Celebritys Rights to Privacy

Celebritys Rights to Privacy Do celebrities have rights to privacy? Should their private lives be open to press scrutiny? Please analyse Hello v Douglas, Campbell v MGN Ltd, A v B and Campbell v Frisbee. Please also mention cases that were referred to in the judgements of these cases, and the importance of data protection in answering this question. There is no express common law ‘tort of privacy’ in English law[1]. Rather, there is a generally recognised ‘right’ to privacy. In recent times, there has been much controversy surrounding the issue of privacy, and questions have been raised as to whether or not privacy should be expressly enforceable through the courts. Prior to the HRA 1998, a person could only bring an action against another for breach of confidence, trespass or defamation[2]. Grundberg[3] opines, ‘†¦Freedom of the press is the cornerstone of freedom of speech.’ However, it is the media that have had the biggest role to play in the discussions surrounding the right to privacy. Gibbons suggests that the issue now is deciding how far the interests of the media count against the introduction of a general law. He opines that the concept of privacy ‘†¦is not easy to elucidate and its priority in securing protection over other interests is not self-evident.’[4] Essentially, Gibbons affirms, privacy centres on the individual’s right to restrict the availability of information about him or herself. There have been attempts to pass bills in Parliament with the aim of introducing a statutory tort of privacy, all of which were unsuccessful. Government Committees and Royal Commissions have also recommended against the introduction of such a law on the basis that there would be an ‘unworkable definition of the tort.’[5] The Younger Committee Report on Privacy confirmed that they ‘†¦found privacy to be a concept which means widely different things to different people and changes significantly over relatively short periods. In considering how the courts could handle so ill-defined and unstable a concept, we conclude that privacy is ill-suited to be the subject of long process of definition through the building up of precedents over the years, since the judgements of the past would be an unreliable guide to any current evaluation of privacy.’[6] The absence of such a law was criticised in the case of Kaye v Robertson.[7] Gordon Kaye, an actor, had been in volved in a serious accident and was consequently admitted to hospital. Journalists from the Sunday Sport ignored notices to see a member of staff before visiting Kaye, and subsequently took photographs of him. Medical evidence was submitted, stating that Kaye was not fit to give interviews at that time and had no recollection of ever giving one in the first place. Consequently, Potter, J granted an injunction to prevent publication of the pictures and any accompanying story. Barendt and Hitchens assert that this particular case has been the subject of much analysis in recent times, and cite Professor Markesinis[8] who claimed that, ‘†¦English law, on the whole, compares unfavourably with German law†¦Many aspects of the human personality and privacy are protected by a multitude of existing torts but this means fitting the facts of each case in the pigeon hole of an existing tort†¦it may leave a deserving plaintiff without a remedy.’[9] In October 2000, an express right to privacy finally broke into English law by virtue of the Human Rights Act 1998. The European Convention on Human Rights and Fundamental Freedoms, Article 8 was incorporated into English law. The Convention stipulates that ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ According to Grundberg, the HRA 1998 applies only to government action and not to the actions of private individuals. Furthermore, Article 8 requirements can conflict with the right to freedom of expression, as detailed in Article 10.[10] In Douglas v Hello!, the Douglases and OK Magazine won their case against the publishers of Hello! magazine for breach of confidence. Hello! had published unauthorised photographs of the wedding of Michael Douglas and Catherine Zeta Jones, in the full knowledge that OK had an exclusive on the story. In addition to winning their claim for breach of confidence however, the Douglases were also awarded damages under the Data Protection Act 1998 by virtue of the fact that the photographs were deemed to be ‘personal data.’[11] The photographs were said to have been unlawfully processed by Hello!, thereby contravening the requirements of the DPA 1998. Lindsay, J stated that, ‘†¦When a data controller (Hello!) is responsible for the publication of hard copies that reproduce data that has previously been processed by means of equipment operating automatically, the publication forms part of the process and falls within the scope of the Act.’[12] Hello! argued tha t their publication fell within the ‘wide journalism exception’ under s.32 of the DPA 1998, a mechanism that was successfully used against Naomi Campbell in the case of Campbell v MGN Ltd[13] at the Court of Appeal. In this case however, Lindsay, J ruled that unlike the Campbell case, there was ‘†¦no credible evidence that Hello! had the necessary belief that the publication was in the public interest, particularly given that the photographs were obtained by trespassing paparazzo and Hello! knew OK was about to publish a wedding exclusive.[14] He continued to assert, ‘That the public would be interested is not to be confused with their being a public interest.’ Kate Brimsted claims that the first principle of the DPA 1998 requires the processing of data to be fair and lawful. In this case, Lindsay, J held that the principle had been breached by Hello! magazine in that their methods of obtaining the photographs were unfair. The magazine had also failed to comply with the requirements laid out in Schedule 2 of the Act in relation to fair and lawful processing. In the case of Hello v Douglas Lindsay, J referred to the case of Peck v UK[15]. In this case, the European Court of Human Rights held that English law had failed to provide Peck with an effective domestic remedy when CCTV images of him looking apparently suicidal were broadcast. Brimsted argues that in the current climate, the DPA 1998 would provide him with a legal remedy by virtue of the fact that he would be entitled to compensation as he suffered ‘by reason of any contravention’ of the Act by the data controller (the broadcaster). In the case of Campbell v MGN Ltd[16] the Mirror newspaper had ran a cover story with the headline ‘Naomi: I am a Drug Addict,’ accompanied by two pictures – one of Naomi Campbell as a glamorous model, the other of her looking casual in jeans and a baseball cap, over the caption ‘Therapy: Naomi outside meeting.’ The Mirror had exposed Naomi Campbell’s attendance at Narcotics Anonymous. In general, the article was deemed to be supportive and sympathetic, though inaccurate in places. The frequency of her attendance was also exaggerated. Campbell took action against MGN Ltd the day the story was published. The Mirror responded by publishing further stories, though the tone of the articles shifted from sympathetic and supportive to aggressive and demeaning; one headline was simply labelled ‘Pathetic’. In the proceedings, Campbell claimed damages for breach of confidence, and compensation under the Data Protection Act 1998. Morland, J upheld her claim, awarding her approximately  £3,500. MGN Ltd subsequently appealed, and this was upheld. Campbell appealed once again to the House of Lords, though this time her appeal was dismissed on the basis that inter alia, the pictures published by MGN Ltd ‘conveyed no private information beyond that discussed in the article†¦there was nothing undignified or distrait about her appearance.’[17] It is worth noting here the difference between this case and Peck v UK, where Peck’s vulnerable and suicidal appearance was a key factor in the final d ecision. Naomi Campbell was involved in further legal proceedings against her former employee Vanessa Frisbee, in Campbell v Frisbee.[18] The News of the World had published an article about apparent sexual encounters between Campbell and the actor Joseph Fiennes. The story had been provided to the newspaper by Vanessa Frisbee, who had been employed by Campbell to provide ‘management services’. It was a term of Frisbee’s contract that she would keep information about Campbell private, and she entered into a Confidentiality Agreement on the 9th February 2000. Frisbee agreed to abide by a number of clauses; namely however that she would not disclose anything to the media without the prior permission of Campbell. It was appreciated in court that Frisbee owed Campbell a duty of confidence, and that the disclosures she had made were clearly a breach of this confidence. Campbell claimed damages or account of profits arising from the breach of confidence. By way of defence, Frisb ee argued that, through a culmination of mistreatment and assault the contract between herself and Campbell had been repudiated, and, even if the court found that this was not the case, she was entitled to sell the story nevertheless, because there was a public interest. Lightman, J held in this case that confidentiality remained binding in respect of confidential information that the employee or contractor had acquired in the course of his or her service, even if the contract had been repudiated by other means[19]. In the case of A v B, the court was concerned with whether or not to grant an injunction to restrain the publication of private information. This information concerned the sexual relations that A, a married professional footballer, had had with two women – C and D. Lord Woolf stated in this case that any interference with the press had to be justified; under s.12 (4) of the Human Rights Act, the court had to have regard to whether or not it would be in the ‘public interest’ for material to be published. Lord Woolf stressed in this case however that, even if there were no obvious special public interest, this did not mean that the court would be justified in interfering with the freedom of the press; he opined that, ‘†¦where an individual was a public figure he was entitled to have his privacy respected in appropriate circumstances. He should recognise however that he must expect and accept that his actions would be more closely scrutinised by the media. ’[20] Lord Woolf appears to be adhering to the school of thought that suggests celebrities, by virtue of their prominent status within society, should appreciate that their lifestyles and activities will be more carefully monitored by the press than ordinary members of the public. Crone suggests that it is unlikely a claimant will be able to restrain the publication of information about his or her private life unless the information ‘†¦is trivial or already in the public domain†¦there is a clear public interest in the publication involving, for example, the detection or exposure of crimes†¦or the claimant can clearly be compensated in damages because, for example, he is prepared to sell the relevant information about his private life, as was the case in Douglas v Hello!.’[21] In answering the question, ‘Should the lives of celebrities be open to press scrutiny,’ the difficulty lies in deciding which information is of sufficient importance for the public to have a justifiable claim to knowing about it. Gibbons claims that in some cases this is reasonably clear, i.e. if facts about anti-social or harmful practices are private, this does not warrant their continued secrecy, and facts relevant to a politician’s ability to govern are required to be publicly known in the interest of society at large. It appears that celebrities are entitled to object if information is private and there is no public interest in the material being published. There are obvious differences between cases such as Campbell v MGN Ltd, where the claimant did not wish the photographs to be published at all, and Douglas v Hello!, where there objections stemmed from the fact that, while they were willing for photographs to be published, they had agreed an exclusive with a magazine in order to protect their commercial interests. It is also interesting to note that now, while the UK does not benefit from a specific privacy law, adequate redress can now be obtained by virtue of the Data Protection Act 1998, and the protection it offers â€Å"by reason of any contravention† of its provisions. Bibliography Barendt, E., Hitchens, L. Media Law: Cases and Materials (2000) London: Longman Law Series Brimsted, Kate for Hebert Smith Data Protection: a Privacy Law By Any Other Name? 15th April 2003 www.spr-consilio.com Crone, T. Law and the Media (4th Edition) 2002 Oxford: Focal Press Gibbons, T Regualating the Media (1998) London: Sweet Maxwell CASE LAW A v B Plc Another (2003) QB 195 Campbell v Frisbee (2002) EWCA Civ No. 1374 Campbell v MGN Ltd (2002) Kaye v Robertson (1991) FSR 62 Peck v UK (The Times, 3rd February 2003) STATUTORY PROVISIONS Data Protection Act 1998 Human Rights Act 1998 LEGAL WEBSITES www.spr-consilio.com