to navigate the complex bureaucracy required to avoid losing their benefits, a situation not dissimilar to probation. SSI benefits also require frequent reviews to “prove” the person is still disabled, and the disabled person is required to be diligent about returning paperwork and reporting any income they make. The only industrialized nation in the world with this particular strategy for programming for people with disabilities is the United States. People with disabilities are, in some ways, treated as second-class citizens as a result of these causes.

Privacy 

There is no explicit mention of privacy in the US Constitution. The Supreme Court found that it is implicit in the Constitution in the Griswold v. Connecticut  (1965) decision. The Supreme Court used privacy rights in the Roe v. Wade  (1973) decision to strike down the majority of American abortion legislation. The Supreme Court ruled in Cruzan v. Director (1990), against the Missouri Department of Health, that the patient had the right to privacy to stop receiving medical care. The Supreme Court further ruled in Gonzales v. Oregon (2006) that the Oregon Death with Dignity Act’s authorization of physician-assisted suicide cannot be violated by the Federal Controlled Substances Act. 

Roe v. Wade (1973) and its offspring were overturned by the Supreme Court in Dobbs v. Jackson’s Women’s Health Organization in 2022, which also announced that the court no longer regarded abortion as a constitutional right as part of a person’s right to privacy from governmental intrusion. In support of the majority, Justice Samuel Alito stated that the 14th Amendment, which protects rights to life, liberty, and property from government acts, did not repeal anti-abortion statutes that were in place at the time of its ratification in 1868. Furthermore, according to Alito’s reasoning, the amendment had not historically had such an impact prior to Roe, contradicting claims that such a right might be justified by the concept of substantive due process.

LGBTQ community 

1. In Lawrence v. Texas (2003), the Supreme Court decided that intimate, consenting sexual activity is covered by the Fourteenth Amendment’s substantive due process protections. Further, Bowers v. Hardwick, a judgment from 1986 that determined sodomy prohibitions to be lawful, was specifically overridden by the majority opinion, which was written by Justice Anthony Kennedy, in the 2003’s case. Some states have not overturned their sodomy laws in spite of this decision, and local law enforcement has used these laws to harass or imprison LGBT people.
2. Several organizations, including the Human Rights Campaign, Lambda Legal, GLBTQ Legal Advocates and Defenders (GLAD), American Civil Liberties Union (ACLU), the National Center for Transgender Equality, and the National Center for Lesbian Rights, advocate for the civil rights of LGBT people in the United States at all levels and concentrations of political and legal life. Since April 11, 2022, Americans can choose between the sex/gender possibilities of male, female, and X.  The Social Security Administration declared in March 2022 that people could self-identify as male, female, or X (in the future) while applying for a Social Security card.
3. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 made it a federal crime to commit a hate crime based on sexual orientation or gender identity, but many states don’t have such legislation at their level. The incidence of discrimination and hate crimes against LGBT people of color is particularly high for trans women of color. Because the First Amendment of the United States provides for extensive free speech protections, hate speech legislation, particularly those that pertain to sexual orientation or gender identity, is unconstitutional.
4. US passports now include the options of male, female, and X by self-determination beginning April 11, 2022. There are considerable disparities in the rights that intersex persons in the United States share with other people, notably when it comes to protection from non-consensual cosmetic medical procedures, violence, and discrimination. In order to “fix” these people when they are born or young, numerous non-consensual medical procedures are carried out. Some people are also given hormones to ensure that their bodies develop in accordance with the sex to which they were assigned. The California state legislature approved a law that forbids these procedures in August 2018. Intersex civil society organizations work to end harmful behaviors and advance equality and societal acceptance. Intersex campaigners have recently obtained various types of legal recognition.

Rights of an accused 

In legal proceedings, the United States upholds the presumption of innocence. The rights of suspects in criminal activity are covered by the Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution. Later, civil cases were included in the protection. The Supreme Court mandated in the Gideon v. Wainwright (1963) case that poor criminal defendants who cannot afford their own lawyers be supplied with counsel at trial. Since the Miranda v. Arizona (1966) ruling, police agencies are required to remind detained individuals of their rights. This procedure is now known as the Miranda warning and often starts with the phrase “You have the right to remain silent.”

Human rights in terms of freedom guaranteed by the US Constitution

The US Constitution guarantees a list of freedoms to its citizens. The same are in line with a human rights approach, discussion concerning the same has been provided below. 

Freedom of religion 

The First Amendment Establishment Clause forbids Congress from creating a national religion or favoring one religion over another. Beginning with Engel v. Vitale (1962), which declared government-led prayer unconstitutional, the provision was applied to restrict school prayer. In Wallace v. Jaffree (1985), stillness reserved for prayer was outlawed. In the case of Lee v. Weisman (1992), the Supreme Court also declared clergy-led prayer at public high school graduations to be unconstitutional. 

The free exercise of religion is guaranteed by the free exercise clause. The “Lemon Test” exemption, which outlines the conditions for legislation including religion, was established by the Supreme Court’s Lemon v. Kurtzman (1971) ruling. In the Employment Division v. Smith  (1990) ruling, the Supreme Court upheld the possibility of using a “neutral statute of universal applicability” to restrict people’s freedom of religion. The Religious Freedom Restoration Act was declared invalid in the case of City of Boerne v. Flores (1997) decision for exceeding congressional authority; however, the effect of the ruling is constrained by Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2005) ruling, which calls for states to express a compelling interest in forbidding the use of illegal drugs in religious rituals.

Freedom of expression

The United States is a constitutional republic founded on foundational documents that limit governmental authority and uphold individual liberties. As stated by the First Amendment of the Constitution, the freedom of expression (including speech, the media, and public assembly) is a significant right and is given particular protection. With few exceptions, such as national security and obscenity, the federal and lower governments are not permitted to impose prior restraints on expression, according to the Supreme Court’s precedent. Legal restrictions on expression include: 

1. Solicitation, fraud, specific violence threats, or release of sensitive information.
2. Promoting the overthrow of the US government in publications or speeches, or founding political organizations that support this goal (the Smith Act, 1940).
3. Civil charges including libel, fraud, or harassment at work.
4. Copyright infringements.
5. Regulations set forth by the Federal Communications Commission on the use of broadcast media.
6. Crimes involving sexually explicit content in porn and text-only erotica.
7. Laws requiring pre-registration for large-scale protests on public property.
8. The use of protest-free zones and free speech zones.
9. Military censorship of blogs produced by military personnel on the grounds that some of them contain sensitive information that should not be made public. Some detractors believe that military leaders are attempting to quell opposition among field troops.
10. The US Constitution expressly restricts the human rights of active duty personnel, and this legal authority is utilized to restrict members’ freedom of speech in other ways as well.

As skirmishes between federal officials and protesters persisted in Portland, Oregon, on July 24, 2020, the United Nations human rights office asked American security authorities to restrain their use of force against peaceful protesters and media.

President Trump reacted violently to demonstrators calling for racial justice. In order to enable his appearance for pictures at a nearby church, Obama ordered federal police to remove peaceful demonstrators from a park next to the White House. Despite concerns about their ability to carry out enforcement operations, his administration sent federal officers to Portland against the objections of local authorities. Then reports of abusive behavior alongside other forms of abuse came.

Freedom of movement

United States passports are required to enter and leave the country in accordance with Section 707(b) of the Foreign Relations Authorization Act, Fiscal Year 1979, and in accordance with the Passport Act of 1926 and Haig v. Agee (1981), the Presidential administration may at any time deny or revoke passports for foreign policy or national security reasons. The 1948 denial of a passport to US Representative Leo Isacson, who wanted to travel to Paris to attend a conference as an observer for the American Council for a Democratic Greece, a Communist front organization, because of the group’s role in opposing the Greek government in the Greek Civil War, may be the most notable illustration of the use of this power.

On June 30, 2010, the American Civil Liberties Union filed a lawsuit challenging the legitimacy of the government’s “no-fly” list on behalf of ten individuals who are either US citizens or are legally residing in the country. Why the plaintiffs are on the list has not been disclosed to them. Five of the claimants are currently stuck overseas. At the time of the case, it was estimated that there were around 8,000 names on the “no-fly” list.

Freedom of association

The right to freely associate is the ability for people to form organizations for the purpose of political activity or the pursuit of interests in common. The Smith Act of 1940, which prohibits political organizations that call for the violent overthrow of the US government, places limitations on the freedom of association in the United States. Through the COINTELPRO program, the FBI made an effort between 1956 and 1971 to “expose, disrupt, misdirect, discredit, or otherwise neutralize” left-wing and indigenous organizations.

The Maryland State Police acknowledged in 2008 that they had entered the identities of anti-death penalty activists and Iraq War demonstrators into a terrorist database. They acknowledged the addition of additional “protest groups” to the terrorist database, but they did not say which ones. Additionally, it was found that undercover troopers accessed group email groups, rallies, and meetings using aliases. Police said there was “absolutely no evidence” that those who are considered terrorists were involved in any violent crimes.

Exception to freedoms 

In times of war and conflicts like the American Civil War, the Cold War, or the War on Terror, the United States government has proclaimed martial law, suspended (or claimed exceptions to) some liberties, and declared martial law. Under Executive Order 9066, 70,000 Americans with Japanese ancestry were lawfully detained during World War II. The federal courts have permitted these exclusions in some cases, but not in others when they found that the national security interest was insufficient. These legal rulings were disregarded by Presidents Lincoln, Wilson, and F.D. Roosevelt.

Presidents have asserted the authority to arbitrarily detain anyone who they believe to be fighting for nations or organizations at war with the United States. During the American Civil War, Abraham Lincoln used this authority to jail Maryland secessionists. The government freed the detainees when the Supreme Court ruled that only Congress may suspend the writ of habeas corpus in that instance. Due to stated concerns that Japan may use them as saboteurs, the US detained thousands of Japanese-Americans during World War II; the US Supreme Court maintained this program.

Unreasonable searches and seizures without a warrant are prohibited by the Fourth Amendment of the United States Constitution, but several administrations have made exceptions to this norm to look into alleged conspiracies against the government. The Federal Bureau of Investigation created COINTELPRO during the Cold War to sabotage and infiltrate left-wing groups, especially those who backed black Americans’ civil rights.

Tens of thousands of Americans who have not been charged with a crime are kept in the federal government’s extensive data collection and storage network. The National Suspicious Activity Reporting Initiative, or SAR, is the name of the program, which is primarily run under the direction of the Federal Bureau of Investigation. The program receives reports of suspicious activity observed by local law enforcement or by ordinary residents and builds profiles of the suspects.

The inter-relationship between health and human rights in the United States

For people looking to make domestic health-related human rights claims, the United States is difficult terrain. A little more than ten years ago, some health and human rights researchers waxed rosy following the enactment of the Patient Protection and Affordable Care Act (ACA), 2010, which was intended to significantly expand insurance-based health care. The ACA, the centerpiece piece of legislation for the Obama administration, narrowly passed the US Congress. Those who believe in the advancement of human rights should applaud this legislation for adopting “significant national reforms consistent with human rights norms” in a way that “corresponds with international law and follows both the spirit and substance of the UDHR [Universal Declaration of Human Rights] and the ICESCR [International Covenant on Economic, Social, and Cultural Rights].”

According to the UDHR, “everyone has the right to a standard of living that is adequate for [their] own health and the health and well-being of their family, including food, clothing, housing, and medical treatment.” In addition, medical professionals are obligated by the American Medical Association’s Principles of Medical Ethics to uphold the patient’s human rights, which include the right to get care when necessary.  The US Patients’ Bill of Rights governs American citizens’ healthcare rights.

The majority of Americans do not have access to government-subsidized health care in the United States, unlike most other industrialized countries. Children, pregnant women, and very low-income persons with disabilities are among the groups of people and families in the United States who receive subsidized coverage under the Medicaid program (higher-earning people with disabilities do not qualify for Medicaid, although they do qualify for Medicare). The Medicaid programme, however, “does not offer health care services, even for very poor people, unless they are in one of the approved eligibility groups,” according to the organization’s own documents.

However, the ACA’s protections have always been “inherently unstable,” as critics have been keen to point out.  To start, this market-based system bases healthcare access on a legislative right, which means that it is subject to change or revocation. Additionally, it precisely avoids the terminology of the rights and obligations of international law, thus avoiding compliance with international standards and commitments.

It provides evidence that human rights can “travel” and transform even in environments where they lack legal traction, such as the United States, even though the country’s overall legal and policy climate is no more hospitable to health-related human rights claims now than it was before the passage of the ACA.  Human rights can serve as a potent “idiom of social justice mobilization for health” outside of the realms of law and policy by introducing new terms and concepts, deepening awareness of historical legacies, and proposing new narrative frames for interpreting present and historical instances of disparity and injustice.

