Class: Business Law Bus' 02

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WELCOME!

• Class Business Law (Bus. 02)
• Instructor Carolyn Johnson
• Directions
• As you enter, please tell me your name.
• Then pick up a student information form and a
  folder from the entrance table.
• Write your name on the tab of the folder, (last
  name first, then first name).
• Complete the student information card while you
  wait for class to start.

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Agenda

• Welcome and Instructor Introduction
• Class Administration Office Hours, Folder and
  Box System
• Student Introductions
• Class Expectations
• Ground Rules
• Small Group Formation
• Study Tips
• QA
• Mini-lecture
• Class Review
• Student Feedback
• Preparation for Next Class

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BUSINESS LAW TODAY Essentials 8th Ed.Roger
LeRoy Miller - Institute for University Studies,
Arlington, TexasGaylord A. Jentz - University of
Texas at Austin, Emeritus
The Historical and Constitutional Foundations
Chapter 1
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Learning Objectives

• What is the common law tradition?
• What is a precedent? When might a court depart
  from precedent?
• What is the difference between remedies at law
  and remedies in equity?
• What constitutional clause gives the federal
  government the power to regulate commercial
  activities among the various states?
• What is the Bill of Rights? What freedoms are
  guaranteed by the First Amendment?

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Sources of American Law

• Constitutional Law.
• Found in text and cases arising from federal and
  state constitutions.
• U.S. Constitution is the supreme law of the land.
• Statutory Law.
• Laws enacted by federal and state legislatures.
• Local ordinances.
• Uniform Laws (e.g.,Uniform Commercial Code).

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Sources of American Law

• Administrative Law.
• Rulemaking--Rules, orders and decisions of
  administrative agencies, federal, state and
  local.
• Administrative agencies can be independent
  regulatory agency such as the Food and Drug
  Administration.
• Adjudication--agencies make rules, then
  investigate and enforce the rules in
  administrative hearings.

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The Common Law Tradition

• Early English Courts of Law.
• Kings courts started after Norman conquest of
  1066.
• Established the common lawbody of general legal
  principles applied throughout the English empire.
  
• Kings courts used precedent to build the common
  law.

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Stare Decisis

• Stare Decisis
• Practice of deciding new cases based on
  precedent.
• A higher courts decision based on certain facts
  and law, is a binding authority on lower courts.
• Helps courts stay efficient.

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Equitable Remedies Courts

• Remedy means to enforce a right or compensate
  for injury to that right.
• Remedy at Law in kings courts, remedies were
  restricted to damages in either money or
  property.
• Equitable Remedy based on justice and fair
  dealing a chancery court does what is right
  specific performance, injunction, rescission.
• Plaintiffs (injured party initiating the
  lawsuit), Defendants (allegedly caused injury).

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Exhibit 1-1
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Classifications of Law

• Substantive vs. Procedural Law
• Substantive laws that define and regulate rights
  and duties.
• Procedural laws that establish methods for
  enforcing and protecting rights.
• Civil Law and Criminal Law
• Civil private rights and duties between persons
  and government.
• Criminal public wrongs against society.

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Classifications of Law

• National and International Law
• National laws of a particular nation.
• Civil vs. Common Law Civil law countries based
  on Roman code (e.g., Latin America).
• International body of written and unwritten laws
  observed by nations when dealing with each other.

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Comparision of Legal Systems
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Constitutional Powers of Government

• A Federal Form of Government the federal
  constitution was a political compromise between
  advocates of state sovereignty and central
  government.
• Separation of Powers Executive, Legislative and
  Judicial. Provides checks and balances.
• Legislative enacts laws
• Executive enforces laws
• Judicial declares laws/actions unconstitutional.

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The Commerce Clause

• U.S. Constitution gives Congress the power to
• regulate Commerce with foreign Nations, and
  among the several States, and with the Indian
  tribes. (Art. 1 8)
• Greatest impact on business than any other
  Constitutional provision.

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The Commerce Clause

• Gibbons v. Ogden (1824).
• To Chief Justice Marshall, commerce meant all
  business dealings that substantially affected
  more than one state.
• The national government had the exclusive power
  to regulate interstate commerce.
• Today commerce clause applies to e-commerce
  internet transactions.

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Expansion of National Powers

• Wickard v. Filburn (1942).
• Purely local production, sale and consumption of
  wheat was subject to federal regulation.
• CASE 2.1 Heart of Atlanta Motel v. U.S. (1964).
  
• Motel that provided public accommo-dations to
  guests from other states was subject to federal
  civil rights legislation.

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Commerce Power Today

• Theoretically the federal government has
  unlimited control over all business transactions
  since any enterprise (in the aggregate) can have
  a substantial effect on interstate commerce.
• Practical Limits Supreme Court has curbed
  federal regulatory powers in U.S. v. Lopez (1995)
  and U.S. v. Morrison (2000).

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Regulatory Powers of the States

• Tenth Amendment reserves all powers to the states
  that have not been expressly delegated to the
  national government.
• State have inherent police powers.
• Police powers include right to regulate health,
  safety, morals and general welfare.
• Includes licensing, building codes, parking
  regulations and zoning restrictions.
• Dormant Commerce Clause ?

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Dormant Commerce Clause

• U.S. Supreme Court has interpreted commerce
  clause to give national government exclusive
  power to regulate.
• States only have a dormant (negative) power to
  regulate interstate commerce.
• Dormant power comes into play when courts balance
  states interest vs. national interest, e.g.,
  internet transactions.
• CASE 2.2 Granholm v. Heald (2005).

