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(Solved) AN IDEA TO HELP WITH CRITICAL THINKING The role of many classes is not only to provide you with the opportunity to gain knowledge about a particular


AN IDEA TO HELP WITH CRITICAL THINKING

The role of many classes is not only to provide you with the opportunity to gain knowledge about a particular subject, but to help you learn to apply that knowledge. And, because each field has its own way of applying knowledge, a purpose of the class is also to help you learn to think like the people do in that field. In a biology class, you learn something about biology, but you also learn how to think like a biologist.

This is a law class, and that means that you can learn something about the law, but also that you can learn something about how to think like a lawyer.   According to an article by Anne-Marie Slaughter, thinking like a lawyer means “thinking with care and precision, reading and speaking with attention to nuance and detail. It means paying attention to language, but also understanding that words can have myriad meanings and can often be manipulated. It thus also means paying attention to context and contingency.” 

There is a both a science and an art to thinking like a lawyer, but the first skill set that you have to develop is critical thinking. And critical thinking is a science, which means that anyone can master it, if they will take the time to learn how.

In their book Think Critically, Facione and Gittens offer a simple mnemonic device that can help you think critically. They advocate the IDEA model:

Identify the problem and set priorities

Deepen understanding and gather relevant information

Enumerate options and anticipate consequences

Assess the situation and make a preliminary decision

The IDEA model is actually a great way to think critically about the law. This exercise will provide two scenarios which present legal problems, and then use the IDEA model to help analyze the first one. Your task will be to use the IDEA model to analyze the second one on your own.

Scenario 1

Gomez owns 10 acres of land, with highway frontage, on the road between Deming and Las Cruces. The land isn’t good for much, but he has made some income over the years by renting three billboards he has put on his land. 

Recently, the county held some meetings about signage. A number of people expressed concern that their community was far too commercialized with signage. Some people argued that the value of property would increase if there was less signage. Finally, a third group expressed concern that all the signage was distracting to drivers, and presented a danger to the community. In response to these concerns, the County passed a regulation that prohibits signage except to advertise events and business which are on the land where the advertisement is. In other words, McDonalds could have a sign on its land, but could not have a billboard sign a mile away.

The ordinance is to be effective soon, and Gomez is worried about losing the income that he gets from billboards. He has three billboards that are leased to three different customers; one is advertising a restaurant, one proclaims the religious beliefs of a customer, and the third is a political ad for a candidate in an upcoming election.

Gomez has approached his lawyers, asking what rights, if any, he might have to continue to lease the billboards. 

Note: Ignore any potential constitutional "takings" issues.

Identify the problem and set priorities

The obvious problem is that Gomez will be in violation of the law if he continues to have his billboards up after the ordinance goes in to effect. But we need to dig a bit deeper, and figure out more specifically what the problem is. 

Sometimes you determine what the precise issue is by eliminating things that aren’t at issue. We know, for example, that Gomez doesn’t have a contract with the county that allows him to have billboards, so we can eliminate contract law as an issue. The First Amendment right to free speech immediately comes to mind, since the First Amendment limits the government’s right to interfere with what people want to say. So, the issue seems to be “can the government limit the right to free speech by prohibiting off-premise signage?”

Deepen understanding and gather relevant information

Once we know what the issue is, we have to conduct some research to figure out how to think about the problem. The First Amendment says that “Congress shall make no law … abridging the freedom of speech ….” The ordinance isn’t a law that Congress made, but a local ordinance, but we know that the First Amendment is interpreted to mean “the government shall make no law … abridging the freedom of speech.” And, of course, this law abridges the right of free speech. 

But certainly the government can make laws that limit what people can say. The government could, for example, pass a law that says you cannot falsely yell “fire” in a crowded theater. So, that means that the First Amendment is interpreted “the government shall make no law … abridging the freedom of speech unless it is reasonable to do so under the circumstances.”

When is it reasonable for the government to limit the right to speak freely? Well, the law provides that the government may regulate the time, manner, and place of speech for the common good, but it treats speech about political and religious matters differently than it treats speech about commercial matters. It can, for example, regulate the time, place and manner of commercial speech whenever the rules are reasonably related to a legitimate goal. It can regulate the time, place and manner of speech about political and religious matters only when the speech is likely to immediately cause lawless action or presents an immediate harm. 

 Enumerate options and anticipate consequences

Sometimes we tend to think in absolutes. For example, it might be easy to think that the ordinance is either valid or it isn’t valid. But sometimes, the absolutes aren’t the only options. For example, there are a number of options here.

