LGST Quiz 1 (CH 1 - 2)

Wilcov Investment, L.P. v. Brad Wooley Auctioneers, Inc., 454 S.W3d 792

(Et al define) Facts: Wilcox entered into a contract with Wooley Auctioneers, Inc. to market and sell approximately 333 acres of real property owned by Wilcox in Arkansas. It was to be an "absolute" auction, meaning that the property would be sold to the highest bidder regardless of price. As the date of the auction approached, Wilcox expressed reservations about the auction to Auctioneers but decided to go through with the auction. Wilcox did not attend but was represented by two of his children and his attorney. Shollmier was the highest bidder with a bid of $235,000. Wilcox, who claimed the property was appraised in excess of $950,000, refused to complete the sale. Issue: Is specific performance an appropriate remedy or can money serve as an adequate remedy. Ruling: Shollmier is an innocent, non-breaching party. There was no evidence of collusion and Shollmier should be given title to the property as promised in the contract. Case Questions: 1. Money wasn't adequate because Shollmier contracted for the real estate via his highest bid. Since Wilcox breached his promise before the transaction was contemplated, Shollmier isn't out of pocket, but is entitled to purchase the property upon the terms and conditions set forth at the auction. 2. Wilcox is alleging that Shollmier conspired with the auctioneers to complete a quick sale at a discounted rate. However, the jury found no evidence of collusion. 3. Wilcox could have stipulated that a minimum auction price be paid as a condition of sale. Instead, he agreed to an "absolute auction" where the seller has virtually no protection on price.

What is Outside Counsel?

Attorneys employed by law firms who provide advice to businesses on issues such as formation, governance, labor, and employment law, regulatory compliance, environmental law, labor law, intellectual property law, and other legal issues related to business operations

Exceptions to the warrant requirement - 4 reasons

1. Basic Requirement: Warrantless search or seizure by government actor is illegal. Exceptions: -Exigent circumstances -Consensual searches -incident to arrest -plain view -Terry stops 2. Expectation of Privacy Not protected if "person knowingly exposes to the public, even in his own home or office, is not a subject of 4A protections" Includes body, clothing, personal belongings No expectation for public records or personal characteristics (e.g., DNA) 3. Reasonableness Requirement Totality of circumstances test 4. Is it a Search or Seizure under the Fourth Amendment? Physical searches: Dog sniffs and electronic surveillance Physical seizure of persons: Occurs when a person is detained by the government and not free to leave at will. Physical seizures of Property: Occurs when a meaningful interference with the individual's possessory interest in property.

What are the primary sources of law in the US? (work in conjunction and independently)

1. Constitutional law 2. Statutory law 3. Common law 4. Administrative law

What are the purposes of law?

1. Create a system of order that defines crimes and levies punishment for violations 2. Create a system for resolving disputes by providing a basis for deciding the legal interests and rights of parties 3. Creating reliability in business planning and commercial transactions by promoting good faith dealing among merchants and consumers

What are the three general functions of the constitution?

1. Establishes the three branches of Government 2. Delegates enumerated and limited powers to each branch 3. Provides procedural protections to citizens

What is strict scrutiny?

1. Government's objective must be compelling 2. Means chosen by the Government to advance that objective is necessary to achieve that compelling end 3. No less restrictive alternatives existed When the governmental action impairs a fundamental constitutional right or is based on a suspect classification (race, national origin, and alienage) The government has the high burden to overcome. Example: The state imposes a higher tax on Internet service providers who cater to Spanish speakers.

What are the strategic legal solutions - business strategies using legal analysis?

1. Noncompliance 2. Avoidance 3. Prevention 4. Value creation or legal competitive advantage

Article 2: Executive Powers ...

1. Power to carry out laws made by Congress 2. Power to enter into treaties and carry out foreign policy 3. Power to appoint federal officials and judges 4, Power to issue Executive Orders

Article 1: Congressional powers ...

1. Power to regulate Commerce (Commerce Clause) 2. Power to tax and spend Government funds 3. Power to regulate bankruptcy, patents, copyrights 4. Congress has power to make all laws necessary for carrying out its enumerated powers under the necessary and proper clause

Four part test subjects Governmental restrictions on commercial speech to intermediate-level scrutiny ...

