Essentials of Legal Environment of Business Chapter 1, Chapter 2, Chapter 3, Chapter 4.1, Chapter 5.1-5.2, 5.7

1.3 Define civil law and criminal law and list classifications of each

(1) Civil Law: The law that governs noncriminal disputes, such as in lawsuits (as opposed to prosecutions) over contract disputes and tort claims. (2) Criminal Law: Body of law in any nation-state that defines offenses against society as a whole punishable by fines, forfeitures, or imprisonment. Parties: (1) Plaintiff (injured party) brings case. Defendant must answer or lose by default. (2) Prosecution brings the case (society), not the injured party (Government). Defendant may remain silent. Burden of proof: (1) Preponderance of the evidence (or mostly true). (2) Beyond a reasonable doubt. Purpose/Reason: (1) Settle dispute btw. parties, compensate the injured party, make injured party whole. (2) Maintain order in society, deter serious wrongdoing, punish wrongdoers. Remedies: (1) Money damages (legal remedy), injunction- order from court to stop doing something (equitable remedy), specific performance (remedies) (equity). (2) Fines, jail, forfeiture, loss of liberty/rights. Language: (1) Liable and Not Liable. (2) Guilt and Innocence

What are the two ways a state may violate the dormant commerce clause?

(1) If a state passes a law that is an "undue burden" on interstate commerce (2) If a state passes a law that "discriminates" against interstate commerce.

Laws by the judiciary include:

(1) Judicial Review: Legislative: (See Marbury v. Madison, U.S. Supreme Court case, 1803, establishing the power of judicial review: that the Court could declare acts of Congress unconstitutional.) Executive: Courts can review acts of the executive (president, governor, mayor, county executive, or commissioner) as Constitution leaves it to the courts NOT the executive to interpret Constitution. (EX) Truman's attempts to nationalize steel mines as unconstitutional. Acts of Lower Courts: Common for Courts of appeal to review what the lower courts did to determine the lower court acted according to the correct rule of law. Acts of Administrative Agencies: (IRS, SSA, FDA etc.) have procedural and substantive rules to follow. Administrative agencies cannot act beyond authority granted to them by the legislature that created the agency. (EX) Vietnam War draft. Acts of Direct Democracy: In 26 states, the people themselves can make law by initiative and/or referendum. So, an issue can be put on the ballot for a public vote but is subject to judicial review. (2) Judicial Interpretation of Legislation: Judges decide what legislature meant when it adopted a statute. (EX) Church of the Holy Trinity case (3) Judicial Development (or "Discovery") of the Common Law: If an issue is presented by litigants to a court, the court must decide it. In England, courts would fill in the gaps by creating common law. Recall common law (rules of law determined by high-court judges, recorded in cases, and serve as precedent where the rule will be applied to similar fact situations in the future) also established stare decisis.

2.4 10 Minimum Standards of a multinational company (MNC)

(1) The right to freedom of movement, (2) right to property, (3) right not to be tortured, (4) right to fair trial, (5) right not to be discriminated against, (6) right to physical safety, (7) right to freedom of speech & association, (8) right to basic education, (9) right to political participation, and (10) right to minimal level of existence.

Roe v. Wade

(1973) legalized abortion on the basis of a woman's right to privacy. An example of judicial activism.

Preemption Doctrine

(Derived from supremacy clause) In U.S. federalism, federal law is superior to state law. In general, the law of a jurisdiction's highest authority is superior to any lower-level jurisdiction's law-making authority.

1.3 Campbell Soup Co. v. Wentz

(See case brief)

2.2 Queen v. Dudley and Stephens

(See case brief)

Problems with Common Law

- Common law can become outdated especially when societal customs and morals change. Brown v. Board of Education (1954) overturned Plessy v. Ferguson (1896) "separate but equal" - Lack of uniformity because states can make their own laws - "Case or controversy" test which provides that federal judicial power extends to various "cases and controversies." THIS includes standing to sue, a Constitutional requirement that the plaintiff present an actual case or controversy before judicial relief. (SUFFER first before sue). - Also, another limitation is that it rarely provides preventive remedies. You need a state statute or local land-use ordinance IN ADVANCE.