  1. The entire ordinance is valid.
  2. The ordinance is valid as it pertains to one of the billboards, but not the other two.
  3. The ordinance is valid as it pertains to two of the billboards, but not the other one.
  4. The entire ordinance is invalid.

That requires us to think about why we might treat one billboard differently from the others. What meaningful differences are there about these billboards? Well, one of the billboards is an advertisement for a restaurant, which is pure commercial speech. Another is about a religious message. The third is about a political issue.  As we learned when we were gathering information, a government is much more free to regulate commercial speech than it is to regulate speech about religious and political matter.

Assess the situation and make a preliminary decision

The government can regulate the time, place, and manner of commercial speech whenever the rules are reasonably related to a legitimate goal. Regulating billboards is a form of regulating the manner of speech; the government is not prohibiting the commercial speech, it is only saying that the speech cannot be on billboards. The county has a legitimate goal of raising property values, of making the county look better, and of eliminating things that might distract drivers, and getting rid of billboards is reasonably related to those goals. So, I conclude that the County can lawfully outlaw billboards used for commercial advertising.

The government is prohibited from the regulating time, place, and manner of speech pertaining to religious and political matters unless the speech is likely to immediately cause lawless action or presents an immediate harm. There is nothing about billboards with a religious message or about a political candidate that is likely to immediately cause lawless action or presents an immediate harm. So, I conclude that the County cannot lawfully outlaw billboards used for a religious message or about a political candidate.

I will encourage Gomez to take down the billboard for the restaurant, but to challenge the County’s right to enforce the ordinance for the other two billboards.

Now it is your turn:

Scenario 2

New Mexico High School is a public high school. Dyson Stevens, a senior at the high school, is point guard for the basketball team; Pauline Williams is a cheerleader. Last year, Pauline called the police, and claimed that she had been sexually assaulted by Dyson. She told the police that she and Dyson were at the same party, but not together. He cornered her in the bathroom, groped her, and began ripping her clothes off when someone came into the bathroom; Dyson fled. Dyson denied the charge, and said that they were initiating consensual sexual contact when they were interrupted. No charges were brought against Dyson.

A problem arose during the first basketball game of the season this year. Dyson had been fouled, and was at the free throw line. As was the custom, the cheerleaders were yelling him on, except for Pauline. She stepped back from the rest of the cheerleaders, turned her back to the court, and crossed her arms. Dyson took his shots, making the first one and missing the second.

Immediately afterwards, the basketball coach talked with the cheerleading coach, who then talked with Pauline. Pauline said that she was not going to cheer for someone who had tried to rape her. The coach said that she had to cheer for all of the players.

A few minutes later, Dyson was again fouled, the scene described above repeated itself; while Dyson took his free throw shots, Pauline stepped back from the rest of the cheerleaders, turned her back to the court, and crossed her arms. 

Again, the cheerleading coach, this time joined by the high school principal, talked with Pauline. Again, she said that was not going to cheer for someone who tried to rape her. Again, the coach said that she had to cheer for all of the players. The principal then told her that unless she was going to cheer for all the players, including Dyson, she had no place on the cheerleading squad. She repeated that she would not cheer for Dyson. The coach then told her that she was cut from the team.

Pauline has now gone to meet with some lawyers, asking whether she can be cut from the high school cheerleading squad for refusing to cheer under the circumstance. 

Your task is to work your way through the IDEA model. As this is not an exercise in legal research, I am not expecting you to conduct your own independent legal research. Instead, I am providing some excerpts from 3 separate cases that may inform your analysis. See below. These cases provide the legal precedent or law that should be used in your analysis. As you read these materials, please keep in mind that the entire cases have not been provided rather a substantially edited version so that you have less reading.

To complete this assignment, please prepare a written analysis which should be set up using the following format and include the appropriate discussion.

  1. Identify the legal issue (This is the I - Identify in the IDEA Model) 20 points
  2. Identify both sides of the legal issue; remember, each and every legal issue is seen/argued differently depending on what side of the issue you are on. Here you need to argue all sides of the issue. (This corresponds with the D -Deepen Understanding in the IDEA Model)  20 points
  3. 3. Analyze both sides of the issue based on the legal precedent provided; please cite the cases you used in the analysis.[1] (This corresponds with the E-Enumerate options section of the IDEA Model) 20 points
  4. Conclude the discussion by describing what you believe the outcome of the situation should be (This corresponds with the A-Assess the situation and make a preliminary decision section of the IDEA Model) 20 points
  5. Writing and presentation of analysis 20 points                                                                                                                                

             Total 100 Points

Be thorough and pay attention to detail!