1. Qualifies for the First Amendment protection so long as it concerns lawful activities and is not misleading 2. Substantial Government interest in regulating the speech must exist 3. Government must demonstrate that the restriction directly advances the claimed Government interest 4. Government restriction must not more extensive to achieve the Government's asserted interest

What are the standards of judicial review?

1. Rational basis 2. Intermediate-level scrutiny 3. Strict scrutiny

What are secondary sources of law in the US?

1. Restatements of law-American Law Institute (1920) - helps explain difficult legal areas 2. Model laws - The National Conference of Commissioners on Uniform State Laws - create uniform standard in state law to promote federal uniformity

1. Big Papi is considering acquiring and merging with Lyft. What questions should he ask an attorney? 2. If the merger goes forward, what would need to happen?

1. Securities law attorneys to deal with the merger and stock transfers 2. Antitrust law justice department must approve the merger since it would constitute a monopoly

Constitutional law provides ...

1. The broad structure of state and federal governments, such as qualifications for offices and positions, setting rules for amending the constitution, and granting specific enumerated powers 2. Establishing the concept of federalism 3. Establishing individual rights and procedural protections

What is constitutional law?

Constitutional law provides the foundation for all other law in the US, it is the supreme law of the land and functions in tandem with other sources of law

Big Papi decides to purchase Uber due to their recent losses of $5.2 billion. What legal issues may this acquisition create?

Contract law, employment and labor law, environmental law, tax law, securities law, intellectual property

United States v. Alderman, 565 F.3d 641 (9th Cir. 2009)

2002 - Congress passes body armor act and makes it illegal for anyone who has been convicted of a felony to possess body armor Cedrick Alderman violates statute and challenged law's constitutionality - contended that Congress had exceeded its authority since the law was not sufficiently related to interstate commerce

South Dakota v. Dole

Court deferred to Congress' ability to attach spending conditions on federal highway funds distributed to the states for repairing and building highways. Congress has conditioned its transportation spending to a state's legal drinking age, and unless a state passed a law to raise the legal drinking age, it would lose 5% of highway funding. SD and other states challenged law as unconstitutional - court sided with Congress and ruled that the drinking age condition is permissible under spending authority

Arizona v. United States, 132 S. Ct. 2492 (2012)

2010 - State of Arizona passes the Support Our Law Enforcement and Safe Neighborhoods Act to address problems created by unlawful immigrants living and working within state borders. US Department of Justice filed suit against Arizona, seeking to invalidate the claim, on the basis that federal immigration status precluded individual states from enacting their own immigration laws. State of Arizona appeals to the S. Ct Facts: In 2010, the State of Arizona passed the Support Our Law Enforcement and Safe Neighborhoods Act to address problems which the legislature contended were being created by the large number of unlawful immigrants living and working within their state's borders. Among other provisions, the law created state immigration offenses and expanded the authority of local police to enforce immigration laws by requiring that individuals who were lawfully detained by the police (e.g., a traffic stop) to verify their citizenship and criminal penalties for unauthorized aliens who sought or engaged in work within Arizona. Procedural History: 1) US brings suit in U.S. District Court for the District of AZ . 2) District Court rules in favor of the US by granting their injunction on grounds the US is likely to win on the issue of preemption. 3) State of AZ appeals to the 9th Circuit Court of Appeals and loses. 4) State of AZ appeals to the US Supreme Court. 5) Writ of Certiorari, cert granted Issue: 1) is immigration is a matter within the purview of federal government? 2) When the federal government creates rules and sanctions with a clear intent to preclude state action, can courts enforce any state action that conflicts with established federal mandates? Ruling: The U.S. Supreme Court (Justice Kennedy) wrote the majority opinion and struck down the Arizona statute as unconstitutional because the statute conflicted

Most common forms of commercial speech ...

Advertising through print, television, radio, and internet

United States v. Lopez

Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Supreme Court overturned his conviction because the law had nothing to do with Commerce. This case represented a dramatic shift to limit Congress's Commerce Powers/ The Court found this a was a state police power and more appropriately handled by the states rather than Congress. The Fix/aftermath: Congress then re-enacted the law by added the language that gun possession in the schools affected economic activity and productivity by making it more difficult for students to obtain an education.