www.hmcourts-service.gov.uk Footnotes [1] Grundberg, P. The ‘New’ Right to Privacy Chapter 8, p.114-130 in Crone, T. Law and the Media (4th Edition) 2002 Oxford: Focal Press [2] Grundberg, P. The ‘New’ Right to Privacy Chapter 8, p.114-130 in Crone, T. Law and the Media (4th Edition) 2002 Oxford: Focal Press [3] Grundberg, P. The ‘New’ Right to Privacy Chapter 8, p.114-130 in Crone, T. Law and the Media (4th Edition) 2002 Oxford: Focal Press [4] Gibbons, T Regualating the Media (1998) London: Sweet Maxwell p.83 [5] Grundberg, P. The ‘New’ Right to Privacy Chapter 8, p.114-130 in Crone, T. Law and the Media (4th Edition) 2002 Oxford: Focal Press [6] Younger Committee Report on Privacy, Cmnd. 5012 (1972) cited in Barendt, E., Hitchens, L. Media Law: Cases and Materials (2000) London: Longman Law Series p.399 [7] Kaye v Robertson (1991) FSR 62 [8] The German Law of Torts (2nd Edition) 1990 p.316 – cited in Barendt, E., Hitchens, L. Media Law: Cases and Materials (2000) London: Longman Law Series p.399 [9] Barendt, E., Hitchens, L. Media Law: Cases and Materials (2000) London: Longman Law Series p.399 [10] Grundberg, P. The ‘New’ Right to Privacy Chapter 8, p.114-130 in Crone, T. Law and the Media (4th Edition) 2002 Oxford: Focal Press [11] Brimsted, Kate for Hebert Smith Data Protection: a Privacy Law By Any Other Name? 15th April 2003 www.spr-consilio.com [12] Lindsay, J Douglas v Hello! Cited in Kate Brimsted for Hebert Smith Data Protection: a Privacy Law By Any Other Name? 15th April 2003 www.spr-consilio.com [13] Campbell v MGN Ltd (2002) [14] Lindsay, J cited in Hebert Smith Data Protection: a Privacy Law By Any Other Name? 15th April 2003 www.spr-consilio.com [15] Peck v UK (The Times, 3rd February 2003) cited by Lindsay, J in Douglas v Hello!, cited in Brimsted, Kate for Hebert Smith Data Protection: a Privacy Law By Any Other Name? 15th April 2003 www.spr-consilio.com [16] Campbell v MGN Ltd (2004) UKHL 22 [17] Campbell v MGN Ltd (2004) UKHL 22 [18] Campbell v Frisbee (2002) EWCA Civ No. 1374 [19] Lightman, J Campbell v Frisbee (2002) EWCA Civ No. 1374 [20] A v B Plc Another (2003) QB 195 [21] Crone, T. Law and the Media (4th Edition) (2002) Oxford: Focal Press

Teachers of Today †Who They Are and What They Need to Know

Assignment 2 – Paper – Teachers of Today – who they are and what they need to know Word count (2,382): Final Word count (2,264): INTRODUCTION Exciting, and rewarding are just some characteristics that explain teaching. Overcoming anxiety and nerves in the first year is our greatest challenge. Moving into the classroom for the first time can be a daunting and challenging experience for everyone. You are required to immediately equip four years of knowledge into your teaching and classroom management. While this may seem to be a difficult time, it will only get easier. There are many rewards with being a teacher, however it is important to note that it is not a role to be taken lightly – it is a difficult role to fill. As teachers, we need to understand that every child will learn differently. No matter their culture, gender or socioeconomic status, so as teachers you have to encourage and have a level field in your classrooms. You have to know how to reach each student. As teachers you need to let the students know that they don’t have to follow the stereotyped roles of society. The teachers of 2010 and beyond will face many challenges that we are currently unaware of. What we can do to prepare for those challenges is look at where things may be headed in terms of technology and population and cultural diversity. PROFESSIONALISM & TECHNOLOGY â€Å"A professional doesn’t view his or her profession as a just a job, but rather sees it as a calling that is all about caring for children† – Kramer, 2003, p. 23 As an independent Australian Comics publisher (and short film producer), professionalism is what helps us stand out from the crowd. Look and presentation is vital,  we have to stick to various guidelines depending on your audience and where we are showcasing,  all this requires some serious  decision making and – when dealing with multiple artists – juggling some serious egos! Developing and maintaining relationships with other artists is imperative for us to continue to grow, and is just  as important to the relationship of student and teacher. We need to keep up to date with market, media  and consumer trends  just as both students and teachers must with  syllabus and curriculum†¦ nd indeed those same market, media and consumer trends. Change and adaption is incredibly  important as well, because without  it  you can't  move forward or stay fresh. To be a professional teacher you can't be a dictator,  but  more of great  artist  whose success is  drawn from the love of the craft,  nurturing the medium and understanding what the final masterpiece is meant to c onvey. In 2010 and beyond, our classrooms will transform into more of a technological teaching and learning environment. There are many new ways students can research information they need through resources such as the Internet. Teaching has also been altered, with the use of interactive whiteboards. To fulfil a professional role as a teacher, there are many different aspects to consider and behaviours to demonstrate. As role-models, these will pave the way for the students to become more professional themselves. It is important for a teacher to relate to each student in a professional manner. There are many ways to tutor students through advancements in technology such as the Internet, thus expanding the opportunities to be passed on to a new generation. Teachers should always teach with passion and a burning desire to touch hearts and change lives. Remember: it’s not just a job – it’s an honour. MOTIVATION and TEACHING STRATEGIES The description of motivation and the descriptions of the many various differing theoretical explanations for them are as follows†¦ The process of motivation itself is – simply put – starting towards a goal and keeping on the path until you achieve the goal. (Eggen and Kauchak 2010). An individual may well have different ideas in mind when achieving heir goals – whether they are moved by an extrinsic motivation (ie: the need to get there simply as a means to an end) or intrinsic motivation (doing it for the love of the subject) – the results are the same and both methods are valid. Admittedly, if you enjoy a subject it will give you more value as it will your teacher/s, but striving for that end result regardless will be an achievement. There are various theories of motivation, which