There are numerous approaches to evaluate “how human rights are making a difference for health,” as the first Special Rapporteur of the United Nations on the right to health, Paul Hunt and others have noted. This claim is undoubtedly accurate, and its implications might even go beyond what its writers had in mind. Opportunities to support the “establishment” side of the human rights enterprise, which Mark Goodale refers to, are becoming more clear-cut. These include tactics to increase the efficacy of legal interventions, support institutional legitimacy claims, and establish more clearly defined lines of accountability. 

The general population may not fully comprehend what human rights are, how they are violated, or how these violations are related to health imbalances. One day, this specialized language might be the catalyst for innovative thought, but first, locals and residents must be given an introduction. Unusual human rights declarations, such as those covered in this section, may be particularly useful in settings like museums and community-based participatory research. Such informal interactions can inspire original thought and aid in broadening the public’s conceptions of how human rights might affect health by demonstrating how they can be valuable, topical, and relevant even in nations lacking explicit human rights obligations.

COVID-19 pandemic and human rights : possible scenario

For the majority of the countries, COVID-19 preventative and mitigation attempts were abrupt and difficult because of the prolonged lockdown that hampered socioeconomic operations. Marginalized individuals and groups are especially susceptible to the negative consequences of the epidemic, including abuses and violations of human rights that can cause psychological anguish. In this assessment, we emphasize the mental pain and disturbances that the pandemic’s limits and abuses of human rights have caused. 

Although there isn’t a clear overarching or unifying theme for COVID-19’s human rights component in the Americas just yet, it has been noticed how populism or populism associated with far-right nationalism may drive NTDs and consequently COVID-19. Populism has many definitions, but generally speaking, the term refers to a political system that stands up for the common people and opposes the preferences of the elites. 

The US Populist Party was founded in the American Midwest in the late 1800s by farmers who felt left out of the economic advances brought about by corporate interests or political corruption. However, strangely, populism has also been associated with far-right agendas in the twenty-first century.

A former employee of the Rockefeller Foundation and the United States Agency for International Development, Ariel Pablos-Mendez, has noted how this new form of populism has contributed to the emergence of COVID-19 through a pattern of federal government denial and neglect, leaving individual states or local municipalities in countries like Brazil or Mexico to fight the pandemic. This has also been seen in the US, where each state is allowed to make its own judgments in place of federal mandates. In these situations, populist-led federal administrations either downplay the severity of the COVID-19 pandemic or blame conspiracies for its existence. They use this false information as justification for their inaction or federal government engagement in the fight against the disease.

The lack of worldwide access to COVID-19 vaccines, treatments, and diagnostics is now taking on a new human rights dimension. For instance, a global initiative to speed up access to vaccines is in progress, and even though it is unclear which vaccines will be used, these depend on a variety of vaccine technologies that are currently being assessed. Operation Warp Speed, which is being spearheaded by the US, is also in progress but is not a part of the overall plan. An unsettling trend known as “vaccinationalism,” which refers to vaccines by their countries of origin, has evolved in the absence of US leadership. The promise of “vaccine diplomacy,” which seeks to encourage international cooperation in vaccine research and development, stands in stark contrast to this idea.

Particularly among the underprivileged and neglected communities residing in the US, Mexico, Central America, and South America, COVID-19 in the Western Hemisphere has taken on a significant and menacing human rights component. Compared to other populations, populations living in poverty, especially indigenous people, have an increased chance of contracting COVID-19, and there are serious worries that these populations will also lack access to preventive drugs and immunizations. 

Additionally, there is an urgent need to gather the leaders of the Latin American countries as COVID-19 appears to be the newest major NTD in the region that causes long-term morbidities. The Organization of American States, PAHO-WHO, the Inter-American Development Bank, other regional banks, and the private sector must all work together to directly participate in and assist in the development of both short- and long-term strategies. In the region, there have been 625,000 deaths to date, but an international response has yet to materialize.

Punishment system and human rights: the connection

1. Following decisions by the US Supreme Court in the cases of Gregg v. Georgia (1976), Jurek v. Texas (1976), and Proffitt v. Florida (1976), the death sentence was finally reinstated on a national level in 1976. Since then, the death penalty has undergone more revisions. In Roper v. Simmons, the Supreme Court ruled on March 1, 2005, forbidding the execution of those who committed their crimes when they were under the age of 18. It has been contended in international law that the United States’ use of the death sentence may be in breach of international human rights accords.
2. In 1998, the UN special rapporteur called for an immediate moratorium on the death penalty and recommended to a committee of the UN General Assembly that the United States be found to be in violation of Article 6 of the International Covenant on Civil and Political Rights with regard to the death penalty. But according to international law, the special rapporteur’s proposal is not binding, so in this instance, the UN disregarded the lawyer’s advice.
3. As solitary confinement “often causes mental and physical suffering or humiliation, amounting to cruel, inhuman or degrading treatment or punishment, and if the resulting pain or sufferings are severe, solitary confinement even amounts to torture,” Juan E. Méndez, the Special Rapporteur of the United Nations on torture, has asked that the United States stop holding prisoners in this manner. Angola Prison in Louisiana inmates Herman Wallace and Albert Woodfox serve as a stark illustration. Each has spent more than 40 years in solitary confinement.
4. According to the NGO Human Rights Watch, there are serious human rights violations caused by the onerous restrictions placed on former offenders and their families as well as the burden of being publicly listed as a sex offender. These issues are brought on by the current sex offender registration laws. They have criticized the overly broad registration requirements, which have the propensity to treat all offenders equally regardless of the nature of the offense and without taking into account the risk of future reoffending, as well as the application of such laws to juvenile offenders, consensual teenage sex, prostitution, consensual teenage sexting, and exposing oneself as a practical joke.
5. The US’s stance on alternatives to prison and parole has also drawn considerable criticism. The federal prison system does not offer parole, which has sparked international criticism from human rights organizations and is seen to be a significant factor in jail overcrowding. Furthermore, 16 states’ prison systems don’t offer parole. Where parole is permitted, it is rarely given, and the only nation where adolescents are currently serving life terms without the possibility of parole is the United States of America has also come under fire for having little to no alternatives to incarceration. Rarely are community service, fines, or probation used as alternatives to prison terms.
6. According to George Floyd’s official post-mortem report from June 2, 2020, the compression on his neck and back caused him to asphyxiate, or run out of oxygen. According to a statement from the family’s legal team, it also concluded that the death was the result of murder. On June 23, 2020, a report from the University of Chicago Law School asserted that the police departments of the 20 biggest cities in the United States did not adhere to even the most fundamental norms set forth by international human rights standards. Without considerable reform, the police are permitted to engage in “state-sanctioned violence.” Human rights issues have been raised by the use of cavity and strip searches by law enforcement organizations and in the prison system. Concerns about civil and human rights have been raised by the practice of leading an arrested person on a perp walk through a public area while they are frequently shackled, giving the media the chance to record the event on camera.

Procedural concerns

Numerous complaints have been made regarding specific legal proceedings. For example, the National Association of Criminal Defense Lawyers and Human Rights Watch have argued that there is a “trial penalty,”  a punishment for choosing to go to trial that stems from the stark contrast between the punishment a defendant would receive by forgoing their right to trial and accepting a plea bargain and the punishment they might receive at trial. They contend that this contrast violates the guarantee of the right to a fair trial under the Sixth Amendment. Additionally, qualified immunity, a legal precedent that protects public servants including police officers from civil lawsuits, has drawn a great deal of criticism. The argument that qualified immunity makes it too difficult to sue public officials for misconduct, especially civil rights breaches, has been made by critics. This has been blamed in particular for facilitating police brutality.

Environment and human rights in the United States

Standards for air quality and vehicle emissions were lowered by the Trump administration, and numerous obligations for environmental monitoring were halted. More than 70 pesticides that have been prohibited or are being completely phased out in the European Union, Brazil, or China are being used on American fields, endangering the health of farmworkers and the communities around them. People in the US continue to be affected by air pollution from industry, transportation, and wildfires, which are becoming more frequent as a result of climate change. This is especially true for communities of color. According to research from Harvard University, those who have COVID-19 are more likely to pass away if they are exposed to high levels of air pollution.

Without proper access to water, several communities particularly those of Native Americans living on reservations were affected by the COVID-19 pandemic. Detroit neglected to restore water service to homes, particularly in minority communities, that had been cut off prior to the outbreak. A nonprofit devoted to community research called We the People of Detroit discovered in July 2020 that zip codes with more water shutoffs were also associated with more COVID-19 instances. The second-largest emitter of greenhouse gases in the world is the United States. On November 4, Trump’s decision to withdraw the US from the Paris Agreement became effective. On his first day in office, Biden promised to reaffirm the deal.

Climate change contributed to a rise in the frequency and severity of extreme weather events, which disproportionately affected already vulnerable areas. 2020’s summer was among the warmest ever recorded. Although some local governments issued warnings regarding heat-related illnesses and deaths, the majority of plans didn’t include pregnant women, who are more susceptible to heat stress. Heat and premature birth are related. Black women are more vulnerable because they already have higher rates of preterm birth.

Challenges associated with human rights in the United States

Without a doubt, the United States still serves as a global leader on various problems related to human rights. For instance, the current administration has demonstrated strong leadership in the struggle for LGBT equality, the fight against human trafficking, and the promotion of rights to freedom of religion and peaceful assembly. The United States has lagged behind other industrialized nations in defending the universal human rights enshrined in the UDHR, despite some of its laws and policies being fairly progressive in defending civil rights and civil freedoms. The United States’ 65-year-old vow to uphold fundamental rights has only been partially and selectively implemented by the US government, in violation of its international duties. Some of the instances showcasing rising challenges in the United States with regard to human rights have been reflected hereunder: 

1. The United States is the only nation in the world that still convicts children to a life of solitary confinement without the chance of parole. Further, no victims of the Bush administration’s torture programme have appeared in a US court to yet and no senior government figure in authority has ever been put on trial for a crime.
2. In order to provide “freedom from want,”(FDR), invoked by the Obama administration and has been referred to as one of the “four freedoms” in the Universal Declaration of Human Rights, the government must play a role. However, the United States now also has the greatest income gap in the industrialized world and:

• 20% of its children are underprivileged.
• More than 30 million people often do not have access to basic healthcare.
• African Americans and Latinos have poverty rates that are almost twice as high as the general population.

3. The landmark IACHR Gonzales decision serves as a reminder that the United States lacks the legal resources necessary to fully defend women’s rights. 464 women are sexually assaulted or raped on average each day, but only 40% of rapes are reported to the authorities. By ratifying the Women’s Rights Convention (CEDAW), the United States would be obligated to take proactive steps to reduce gender-based violence.
4. Nearly a quarter million kids are still allowed to receive corporal punishment in public schools each year thanks to 19 states. African-American children and students with impairments receive punishment at disproportionately higher rates. The Ending Corporal Punishment in Schools Act, a legislation that forbids corporal punishment in public and private schools with pupils who receive federal services, has prevented such violence at a considerable rate, but the road to improvement stands lengthy. 
5. The death penalty is an unfair and flawed form of punishment. Only 36% of Americans identify as members of a racial or ethnic minority, but 3,108 of them are on death row, making up 58% of the total. On the basis of evidence showing their innocence, people’s death sentences have been overturned.
6. Amnesty International expressed concerns about the state of human rights in the US on October 28, 2020, and made the decision to monitor and draw attention to human rights abuses connected to demonstrations before, during, and after the 3 November US elections.
7. The United States was scrutinized for the first time in five years on November 9, 2020, during a 3.5-hour session at the UN’s principal human rights committee, in relation to the detention of immigrant children and the killings of unarmed Black people while Donald Trump was president. As a result of an August study on the US’s historical record of respecting human rights, the US’s critics, Iran, Syria, Venezuela, Russia, and China, raised questions about it.
8. Since 2013, Human Rights Watch has documented 138 incidents of El Salvadorians who died after being deported from the US to El Salvador, highlighting the cost of the US protection system’s shortcomings. Under the controversial Asylum Cooperation Agreement, the Trump administration enhanced fast-track deportation practices for families at the border and deported Honduran and Salvadoran asylum claimants to Guatemala. LGBT persons who are escaping persecution, including sexual violence, in El Salvador, Guatemala, and Honduras are harmed by US limits on access to asylum, according to a report by Human Rights Watch.
9. The Centers for Disease Control and Prevention (CDC) issued an order sealing the land borders in March as COVID-19 cases rose, defying the views of career CDC public health officials who believed it was not necessary. Due to this, more than 333000 individuals, including children, were forcibly removed from their homes along the US-Mexico border without first being evaluated for their eligibility for asylum or other protections.
10. Some people’s ability to vote in primary elections was severely hampered by election authorities’ responses to the COVID-19 outbreak, although access had improved by the main election in November 2021. People in Florida with criminal convictions must pay fines before they may cast a ballot, according to a federal appeals court. President Trump made irrational claims of voting fraud and initiated legal actions to challenge the electoral systems of some states while mainstream outlets predicted Biden would win the presidential election.
11. However, just 8% of all occurrences of COVID-19 in the US were among patients residing in long-term care facilities, which accounted for more than 40% of state-reported deaths. Operators of nursing homes lobbied state and federal governments to provide them extensive legal immunity. Senior citizens who were already vulnerable were put at greater risk by nursing institutions’ long-standing infection control issues and decreased public supervision of nursing homes during the COVID-19 disaster.