What is political speech by corporations?

Another form of commercial speech occurs when corporations and other business entities fund political speech or engage in corporate advocacy of a particular candidate or activity

What are the differences between criminal and civil law?

Civil laws are designed to compensate parties for losses as a result of another's conduct, while criminal laws are a protection of society. The violation of criminal laws results in penalties to the violater - such as fines or imprisonment

Constitutional Restrictions on States Regulation of Commerce ...

Commerce Clause restricts the police powers of the states States cannot discriminate against or unduly burdening interstate commerce A state can regulate commerce as long as 1. it does not impose a discriminatory tax on out of state businesses and 2. if the state law if a legitimate effort to regulate health, safety, and welfare

United States v. American Library Association, 539 U.S. 194 (2003)

Congress enacted legislation to create E-Rate program, providing discounted internet rates and Library Services and Technology - providing financial grants to libraries. Congress also approved Children's internet protection act - software blocks obscene material. The CIPA conditions the receipt of federal funds under the E-rate program. A group of libraries and citizens contended that connecting LSTA funds to CIPA compliance was unconstitutional

Tax and Spend Powers (Article 1, Section 8) ...

Congress has the power to impose taxes and spend federal tax revenues in anyway that promotes the common defense and general welfare of the US Affordable Care Act. Chief Justice John Roberts upheld the individual mandate of Obama Care under Congress' power to impose taxes

Interstate Commerce ... (between the states)

Congress has the power to regulate 1. the channels of interstate commerce such as railways and highways, 2. the instrumentalities of interstate commerce, 3. articles moving in interstate commerce

What is the Commerce Clause (Article 1, Section 8)

Congress is granted the express power to regulate Commerce among the several states

First Amendment ...

Congress shall not make a law that encroaches on religion, press, speech, assembly, and petition of grievances Yes, courts may place reasonable restrictions on the time, place, and manner of political expression in cases where life may be threatened.

US Constitution - basics ...

Constitution was ratified on June 21, 1788. It is one of the shortest and most flexible constitutions in the world. It sets forth the basic structure of the Federal Government, fundamental rights, and protections. Key concept is that it grants limited power to the Federal Government including commerce, bankruptcy, patents, and copyrights

Article 5

Describes the process for amending the Constitution

Article 6

Establishes Constitution and federal law as the supreme law of the US over any conflicting state law - authorizes national debt

Article 1

Establishes legislative branch (Congress, HOR, Senate), sets qualifications for members, grants congressional powers

Article 2

Establishes the executive branch (President), sets qualifications for the presidency, grants executive powers

Article 3

Establishes the judicial branch with a federal system of courts, including a Supreme court

Article 4

Establishes the relationship between the states and Federal Government, describes how to admit new states to the Union

What are exceptions to the warrant requirement?

Exigent circumstances, consensual searches, search incident to arrest, plain view, brief investigatory stops, limited to Governmental action

R.J. Reynolds Tobacco Company v. Food and Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012)

Fact: Among those proposed by the FDA were images of a man exhaling cigarette smoke through a tracheotomy hole in his throat and a pair of diseased lungs next to a pair of healthy lungs. R.J. Reynolds and four other tobacco companies (RJR) challenged the rule arguing that it would infringe on their commercial speech rights under the First Amendment. The trial court ruled in favor of RJR and the FDA appealed. Issue: Did the government violate RJR's First Amendment rights? Ruling: U.S. Court of Appeals for the District of Columbia upheld the trial court's decision in favor of RJR. The court applied the Central Hudson test and ruled that the FDA had failed to supply any evidence that the rule which restricted the commercial speech directly advances a substantial government interest. The court ruled that the labels were not purely factual because they did not convey any warning information or offer any information about the impact of smoking. Rather, the images were intended to generate emotional responses. Therefore, the FDA could not meet their burden under the Central Hudson test with respect to how the graphic warnings directly advance the government's interest. Case Questions: 1. This question is intended to focus attention on different levels of scrutiny and the impact on the final decision. 2. The FDA needed more persuasive evidence that the rule advanced the interest of the government.