shall be dealt with below. Through various cognitive theories, we know people really need to understand the world and their experiences to make sense of them and their place in that world. They can be as follows: Need for Self-Determination: this is where an individual feels the need to act on and control their environment to understand it – to have choices and to decide what they want to do. Praise, offers of help and other emotional factors can also be a part of self-determination. Need for Autonomy: here the individual feels the need to not only act on their environment, but to alter it to their way of thinking so that they can relate to it and learn more effectively. Need for Relatedness: this is where an individual feels the need for social connection and approval to facilitate their learning. Indeed, this factor is quite important as it fulfils the desire for approval and positive judging. Need to Preserve Self-Worth: simply put – this is the need to feel important – whether this is in a family group, friends, employment or any other social aspect – if we feel intelligent and important then our ability to learn likewise grows. Belief about future outcomes: This is a very personal part of learning and unique to each individual. The ability to guesstimate what the outcome of a project will be based upon your own knowledge of your capabilities will greatly influence your learning skills – the more you think you can, you will (Little Engine That Could – Watty Piper – 1930) Beliefs about Intelligence: the belief that you can or can NOT do a task will have a huge psychological impact upon your learning abilities. This can also be influenced by outside positive and negative feedback from others. Unless you are rock-solid positive you can do something despite negative criticism, that very criticism can undermine your belief in your own intelligence. The challenge is to find motivators for each and every student and use these to engage them in their education and learning. In terms of teaching and learning, motivation is the engagement that students have in their studies, and the efforts that they make to achieve their goals. Motivation can be split into two types, refer to Table 1. 1. Understanding student motivation is vital to the development of effective teaching strategies and necessary to discover different approaches to motivation and how these impact classroom decisions. pic] (Eggen and Kauchak, 2010) Table 1. 1 – Types of Motivation The behaviourist approach suggests that a student will gain a reward, either extrinsic or intrinsic, then the individual will be motivated to complete the task so as to receive it. From this we can determine that reward systems within the classroom can be used to increase student motivation, however Eggen and Kauchak (2010) stress that extrinsic rewards should be used to increase intri nsic motivation so as to promote learner independence. As teaching moves forward into 2010 and beyond, behaviourism is amongst the many learning theories in practice that is essential to good teaching. With diverse backgrounds and environmental factors, watching for the appropriate and inappropriate key behaviours in students is a complicated process in assuring desired behaviour is maintained. The cognitive approach suggests teachers should model how to claim responsibility for their success and failures, and should acknowledge that with additional effort past failures can be used as a learning tool. The Individuals’ Memory Stores play an important role, which contains the sensory memory to capture stimuli, working memory, phonological loop for words and sounds, and our visual-spatial sketch pad for our visual and spatial surroundings. All these various processes are active when we learn, and are fascinating examples of how the human mind operates. The humanist approach to motivation is dominated by the belief that all individuals have a number of needs that must be fulfilled (Eggen and Kauchak, 2010). These needs are categorised in Maslow’s Hierarchy of Needs outlined in figure 2. . The hierarchy suggests that if any of the lower level needs are not met then it is not possible for higher order ones to be fulfilled. Teachers must understand that these needs will not always be fulfilled within the home environment and various programs can be established to aid students when the home environment fails. [pic] (Eggen and Kauchak, 2010) Figure 2. 2 – Maslowsâ€⠄¢s Hierarch of Needs We must also remember that an integral aspect of motivation lies in aiming towards a particular achievement, or goal. A goal is an outcome that an individual is striving to achieve. Goals can be divided into four different types, see table 3. 3. [pic] (Eggen and Kauchak, 2010) Table 3. 3 – Types of Goals Classical conditioning is yet another form of learning that occurs when an individual produces an involuntary emotional or physiological response, similar to instinct or reflex (Pavlov, 1927). Figure 4. 4 (below) outlines the concepts in greater detail. [pic] (Eggen and Kauchak, 2010) Figure 4. 4 – Classical Conditioning Operant conditioning is where a response changes in frequency or duration as a result of a consequence (Skinner, 1953). This can be presented through either positive or negative reinforcement or through the presentation or removal of a punishment and shaping (Premack, 1965). Operant Conditioning can have a negative impact if used incorrectly, which can result in students not feeling safe, stressed and anxious about their environment. Constructivist Learning Theory is a theory that seems like common sense when you think about it, stating that learners create their own knowledge of topics they study as opposed to simply recording that information. Piaget 1952/ Vygotsky 1978). There are two primary perspectives for Constructivism: Cognitive Constructivism – focuses on internal construction of knowledge. Social Constructivism – focuses on constructing knowledge socially before internalising. Cognitive Apprenticeships is a process designed to places less able learners with more able ones to assist in developing their abilities. Peer-to-peer assistance provides many characteristics that assist learners through a new teaching experience. Some of these are modelling (watching demonstrations), scaffolding (being asked questions to prompt their learning), verbalisation (expressing their beliefs), increasing complexity (which does what the name implies) and exploration (finding new ways to use knowledge). This tool allows teachers to monitor other less able students, knowing that