Conclusion 

In order to promote and defend human rights at the federal, state, and local levels, the United States should establish efficient procedures for monitoring, enforcing, and implementing human rights. The concept of human rights is now at its peak. The Universal Declaration of Human Rights is an appeal for justice and freedom for all people. Governments that abuse the rights of their citizens are confronted and called to account daily. Government representatives who are aware of the human rights framework can also contribute significantly to freedom. Abraham Lincoln, Franklin Roosevelt, Lyndon B. Johnson, and Jimmy Carter are just a few of the American Presidents who have fought tenaciously for human rights. Other nations have seen significant advancements in human rights thanks to leaders like Nelson Mandela and Vaclav Havel. Around the world, people mobilize daily to fight against injustice and inhumanity. They weaken the forces of oppression and bring the world one step closer to realizing the ideals outlined in the Universal Declaration of Human Rights. 

References 

1. https://www.state.gov/bureaus-offices/under-secretary-for-civilian-security-democracy-and-human-rights/bureau-of-democracy-human-rights-and-labor/.
2. https://www.researchgate.net/publication/353719982_Human_Rights_in_US_Foreign_Policy
3. https://www.researchgate.net/publication/287746222_The_US_Welfare_State_A_Battleground_for_Human_Rights.

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This article is written by Anvita Bhardwaj, a student pursuing B.A. LL.B. from Symbiosis Law School, NOIDA. This article explains the concept of corporate social responsibility, its types, importance, and approaches while highlighting why a company needs to engage in corporate social responsibility. 

It has been published by Rachit Garg.

Introduction

You may have noticed that people nowadays boycott brands that they believe engage in unethical practices. A common example of this can be fast fashion clothing brands such as Shein, Zara, or H&M. Consumers are learning more about and becoming more interested in how a company does business through research and social media. Nowadays, companies aim to convince customers that they care more about social and environmental objectives than just profit through corporate social responsibility. 

In this article, you will learn what corporate social responsibility means, its types, approaches, pros and cons, and why companies need to engage in it in order to advance their businesses.  

What is corporate social responsibility 

Engaging in corporate social responsibility means that, in the ordinary course of business, a company is operating in ways that enhance society and the environment instead of contributing negatively to them.

Corporate social responsibility is a self-regulating corporate strategy that enables an organization to be socially accountable to its customers, employees, and other stakeholders. Through corporate social responsibility, also called “corporate citizenship,” companies can be aware of how they affect the economic, social, and environmental aspects of society. 

Depending on the business and industry, corporate social responsibility is a broad concept that can take many different shapes. Businesses can enhance their brands while helping society through CSR initiatives, philanthropy, and volunteer work.

A company must first be accountable to itself and its shareholders before it can be socially responsible. Companies that implement CSR initiatives frequently expand to the point where they can support the community. Therefore, CSR is often a technique that big businesses use. After all, the more well-known and successful a company is, the more it needs to set a good example for its employees, competitors, and the industry as a whole.

Understanding corporate social responsibility through the example of Ben and Jerry’s 

An example of how a small ice cream company grew while engaging in corporate social responsibility is the famous Ben and Jerry’s. Despite the fact that Ben & Jerry’s produces ice cream, they are dedicated to improving the world through their core beliefs. Their CSR strategy is built around this. Let’s look at the business using Carroll’s CSR Pyramid, which contends that corporate social responsibility may be portrayed as a pyramid of four distinct kinds of duties. These include financial, ethical, legal, and altruistic duties. 

First and foremost, the corporation has an obligation to make sure that the business is successful. Sales in 2021 reached over 202 million units in the United States alone, indicating that the company’s operations are successful, and as a result, it fulfills this commitment.

Next comes the legal. The premise behind adhering to legal obligations is that a business must abide by all societal laws and regulations. Along with other regulatory duties, the company’s operations and reporting requirements also fulfill this responsibility. 

After this come the ethical obligations that are founded on the premise that a corporation should act morally and fairly. This is included in the following layer of the pyramid. The company’s mission statement says that one of its goals is to promote ethical business practices. These include making money for everyone involved, giving employees more job opportunities, buying from local farmers, using natural ingredients, etc. All businesses are expected (by society) to adhere to these models of fair and ethical corporate conduct.

Philanthropic obligations, which ensure that the company contributes to social and environmental goals, are included in the pyramid’s top tier. Ben and Jerry’s strives to produce ice cream that impacts the world in a variety of ways beyond the product, and this is guided by the company’s mission statement and fundamental principles. The company seeks to advance human rights and dignity, support social and economic justice for vulnerable people, and safeguard the planet’s natural systems by utilizing its activities and platform.

Caroll’s pyramid of responsibilities

A theory of corporate social responsibility was put forth by Caroll. He proposed using a pyramid of four different categories of obligations to express corporate social responsibility:

1. Economic obligations make up the pyramid’s base (lower layer). This obligation is founded on the notion that a functioning company must make sure it is lucrative enough to survive—this is necessary for society.
2. Legal obligations are included in the pyramid’s next layer. This obligation is founded on the notion that a business must abide by the rules and laws established by society because it is also expected of it.
3. Moral obligations make up the pyramid’s third level. This obligation encompasses the notion that a company should act morally upright and fairly, even if they are not required to by law; rather, society expects them to do so.
4. Philanthropic duties make up the pyramid’s top tier. This obligation implies that the company must act responsibly as a corporate citizen, making sure that it supports social, environmental, and cultural goals. Society values this kind of corporate citizenship.

Types of corporate social responsibility 

Environmental responsibility 

Environmental responsibility is the idea that businesses should act in a way that is as ecologically beneficial as possible. One of the most widespread examples of corporate social responsibility is this. Some businesses refer to these programs as “environmental stewardship.”

There are numerous ways for businesses to embrace environmental responsibility:

• reducing harmful behaviors, such as lowering water use, water pollution, greenhouse gas emissions, single-use plastic use, and general waste;
• increased reliance on sustainable resources, recycled materials, and renewable energy sources to control energy usage;  and
• reducing harmful environmental effects, such as by sponsoring research, planting trees, and making donations to organizations that support similar causes.

Ethical responsibility 

Making sure a company runs ethically and fairly is part of having ethical responsibility. When an organization embraces ethical responsibility, it aspires to act ethically by treating all parties fairly, including the leadership, investors, employees, suppliers, and customers.

There are numerous ways for businesses to embrace ethical responsibility. For instance, if the minimum wage set by the state or federal government does not provide a “livable income,” a business may set its own higher minimum wage. A company may also demand that goods, ingredients, supplies, or parts be sourced in accordance with free trade principles. Many businesses have procedures in place to make sure they aren’t purchasing goods made using child labor or slavery in this area.

Philanthropic responsibility 

Philanthropic duty is the goal of a company to actively improve society and the planet.

Organizations motivated by philanthropic responsibility frequently donate a portion of their profits in addition to conducting themselves as ethically and environmentally friendly as feasible. While many businesses support organizations and charities that share their guiding principles, others support deserving causes unrelated to their line of work. Some people even go so far as to start their own charity trust or organization in order to give back and improve society.

Financial responsibility 

Economic responsibility is the practice of a company committing to do good in the aforementioned areas while supporting all of its financial decisions. The ultimate objective is to ensure that corporate operations have a positive influence on the environment, people, and society, not just to increase profits.

Why should your company engage in corporate social responsibility

There are three reasons why businesses should commit to CSR. The first incentive is purely utilitarian, meaning that it may be used to boost sales, investment returns, and profits. Sometimes businesses employ CSR practices to conform to the social expectations of their stakeholders. The negative duty approach is the name given to this second motivator. The third motive, known as the “positive duty approach,” however, integrates CSR ideals into the very fabric of the company. 

Businesses that are proactive and want to have a beneficial impact on society exhibit this motivation. Businesses must commit to social responsibility because of public expectations. The public increasingly anticipates that firms will pursue social goals in addition to their financial ones. Such dedication is also encouraged by long-term profits. Businesses that are regarded as socially responsible have more long-term profit security. CSR commitment improves interactions with the community and helps a company project a positive image. It is essential for businesses to uphold moral standards. A company’s success depends on its public perception. A positive public image is connected to more consumers, better employees, access to money markets, and other advantages. Socially conscious businesses can contribute to a better environment, a higher standard of living, and a more desirable neighborhood. Government regulation decreases as a result of CSR. Long-term stock prices benefit from social responsibility because the market views socially responsible companies as less risky.

In order to establish long-term commercial connections with customers, businesses must now establish their credibility. Businesses must support the communities where they operate. Such engagement will win over customers in local markets for businesses. Fair working conditions and respect for employees are required. Companies are required to implement ethical recruiting procedures and support a hostile work environment. The ensuing atmosphere will foster camaraderie and raise workplace spirit.

Importance of corporate social responsibility 

Most businesses adopt a CSR strategy for factors other than mere profit. A company’s consideration of its duties is frequently motivated by moral values, the conviction that doing the “right thing” is the best course of action, and concern for the well-being of both present and future generations.

• Brand marketing: CSR can assist companies with their brand positioning strategy in terms of marketing (positioning in the market as a responsible brand)
• Customers: Increased consumer awareness over environmental and social concerns makes it easier for businesses to draw in new customers and keep their current ones happy by emphasizing CSR.
• Internal benefits: Employees and consumers alike are drawn to businesses that are known to take social responsibility seriously. Internal governance is taken into account by CSR. Therefore, the business also has established procedures for internal policies (for example, ethical management or flexible working hours). This can entice new hires while also encouraging and retaining current employees.
• Lower production costs: A company that cares about the environment may profit from lower manufacturing costs brought on by less energy consumption or cheaper packaging (less plastic packaging).
• Risk management: By becoming a moral and accountable business from the start, a firm is more likely to stay out of regulatory or legal trouble in the future.

Pros of corporate social responsibility 

A driving force for sensible consumption

Many people think that changing unsustainable ways of consuming is one of the most important steps toward achieving sustainable development. Through the products and services they offer and the way they do so, businesses may play a significant role in promoting sustainable consumption habits and lifestyles. Changing consumer choices is only one aspect of “responsible consumerism.” Additionally, it concerns the products that are offered on the market, how those products relate to concerns about consumer rights and sustainability, and how regulatory bodies mediate the exchange of goods between producers and consumers.

Increased access to capital

Financial organizations are increasingly evaluating projects using social and environmental factors. Investors are looking for signs of efficient CSR management when deciding where to spend their money. A strong CSR component in a business plan is frequently mistaken for sound management.

Robust social license 

Stakeholder relations are improved when citizens and other stakeholders have a better grasp of the company’s goals and operations. This could therefore result in stronger and longer-lasting coalitions between the public, private, and civic societies (all of which relate closely to CSR reputation, discussed above). Building “social capital” can be aided by CSR.

Improved capacity to handle change 

A business that keeps its “ear to the ground” through ongoing stakeholder communication is better able to foresee and adapt to potential legislative, economic, social, and environmental changes. Companies are increasingly using CSR as a “radar” to spot changing market trends.

More productive and efficient partnerships to attract and create in the supplier chain

The supply chain’s weakest link makes a company susceptible. By raising standards and lowering risks, like-minded businesses can establish beneficial, long-term commercial connections. Larger companies might encourage smaller companies they do business with to adopt a CSR strategy. For instance, some major clothing retailers demand that their suppliers adhere to worker laws and standards.