Gonzalez v. Raich, 545, U.S. 1 (2005)

Facts: 1996 CA votes approve medical use of marijuana. In 2002, DEA agents execute search warrant at residence of Diane Monson and seize her marijuana plants. They sue, lose in state court, win in the Ninth Cir,, and the Supreme Court reverses the 9th Cir. Holding: Finding the Controlled Substances Act is a valid exercise of congressional powers under the Commerce Clause.

Day v. Case Credit Corp., 2007 U.S. Dist. LEXIS 64045 (E.D. Ark. 2007)

Facts: Case finances the sale of farm equipment. Day purchased farm equipment financed by Case, but Day never signed the sales contract. Case's employee forged Day's signature on the sales contract with a higher price so Day could pocket the difference. Case was aware of the forgery but did not inform Day. When Day could not pay back the loan, Case sued to recover the farm equipment or compel payment. 1. If the court applies the clean hands doctrine, will Case be able to recover the farm equipment because Day is unable to make payments? Why or why not? A: No. Courts are not inclined to decide disputes based on technicalities that benefited a party who acted dishonestly and here the transaction was a bad-faith, fraudulent transaction. 2. Are Case's hands clean? Why or why not? A: No. Case's hands are stained by bad faith, misrepresentation and deceit in their awareness of the forgery followed by a failure to act.

Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)

Facts: In 2005, the state of California passed a law that banned the sale or rental of violent video games to anyone under age 18 and required warning labels beyond the existing Entertainment Software Ratings Board's voluntary rating system. The law covered games in which players had the options of killing, maiming, dismembering, or sexually assaulting characters that represent human beings. Entertainment Merchants Association sought to have the law declared unconstitutional. Procedural history:Fed Court found statutue violated 1st, Ninth Cir affirmed, Cal. Appealed to USCt. Issue: Are video games are considered speech, similar to plays and movies, and are therefore protected by the First Amendment despite the fact that some people find the video games offensive? Ruling: The U.S. Supreme Court ruled in favor of the video game industry and struck down the law as unconstitutional. Because the law tried to restrict speech, the Court applied a strict scrutiny analysis to the statute and found that California failed to meet their burden of proving a compelling government interest through the use of expert testimony, and the law was both too broad/ too narrow. Case Questions: 1. Content-based regulation of speech by the government triggers strict scrutiny. 2. Perhaps. While we can't know for sure, the Court did point out that the government had failed to carry their burden and this suggests that scientific proof may help the government overcome a strict scrutiny analysis.

United States v. Ulbricht, 31 F. Supp 3d 540 (S.D.N.Y 2014)

Facts: In 2014, a federal grand jury indicted Ross Ulbricht (dread Pirate Roberts-Princess Bride character) with conspiracy to commit money laundering. Ulbricht designed, launched, and operated Silk Road. A Tor based website that was used for drug trafficking and child pornography. Ulbricht earned Bitcoin commissions on each transaction. Procedure/Issue: Ulbricht filed a motion to dismiss the indictment on the theory that Bitcoin did not meet the definition of a financial transaction for purposes of the money laundering statute. Holding: The Distrcit Court held that the use of Bitcoin did meet the definition of a financial transaction. Since Bitcoins may be exchanged for legal tender that can be construed as an instrument in money laundering. Post script: Ulbricht was convicted of all counts after a four-week trial and was sentenced to life in prison and forfeiture of $184 million.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018)

Facts: In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. P: Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA. The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission's ruling. Question Does the application of Colorado's public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? Ginsberg and Sotomayor only dissents. Supreme Court: By failing to act in a manner neutral to religion, the CO Civil Rights Commission violated the First Amendment. Court overturned the Colorado Civil Rights Commission.