appropriate peer-to-peer learning is being undertaken with other less able students. The learning process of students will be influenced by many factors as you can see above. As they do, we need to keep a watchful eye on how they unfold. The challenge of teachers in 2010 and beyond is to find these motivators for each and every student and use them to engage them in education and learning. In the end, when teachers effectively motivate students their interest will increase along with their ability to learn. COMMITMENT and CLASSROOM ENVIRONMENT When committing to creating a productive learning environment, the developmental stage of students should be considered. High-school students have different capabilities of primary-school students, so their classroom activities need to be more challenging (Eggen and Kauchak, 2010). Younger students are more responsive to concrete examples, while older students are capable of understanding theories and complex situations. If computer software is to be used in the classroom, it should be tailored to those stages of development. Younger students would require simple interfaces, less challenging problems, frequent feedback and recognition of achievement. Classroom management will also determine how effective the teaching is. Part of effective management is setting rules and procedures, and following them throughout the entire study period. The selection of topics attracts several issues. For the most part, teachers will be following a curriculum, but will prefer to place emphasis on particular sections of this framework. Their own personal knowledge and commitment, as well as the information that they deem important and useful, contributes to the various topics. There is also a need to plan how these topics will be delivered. Traditional instruction using lectures provides little interaction and feedback, so other strategies need to be looked at and implemented. The author Tony Newton intends to try and maintain a level of control using humour in much the same way his own third grade teachers did when he was young. Keeping in mind all the various technologies and ground rules that have to be in place, as well as students’ abilities and social interaction, (Maximizing the Time and Opportunity for Learning – Eggen and Kauchak, 2010 – pg 355) a classroom MUST be organised, arranged appropriately and personal. For Mr. Newton’s own class, he also firmly believe if kids have fun, they will learn more. Then we have Ability Grouping, being the practice of sorting students into groups of similar intelligence/ learning capabilities. We need to remember that if we begin segregating students early on, then those who are quicker cannot scaffold or mentor the slower ones up to speed. Social ramifications here are also dangerous where those smarter think they may be â€Å"better† than their less able peers†¦ and friendships can then also suffer. Tolerance and assistance must be cultivated to prevent these prejudices from booming out of proportion in later life. CONCLUSION The theories of learning and teaching covered above provide useful background information for new teachers entering the workforce. Situations that we encounter will be unique, though it is always beneficial to be prepared and plan for the journey ahead. Reviewing literature and applying some of these techniques can assist with understanding how people learn, different teaching methods, and the factors to consider when building a classroom. Moving forward into 2010, teachers are advised to consider these theories and incorporate many different levels of educational tools, through appropriate modes, that assist in developing the students’ learning construction. Although we do not know what classrooms will be like in the future, this is something that we actually determine ourselves. When we are first starting out, we will need to create our own style and approach, making up our own rules. Although teachers are expected to give instruction, it is still a learning experience. Thankfully there are a lot of resources at our disposal. Remember to keep improving our teaching craft, and we will be able to adapt to the demands of classrooms in 2010 and beyond. Reference List Bandura, A. (1986). Social Foundations on Thought and Action: A Social Cognitive Theory. Upper Saddle River, New Jersey: Prentice Hall. Bandura, A. (1997). Self-Efficacy: The exercise of control. New York: Freeman. Borko, H. , and Putnam R. (1996). Handbook of educational psychology. Macmillan; United States of America. Eggen, P. , and Kauchak, D. (2010). Educational Psychology: Windows On Classrooms (8th ed. ). In H. Gardner, and S. Moran, The Science of Multiple Intelligences Theory. United States of America: Pearson International. Mayer, R. , (2002). Teaching of subject matter. Annual review of psychology,55, 715-744. Pavlov,  I. P. (1927). Conditioned Reflexes translated by G V Anrep. Oxford University Press, London, England. Piaget, J. (1977). Problems in quilibration. In M. Appel, and L. Goldberg, Topics in cognitive development: Vol. 1. Equilibration: Theory, research, and application. New York: Plenum Press. Premack, D. 1965). Reinforcement theory. In D. Levine (Ed. ), Nebraska Symposium on Motivation (Vol. 13, pp. 3-41). Lincoln: University of Nebraska Press. Skinner, B. F. (1953). Science and Human Behavior. New York. Macmillan. Woolfolk, A. , and Margetts,K. (2007). Educational psychology. Sydney, Australia: Pearson Education Australia. Vinesh Chandra and Darrell L. Fisher (2009). Students' Perceptions of a Blended Web-Ba sed Learning. Environment. Learning Environ Res. Vygotsky, L. (1978). Thought and Language. Cambridge, MA: MIT Press. The Little Engine That Could – Watty Piper – 1930

Default and Disputes Essay