Improved management of reputation 

When it comes to CSR, companies that act well can enhance their reputation, while those that act poorly risk damaging their brand and company value. Reputation, also called brand equity, is built on qualities like trustworthiness, dependability, quality, and consistency. Even for companies without direct retail exposure through brands, the business importance of their supply chain partner’s reputation for dealing with CSR issues can’t be overstated.

Better risk management and anticipating across a wider spectrum

Supply security and overall market stability can be increased by managing governance, legal, social, environmental, economic, and other risks successfully in an environment with an increasing number of competing interests. One method of effectively anticipating and managing risk is to take into account the interests of parties who are concerned about the impact of a firm.

Cons of corporate social responsibility 

Increased cost of operations 

If you invest in CSR to any extent, it might result in substantial prices and expenses. To account for this fiscal adjustment, organizations may need to restructure their financial operations. To train staff, start campaigns, and work with outside agencies to implement programs, they need financing. It mostly depends on the CSR initiative type, but the majority require some effort to make sure everything goes according to plan.

The cost of an organization’s CSR efforts may be borne by shareholders, clients, or customers. Investors will be curious to find out how and where their money is being spent. Clients would be interested in learning about your projects, whether they connect with the goals of their organization, and whether there are any potential conflicts of interest. Customers are more aware of businesses that actively promote CSR. Your marketing and sales initiatives may be impacted by this.

Public scrutiny and higher accountability 

The effect on the public image is one of the biggest downsides of CSR in business. When you’re in the spotlight, everything you do is more likely to be examined. You risk facing criticism for even the slightest activities as a company that upholds its credibility through its actions. This may harm your customer base, which could place you at a disadvantage. In order to preserve their brand and public image, businesses must invest substantially.

Companies that invest in CSR commit to acting with greater accountability and responsibility. You need to undertake damage control and make things right. For instance, if your commercial operations have a bad influence on the environment, you may come under scrutiny. Another example is if, on the one hand, your products aren’t environmentally friendly or sustainable and, on the other, your CSR division is speaking out against environmental harms like climate change, then your actions would be perceived as hypocritical. Before making the necessary CSR investments, you must evaluate your business.

Contrasting business interests may make you lose sight of what really matters 

Typically, any company’s primary goal is to make money. Companies that practice corporate social responsibility must take the needs of the general public into account. When making crucial decisions, this may lead to a conflict between the corporation’s business objectives. Let’s see an example. Consider whether or not to purchase a piece of property or other pieces of equipment that will serve your company’s needs but could hurt the neighborhood or the environment.

You can sometimes lose sight of what’s important when you’re totally immersed in extracurricular activities that distract you from your work. You can begin engaging in CSR merely because you gain popularity and attention. Some may turn to the use of phony campaigns and bogus promises to draw large crowds. When attempting to do good for others, it is crucial to be true to yourself, have faith in the process, and put forth your best effort.

Different types of approaches to corporate social responsibility

Obstructive

The obstructive approach is one of the most deceitful approaches to corporate social responsibility. Obstruction means to block or interfere. Therefore, an obstructionist approach ignores societal obligations. It is more focused on making money and grabbing profits. Companies that are obstructionist are known to pollute, mislead customers, and even abuse their own personnel.

Illustration 

Consider this for example:- fruit juice producers that hide evidence of the use of industrial sugar in the production of pure fruit juice goods are clearly exploiting consumers since they want to make the juice more delicious to draw in more customers, but by doing so, they are deceiving the customers as they claim their juice is free from added sugar.

Defensive 

Companies that adopt a defensive attitude toward social responsibility are typically not acting very responsibly. These businesses may view themselves as impartial, and they may prioritize financial gain over taking socially responsible action. These businesses make a point of abiding by the law to prevent others from suing them, but they do not go above and beyond what is legally needed. 

Illustration 

As an illustration, consider businesses that are required by law to pay 2% of their net earnings to social responsibility but only contribute 2% and no less in order to comply with the law and avoid potential legal repercussions and cross-examination.

Accommodating 

A corporation that takes an accommodating position views social responsibility as crucial, possibly even more so than making a profit. These businesses comply with all legal requirements and make an effort to uphold moral values. An accommodating business does not make an effort to conceal its acts and is honest about the motivations behind them.

Illustration

A few companies that go above and beyond are Walmart, Disney, and Google. The three businesses are renowned for providing excellent benefits to their staff members.

Proactive

Similar to a company that is accommodating, a proactive business prioritizes social responsibility.

A proactive business tries to stay ahead of the curve when it comes to social responsibility rather than responding to criticism. It might include ethics in its mission statement and make an effort to prevent any harm to the environment or to its workers. A proactive business might go above and beyond to launch new recycling initiatives, provide benefits and a decent wage to every employee, and offer a percentage of its profits to charity.

Illustration

The Ronald McDonald House initiative launched by McDonald’s is an excellent illustration of taking a proactive approach. Families can rent one of these homes for a little fee while their sick children receive treatment close by at one of the big medical facilities. This program has received widespread praise.

How to implement corporate social responsibility

Step 1 – Conduct a CSR assessment 

Unless the board of directors, CEO, senior management, or owners acknowledge that some type of CSR-related problem, opportunity, or challenge exists, no company—big or small—is likely to do anything about CSR. This acknowledgment, in turn, gives the motivation to move forward with a CSR assessment with the aim of better understanding the nature of the issue, opportunity, or challenge and its significance for the company.

To find out where the company is at in terms of CSR activity and to identify its “pressure points” for CSR action, it makes sense to first gather and review pertinent information about the firm’s products, services, decision-making processes, and activities. 

The following information should be included in a proper CSR assessment: 

• the company’s values and ethics; the internal and external drivers motivating the firm to take on a more systematic approach to CSR; 
• the key CSR issues that are affecting or could affect the firm; 
• the key stakeholders who need to be engaged and their concerns; 
• the current corporate decision-making structure and its strengths and inadequacies in terms of implementing a more integrated CSR approach. 

The evaluation should highlight the key risks and opportunities and conclude with a detailed gap analysis to determine where the company excels and where it falls short in comparison to its own objectives, peers, and industry standards. How well does the company’s strategy adapt to new problems and opportunities? This information is crucial for setting priorities and promoting the strategy both inside and outside the company.

Step 2 – Develop a suitable CSR strategy 

The CSR assessment produces a foundation of data that the company may utilize to create a CSR strategy. A CSR strategy serves as a guide for advancing CSR concerns. It establishes the company’s long-term direction and CSR scope, enabling the company to succeed by utilizing its resources in its particular context to meet market demands and satisfy stakeholder expectations. 

An effective CSR plan identifies the following:

• The stakeholders, their perspectives, and interests; 
• the general method for going forward; 
• the particular priority areas; 
• the timetable for action, accountable staff, and the immediate next steps; 
• and the procedure for reviewing and assuring outcomes. 

The level of CSR work and awareness that varies across companies will determine the strategy’s content. Some people might prefer to take the “minimum necessary” position. Some people might want to strategically enter certain places.

Step 3 – Develop CSR commitments 

CSR commitments are statements made by companies in their policies or agreements outlining their plans for addressing their social and environmental consequences. When a company transitions from planning to doing, CSR commitments are created. They:  

• Ensure that the corporate culture of the company is consistent with CSR values; 
• Assist in aligning and integrating the company’s business strategy, objectives, and goals; Offer employees instructions on how to conduct themselves; and 
• Communicate the company’s CSR approach to business partners, suppliers, communities, and government bodies. 

Firms must comprehend the variety of available commitments and their differences before adopting CSR commitments. The difference between aspirational and prescriptive promises is essential. Prescriptive commitments, like codes of conduct, specify more specific behaviors to which the firm expressly pledges to adhere, while aspirational commitments typically express the long-term aims of a firm and are stated in generic language.

Step 4 – Implement CSR commitments 

The actions taken on a daily basis to guarantee that the business complies with the letter and spirit of its CSR obligations and, as a result, carries out its CSR strategy are referred to as implementation. Implementation is “walking the walk” if CSR promises are considered “talking the talk.”

As many businesses are aware, success depends on keeping commitments, whether they are related to business or performance expectations. Without adequate justification, breaking CSR commitments can also result in issues such as angry employees, shareholders, business partners, customers, communities, and others. A company that successfully implements its commitments is not only less likely to experience issues but it may also be seen more favorably when issues do occur, as contrasted to a company that consistently fails to fulfill what stakeholders perceive to be its obligations.

Due to the differences across businesses, different strategies will be used to execute CSR. One method for carrying out CSR commitments is demonstrated by the following steps: The following steps should be taken before making commitments public: 

1. Develop and put into action a CSR business plan; 
2. Establish an integrated CSR decision-making structure;
3. Establish quantifiable goals and choose performance metrics;
4. Engage staff members and other parties who are affected by CSR obligations;
5. Create and provide CSR training;
6. Create procedures for handling unwanted behavior;
7. Make a plan for internal and external communications.

Step 5 – Track your progress

In the end, CSR is about raising performance. As a result, reporting, verification, and assurance are crucial tools to assess if the change has truly occurred, offering interested parties the chance to learn how well the company is keeping its promises and what impact that is having. Reporting is the process of informing stakeholders of an organization’s performance in terms of economic, environmental, and social management. Reporting properly should cover how societal trends are influencing a company and, in turn, how the company’s operations are influencing society. Therefore, reporting might show a company’s desire and readiness to establish itself in a wider setting.

There is an adage that states, “What gets measured gets managed.”  The ability to demonstrate a company’s progress in CSR is essential to its success. It can serve as the foundation for interested parties to make well-informed decisions about whether to invest in the company, buy its products, or support its community outreach initiatives. It can also serve as the foundation for more advancements, risk analysis, and assistance for fresh initiatives and chances. Verification and reporting may also be crucial for getting and keeping a company’s operating license, enhancing internal processes, and fostering connections. Communities, clients, investors, workers, their representatives, regulators, and non-governmental organizations are likely to reference a company’s CSR verification reports if they want to learn more about it and its operations. However, if verification activities and reporting are not carried out in a thorough, professional, and believable manner, they may damage a firm’s credibility and reputation, which may close off prospects and reduce value.

Step 6 – Introspect and improve

An evaluation provides a basis for improvement and change and records the overall development of a company’s CSR strategy. A company is in an excellent position to reevaluate its current tactics and make improvements with the information obtained via verification and reporting. It gives the company the ability to: 

• ascertain what is working well, why, and how to keep it working; 
• investigate what is not working well, why, and how to explore the barriers to success and what can be changed to overcome the barriers; 
• evaluate what competitors and others in the sector are doing and have accomplished; and 
• revisit initial goals and make new ones as necessary. 

With the use of this data, the company should be able to assess if the present CSR strategy is meeting its goals and whether its execution strategy and overarching plan are sound. 

Things to avoid when creating a CSR business model 

Customers, service users, and employees of organizations are increasingly asking them to participate in CSR that is both authentic and aligned. Organizations want CSR activities to demonstrate a sincere concern for the communities served and to be linked to the organization’s primary goods and services. Therefore, it’s crucial to pick the appropriate CSR initiative(s) to implement.

This means that it’s critical to assess which aspects of ethics, responsibility, and sustainability align with the organization’s brand and the image that the organization wants to project.

Organizations should examine their internal environment when deciding on and developing a CSR strategy to make sure it represents the CSR initiatives they want to promote and be known for.

Illustrations showcasing dubious CSR practices 

• How are the funds raised if the organization makes charitable contributions? This could be viewed as a questionable practice in terms of CSR if they are connected to the sale of goods and are meant to boost sales figures, such as by promising to donate a portion of the profit from each product sold to a worthy cause, or if the organization takes credit for donations raised from customers and/or employees rather than a donation from the organization’s corporate accounts.
• Organizations with questionable CSR credentials are those that demand and promote equality and fair working conditions within their supply chains but do not implement these conditions within their own workforce.
• In contrast, an organization that takes pleasure in its own ethical CSR standards but engages in commerce with dubious suppliers will have its own larger CSR principles questioned.
• Organizations with dubious CSR values are those that use tactics to avoid paying taxes that are used for society’s benefit while promoting their CSR credentials as a PR marketing strategy of good citizenship.
• In order to suit their own business operations, large organizations who promote the employment of local suppliers yet utilize accounting systems that pay local, frequently tiny suppliers on a 90-day or longer accounting system financially disadvantage the local community supply chain.

Corporate Social Responsibility: a global perspective 

Many people’s perspectives have changed as a result of climate change and the growth of social justice movements, and these individuals now demand businesses in all industries recognize and address these challenges in their operations and business practices. In order to accomplish societal goals, organizations are urged by the United Nations Global Compact to “align their strategy and operations with universal values on human rights, labor, environment, and anti-corruption.”