Functions of law

- Keep the peace "public safety" - Maintain status quo - Preserve individual rights - Protect minorities against majorities - Promote social justice - Provide for orderly social change

2.3 List two main views of a corporation's duties

- Maximizing profit (shareholder theory) - Broader duty to society (stakeholder theory)

1.3 Most judicial decisions that do not interpret legislation involve common law in three areas.

- Property Law (Rights and duties of those who can legally own land) - Contract Law (What kinds of promises courts should enforce? Should it enforce something where a party may have an unfair advantage?) - Tort Law (Types of cases that involve harm or injury btw. plaintiff and defendant)

1.2 List and describe schools of legal thought:

1. Positive-law school of legal thought recognizes the lawmaker's command as legitimate; questions about the law's morality or immorality isn't important. 2. Natural law is opposite, as it would refuse to recognize laws that did not conform to natural, universal, or divine law. (EX) MLK Jr. saying obeying an unjust law is not moral and disobeying an unjust law is a moral act that expresses respect for the law. 3. Historical School of Law: Legal philosophy that societies should base their legal decisions today on the examples of the past. (Precedent more important than moral arguments) 4. Legal Realist School: Laws and doctrines change over time to remain currently relevant. Social context of law was more important than the formal application of precedent to current or future legal disputes. Thus, instead of judges objectively applying an existing rule to a set of facts, legal realists observed judges had their own beliefs, operated in societal context, and would give decisions based on THEIR beliefs and THEIR own context. 5. Critical Legal Studies (CLS) School of Thought: Jurisprudential school that believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. Scholars would use the law to overturn hierarchical structures of domination. 6. Ecofeminist School of Legal Thought: The jurisprudence observing that the same social mentality that leads to domination and exploitation of women is at the root of man's exploitation and degradation of the natural environment. Male ownership of land led to a "dominator culture," in which man is charged with making all that he controls economically "productive." People were "subordinate" to him, and they would argue that man's dominance of both nature and women is shown throughout history.

2.2 What is the Supreme Principle of Morality?

1st Act: Only so that you would be satisfied if you action should become a universal law. 2nd Act: Act in such a way that you treat humanity, whether in your own person or of any other, never merely as a means to an end, but always the same time as an end. (Only to produce a desired result) To be universal, something needs to follow reversibility and consistency.

Law

A body of rules or action or conduct prescribed by controlling authority, and having binding legal force. (Law is a system of social control designed to achieve a good society, the "moral minimum")

2.3 Limited Liability

A corporation is the creation of law, as a primary part is limited liability (large pools of capital can be aggregated but shareholders may only lose investments if corp. fails and no personal liability other than corporate stock).

1.3 What is Precedent?

A prior judicial decision that is either binding or persuasive, and as such, provides a rule useful in making a decision in the case at hand.) Led to stare decisis: "precedent governs," where the rule of law articulated in one case will be used to decide future cases based on the same facts.

Plain Meaning Rule

A rule of interpretation which states that words in a statute should be given their ordinary meaning.

2.3 Who is a stakeholder? List the types of stakeholders.

A stakeholder of a corporation includes customers, community, employees, and supplies. Emphasizes obligations beyond maximizing profits. Ownership: The value of the organization has a direct impact on the wealth of these stakeholders. Managers, Directors who own stock, Shareholders. Economic Dependence: Stakeholders can be economically dependent without having ownership. Each of these stakeholders relies on the corporation in some way for financial well-being. Salaried managers, Creditors, Suppliers, Employees, Local communities. Social Interests: These stakeholders are not directly linked to the organization but have an interest in making sure the organization acts in a socially responsible manner. Communities, Government, Media.

Fifth Amendment

Addresses (1) the requirement of a grand jury, (2) double jeopardy, (3) the privilege against self-incrimination, (4) the right of due process, and (5) eminent domain. Eminent domain "to take private property for public purposes" is a matter of some debate. Establishes substantive and procedural due process.

United States Constitution

Adopted as the supreme law of the nation in 1787.

Article VII: Ratification Amendments

Allowed for ratification by 9 of 13 states under the Articles of Confederation. Following this are ten amendments adopted in 1791 referred to as the Bill of Rights.

Judicial Review

Allows the court to determine the constitutionality of laws. Because the Constitution speaks in broad terms, the interpretations of the Supreme Court as to the meaning of its provisions define what the Constitution means. The Constitution can only be changed by amendment or by further interpretation by the Supreme Court. (EX) Marbury V. Madison

Article V: Amendments

Amendments to the Constitution may be ratified by 2/3 of Congress and 3/4 of states.