In this paper I will discuss the reasoning and methodology behind government contract defaults and disputes. I will also give recommendation to acquisition and cost containment. The standard contract clause which gives a customer the right to unilaterally terminate the contractor if the contractor fails to perform according to the specified terms. The contractor is generally not entitled to any payment for the unfinished part of the contract and, instead, may be liable for (1) repayment of monies advanced, (2) liquidated and other damages, and (3) excess cost incurred by the customer in completing the contract under a new contractor. Two primary types of terminations can arise under government contracts: â€Å"termination for default† and â€Å"termination for the government’s convenience†. Besides a criminal conviction or debarment or suspension for default is undoubtedly the most severe agency sanction that a termination can befall a government contactor. Terminations for default are much more common in supply contracts than in construction contracts. The standard clause used in supply and service contracts recites that the government has the right terminate for default if the contractor fails to (1) deliver the contract supplies or perform the services on time, (2) make progress so as to endanger performance of the contract. The â€Å"Termination for Cause† term also names three bases for terminating a commercial item contract for default: (a) â€Å"any default† by the contractor, (b) failure by the contractor â€Å"to comply with any contact terms or conditions,† and (c) failure by the contractor to provide the government on request, with â€Å"adequate assurances of future performance. The government’s right to terminate is not limited by standard inspection clauses, because they permit the government to exercise any other rights and remedies allowed by the contract. â€Å"Default terminations are provided for in government contracts under standard clauses set forth in the FAR. 52. 249–8 Def ault (Fixed-Price Supply and Service). As prescribed in 49. 04(a)(1), insert the following clause: DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) (a)(1) The Government may, subject to paragraphs (c) and (d) below, by written notice of default to the Contractor, terminate this contract in whole or in part if the Con- tractor fails to—(i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) below); or (iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) below). 2) The Government’s right to terminate this contract under subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Con- tractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of the no- tice from the Contracting Officer specifying the failure. (b) If the Government terminates this contr act in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will be liable to the Government for any excess costs for those sup- plies or services. However, the Contractor shall continue the work not terminated. (c) Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance the failure to perform must be beyond the control and without the fault or negligence of the Contractor. (d) If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted supplies or services were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. e) If this contract is terminated for de- fault, the Government may require the Con- tractor to transfer title and deliver to the Government, as directed by the Contracting Officer, any (1) completed supplies, and (2) partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (collectively referred to as manufacturing materials in thi s clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract. Upon direction of the Contracting Officer, the Con- tractor shall also protect and preserve property in its possession in which the Government has an interest. (f) The Government shall pay contract price for completed supplies delivered and accepted. The Contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the Disputes clause. The Government may withhold from these amounts any sum the Contracting Officer determines to be necessary to protect the Government against loss because of outstanding liens or claims of former lien holders. (g) If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Government. (h) The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or nder this contract. FAR 52. 249-10 â€Å"Default (Fixed-Price Construction)† Clause (a) If the contractor refuses or fails to prosecute the work or any separable part, with the diligence what will insure it’s completion within the time specified in this contract including any extension, or fails to complete the work within this time, the government may, by written notice to the contractor , terminate the right to proceed with the work (or the separable part of the work) that has been delayed. In this event, the government may take over the work and complete it by contract or otherwise, may take over the work and complete it by contract or otherwise, and may take possession of and use any material, appliances, and plant on the work site necessary for completing the work. Although the â€Å"Termination for Cause† term in commercial item contracts does not contain a â€Å"cure notice† requirement, the FAR termination procedures for commercial item contracts require the Contracting Officer to send a standard cure notice ‘prior to terminating a contract for a reason other than late delivery. Consequences And Remedies Of â€Å"Termination For Default† And â€Å"Termination For Convenience† If a board or court determines that the contractor was not actually in default or the default was excusable, the termination for default will be converted into a termination for convenience. Similarly, before the appeal is even decided, the Contracting Office r can convert the termination for default into one for the government’s convenience. The Contractor’s recovery under a convenience termination may be significant. For example, under a convenience termination, the contractor is eligible to recover its costs of performance, some â€Å"continuing costs,† settlement expenses, and a reasonable profit on completed work. Should the contractor be unsuccessful in contesting the propriety of the default termination itself, it may still be able to challenge the excess costs assessment and achieve a reduction or elimination of those costs. The Fulford doctrine permits contractors to challenge the government’s imposition of excess re-procurement costs even if the time has expired for appealing the underlying default termination, but does not trump the Contract Disputes Act election doctrine. Remedy of â€Å"Excess Cost of Re-procurement† and â€Å"Liquidated Damages† The standard measures of excess costs is the difference between the contract price of the terminated contract and the price the government is required to pay to the re-procurement contractor for quantity f supplies or services called for under the terminated contract or for completion of unfinished work remaining under the terminated contract. To assess excess costs against the defaulted contractor, the government must show that the re-procurement contract has been performed and that complete payment has been made. The government may not obtain re-procurement costs for work that the government prevented the contractor from performing. If the default-terminated contract contains a