United Kingdom 

CSR is regarded by the UK government and the City of London as a best practice. Guidance on CSR-related topics is published by the Association of British Insurers, whose members hold more than 20% of the companies listed on the London Stock Exchange.

Despite the absence of explicit legislation that mandates organizations to implement CSR, the UK Corporate Governance Code’s supporting principles state that the board “should set the company’s values and standards and ensure that its obligations to its shareholders and others are understood and met.” They also state that risk assessment “should cover not only narrow financial risks but also those related to health, safety, environmental, reputational, and other risks.”

Germany 

In terms of social and environmental standards, Germany already has strict legislation. Nevertheless, a comprehensive set of sustainable business practices is being implemented by the government, large corporations, and civil society.

CSR is viewed as encompassing both social and ecological responsibility in Germany. As consumer and societal demands for information about corporate behavior increased during the past ten years, a lot of businesses began to report on CSR. In 2010, Germany’s Federal Ministry of Labor (BMAS) unveiled a CSR action plan. The goal of this action plan is to promote the CSR idea throughout the whole business community, especially small and medium-sized businesses (SMEs).

As seen in the National CSR Forum established by BMAS, there are numerous participants in the CSR process in Germany. Numerous businesses, consumer advocates, labor unions, employer associations, research organizations, environmentalists, etc. are among them.

Canada 

Doing Business the Canadian Way is a strategy to advance corporate social responsibility in Canada’s extractive sector abroad. Canada’s updated Corporate Social Responsibility (CSR) Strategy builds on the knowledge and best practices amassed since the country’s initial CSR strategy, “Building the Canadian Advantage: A Corporate Social Responsibility Strategy for the Canadian Extractive Sector Abroad,” was introduced in 2009.

The revised strategy, which was unveiled on November 14, 2014, indicates unequivocally the Government of Canada’s expectation that Canadian businesses will uphold the highest ethical standards when conducting business abroad and promote Canadian values. The document also describes the government’s plans to support Canadian businesses in enhancing their CSR practices and maximizing the positive effects of their investments on the populations of host nations.

India 

As part of India’s “Inclusive Growth” policy, the Ministry of Corporate Affairs (MCA) oversees the CSR effort there. The MCA has released the second iteration of its voluntary sustainable business standards. A CSR initiative is being managed by the German agency for international cooperation, GIZ, and the Indian Institute for Corporate Affairs (IICA). This will make it easier for Germany to contribute its knowledge to the CSR discourse in India. Then-MCA Secretary R. Bandyopadhyay visited BMAS in Berlin in May 2010 and spoke with Secretary of State Andreas Storm about CSR.

Conclusion

Corporate social responsibility-adopting businesses are often set up in a way that gives them the freedom to be and behave in ways that are socially responsible and have a beneficial impact on the world. Depending on the objectives of an organization, it is a type of self-regulation that can be expressed through initiatives or strategies. Through corporate social responsibility reports, many firms let internal and external stakeholders know about these activities. From organization to organization, “socially responsible” is defined differently. The “triple bottom line,” which states that a corporation should be devoted to monitoring its social and environmental effects, sustainability efforts, and earnings, serves as a common framework for businesses. The motivating cause for the triple bottom line is frequently summed up by the proverb “profit, people, and planet.” 

Frequently Asked Questions (FAQs)

Why do companies get involved in CSR and how does it benefit them?

Companies are now understanding that they must become socially responsible if they want to remain effective, competitive, and relevant in a commercial environment that is changing quickly. National borders have become hazier due to globalization, and time and distance have become more elusive thanks to technology. Companies desire to improve their capacity to manage their earnings and risks, as well as safeguard the reputation of their brands, in light of the fundamental shift in the business environment. As a result of globalization, there is severe competition for qualified workers, investors, and customer loyalty. The sustainability of a company’s commercial success can be substantially influenced by how it interacts with its employees, host communities, and the marketplace.

What is the role of CSR in international health development? 

When creative CSR initiatives are launched in collaboration with the government and civil society, the business community may significantly contribute to the promotion of health and well-being. Everywhere but the most isolated regions or closed communities, business has a significant impact. Business has participated in philanthropic, charitable, and civic endeavors for many years, including social investments in health. Businesses now recognize that, when viewed through the prism of “doing well by doing well,” CSR may be a revolutionary means of bringing about systemic societal reforms in which investments can result in long-term social benefits in the field of health.

What is the number of companies practicing CSR?

Numerous CSR groups and business associations support corporate social responsibility, and their combined membership includes thousands of large, small, and medium-sized businesses operating in a range of industries. Business for Social Responsibility, situated in San Francisco, has 1,400 corporate members in the US alone. These businesses collectively employ more than six million people globally and generate US$1.5 trillion in revenue annually. The International Business Leaders Forum, based in London, has affiliate resource centers in emerging market economies where there is a demand for business involvement in social causes, and it has 60 big global companies among its members in Europe. The Philippines, Brazil, Egypt, India, Indonesia, and other emerging nations have business organizations that are focused on CSR. As there are CSR-supporting businesses and organizations, it can be claimed that there are many different types of CSR activities.

References 

• https://www.investopedia.com/terms/c/corp-social-responsibility.asp 
• https://b1g1.com/csr-guide?gclid=Cj0KCQiAyracBhDoARIsACGFcS6rGWmZlLeBQ6aoFBJamICCOJDSSjPAEmnmEtdrWqwC1l44cbDGI5saAoEfEALw_wcB 
• https://www.researchgate.net/publication/297754923_Corporate_Social_Responsibility_In_The_United_States_And_Europe_How_Important_Is_It_The_Future_Of_Corporate_Social_Responsibility  
• https://pdf.usaid.gov/pdf_docs/Pnada498.pdf 
• https://www.iisd.org/system/files?file=publications/csr_guide.pdf 
• http://oit.org/wcmsp5/groups/public/—dgreports/—integration/documents/publication/wcms_079130.pdf 
• https://www.slideshare.net/sajal789/approches-to-csr 
• https://cpdonline.co.uk/knowledge-base/business/corporate-social-responsibility/#:~:text=The%20UK%20Government%20defines%20CSR,through%20transparent%20and%20ethical%20behaviour.%E2%80%9D 
• https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse.aspx?lang=eng 
• https://india.diplo.de/in-en/themen/csr/1991410#:~:text=Corporate%20Social%20Responsibility%20(CSR)%20aims,to%20improve%20sustainability%20even%20further 
• https://online.hbs.edu/blog/post/types-of-corporate-social-responsibility 

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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the events that led to the constitution of the First Constitutional Convention, the origin and functioning of the Convention and how these events led to the formation of the United States Constitution. 

It has been published by Rachit Garg.

Introduction

Today, when someone mentions the United States of America, one envisions a country that has a structurally sound government, a strong economy and an evenly strong military. As of today, the Country has 50 states. Coming to the United States Constitution, it is the instrument that unites the whole country as one. It consists of a Preamble and 7 Articles in total. It includes provisions governing the functioning of the legislature, i.e., the House of Representatives and the Senate, the executive, i.e., the President and the judiciary, i.e., the Supreme Court and other inferior courts in the country. Apart from a federal Constitution, every state in the country has adopted a Constitution of its own.  

With all the glory that this country had achieved, the question that we need to ask ourselves is what sets the country apart. Whether the nation was always as supreme as it is today or was there a time when this country faced threats, both internal and external? What was the situation which forced several states that were British colonies in the early 1700s, to come together and form a united nation and how is all this connected to the formation of the Constitution? Read along to find answers to all these questions and to understand the process behind the enactment of the evergreen United States Constitution.   

Antecedents

Before the enactment of the Federal Constitution as we know it today, there were several obstacles that lay in the way. The first among these obstacles was the fact that the American states were under English rule and were part of British colonies. Under the British regime, the states existed independently and were governed by the British system of government. They had to follow the laws passed by the English parliament and the orders of the Crown. After suffering years of atrocities, the states fought back for their freedom. The United States Declaration of Independence was a document that raised the issues faced by American citizens against British colonial policies. This document raised allegations against the Crown for violating the English Constitution, enacting unlawful legislation, and oppressing the minorities in the country. It was through this Declaration that the citizens of America demanded their freedom from the British empire. Now let us look into what followed the American independence. 

The Articles of Confederation

The American society led by the National Congress, which had declared its independence from the British regime on 4th July 1776. However, the war to achieve true independence was far from over. Although the states had been freed from the British regime, they were yet to come under a common head, under a joint federal government that could represent and raise the voice of the entire nation. In furtherance of the same, Richard Henry Lee proposed the constitution of a Plan that would unite all the freed colonies to form a confederation. He proposed that this Plan should be ratified by all the states and justified this Plan in the name of military necessity as even though all the states were independent, their individual might was not sufficient to retaliate against the British army. However, the states believed that such a Plan would in turn again push them towards colonisation and this time, it would be its own government that colonised them. Thus, even though the states recognised the impending threat, they refused to the formation of a new federal government. However, they accepted that a confederation need to be formed so that the states could unite their military powers. 

In those days, there were only 13 recognised states in the country and a Committee was formed consisting of one member from each state with the intent of drafting a Plan for the confederation. It was only after a year in 1777, that this Plan was adopted by the National Congress and was referred to as the Articles of Confederation. However, even though the Plan was adopted by the National Congress in 1777, the ratification of the articles by the states was a long process and it took almost 4 years for this process to complete. During this time, an interim agreement was entered into by the states that contained similar provisions as that of the confederation. 

However, these Articles did not form the basis for a strong institutional government. Under these Articles, the notion of equal representation for all states in the national Congress was recognised and every state was empowered to cast one vote irrespective of the state population or wealth. Although a President was appointed to head the executive branch, there were negligible powers assigned to him. All powers ranging from enacting new laws, and financial policies, creating executive departments and appointing members as the heads of these departments, taking military decisions, etc., were vested with the National Congress itself. However, it is pertinent to note that the law-making process was extremely difficult as for any law to be enacted, at least 9 of the 13 states had to vote in favour of it. Amending the Articles was also not an easy task because such acts required the consent of all the states. 

One of the major issues that were present under the Articles was the absence of executive powers with the National Congress due to which it was unable to enforce laws passed by it in the states. Also, the National Congress had no power to collect or levy taxes from the states for any purpose. Thus, it had no direct source of income. Although the National Congress was authorised to make decisions regarding war and to raise an army, it had no power to raise an army on its own. It had to rely on the soldiers being sent by the states and the states were free to send any number of soldiers as they wished. Funds for the army were also to be raised by the states but the disproportionate contributions made by the states only raised further issues. States did not feel the need to enforce national laws. If any state denied the implementation or enforcement of the national laws within their state, other states would use it as an excuse to follow suit. Thus, all in all, the Confederation of Articles could not be considered a final solution for the creation of a fundamentally strong system of government and for the unification of all the states. 

National problems

Even with all the flaws under the Articles of Confederation, the American states showcased a united front in the Revolutionary war and won the war in 1781. The American army was led by General George Washington, the man that went on to be the President of the Philadephia Constitutional Convention and the First President of the United States. Having won over the external evils, the battle with the internal demons was only beginning. The main objective behind accepting the Articles of Confederation was to form a united military and with the war coming to an end, the states no longer saw the need to keep complying with the provisions of the Articles of Confederation. This led to the immediate downfall of the National Congress. 

What followed was internal disputes between the states regarding ownership of property ad state territories. The states of Connecticut and Pennsylvania started fighting over a disputed land towards the west. The coastal states started imposing taxes on the import of goods irrespective of the fact whether the goods were being imported to their states or not. Apart from these internal disputes, what concerned the newly formed nation was the severe economic debt it was in. By the end of 1789, the country was in debt of over $12 million to foreign creditors. These creditors threatened to continue trade with the country they failed to repay the debt. Even with which a threat looming over the nation, the states denied contributing towards the national treasury for the repayment of debt and the national Congress had no power to compel the states to do the same. In order to keep the economy stable, the National Congress sought loans from the banks in the Netherlands. Another issue that impacted its economy was the lack of gold and silver, which were acceptable forms of currencies for international trade. They had depleted their national reserves by importing luxury items from Britain soon after the war. Due to this, they no longer had the means to pay off debts. Apart from this, the soldiers who fought for the country in the war started demanding their wages and yet again the national Congress had no answer. This resulted in rebellions in the state and to suppress these rebellions, the states acceded to the demands of the soldiers and printed paper currency to pay them. 