United States v. Jones, 565 U.S. 400 (2012)

Facts: Police suspected Jones of drug trafficking and asked a judge for a search warrant to attach a global positioning system (GPS) tracking device to the underside of Jones's Jeep. The judge granted the warrant, but the police exceeded the scope of the warrant in both geography and length of time. Using evidence obtained from the GPS device, Jones was eventually charged and convicted of participating in a criminal conspiracy. Jones appealed his conviction, arguing that 24-hour surveillance through a GPS tracker violates the Fourth Amendment's right against unreasonable search and seizure. The appellate court overturned Jones's conviction, holding that the police action was an unlawful search because it violated Jones's reasonable expectation of privacy. Issue: Was the use of a GPS tracker attached to Jones's vehicle a "search" within the meaning of the Fourth Amendment that requires a warrant? Ruling: Yes. A vehicle is an "effect" as defined in the Fourth Amendment and the government's use of a GPS device "physically occupied private property for purposes of obtaining information." The government needs a warrant. Case questions: 1.Some examples of other personal effects: wallets, purses, smartphones, and the like. One has only a limited reasonable expectation of privacy when driving or walking on public roads. Still, the physical occupation of the GPS device was an important factor in this case even if the vehicle is taken into the public. 2. Probably not since it would fall outside of reasonable expectation of privacy

United States v. Alvarez, 567 U.S. 709 (2012)

Facts: The Stolen Valor Act of 2005 made it a federal crime to make false claims related to receiving military decoration or honors. The penalty for false claims about the Congressional Medal of Honor was enhanced to include up to one year in prison. Alvarez was an individual who served as a member of a municipal water district board and introduced himself and included facts about his past including that he served as a marine, was wounded, and received the Congressional Medal of Honor. None of these representations were true. Alvarez was charged with violating the Stolen Valor Act and pled guilty, but reserved the right to challenge the constitutionality of the law based on the First Amendment upon appeal. Ninth Circuit ruled for Alvarez. Issue: Since Alvarez's statements were false, is he entitled to First Amendment protection? Ruling: The U.S. Supreme Court ruled in favor of Alvarez and upheld the lower court's decisions that the statute violated the First Amendment. The Court ruled that their previous decisions made clear that content-based restrictions on speech were presumed to be invalid and that it was the government's responsibility to demonstrate a compelling interest. The Court rejected the government's argument that false speech is not protected and pointed out several instances in which they had previously ruled that falsity alone does not make a statement automatically outside the protection of the First Amendment. Case Questions 1.Opinion 2. If Congress drafts a different law, it could not be content-based regulation. 3. Critical Thinking: This question is intended to stimulate discussion on the difficulty in drawing lines for free speech. Justice Holmes' famous counsel on the limits of the First Amendment as not protecting "one who yells fire in a crowded theatre" may be a familiar start

Bill of Rights, the basics ...

First: Freedom of Speech Second: Right to Bear Arms Fourth: Unlawful search and seizure Fifth: Right against self incrimination Sixth: Right to criminal jury Seventh: Right to civil jury Eighth: Right against cruel and unusual punishment

What is the equal protection clause?

Government must treat people who are similar situated equally

What is rational basis review?

Government need only show that their action advanced a legitimate Government objective and the action was minimally related to the Government's objective Was the Government action for a legitimate governmental objective such as: 1)Public welfare, health, or safety , and 2)Was it related to the governmental objective? Example: the state creates a new agency to regulate all internet service providers.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)

Hillary the Movie By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional Facts: an attempt to regulate big money campaign contributions by corporations and labor unions in federal elections, Congress enacted the Bipartisan Campaign Reform Act in 2002 (commonly referred to as the "McCain-Feingold Act"), which imposed a wide variety of restrictions on "electioneering communications," including an outright ban on issue advocacy advertising or issue ads paid for by corporations and labor unions. Citizens United, a conservative nonprofit corporation, produced a 90-minute documentary called Hillary: The Movie, which criticized then Senator Hillary Clinton and questioned her fitness for office. In a court challenge, the District Court ruled in favor of the FEC, and Citizens United appealed to the U.S. Supreme Court, arguing that the campaign reform finance law violated the First Amendment on its face and when applied to Hillary: The Movie and to ads promoting the film. P: The District Court ruled in favor of the Federal Elections Commission and Citizens United appealed to the US Supreme Court Issue: Does the Bipartisan Campaign Reform Act (BCRA) ban on electioneering c

What is the plain meaning rule?

If words in the statute have clear and widely understood meanings, the court applies the statute in accordance with the rule

What is In-House Counsel or General Counsel?