Case Excerpts

89 S.Ct. 733

Supreme Court of the United States

John F. TINKER and Mary Beth Tinker, Minors, etc., et al., Petitioners,

v.

DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al.

No. 21.

Argued Nov. 12, 1968. Decided Feb. 24, 1969.

Opinion

Mr. Justice FORTAS delivered the opinion of the Court.

Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired—that is, until after New Year's Day.

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. . . . As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment.  It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the ‘marketplace of ideas.’ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

The record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

Reversed and remanded.

108 S.Ct. 562

Supreme Court of the United States

HAZELWOOD SCHOOL DISTRICT, et al., Petitioners

v.

Cathy KUHLMEIER et al.

No. 86–836.

Argued Oct. 13, 1987. Decided Jan. 13, 1988.

Opinion

 Justice WHITE delivered the opinion of the Court.

 This case concerns the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school's journalism curriculum.

 Petitioners are the Hazelwood School District in St. Louis County, Missouri; various school officials; Robert Eugene Reynolds, the principal of Hazelwood East High School; and Howard Emerson, a teacher in the school district. Respondents are three former Hazelwood East students who were staff members of Spectrum, the school newspaper. They contend that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of Spectrum.

 Spectrum was written and edited by the Journalism II class at Hazelwood East. The newspaper was published every three weeks or so during the 1982–1983 school year. More than 4,500 copies of the newspaper were distributed during that year to students, school personnel, and members of the community.

 The Board of Education allocated funds from its annual budget for the printing of Spectrum. These funds were supplemented by proceeds from sales of the newspaper. The printing expenses during the 1982–1983 school year totaled $4,668.50; revenue from sales was $1,166.84. The other costs associated with the newspaper—such as supplies, textbooks, and a portion of the journalism teacher's salary—were borne entirely by the Board.

 The Journalism II course was taught by Robert Stergos for most of the 1982–1983 academic year. Stergos left Hazelwood East to take a job in private industry on April 29, 1983, when the May 13 edition of Spectrum was nearing completion, and petitioner Emerson took his place as newspaper adviser for the remaining weeks of the term.

 The practice at Hazelwood East during the spring 1983 semester was for the journalism teacher to submit page proofs of each Spectrum issue to Principal Reynolds for his review prior to publication. On May 10, Emerson delivered the proofs of the May 13 edition to Reynolds, who objected to two of the articles scheduled to appear in that edition. One of the stories described three Hazelwood East students' experiences with pregnancy; the other discussed the impact of divorce on students at the school.

 Reynolds was concerned that, although the pregnancy story used false names “to keep the identity of these girls a secret,” the pregnant students still might be identifiable from the text. He also believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students at the school. In addition, Reynolds was concerned that a student identified by name in the divorce story had complained that her father “wasn't spending enough time with my mom, my sister and I” prior to the divorce, “was always out of town on business or out late playing cards with the guys,” and “always argued about everything” with her mother. Reynolds believed that the student's parents should have been given an opportunity to respond to these remarks or to consent to their publication. He was unaware that Emerson had deleted the student's name from the final version of the article.

Reynolds believed that there was no time to make the necessary changes in the stories before the scheduled press run and that the newspaper would not appear before the end of the school year if printing were delayed to any significant extent. He concluded that his only options under the circumstances were to publish a four-page newspaper instead of the planned six-page newspaper, eliminating the two pages on which the offending stories appeared, or to publish no newspaper at all. Accordingly, he directed Emerson to withhold from publication the two pages containing the stories on pregnancy and divorce. He informed his superiors of the decision, and they concurred.

 Respondents subsequently commenced this action in the United States District Court for the Eastern District of Missouri seeking a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages. After a bench trial, the District Court denied an injunction, holding that no First Amendment violation had occurred.

 Students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” They cannot be punished merely for expressing their personal views on the school premises—whether “in the cafeteria, or on the playing field, or on the campus during the authorized hours,”—unless school authorities have reason to believe that such expression will “substantially interfere with the work of the school or impinge upon the rights of other students.”

 We have nonetheless recognized that the First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings,”, and must be “applied in light of the special characteristics of the school environment.” A school need not tolerate student speech that is inconsistent with its “basic educational mission,” even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was “sexually explicit” but not legally obscene at an official school assembly, because the school was entitled to “disassociate itself” from the speech in a manner that would demonstrate to others that such vulgarity is “wholly inconsistent with the ‘fundamental values' of public school education.” We thus recognized that “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,” rather than with the federal courts. It is in this context that respondents' First Amendment claims must be considered.