Even after the end of the revolutionary war, the British continued to siege the borders of the country. The falling economy coupled with the lack of resources made it more difficult for the states to defend their borders allowing the British to enter into state territories and illegally occupy property in violation of the Paris Treaty that was signed by the Britsh after being defeated in the Revolutionary war. Spain followed suit and utilised its navy to capture and occupy areas in the Mississippi River and it also started to raid coastal cities. America’s attempts to indulge in international trade were also being foiled by the British as they denied their ships to dock in the British colonies of Canada and the West Indies, the two most important trading points at that time. 

With all these issues looming over the country, the need for a change in the national government structure was felt throughout. People had started to identify that the Confederation of Articles need to be amended or there should be an entirely new system in place. These thoughts led to the formation of the first Constitutional Convention in the year 1787. Now let us look into the origin and proceedings of this Convention. 

The United States Constitutional Convention, 1787

After gaining independence from the British empire, the question that arose was how to manage and untie the different states in the American subcontinent. Soon after independence, the first issue that gathered attention nationwide was the issue of inter-state trade and commerce. Several states had refused to engage in trade with other fellow states. This led to the fall of the American economy even before it could find its place in the world. To find a solution for the same, a statesman from the Virginia Assembly, Mr James Madison, put forth the view that all the states should come together to discuss and resolve the issues of inter-state trade and commerce so that the American economy can grow at a steady pace. As a result of his efforts, the first trade conference of independent America was held at Annapolis, Maryland in 1786. However, the conference failed to yield any results due to the fact that several states did not send their representatives to attend the trade conference. Only the states of Virginia, New Jersey and Delaware participated in the conference through their representatives and because of the non-participation of the other states, the conference concluded without resolving the issues posed by the restrictions on inter-state trade. However, this conference cannot be deemed as a total failure because this is where the first step toward drafting the US Constitution was taken. The representatives of Virginia and New Jersey, i.e., James Madison and Alexander Hamilton called on the states to come forward and send their representatives to a conference that was to be held in Philadelphia in the month of May of the following year with the object of discussing and enacting provisions that will help form a Constitution that will have a nationwide application and will result in unifying the states under the common head of the United States of America.

The National Congress yet again failed to pay any heed to the request made by the representatives in the Annapolis Trade Convention. However, this changed with the threat to peace and the prosperity of the states that followed soon after. In the latter half of the year 1786, multiple rebellions started to take place in different states. The root cause of these rebellions remained the same, i.e., the inability of farmers to pay their debts to creditors due to the burden of excessive taxes. These rebellions targeted the judicial system by not allowing courts to function and also targeted the police authorities. These attacks on the judiciary were done with the common object of stopping the judicial authorities from passing sentences against the farmers or passing any orders for the seizure of the properties of the farmers to pay off the debts whereas the attack on the police authorities was done with the intent of stopping them from executing any orders that were issued against the farmers or their properties. Although most of these rebellions were being controlled in different states, there was one rebellion that stood out, i.e., the infamous Shays’ Rebellion that was led by revolutionary war veteran Daniel Shays’ that took place in the state of Massachusetts. The authorities and Congress had no answer to this rebellion and son there was a threat of a civil war breaking in the country.

People across the country started questioning the inability of the National Congress to maintain peace and order within the states. To recover from this situation, multiple states passed laws allowing farmers to pay their debts by using American currency that had negligible value in the world economy. However, this move was not appreciated by the creditors who then started to raise their voices. With tensions rising throughout the country, the Bational Congress finally decided to adhere to the request made by the representatives in the Annapolis Trade Convention and passed a resolution in this regard. In the resolution, the National Congress called for a conference with the object of amending the Articles of the Confederation, discussing and redressing the issues plaguing the country, and drafting a new Constitution for the Federal state of America that will help in its unification. They called upon representatives from all the state legislatures to be present for the Conference that was scheduled on May 14 1787, in Philadelphia.  

Following this resolution, the states felt compelled to send their representatives to the Conference either with the fear of future rebellions arising within their states or with the fear that their interests and opinions would not be considered if they failed to participate. Whatever the reason, all states except the state of Rhode Island agreed to send their representatives to the Conference to be held in Philadephia, which is infamously known as the United States Constitutional Convention. 

The representatives at the Philadephia Convention

Even though the states had accepted the call for the Conference, the question that loomed over now was who should be their representatives. Several people who were considered the most prominent individuals in the country at that time chose to refrain from attending the conference. This included the likes of Patrick Henry, George Clinton, Samuel Adams and Richard Henry Lee. However, their non-participation was lauded by political scientist Clinton Rossiter on the basis that these individuals would have represented an America that was free from social evils because of their status-quo in society which would have resulted in the formation of a Constitution that would have failed to meet its primary objective, i.e., unification of the states. 

In total, there were 55 representatives who participated in the Philadelphia Convention. What benefitted the Convention was that these individuals, although hailing from different states, had come together with a common belief, i.e., the need for a strong national government at the core of the federal structure of the United States. These representatives believed in the formation of a government of the people. Some of them were either current or former members of Congress, had served time in the revolutionary war, and a selected few had even signed the Declaration of Independence. Another significant detail about the representatives was that they belonged to a diverse age group with the youngest representative hailing from New Jersey who was aged 26 years while the oldest representative, Benjamin Franklin aged 81 years hailed from the state of Pennsylvania. 

Rules and procedures of the Convention

Even though the Convention was scheduled to commence on May 14th, the quorum to commence its proceedings was only reached on 25th May when representatives from 7 states arrived and confirmed their participation in the proceedings. The representatives from other states joined after the commencement of proceedings at different intervals. 

When the quorum was reached, the first task before the representatives were to appoint a President who would act as the presiding officer of the Convention. For this role, George Washington was unanimously elected. After his appointment, Major William Jackson of Pennysylvania was appointed as the secretary of the Convention. The secretary was given the role of maintaining records of the motions raised by the representatives and the votes cast on every motion. Apart from William Jackson, the representative from Virginia, James Madison also maintained his own personal records of the motions, votes, and debates of the Convention. Next in line was the decision regarding the voting power of each state. All the representatives except the secretary himself agreed that every state should have an equal voting right and has the authority to cast one vote. The reason behind opting for equal voting rights was to allow all states, irrespective of their population, to represent their interests and to let them have an equal say in the policies that would govern them in the future. James Madison was also of the view that if the representatives called for an unequal voting share based on the size of the population, smaller states would withdraw from the proceedings and the Convention would fail even before it started. However, James Wilson was of the view that voting power should be determined proportionately on the basis of the population of every state. 

Another important rule of procedure adopted by the representatives was the rule of confidentiality. As per this rule, all representatives were prohibited from disclosing the discussions and debates that were going on in the Convention to any person who was not a party to the Convention. The intent behind adopting this rule was to disallow any person who was not a party to the Convention from influencing the decision-making within the Convention. Further, this also prohibited any misinterpretations of the debates of the Convention by the society at large. This allowed the representatives to speak openly in the Convention without the fear of facing any objection or retribution from the public.

The Convention did more than just provide equal voting rights to states to promote equality of all states and representatives within the Convention. This can be inferred from the fact that every representative had the right to raise an issue for discussion even if the parties had already voted on the issue. This opened the floor for a re-discussion of the issues raised by smaller states even if the parties had voted against its implementation. The intent behind the adoption of this rule was to allow smaller states to have their voice in the matters of the Convention and also to keep them involved during the entire proceedings even if the issues raised by them or the recommendations put forth by them are not accepted by the Convention. 

Now that we have understood the composition and rules of the Convention, let us look into the functioning of the Convention.

The Virginia Plan

4 days after the commencement of the Convention, the first step toward drafting a new Constitution was taken by the state of Virginia. The representatives of Virginia, led by James Madison and the Governor of Virginia Mr Randolph introduced a Plan wherein they proposed a tri-level federal government that had superintendence over all the states. This proposition was against the fundamental nature of the Articles of Confederation and since it was introduced by the state of Virginia, it is infamously known as the Virginia Plan. James Madison is also credited for drafting this Plan. Now let us understand the tri-level government that was proposed under this Plan. 

The legislature

The Virginia Plan sought to achieve federal supremacy by the introduction of a bicameral legislature. In simple words, a bicameral legislature is a system under which there are two houses of the Parliament that take policy-making decisions for the country. This Plan sought to divide the country’s legislature into two houses, i.e., the upper house and the lower house. The lower house was supposed to have a composition of elected representatives of the people and the number of representatives from each state was to be determined on the basis of population along with certain other factors. On the other hand, the upper house was supposed to have a composition of elected representatives of the members of the lower house. The eligibility of standing in elections for the upper house depended on the states who nominated such candidates. It is also pertinent to note that the Plan proposed to give the lower house a shorter tenure as compared to the upper house. The legislature as a whole was given supreme powers that included the powers to enact legislation that would be applicable to all the states, enter into foreign agreements and draft foreign policies, the appointment of government officials and judges, etc. Another important power granted to the legislature was the power to veto and reject any law passed by the state legislature if such laws were violating the Constitution or any national legislation. 

In today’s modern-day era, one could find bicameral legislatures being successfully implemented in India, France, Italy, Canada and even in the United States of America, except for the state of Nebraska which follows a unitary form of government. 

The judiciary

The judicial system of the country was again divided into two parts, i.e., the creation of one or more national-level courts and the creation of multiple subordinate courts. The jurisdictions and the types of matters that were to be dealt with by these courts differed from one another. Also, the courts were authorised to conduct an impeachment process for the officers of the federal government. 

The Council of Revision

The Virginia Plan provided for the creation of another organ in the name of the ‘national executive’. Members of the national executive were to be elected by both houses acting together and these members were given the power to execute all laws passed by the legislature. However, the executive was not the third branch of government as proposed under the Virginia Plan, but it was the Council of Revision that was given the role of being the third branch. This Council was to consist of members from both the national executive and the judiciary and they were given one important task, i.e., to veto and reject the implementation of any law that has been passed by the legislature. However, if the law that was rejected by the Council was again passed by the legislature with an excessive majority, the power of veto could not be exercised again by the Council. The percentage of excessive majority required in such cases was not provided under the Plan. 

With the introduction of this Plan, James Madison directly attacked the very foundation of the Articles of Confederation. The representatives from other states after hearing this Plan passed a resolution to begin a Committee of the Whole House for further discussion on the same. 

Committee of the Whole

This Committee was no different than the Convention itself. The representatives of the states who acted as members of the Convention now became members of the Committee. The distinguishing factor between the Convention and the Committee was that the representatives could indulge in a more informed debate as members of the Committee. Also, to start the Committee on a different note, George Washington was replaced by the representative of Massachusetts Mr Nathaniel Gorham as the stand-in President of the Committee. It is pertinent to note here that even if any decision was taken by the Committee by passing a resolution, it would not be deemed to be binding on the Convention itself and acted only as the recommendations that were made to the Convention. The Convention could, after the dissolution of the Committee, conduct debates on the recommendations and vote on the question of whether the recommendations should be accepted or not. The functioning of this Committee could be divided into three stages, i.e., the discussions on the Virginia Plan, the introduction of the New Jersey Plan and the introduction of the Hamilton Plan. Now let us look into these three stages in detail. 

Discussions on the Virginia Plan

The Committee spent almost half its time to debate over the pros and cons of the Virginia Plan. In the course of these debates, multiple provisions of the Virginia Plan were examined, revised and even removed. For example, the Committee discussed in detail the composition of the national executive and came to the conclusion that instead of appointing a body of individuals who would be the members of the national executive, there should only be one person who would deal with the executive matters of the country. Regarding the appointment of such a person, it was decided that an election will be conducted once every 7 years for electing the national executive and only the members of the legislature were entitled to cast their votes in this election. Also, the power of veto that allowed the Council of Revision to reject laws passed by the legislature was shifted to the national executive. However, if both houses of the legislature, with a two-thirds majority, voted against the veto applied by the national executive, the veto will be cancelled and the laws in question will be deemed as effective legislation passed by the legislature. With respect to the removal of the national executive by impeachment before the completion of his term, the Committee settled on two grounds, i.e., indulgence in malpractices and intentional omission of the duties imposed on the national executive.

The Committee then moved on to discuss the system of the bicameral legislature that was suggested by the Virginia Plan. Firstly, they set the terms for the upper house and lower house as 7 years and 3 years respectively. Following this, they decided that the elected representatives of both houses would be prohibited to hold any position in any private office so as to avoid conflict of interest while performing public duties. One important aspect of the Virginia Plan that the Committee decided to avoid was the power of veto granted to the national legislature to reject any law passed by the state legislature if such laws were violating the Constitution or any national legislation. 