Large companies may have In-House or General Counsel. They may serve as corporate officers for the company and provide legal advice and board.

What is law?

Law is a body of rules of action or conduct prescribed by controlling authority, and having legal binding force that create duties, obligations, and rights as well as a mechanism to resolve disputes arising from those duties and rights

Branches of Government ...

Legislative; makes laws, approves presidential appointments, two senators from each state, number of congressmen is based on population Executive; signs laws, vetoes laws, pardons people, appoints federal judges, elected every four years Judicial; decides if laws are constitutional, appointed by the president, 9 justices, can overturn rulings by other judges (435 members in the house and 100 in the senate)

Article 7

Lists requirements for ratification of the Constitution

What are the categories of law?

Local, State, and Federal law

What is legal counsel in business and what is the role of counsel?

Managers often work closely with business attorneys, resulting in business opportunities, reduced costs, and limitation of risk and liability (attorneys in a business context may be referred to as counsel)

Cargill v. Monfort of Colorado, Inc., 479 U.S. 104 (1986)

Monfort is the nation's 5th largest beef packer, and is concerned about a merger of the nation's second largest packer with the third largest. Monfort believes the merger will give Cargill almost 21% of the market - believes it may be a violation of federal antitrust laws Facts: Monfort, a beef packer, is worried about the merger of the #2 and #3 meat packers. Monfort believes the merger may result in a violation of federal antitrust laws. 1. If Monfort files suit and the merger is deemed to violate antitrust laws, what type of remedy will Monfort want to receive and why? A. Relief in equity because they did not suffer monetary damages.

Types of searches and seizures ...

Physical searches, physical seizures of persons, physical seizures of property, electronic searches and seizures

Article 3: Judicial Powers ...

Power to invalidate state or federal laws that are unconstitutional

Composition of US Constitution ...

Preamble, 7 articles, 27 amendements

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Principle of Federalism - Article VI

What are the primary purposes of law?

Provide a system of order that defines conduct and consequences, promote equality and justice in society, provide a method for resolving disputes, promote good faith dealing among merchants, provide a degree of reliability in applying the law evenly

What is Article 5 - Supremacy Clause & Preemption?

Provides that federal laws are always supreme to any conflicting state law Preemption - power granted by the supremacy clause to override a state law

Public vs private laws ...

Public laws are derived from some Government entity, private laws are recognized as binding between two parties

Intrastate Commerce ... (in the state)

Purely a local activity, Congress can regulate if the activity produces in the aggregate a substantial economic affect on interstate commerce

What is precedent?

Notion of applying the law of previous cases to current cases with substantially similar circumstances

Katzenbach v. McClung U.S. 294 (1964)

Ollie McClung argued that his restaurant could not be prohibited from discriminating against African Americans because Congress did not have power under the Commerce Clause to enact the Civil Rights Act of 1964. His restaurant, Ollie's Barbecue, was located on a major road in Birmingham, Alabama and was close to an interstate highway. Half of its food came from outside Alabama, although its suppliers were local. It served a meaningful number of customers from outside the state. He argued that his business was small and had no impact on interstate commerce, and that he did provide limited services to African Americans. McClung prevailed in federal district court and received an injunction barring the enforcement of the Civil Rights Act against Ollie's Barbecue. Question Can the Civil Rights Act of 1964 prohibit discrimination against African Americans by a restaurant? Supreme Court overturned the district court decision for the ND of Alabama and found that Sectrion 201(a)(b) and© of the Civil Rights Act were a valid exercise of Congress's Commerce Clause Powers.

What is noncompliance (strategic legal solutions)?

Openly disregarding or flouting the law (UPS parking tickets)

What is permanence and preemption?

Permanence - constitution is thought to reflect the basic principles of a particular society and should be amended only in extraordinary cases Preemption - constitutional law is supreme over all other sources of law such as federal and state statutes, treaties, and common law

What is jurisprudence?

Science and philosophy of law - defines several schools of thought and how legal doctrines should be applied and developed

What is separation of powers?