 We conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

 In sum, we cannot reject as unreasonable Principal Reynolds' conclusion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions imposed upon journalists within [a] school community” that includes adolescent subjects and readers. Finally, we conclude that the principal's decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred.

The judgment of the Court of Appeals for the Eighth Circuit is therefore Reversed.

 268 F.3d 275

United States Court of Appeals,

Fifth Circuit.

Sissy LITTLEFIELD; et al., Plaintiffs,

Sissy Littlefield; David Littlefield; Joel Odom; Susan Becmer; Nicholas Becmer; et al., Plaintiffs–Appellants,

v.

FORNEY INDEPENDENT SCHOOL DISTRICT; Keith Bell; Kenneth Cleaver; Clarence Doggan; Jay Calvin; Jim Jacobs; Rick Townsend; David Walker; Chester J. St. Clair, Defendants–Appellees.

No. 00–10965.

Sept. 26, 2001.

OPINION

 FACTUAL AND PROCEDURAL BACKGROUND

 Plaintiffs–Appellants are students and parents of students who attend schools situated in the Forney Independent School District (“Forney”) in Forney, Texas. Plaintiffs–Appellants sued Defendants–Appellees asserting several constitutional challenges to the mandatory school uniform policy (“Uniform Policy” or “Policy”) adopted by Forney. Defendants–Appellees are Forney; Chester St. Clair, General Superintendent of Forney; and Keith Bell, Kenneth Cleaver, Clarence Doggan, Jay Calvin, Jim Jacobs, Rick Townsend, and David Walker, Members of the Forney Board of Trustees (collectively referred to hereinafter as “Defendants”).

 In the spring of 1999, Forney, acting pursuant to Texas Education Code § 11.162 (Links to an external site.)Links to an external site. adopted a district-wide mandatory Uniform Policy applicable to its students. The Uniform Policy apparently originated as a result of the efforts of General Superintendent St. Clair, who observed the successful implementation of uniform policies employed in other Texas school districts. In addition to St. Clair, school board members and school officials conferred with their counterparts at other Texas public schools and reviewed studies on the efficacy of school uniform policies. As found by the district court,

 St. Clair came to the conclusion that the implementation of a school uniform program would, according to his research, have the following beneficial effects on the students and the system as a whole: improve student performance, instill self-confidence, foster self-esteem, increase attendance, decrease disciplinary referrals, and lower drop-out rates.

 The Forney School Board made factual findings that the school uniforms would improve the learning environment at the schools, and on April 19, 1999, adopted the Uniform Policy now at issue. The Uniform Policy applied to all 2,500 students in each of the schools within the district and was implemented at the beginning of the 1999–2000 school year.

 The disputed Uniform Policy requires students to wear solid color polo-type shirts with collars, oxford-type shirts, or blouses with collars in one of four colors (white, yellow, red, or navy blue). The shirts may be either short or long-sleeved but must be tucked in at all times. Students must also wear either blue or khaki colored pants, shorts, skirts, or jumpers. The shorts and skirts must be of appropriate size and length (no shorter than three inches above the knee). The Policy prohibits the wearing of, inter alia, denim, leather, suede, or vinyl, or any clothing that suggests gang affiliation, could conceal contraband, or could create a distraction. Certain other clothing items are also banned, such as open-heeled sandals, flip-flops, military boots, overalls, athletic pants, spandex, baggy clothing, and sleeveless shirts. The Uniform Policy also regulates the sizes of manufacturer logos permitted on clothing. Prior to the adoption of the Policy, Forney had a dress code that prohibited certain types of clothing deemed unsafe, immodest, or otherwise inimical to the educational process.

 Forney asserts that the Uniform Policy was adopted to promote school spirit and school values, and “to promote decorum (and thereby the notion that school is a place of order and work), to promote respect for authority, to decrease socioeconomic tensions, to increase attendance, and to reduce drop out rates.” Forney also asserts that it intended the Policy “to increase student safety by reducing gang and drug related activity as well as the likelihood of students bringing weapons to school undetected and by allowing teachers to more readily distinguish Forney students from outsiders.”

 Failure to comply with the Uniform Policy results in disciplinary action, which could lead to expulsion. As stated in the Forney District–Wide Student Handbook, “if a non-exempt student attends school in violation of this uniform policy, the following disciplinary steps will be taken in order: [1] the student will be placed immediately in isolation on the ca

 


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