Coming to the judicial system, the Committee decided that there should be one national-level court that will have superintendence and supervisory powers over all other courts in the country. They further noted that the appointment of judges fell within the domain of the upper house and that such appointment shall be permanent in nature.

The New Jersey Plan 

The Articles of the Confederation, although weak to provide for a system of unification of all states, empowered the states in one, i.e., equal representation for all states in the legislature irrespective of the state population. According to this, every state had one vote in the legislature, irrespective of the population of the state. This ideology also formed the core ideology of the Convention. However, the same was under threat because of the provisions under the Virginia Plan that provided for an election to the lower house based on the population of each state, i.e., states that were more populous would have more representatives in the lower house. This threatened the states with lower populations because they feared their voices will go unheard and the big states could utilise their majority in the lower house to pass laws in self-interest without considering the impact on the smaller states. To combat this threat, the smaller states came up with another Plan that is infamously known as the New Jersey Plan which was drafted by the representative of New Jersey, Mr William Paterson. The whole intent behind the introduction of this Plan was to protect the existing voting power that each state had in the legislature that was provided by the Articles of Confederation. 

Contrary to the provisions of the Virginia Plan that called for the enactment of a new Constitution by substituting the Articles of Confederation, the New Jersey Plan took a new route wherein it called for the extension of the current system under the Articles of Confederation. It proposed that instead of creating 3 new branches of the national government, 2 new branches could be added to the existing system under which the national Congress operated, i.e., an executive and a judicial branch. Herein, the executive was to be a body that could be appointed by the National Congress for a single term. The power to remove the executive was also given to the National Congress. However, this power could only be exercised if an application in this regard was made by a majority of the executive. This new body of executive was to consist of the Governors of all the states and they were empowered to enforce the laws passed by Congress by using any available means at their disposal.  

Coming to the judicial branch, the Plan proposed that a supreme court should be established and this court will have superintendence and supervisory powers over all other courts in the country. Further, the appointment of judges fell within the domain of the executive and such appointment shall be permanent in nature.

The Congress itself was granted multiple powers including enacting legislation that governed the foreign policy of the country, legislations for imposition and levy of taxes and legislation that governed inter-state and international trade and commerce. Also, the laws passed by Congress were deemed as national legislations and had to be followed by the people living in all the states of the country.

Hamilton’s Plan  

Alexander Hamilton, the representative for New York was not moved by suggestions of the other representatives made under the Virginia Plan or the New Jersey Plan. Even though America had just begun to enjoy its newfound freedom from the British colonies, he was of the view that the British form of government was the way forward for America. According to him, the system of government that was being followed in Great Britain was the best in the world and there could be no other system which was capable of substituting that. Thus, he proposed the institution of a government structure that was based on the government of Great Britain. 

According to his Plan, the national government of the United States would be the head of the union and would preside over all the states. Coming to state-level governments, he proposed the appointment of governors in every state by the national government itself. These governors were entitled to exercise veto powers for rejecting the laws passed by the state legislatures. Like the bicameral system of the legislature being followed in Great Britain, he suggested the formation of a bicameral legislature in America as well wherein the lower house represented the House of Commons and its members were to be elected by the people of individual states. The tenure of this house was limited to 5 years. On the other hand, the upper house represented the House of Lords and its members were to be appointed by the lower house on a permanent basis. 

However, it is to be noted that Hamilton was against the notion of a constitutional monarchy that was being followed in Great Britain. Therefore, he suggested that an executive wing of the government should be established. The members of the executive were to be appointed by the members of the lower house on a permanent basis and they were given a wide range of powers. This included the power to veto and reject the laws passed by the national parliament, the power to take decisions at times of war, the power to pardon criminal offences, the power to appoint the heads of all the government departments and most importantly, the power to enter into international treaties and agreements. These powers granted to the executive are similar to the powers granted to the Crown under the British form of government.  

Decisions of the Committee

The Committee of Whole debated and gave their opinion on every Plan that was set forth by the representatives. After a clause-by-clause examination of each Plan, the Committee voted on the Plans one after the other. Firstly, while dealing with the Hamilton Plan, the Committee was of the view that a British form of government would not be acceptable to the society at large who had just come out of the British rule and the atrocities they committed in the name of English laws. Thus, this Plan found no support and was vehemently dismissed by all the representatives of the Committee. However, it is important to note here that some of the propositions under this Plan like the powers of the executive to pardon criminal offences and to enter into international treaties and agreements were accepted and granted to the President of the United States by the Convention later.  

Coming to the New Jersey Plan, out of the 10 states that were in session, 7 voted against it. The primary reason behind the rejection of this Plan was that the voting power of the states that had more population was being curtailed in the legislature. The states like Virginia, Massachusetts, Georgia, North and South Carolina, Pennsylvania, etc., that had large populations, wanted to have more voting power in the legislature and in order to gain this objective, they voted against the adoption of this Plan.

The last in line was the Virginia Plan. After multiple amendments to the Plan as discussed below, the Committee of the Whole was of the collective opinion that the adoption of the Virginia Plan would be the best possible solution to the existing exigencies of the country. Thus, they adopted the Plan and referred it to the Convention in the form of a recommendation to further discuss the same. The suggested amendments are listed below:

1. The initial tenure of the lower house set under the Virginia Plan was 3 years. The Committee sought to reduce the tenure to 2 years and settled on the age of 25 as the minimum age to participate in the elections for the lower house. 
2. The recommended tenure for the upper house under the Virginia Plan of 7 years was also sought to be reduced to 6 years by the Committee. Further, the election to the upper house was to be conducted at different times so that election for at least one-third of positions in the upper house is conducted once in 2 years. 
3. The provision granted the power of veto to the national legislature to reject any law passed by the state legislature if such laws were violating the Constitution or if any national legislation was removed. 
4. A new provision was added according to which any law passed by the national legislature or any international treaty or agreement entered into by the national legislature would be binding on all the states. 
5. New rules and regulations would be enacted that would regulate the acquisition and ownership of properties by the members of the national legislature. 

The 1st Convention debate

After the Committee of the Whole concluded its proceedings, the approved Virginia Plan was laid on the table of the Convention for its consideration. As the debate began, the battle between the smaller and larger states resumed regarding equal representation in the national legislature. The smaller states called for equal voting rights for all the states whereas the larger states called for a voting system that was proportionate to the population of the state. To resolve the same, a special committee was constituted which consisted of one member from each state. 

This Committee came to the conclusion that the members of the lower house shall have a voting share proportionate to the population of the state they represent while the upper house shall follow the existing system under the Articles of Confederation, i.e., one vote per state.   

The Convention reviewed the submissions of the special committee and voted in the favour of its findings. However, in a matter of days, the Convention was again debating on the issue of representation in the upper house and it came to the conclusion that there would be 2 representatives from each state in the upper house. These representatives will have one vote each and they were free to act independently without any influence from each other or the government of the state they represent. It is pertinent to note that the evil of slavery prevailed in America during those days. While debating on the representation of people in the lower house, the Convention came to the conclusion that even slaves can be elected to the lower house. However, when it came to the voting rights of slaves in the house, their vote was counted as merely three-fifths of a single vote.

After the conclusion of this debate, the Convention decided to appoint a new Committee for the purpose of reviewing the decisions taken by the Committee and drafting the Constitution. This Committee is known as the Committee of Detail. Let us now try and learn more about this Committee. 

The Committee of Detail

At the end of the first Convention debate, the important task that lay ahead of the representatives was to review their decisions and draft a Constitution. This object was sought to be achieved by the means of the recommendations made by this Committee. Unlike the Committee of the Whole which comprised all the representatives, this Committee only consisted of 5 members namely Nathaniel Gorham, James Wilson, John Rutledge, Edmund Randolph and  Oliver Ellsworth. The Committee started by reviewing the resolution passed by the Convention that adopted the amended Virginia Plan. While reviewing the Plan, it also started to draft the Constitution. Apart from the resolution, the Committee also looked into the provisions of the New Jersey Plan, the Articles of Confederation, existing laws and state Constitutions while drafting the U.S Constitution. 

To begin with, the Committee renamed several provisions under the resolution in a manner as we know them today. This includes substituting the executive with the President, establishing the Supreme Court as the national tribunal, and renaming the lower house as the House of Representatives and the upper house as the Senate. In doing so, it also defined the jurisdiction of the Supreme Court and the powers vested in the President and established multiple rules of procedure that were to be followed by the President and the national legislature.

Under the Articles of Confederation, the national legislature was empowered to enact laws regarding any matter notwithstanding the impact it has on the states. The national legislature was not even bound to listen to the interests of the state legislatures while enacting laws. However, since the Convention was clear on the application of legislation passed by the national legislature in all the states, the Committee felt the need to limit the areas in which the national legislature could exercise this absolute power. Thus, they drafted a list of 18 subjects on which the national legislature had absolute jurisdiction to enact laws. This list included the subjects of inter-state trade, collection and levy of taxes, wage war, establishing courts, etc. However, a general clause was added to the list which gave the national legislature to enact any law that was necessary to execute the powers vested in it. The Committee also limited the powers of the state legislatures to a certain extent by disallowing them to enter into international treaties and agreements, print their own currency, impose or levy state-level taxes, etc. 

The executive, i.e., the President was given several powers by the Committee. This included the powers of issuing pardons to criminals, taking steps to ensure the smooth execution of the state laws, recommending the enactment of new laws as he deems fit to the national legislature, etc. It also introduced a provision that allowed the members of the upper house to elect a representative to act as the interim President in case the President dies, resigns or suffers from any physical or mental incapacity. Coming to the judiciary, the Committee defined the jurisdiction of the courts and provided that the courts have jurisdiction over all disputes that arose between two or more states, the individuals who lived in America and any dispute between the state and its citizens. 

It is also important to note that a provision regarding slavery was also added by the Committee. According to this provision, the national legislature was prohibited from imposing any tax on the import of slaves from other countries or banning the import of slaves in general. Further, it gave the national legislature to enact navigation laws, with a two-thirds majority, that mandated the export of American goods only through American ships. In total, they drafted a constitution that was 3700 words long. 

The 2nd Convention debate

Following the submission of the draft constitution by the Committee to the Convention, the Convention reviewed and debated the provisions of the constitution. As a result of these debates, multiple provisions of the constitution were amended by the Convention. The amendments have been listed below:

1. A new provision was added regarding the eligibility of the citizens who wanted to stand in elections for the national legislature. Any person who wanted to stand in the elections of the House of Representatives had to be an American citizen for at least 7 years and in the case of the Senate, the person had to be an American citizen for at least 9 years. Also, only individuals who naturally resided in a particular state could compete in the elections from that state.  
2. In case the President has used the power of veto and prohibited the enactment of any particular law, the national legislature could, by a three-fourth majority, override the veto of the President and go forward with enacting and implementing the law. 
3. The power of the national legislature to make war came with an inherent flaw. In case, a war occurred when the national legislature was not in session, it could not pass a resolution to make war. Thus, the provision was revised to state that the national legislature had the power to declare war and in absence of such declaration, the President had the power to do so. 
4. The enactment of criminal laws ex-post facto was strictly prohibited. Also, it prohibited the enactment of laws that would punish individuals for crimes without a proper trial. 
5. The national legislature and the President were prohibited from allotting any form of title or nobility to any individual irrespective of their stature. It also prohibited all public officials from receiving any form of title or gift from any foreign nobility or from the government of any foreign state. 
6. The national legislature was given the authority to deploy the military to implement laws in any state, and for suppressing any rebellions, civil wars or invasions from foreign states. 
7. They added an important provision to govern any future amendments in the Constitution. This was called the Convention method. Under this method, if the state legislatures formed a two-thirds majority, they could call on the national legislature to form a Convention for the amendment of the Constitution. 
8. The requirement for a two-thirds majority for the enactment of navigation laws was set aside. 
9. They inserted a provision that allowed persons of all religions to hold public offices. 
10. For adopting the Constitution at least two-thirds of the states should vote to ratify the Convention. It is important to note that this requirement did not call for ratification by the state legislatures but state conventions formed in this regard. 

One of the primary issues that were identified under the Constitution was its attitude towards the aspect of slavery in the country. The states from the northern part of the country were the first to react to this crisis that surrounded slavery. There were 2 major provisions that were under attack, i.e., the voting power of the slaves in the House of Representatives and the provision that prohibited the national legislature to enact laws to ban the import of slaves into America. The reason why the northern states were against slavery was that the north of the country was comprised of factories and farms giving rise to a mixed economy. There was a negligible number of slaves employed in these domains. However, the southern part of the country based their economy on Plantations and they employed slaves to work in these Plantations. The northern states were of the opinion that, in a free world, slaves should be free as well. If slaves were not freed, foreign powers may take action against the USA for importing people from their countries in the name of slavery and the north, which was against slavery would also have to pay the price for it because of the southern states. This strong-headed argument of the north was met with an even argument from the southern states. They threatened that the state conventions in the south will not ratify the constitution if the provision allowing slavery were removed from it. 