System of checks and balances to ensure that no one branch becomes overly dominant over the other branches

Sokoloff v. Harriman Estate Development Corp., 754 N.E.2d 184 (N.Y. 2001)

Sokoloff purchased land in Village of Sands Point and hired Harriman to provide preconstruction services. Sokoloff paid Harriman a retainer free, but Harriman estimated the cost to be 1.8 million - Sokoloff decided to get quotes from other bidders but Harriman said that the plans could not be used to construct the home unless he was the builder Facts: Sokoloff purchased land in the Village of Sands Point and hired Harriman to draft architectural plans. S paid H a retainer of $10K and a total of $55K H estimated the cost to buidl was $1.8 million. S thought that was too much and decided to get a quote from other builders but use H's plans. H refused to let S use the plans. Q: 1. Can Harriman withhold the plans from Sokoloff? A: No. Doing so would clearly breach a duty owed to Sokoloff. 2. What legal theories or maxims would a court consider in deciding this case? A: The court would consider the legal theories of equitable relief and/or a remedy at law. The legal maxims that could apply are substance over form and the clean hands doctrine. 3. How should the court rule and why? A: The court ruled in favor of Sokoloff and ordered specific performance (deliver the plans).

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080

Stare Decisis and Departing from Precedent: Facts: In National Bellas Hess v. Department of Revenue of Illinois, 386 U.S. 753, the Supreme Court ruled that a mail-order reseller was not required to collect sales tax unless it had some physical contact with the state. In 2016, concerned about loss of sales tax from Internet sales, South Dakota passed a new law requiring the collection of sales taxes on out-of-state retailers who had more than $100k in annual sales of more than 200 separate transactions. Procedure: Wayfair sued under the theory that the Supreme Court decision in Hess was controlling precedent. Wayfair won summary judgment in the district court. Wayfair won in the state supreme court, affirming the decision of the lower court. The state of South Dakota appealed to the US Supreme Court. Issue: Is the Court's decision in Quill still binding precedent? Holding: The Court overruled Quill and held that modern e-commerce does not align with the Quill decision. Post script: This is why we now pay state sales tax on internet purchases.

Trump v. Hawaii, 138 S. Ct. 2393 (2018)

State of Hawaii challenged Trump's travel restrictions. On appeal from the Ninth Circuit who had struck down the restrictions. Holding: Court in a 5 to 4 decision ruled in favor of the Trump administration The President's Proclamation No. 9645 is a lawful exercise of the president's statutory authority and does not violate the Establishment Clause. Yes, although these have been more traditionally used for formalities and are not officially entering numerically in the Federal register like an Executive Order.

What is a presidential proclamation?

Statement issued by the president on a ceremonial occasion or to elaborate an issue of public or foreign policy - ceremonial proclamations, substantive proclamation

What is prevention (strategic legal solutions)?

Strategy of identifying a potential legal risk to one's business and taking deliberative steps to minimize those risks (limit of liability on baseball ticket)

What is statutory scheme?

Structure of statute and format of its mandates in a law

Substantive Law vs. Procedural Law ...

Substantive laws provide individuals with rights and create certain duties, while procedural laws provide a structure and set out rules for pursuing substantive rights

Strategic legal solutions: decision making ...

Successful business managers and their attorneys must evaluate their environment and applicable laws and make decisions after weighing all of those factors

What is the Due Process Clause (fourth and fifth amendments)?

The Due Process Clause of the Fifth and Fourteenth Amendments protect individuals from being deprived of "life, liberty, or property" without due process of law. Fourteenth Amendment: Makes the Bill of Rights applicable to the states. The Due Process Clauses serves two purposes: (1) to impose procedural requirements on federal and state governments, and (2) to limit the substantive power of the states to regulate certain areas affecting individual liberties. Equal Protection: The Clause that guarantees that the government will treat people who are similarly situated equally.

What is intermediate level scrutiny?

The Government must prove that their action advanced an important Government objective and that the action is substantially related to the Government's objective Is the government action higher than "legitimate" and substantially related to the government's objective? Example: A company wants to organize a protest and the city denies the permit because their protect would block traffic and endanger pedestrians.

What is Stare Decisis?

The principle that similar cases with similar facts should have similar outcomes - this helps businesses have confidence that a law will remain constant

Privacy rights ...