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The Supremacy Clause

• Supremacy Clause Article VI of the Constitution
  provides that Constitution, laws and treaties of
  the United States are the supreme law of the
  land.
• Concurrent in few areas, both states and federal
  government share powers.
• Preemption when Congress chooses to act in a
  concurrent area, federal law preempts state law.

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Taxing and Spending Powers

• Article I Section 8 Congress has the power to
  lay and collect taxes, duties, imposts and
  excises.
• Today if federal tax has a reasonable
  relationship to revenue production, it will be
  held constitutional.
• Congress can spend tax revenues on any express or
  implied constitutional power.

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Business and the Bill of Rights

• 1791 Ten written guarantees of protection of
  individual liberties from government
  interference.
• Originally Bill of Rights only applied to the
  federal government.
• Today the Bill of Rights has been
  incorporated and applied to the States as well.
• Some protections apply to businesses.

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First Amendment Freedom of Speech

• Right to Free Speech is the basis for our
  democratic government.
• Free speech also includes symbolic speech,
  including gestures, movements, articles of
  clothing.
• Texas v. Johnson (U.S. 1989).
• Hodgkins v. Peterson (7th Cir. 2004).

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Corporate Speech

• Commercial speech (advertising) is given
  substantial protection. Government restrictions
  must
• Seek to implement substantial government
  interest,
• Directly advance that interest, and
• Must go no further than necessary to accomplish.
• Corporations also have protected political speech
  (although not to the degree of a natural person).

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Unprotected Speech

• U.S. Supreme Court has held that certain speech
  is NOT protected
• Defamatory speech.
• Threatening speech that violates criminal laws.
• Fighting Words.
• Obscene Speech is patently offensive, violates
  community standards and has no literary,
  artistic, political or scientific merit.
• CASE 2.3 Lott v. Levitt (2007).

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Online (Obscene) Speech

• Protected or Unprotected?
• Some of Congress attempts to protect children
  from online pornography have been ruled
  unconstitutional restriction on free speech.
• Communications Decency Act (1996).
• COPA (1998-challenged, in court).
• Childrens Internet Protection Act (2000) which
  requires filters for computers in public
  libraries and public schools). Challenged, in
  court.
• What about hate speech on the web?

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Freedom of Religion

• First Amendment guarantees that Congress shall
  make no law respecting an establishment of
  religion, or prohibiting the free exercise
  thereof
• Establishment clause no state-sponsored religion
  or preference for one religion over another.
• Free Exercise person can believe what he wants,
  but actions may be unconstitutional.
• What about freedom of religion and illegal drug
  use?

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Due Process

• Procedural any government decision to take life,
  liberty or property must be fair. Requires
  Notice and Fair Hearing.
• Substantive focuses on the content or the
  legislation (the right itself).
• Fundamental Right requires compelling state
  interest.
• Non-Fundamental rational relationship to state
  interest.

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Equal Protection

• 14th Amendment A state may not deny to any
  person within its jurisdiction the equal
  protection of the laws.
• Government must treat similarly situated
  individuals (or businesses) in the same manner.
• Courts apply different tests
• Minimum scrutiny-economic rights.
• Intermediate scrutiny.
• Strict Scrutiny fundamental rights.

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Privacy Rights

• Fourth amendment protects against unreasonable
  search and seizures.
• Griswold v. Connecticut (1965) found a right to
  personal privacy implied in constitution,
  expanded in Roe v. Wade (1973).
• Website privacy policies. What about private
  information on the internet?
• What about USA PATRIOT ACT (2001)?
• HIPAA (1996) (healthcare privacy).

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Appendix to Chapter 1

• Finding Statutory Law.
• United States Code (USC).
• State Statutes.
• Finding Administrative Law.
• Code of Federal Regulations (CFR).
• Finding Case Law (Case Citations).

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Exhibit 1A-1
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Appendix

• Reading Understanding Case Law
• Legal cases are identified by a legal citation
  (or a cite) as the example below
• Nunez v. Carabbas Italian Grill, Inc., 448 Mass.
  170, 859 N.E.2d 801 (2007).

Title First Party is Plaintiff, second party is
Defendant. The parties are either italicized or
underlined.
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Appendix

• Reading Understanding Case Law
• Legal cases are identified by a legal citation
  (or a cite) as the example below
• Nunez v. Carabbas Italian Grill, Inc., 448 Mass.
  170, 859 N.E.2d 801 (2007).

This is a 2007 State Supreme Court Case found in
volume 448, page 170 of the Massachussets
Reports, OR volume 859, page 801 of the
NorthEastern Reporter 2nd.
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Learning Objectives

• What is the common law tradition?
• What is a precedent? When might a court depart
  from precedent?
• What is the difference between remedies at law
  and remedies in equity?
• What constitutional clause gives the federal
  government the power to regulate commercial
  activities among the various states?
• What is the Bill of Rights? What freedoms are
  guaranteed by the First Amendment?

37
Agenda

• Welcome and Instructor Introduction
• Class Administration Office Hours, Folder and
  Box System
• Student Introductions
• Class Expectations
• Ground Rules
• Small Group Formation
• Study Tips
• QA
• Mini-lecture
• Class Review
• Student Feedback
• Preparation for Next Class