Like the Special Committee that was constituted by the Convention to resolve the disputes between larger and small states regarding equal representation, the Convention once again constituted a special committee to find a solution to this problem. The Committee proposed to amend the constitution and allow the national legislature to ban the import of slaves after the year 1800. They also recommended adding a provision that would allow the national legislature to impose and levy tax on importing slaves. When these recommendations were made to the Convention, it was once again heavily debated but were finally accepted by the Convention with a minor change. The year 1800 was amended to 1808. 

Though this issue was resolved, several issues remained that were addressed in the Convention to which there were no solutions. To resolve this issue, the Convention again constituted a Committee on Postponed Matters. This Committee consisted of one member from each state and was tasked to find solutions to all the issues raised in the Convention. Let us now try and understand the findings of this Committee. 

Committee on Postponed Matters

Like the other committees formed by the Convention, the Committee on Postponed Matters also had a new President. This time, it was presided over by the representative of New Jersey, Mr David Brearly. In total, the Committee had 11 members. To begin with, this Committee focused on the provisions with respect to the election, term and powers of the head of the executive, i.e., the President. Firstly, it came to the conclusion that the term of the President should be reduced to 4 years rather than continuing with the proposed term of 7 years under the Constitution. They also inserted provisions that allowed for the reelection of a President after the completion of his term. 

Regarding the election of the President, they proposed that instead of the members of the national legislature casting their votes in the Presidential election, an electoral college should be formed with the exclusive function of electing the President. This electoral college was to be comprised of such a number of representatives of each state proportional to the number of representatives the states have in the House of Representatives and the Senate combined.  However, it prohibited the states from electing the same members into the electoral college who had been already elected into the House of Representatives or the Senate. This electoral college would then cast its votes in the Presidential elections and the candidate who would have received the maximum majority would be declared the President of the United States. The Committee also added a unique proposition that was not discussed earlier by the Convention or any of the Committees, i.e., the election of a Vice President for the country. They noted that the candidate who would secure the second highest majority in the Presidential elections would be declared as the Vice President of the United States. It also noted that in case no candidate was able to secure a majority in the Presidential elections, the candidates who received the highest and second highest number of votes will be declared as the President and the Vice President of the country respectively. It also included provisions for a situation wherein the votes in the electoral college ended up in a tie. In such cases, it authorised the Senate to elect the President and Vice President by conducting a vote in Senate. 

The Committee also established the eligibility criterion for an individual to participate in the Presidential elections. To be elected as the President of the United States, every candidate had to be either a natural citizen of the country by the virtue of his birth or should have gained citizenship of the country on or before the entry into force of the Constitution. Also, the minimum age for contesting in the elections was set to be 35 years and a condition regarding residency was also added according to which each candidate had to be a resident of the United States for at least 14 years. Along with this, the Committee also proposed the grounds on which the President could be impeached and these grounds included treason, bribery and crimes or misdemeanours committed against the country. The Senate was authorised to raise and conduct the impeachment proceedings against the President and a two-thirds majority was required to successfully remove the President from his office. 

The Committee then moved on to introducing provisions governing the powers and functions of the Vice President. Firstly, the Vice President was made the President of the upper house, i.e., the Senate and he was to preside over all the meetings of the Senate. He was also given the power to cast his vote in the Senate to break any ties that occurred while passing laws. Further, the Vice President was authorised to act as the interim President in case the President died, resigned or cannot perform his duties due to physical or mental incapacity. Like the President, the authority to impeach the Vice President was also vested with the Senate on similar grounds and a two-thirds majority was required to successfully remove the Vice President from his office. 

The 3rd Convention debate

After the Committee on Postponed Matters submitted their recommendations to the Convention, the provisions were heavily debated once again. As a conclusion to this debate, the recommendations regarding establishing an electoral college and an office for the Vice President were agreed upon by the representatives in the Convention. However, they also made some significant changes to the same. The power of the Senate to elect the President in case of a tie in votes of the electoral college was shifted to the House of Representatives. Also, the voting powers of the members of the House of Representatives were reduced in such circumstances and each state was authorised to cast only one vote. With respect to a similar situation arising in the case of electing the Vice President, the Senate was allowed to retain its power to elect the Vice President with each state having one vote.  

Due to the fact that the House of Representatives had a population-based voting share compared to an equal voting share in the Senate, the larger states were worried that if matters regarding the financial aspects of the country were introduced in the Senate first, they would not be able to use their majority to their advantage. Thus, they argued for the introduction of money bills only in the House of Representatives and after several heated debates, this was agreed upon by the Convention. Apart from this, the larger states also called for the introduction of multiple provisions so as to limit the powers of the Senate. As a result, several powers that were vested in the Senate were transferred to the President. This included the powers of entering into international treaties and agreements and appointing ambassadors, judges, and officers who would serve as heads of public offices. Regarding appointments, the Senate had the power to vote to confirm such appointments and a simple majority was enough for the same. However, for the ratification of international treaties and agreements, a special majority, i.e., a two-thirds majority was required. 

After this debate concluded, the Convention called for the constitution of a new committee that would be responsible for including all the provisions discussed, i.e., a total of 23 articles, and preparing a final draft of the United States Constitution. This Committee was called the Committee of Style and was led by James Madison. It had 5 members in total. Let us not look into the works of this Committee and the final stages of the Convention.  

Final stages of the Convention

With the Committee of Style tasked with drafting a formal Constitution, the Convention continued to debate and make amendments to the agreed-upon provisions. This began with the issues raised by James Madison regarding the constitution of a special constitutional convention every time for amending the constitution, According to him, this would be a time-consuming process and would amount to a waste of resources and undue delays in the implementation of important laws. To substitute the same, he suggested the establishment of a new mechanism wherein the call to amend the Constitution could be made in two situations. Firstly, if the national legislature itself wants to amend the Constitution, it should seek approval of at least three-fourths of the states of the country who had ratified the Constitution and to successfully amend the constitution it had to pass the amending act with at least two-thirds majority. Secondly, if the action for amending the Constitution was to be initiated by the state legislature, the concerned state would have to seek a two-thirds majority vote from all state legislatures and the approval of at least three-fourths of states of the country that had ratified the Constitution. This recommendation by James Madison was approved by the Convention and passed on to the Committee of Style. Next in line was an amendment that was suggested by the representative of North Carolina, Mr Hugh WIlliamson. He proposed to reduce the majority required for overriding the veto power exercised by the President from a three-fourth to a two-thirds majority. This recommendation was also approved and forwarded to the Committee of Style. 

Coming to the other important issues that were being debated, Edmund Jennings Randolph, a representative from Virginia was against the proposition that the Consitution should be ratified by the State Constitutional Conventions only. He justified his stand on the basis of the mandate of the Commission itself which was formed to recommend changes in the Articles of Confederation so that the national Congress could resolve the escalating rebellions and other issues in multiple states. He argued that instead of doing this, the Convention from the beginning focused on drafting a new Constitution for the United States and thus it is necessary that not just the State Constitutional Conventions, but also the state legislatures and the existing national legislature should vote for the ratification of the Constitution. This would make the Constitution more acceptable to the states and the people rather than it being imposed on them by the State and National Constitutional Conventions. Another important issue that was raised by the representatives of Virginia and Massachusetts, Mr George Mason and Mr Elbridge Gerry respectively was the exclusion of the Bill of Rights from the Constitution. They believed that the Bill of Rights was fundamental in nature and that its inclusion in the Constitution was an absolute necessity. However, the Convention did not consider this issue and decided against the same. 

The recommendations of the Committee of Style

While the Convention debated on these issues, the Committee of Style completed its work and presented to the Convention its final draft of the Constitution. This draft reduced the original number of Articles to 7 and also contained some new provisions. Most importantly, it included a preamble to the Constitution that stated the object behind the enactment of the new Constitution. It stated that the primary object of the Constitution was to unite the individual states of the country under a single head and ensure justice, peace, protection and welfare for the people of all states. Other than the preamble, the draft included provisions that prohibited states from breaching contracts with individuals or other states and also vested the powers under the Constitution to the national legislature and the President of the country. 

Further modifications by the Convention 

The recommendations made by the Committee of Style were lauded by all the representatives at the Convention. However, the Convention still continued to make multiple changes to the same. The power of the national legislature to appoint the national treasurer was now brought under the domain of the Presidential powers.  Further, a provision was included that prohibited any Amendment to the Constitution through which the equal voting rights being enjoyed by the states in the Senate could be stripped off. Such rights could be taken away only if the state consented to such a proposition prior to the concerned Constitutional amendment.

Another important amendment made to the final draft was regarding the amendment of the Constitution and this was in line with the issues raised by James Madison with a slight modification. The Constitution could be amended in two scenarios. Firstly, if the national legislature itself wanted to amend the Constitution, it would have to seek the approval of at least three-fourths of states of the country that had ratified the Constitution and to successfully amend the constitution it had to pass the amending act with at least two-thirds majority in both the houses. Secondly, if two-thirds of the state legislatures formed a majority and called for the constitution of a Constitutional Convention to amend the Constitution, the national legislature would have to form the same. However, the state legislatures will have to obtain the approval of at least three-fourths of the states of the country that had ratified the Constitution 

Conclusion of the Convention

After these issues were settled and changes were made to the final draft, the Convention finally came to an end on September 17 1787 and the final draft was put forth on the table to be signed by all the representatives. On the last day, only 42 of the total 55 representatives were present in the Convention and out of these 42 representatives only 39 signed the Constitution while Edmund Jennings Randolph, George Mason, and Elbridge Gerry remained the exceptions due to the non-inclusion of their recommendations in the Constitution. With the signing of the United States Constitution, the Convention came to an end and the representatives at the Convention were later infamously known as the founding fathers of the United States Constitution. 

Conclusion 

Even though the United States Constitution was drafted in a period of 5 months, the instrument has stood the test of time and has passed with flying colours. Even after so many years, the document drafted by the Philadelphia Convention still forms the fundamental basis of the modern-day Constitution. Not only has it stood the test of time, but the object it sought to achieve, i.e., the unification of the country and resolving the existing exigencies of that time was also achieved successfully. After its enactment, the states came together under one head and with time, they resolved the nation’s internal and external issues. If not for the Philadephia Convention, the series of events that led to the creation of global power would not have occurred. Thus, not only was the Convention important for the drafting of a new constitution, it was one of the first steps toward shaping the future of the country. 

Frequently asked questions (FAQ’s)

Why was George Washington unanimously elected as the President of the Constitutional Convention?

George Washington was the military General of America post-independence and led the American Revolutionary Army to victory against the British. Because of this, he was highly respected by American society and was looked up to as a natural leader. Thus, he was unanimously elected as the President of the Philadelphia Convention and was also elected as the 1st President of the United States thereafter.  

How many states participated in the Philadelphia Constitutional Convention?

At that time, only 13 states were recognised in America. Out of these 13, 12 states participated in the Philadephia Convention with the exception of Rhode Island. This was because they believed that the Constitution would make the executive extremely powerful at the expense of the states. Prohibiting the states from printing paper currency was one of the reasons as well.

What is the process for amending the US Constitution now? Was any Constitutional Convention formed after the Philadephia Convention for amending the Constitution?

As per Article 5 of the US Constitution, the Constitution can be amended in 2 ways, i.e., by introducing and passing the amendment in the legislature with a three-fourths majority or by forming a constitutional convention to amend the Constitution. As of today, no national-level constitutional conventions have been called to amend the Constitution. The national legislature has passed 33 amendments to the Constitution. Coming to state Constitutional, there have been more than 230 Constitutional Conventions that were formed to amend state Constitutions to date.

References

1. https://advance.lexis.com/api/document/collection/administrative-materials/id/3RH6-HFG0-0036-K08W-00000-00?cite=3%20Op.%20O.L.C.%20390&context=1523890&icsfeatureid=1517130 
2. https://advance.lexis.com/api/document/collection/administrative-materials/id/3RHJ-1070-003Y-Y02N-00000-00?cite=1977%20Tenn.%20AG%20LEXIS%20161&context=1523890&icsfeatureid=1517130 
3. https://us.sagepub.com/sites/default/files/upm-assets/101997_book_item_101997.pdf 

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