The right of privacy, although not explicitly mentioned in the Constitution, is implied by language in the First, Third, Fourth, Fifth, and Ninth Amendments, which created a constitutionally protected zone of privacy (Griswold v. Connecticut; Roe v. Wade).. Workplace Privacy: Most privacy rights afforded by the Constitution do not extend to the workplace; nonetheless, privacy rights have become increasingly important to business owners and managers as Congress and state legislatures seek to clarify workplace privacy rights.

What are effective business managers - legal decisions in a business environment, theory to practice:

Those who have learned to apply legal awareness in practice involving and recognizing opportunities for proactive business planning, limited liability, gaining a competitive edge, and adding value to the business

Heart of Atlanta Motel v. U.S. 379 U.S. 241 (1964)

Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans. The government sought to enjoin the motel from discriminating on the basis of race under Title II. Question Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving places of public accommodation of the right to choose their own customers? In a unanimous decision authored by Justice Clark, the Court held the government could enjoin the motel from discriminating on the basis of race under the Commerce Clause. Since the motel was positioned near Interstates 75 and 85 and received most of its business from outside Georgia, this showed that it had an impact on interstate commerce, which is all that is needed to justify Congress in exercising the Commerce Clause power. 75% of the Motel's clientele came from out of state.f

Sources, levels of law: Bankruptcy

Type: Bankruptcy Source: Statutory and administrative Level: Federal

Sources, levels of law: Contracts for sale of goods

Type: Contracts for sale of goods Source: Statutory Level: State

Sources, levels of law: Copyright

Type: Copyright Source: Statutory and administrative Level: Federal

Sources, levels of law: Employment discrimination

Type: Employment and discrimination Source: Statutory and administrative Level: State and federal, some local

Sources, levels of law: Negligence

Type: Negligence Source: Statutory and common law Level: State

Sources, levels of law: Securities law

Type: Securities law Source: Statutory and administrative Level: Federal and state

Sources, levels of law: Zoning ordinances

Type: Zoning Source: Statutory and administrative Level: Federal, state, and local

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004)

US Congress enacts a statute providing a 4 year statute of limitations for any cause of action arising out of an act of Congress enacted after 1990. Jones (an African American employee) was denied a transfer to a different plant - was also subject to a hostile work environment and discrimination. Jones wants to sue Donnelley for violating anti-discrimination statutes Facts: Congress enacted a statute providing a 4-year statute of limitations for any cause of action arising out of an act of Congress. Jones, an African American, employee of RR Donnelley Printing Co was denied a transfer to another plant as claimed he was subject to a hostile work environment. Jones wants to sue Donnelley for violating federal antidiscrimination laws. It's been 3 years since Jones worked for D and Illinois has a 2-year SOL. 1. Which statute of limitations governs and why? A: The federal statute of limitations governs because Jones is bringing a suit that alleges a violation of federal antidiscrimination statues, thus bringing the claim within federal jurisdiction. 2. Will Jones be able to sue Donnelley? A: Yes, assuming that the cause of action is initiated after 1990, the three years past is within the four-year statute of limitations.

Bad Frog Brewery Inc. v. N.Y. State Liquor Authority

US Court of Appeals held that labels on the brewery's beer bottles (depicted a frog making a vulgar gesture) were protected commercial speech - NY liquor authority failed to demonstrate the agency's asserted interest of protecting children since the labels were not misleading

What is value creation or legal competitive advantage (strategic legal solutions)?

Using laws creatively to minimize costs and risks but to advance business opportunities (lowering costs, intellectual property laws, lobbying)

What is a bill?

When Congress is drafting a federal statute but has not yet passed it or had the executive branch's concurrence

What is avoidance (strategic legal solutions)?

When business creates legal loopholes or exploit grey areas in the law (Pfizer merger with Allergan to reduce its tax liability by moving their headquarters from the US to Ireland)

Law vs. Equity ...

Where remedy at law is inadequate, an injured party may also obtain a remedy at equity (remedies at law generally take the form of money damages while equitable remedies generally include an injunction or restraining order, and specific performance)

What are ordinances?

Written laws at the local level