â€Å"Liquidated Damages† clause, those damages may be assessed against the contractor until the government obtains completion of the contract work. Liquidated damages are in addition to the excess costs of re-procurement The Liquidated Damages† clause used in fixed-price supply and service contracts provides that, in the case of a termination for default, the contractor shall be liable for liquidated damages (as well as excess costs) â€Å"until the time the government may reasonably obtain delivery or performance of similar supplies or services. The â€Å"Liquidated Damages† clause requires the contractor to pay the government a specific amount for each calendar day of delay. The stipulated amount of the liquidated damages is set at the time the contract is entered into and is the parties’ estimate of the extent of loss that one party’s breach of the contract would cause to the other. Government policy is to use a â€Å"Liquidated Damages† clause in a contract when both (1)the time of delivery or performance is such an important factor that the government may reasonably expect to suffer damages if the delivery or performance is delinquent, and (2) the extent or amount or actual damages would be difficult or impossible to ascertain or prove. Contract Disputes Act The Contract Disputes Act of 1978 (â€Å"CDA†), which became effective on March 1, 1979, establishes the procedures for handling â€Å"claims† relating to United States Federal Government contracts. All claims by the contractor against the Federal Government must be submitted in writing to the Government’s Contracting Officer for a decision. All claims by the Federal Government against the contractor must be the subject of a decision by the Contracting Officer. Apart from claims by the Federal Government alleging fraud in connection with a claim by the contractor, all claims by either the Federal Government or the contractor must be submitted within six years after the accrual of the claim. Claims by the contractor that exceed $100,000 must be accompanied by a certification that (i) the claim is made in good faith, (ii) the supporting data are accurate and complete to the best of the contractor’s knowledge and belief, (iii) the amount requested represents the contract adjustment for which the contractor believes the Federal Government is liable, and (iv) the certifier is authorized to submit the certification on behalf of the contractor. There are procedures in the statute for remedying certifications that do not exactly mimic the required certification language. For claims of $100,000 or less, the Contracting Officer is required to issue a decision within 60 days of receipt of the claim provided the contractor requests a decision within that time period. For claims in excess of $100,000, the Contracting Officer is required, within 60 days, either to issue a decision or notify the contractor when a decision will be issued. All decisions should be issued within a reasonable time, taking into account the nature of the claim, and, if they are not, the contractor may either request a tribunal to direct the Contracting Officer to issue a decision within a specified time or treat the failure to issue a decision as an appealable â€Å"deemed† denial of the claim. If the contractor is dissatisfied with the Contracting Officer’s decision on a claim, the contractor may (i) appeal that decision to the cognizant agency board of contractor appeals within 90 days of receipt of the decision or (ii) bring suit on the claim in the United States Court of Federal Claims within 12 months. Decisions not appealed within one of these time periods become final and conclusive. There are procedures in the statute authorizing the use of mutually agreeable alternative dispute resolution techniques for handling disputes and well as for the use of streamlined and accelerated litigation procedures for smaller claims at the boards of contract appeals. The losing party may appeal a decision by either a board of contract appeals or the United States Court of Federal Claims to the Court of Appeals for the Federal Circuit. A contractor is entitled to interest on the amount found due on its claim running from the date the Contracting Officer received the claim until the claim is paid. Good acquisition planning is crucial to the overall project objective, government spending, tailored to objectives and constraints, and is flexible enough to allow innovation and modification as the project evolves. The strategy balances cost and effectiveness through development of technological options, exploration of design concepts, and planning and conduct of acquisition activities. These elements are directed toward either a planned Initial Operational Capability or retention for possible future use, while adhering to a program budget. The strategy should be structured to achieve program stability by minimizing technical, schedule, and cost risks. Thus the criteria of realism, stability, balance, flexibility, and managed risk should be used to guide the development and execution of an acquisition strategy and to evaluate its effectiveness. The acquisition strategy must reflect the interrelationships and schedule of acquisition phases and events based on a logical sequence of demonstrated accomplishments, not on fiscal or calendar expediency.

The Sun Also Rises Essay - 909 Words

The Sun Also Rises Mystery Essay Ernest Hemmingway’s novel The Sun Also Rises is not considered to be a mystery. However, through his creative storytelling, Hemingway nimbly evokes an aura of uncertainty and mystique surrounding the relationship of Jake Barnes and Lady Brett Ashley. Their attraction to each other is palpable, yet without the ability to consummate her sexual desires, and the tragic war wound that rendered him impotent, Brett obstinately pursues a variety of other meaningless relationships. There appears to be a recurring internal conflict with Brett throughout the course of the novel. Incapable of dealing with Jake’s injury, she meanders from relationship to relationship searching for that same unequivocal love she†¦show more content†¦Brett left Jake because she didn’t want her relationship to be dictated by his inability to fulfill her sexual desires. Similarly, one could argue that she left Mike because she didn’t want their rel ationship to get in the way of her lust for Romero. Even at the end, she portrays leaving Romero as somewhat of a selfless act because she did not want to â€Å"corrupt† him. However, it is far more conceivable that she left because of his desire for her to look like a more conventional woman. Unwilling to compromise her ideals in the slightest in her quest for control in the relationship, she sabotages what she has to maintain this status of self-control. Perhaps this is why she takes solace in her relationship with Jake. She knows that because of his impotence, their relationship lacks any meaningful future, and she can seek comfort in him knowing that he is unable to control their relationship in that way. He is unable to exert that sort of sexual dominance over her. That is why it makes the last lines from the novel particularly meaningful: â€Å"‘Oh, Jake,’ Brett said, ‘we could have had such a damned good time together.† To which Jake responds, â€Å"‘Yes,’†¦Ã¢â‚¬ËœIsn’t it pretty to think so?’† (Hemingway 251). This quote presents their obvious contrasting illusions of what their relationship could be. Brett seems confident they would have ended up together if not for his wound, but Jake sees what she does not. Over time, with the opportunity to observe Brett’sShow MoreRelated The Sun Also Rises Essay675 Words   |  3 Pages quot;One generation passeth away, and another generation cometh; but the earth abideth foreveramp;#8230; The sun also ariseth, and the sun goeth down, and hasteth to the place where he aroseamp;#8230; The wind goeth toward the south, and turneth about unto the north; it whirleth about continually, and the wind returneth again according to his circuitsamp;#8230;All the rivers run into the sea; yet the sea is not full; unto the place from whence the rivers come, thither they return again.quot;Read MoreEssay on The Sun Also Rises511 Words   |  3 Pages The Sun Also Rises nbsp;nbsp;nbsp;nbsp;nbsp;In Ernest Hemingway’s The Sun Also Rises, Jake Barnes is a lost man who wastes his life on drinking. Towards the beginning of the book Robert Cohn asks Jake, â€Å"Don’t you ever get the feeling that all your life is going by and you’re not taking advantage of it? Do you realize that you’ve lived nearly half the time you have to live already?† Jake weakly answers, â€Å"Yes, every once in a while.† The book focuses on the dissolution of the post-war generationRead More Sun Also Rises Essay2099 Words   |  9 Pages The Sun Also Rises nbsp;nbsp;nbsp;nbsp;nbsp;The novel starts out when Jake Barnes, Frances Coyne, and Robert Cohn are dining together. Jake suggests that he and Cohn go to Strasbourg together, because he knows a girl there who can show them around. Frances kicks him under the table several times before Jake gets her hint. After dinner, Robert follows Cohn to ask why he mentioned the girl. He tells Robert that he can’t take any trip that involves seeing any girls. nbsp;nbsp;nbsp;nbsp;nbsp;RobertRead MoreEssay on Sun Also Rises2493 Words   |  10 Pages The Lost of Self quot;One generation passeth away, the passage from Ecclesiates began, and another generation cometh; but the earth abideth forever. The sun also ariseh†¦quot;(Baker 122). A Biblical reference forms the title of a novel by Ernest Hemingway during the 1920s, portraying the lives of the American expatriates living in Paris. His own experience in Paris has provided him the background for the novel as a depiction of the lost generation. Hemingways writing career began early; heRead More Hemingways The Sun Also Rises Essay1338 Words   |  6 PagesHemingways The Sun Also Rises Hemingway sat down to write The Sun Also Rises on September 15,1925 and only six days later, the first draft was complete with the title of Fiesta. The first draft was almost a direct journalistic account of his experience in Paris and Spain, with the names of the characters corresponding to real people. After taking a break from it and writing The Torrents of Spring in order to break his contract with publisher Horace Liverwright, Hemingway returnedRead MoreThe Sun Also Rises Critical Essay3893 Words   |  16 PagesIn this excerpt, Cochran disagrees with the body of criticism which finds The Sun Also Rises overtly cynical, focusing instead on the circularity of the human condition. Emphasis in the considerable body of criticism in print on The Sun Also Rises rests with the cynicism and world-weariness to be found in the novel. Although Lionel Trilling in 1939 afforded his readers a salutary, corrective view, most commentators have found the meaning inherent in the pattern of the work despairing. Perhaps mostRead More Hemingways The Sun Also Rises Essay1524 Words   |  7 PagesHemingways The Sun Also Rises The title and narrative focus of Ernest Hemingway’s The Sun Also Rises are rooted in a passage from the Ecclesiastes. In referencing this book of the Hebrew Bible, Hemingway resorts to aged scripture to unearth steadfast truths. His novel uses old-world beliefs to provide a solution for modern day issues, asserting the undeniable value of tradition. The applicability of the Ecclesiastes passage to Hemingway’s portrait of hopelessness in the post-Great War generationRead MoreReligion in the Sun Also Rises Essay926 Words   |  4 PagesParticipation in the war can alter ones views of the world. For Hemingway and the characters of The Sun Also Rises it meant the world had lost its innocence, and that traditional Christian morality no longer had any relevance. The expatriates lack religion as a whole and although they may know the concept they simply have no hope or faith. In The Sun Also Rises by Ernest Hemingway, the difficulties of Brett, Jake and Bill can be directly a ttributed to the lack of religious faith that stems from theirRead MoreThemes in The Sun Also Rises Essay835 Words   |  4 PagesThemes in The Sun Also Rises One theme that I found recurring throughout the novel, The Sun Also Rises by Ernest Hemingway, was love. Lady Brett Ashley was a beautiful woman who seemed to be irresistible to the men she became acquainted with. For example Robert Cohn, Bill Gorton, Pedro Romero, Mike Campbell, and last but not least Jake Barnes. Brett was ex ¬ tremely vulnerable to the charm that various men in her life seemed to smother her with. Brett was not happy with her lifeRead More The Sun Also Rises Report Essay1668 Words   |  7 Pagesspawned in an effort to capture the attitudes and feelings of such individuals to reinvent a model of sorts for a people sorely lacking any satisfactory standard to follow. At the forefront of these writers was Ernest Hemingway, whose Novel, The Sun Also Rises, became just such a model, complete with Hemingways own definition of heroism. Many of the characters in the novel represented the popular stereotype of the post WWI expatriate Parisian: wanton and wild, with no real goals or ambitions. Mike