1.6 Writ of certiorari:

An order by a higher court, directing a lower court to deliver its record in a case so that the higher court may review it. These petitions are granted less than 2% of the time however Supreme Court accepted it to resolve a difference of opinion among the circuit courts of appeal. (Applied in Harris v. Forklift)

2.2 Virtue ethics (or virtue theory)

Aristotle's perspective on finding happiness through the application of reason in human affairs advises continual practice to develop habits of virtuous moral character. In a modern setting, deliberating on core values and their application to individual and corporate ethical dilemmas and adhering to the recommendations of core values analysis would provide similar practice. Happiness is main goal, active use of reason instead of passive. Furthermore, Aristotle rejected wealth, pleasure, and fame and embraced reason as the distinguishing feature of humans. 14 virtues per Aristotle: (1) Courage, particularly in battle; (2) temperance, or moderation in eating and drinking; (3) liberality, or spending money well; (4) magnificence, or living well; (5) pride, or taking pleasure in accomplishments and stature; (6) high-mindedness, or concern with the noble rather than the petty; (7) unnamed virtue, which is halfway between ambition and total lack of effort; (8) gentleness, or concern for others; (9) truthfulness; (10) wit, or pleasure in group discussions; (11) friendliness, or pleasure in personal conduct; (12) modesty, or pleasure in personal conduct; (13) righteous indignation, or getting angry at the right things and in the right amounts; and (14) justice.

Article I (Legislative powers)

Balances influence of fed. legislature btw. large and small states by creating a Senate in which smaller states (by population) and larger states have two votes.

2.2 Basic rights vs. Non-basic rights

Basic rights and non-basic rights are important. Basic rights being (food, water, shelter, and physical safety) while non-basic rights are beyond survival (education).

2.3 Conscious Capitalism

Belief in both maximizing profits and a broader societal mission.

The Legislative Process

Bill passed to a house of congress; bill gets majority of votes in both houses; president can then pass bill into law or veto it. If vetoed, bill must attain 2/3 majority in both houses to become law. The bill once signed is a statute at the federal and state level, or an ordinance at the county and city level.

1.3 Common Law vs. Statutory Law

Common Law: Relying on prior decisions (precedent) to decide a current cases outcome, reasoning by analogy. Statutory Law: Law made by a legislature, whether state or federal (codified legislative acts).

Article VI: Supremacy Clause

Constitution declares it is "the supreme Law of the Land."

1.5 Civil Law systems (or code law):

Core principles are adopted by statute into a referable system which serves as the primary source of law. Essentially, it is where all legal rules are in one or more comprehensive handbooks (enactments).

Article III (Judiciary)

Creates federal judiciary and the Bill of Rights adopted in 1791 which contains certain individual rights preserved against activities of fed. gov't "unalienable" rights. (Judiciary)

1.2 Natural Law

Emphasizes a law that transcends positive laws (human laws) and points to a set of principles universal in application. If natural order conflicts with legal positivism, go with natural law.

2.1 How do ethics and law differ?

Essentially, what is legal isn't necessarily ethical and what is ethical may not be legal. Many professional ethics codes exist because the law prescribes only a minimum of morality and not purpose or goals that can mean excellent service to customers, clients, or patients.

2.1 Ethics vs. morality

Ethics are what society sets as normalized. Morality is your inner compass that directs what you think and do.

Dormant Commerce (Negative Power)

Even when the federal government does not act to make rules to govern matters of interstate commerce, the states may (using their police powers); but they may not do so in ways that unduly burden or discriminate against interstate commerce. (Applicable if it is a state statute)

Citizens United v. Federal Election Commission

Facts of the Case: Appellant nonprofit corporation released a documentary film about a presidential candidate. The corporation wanted to make the film available through video-on-demand within 30 days of the primary elections, and it produced advertisements to promote the film. Appellant sued appellee, the Federal Election Commission (FEC), challenging the constitutionality of a ban on corporate independent expenditures for electioneering communications under 2 U.S.C.S. § 441b, and disclaimer and disclosure requirements under 2 U.S.C.S. §§ 434 and 441d. The district court granted summary judgment for appellee. The corporation appealed. The district court's judgment was reversed as to the constitutionality of the § 441b restrictions on corporate independent expenditures. The judgment was affirmed as to the disclaimer and disclosure requirements, and the matter was remanded. Issues: 1. Was the statute generally prohibiting corporations and labor unions from campaign advertisements in 30 days before primary election or 60 days before general election unconstitutional? Holding: 1. Yes, corporations and labor unions First Amendment rights were being violated. Rationale: The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." Laws enacted to control or suppress speech may operate at different points in the speech process. * * * The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." [Citation.] Ruling: Justice Kennedy overturned section 441b's prohibition on corporate independent expenditures.

Wickard v. Filburn

Facts of the Case: Mr. Filburn for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. His 1941 wheat acreage allotment was 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel. Issues: 1. Can Congress regulate intrastate activity under its commerce clause? Holding: 1. Yes, Congress can regulate interstate commerce under the commerce clause as a result of gov't regulation of price. Rationale: It is urged that under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise [because it is an activity of local character only]. * * * But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect." The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 percent of average production. Ruling: Justice Jackson ruled that the commerce clause can be used to regulate the volume of interstate commerce.

Griswold v. Connecticut

Facts of the Case: Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. An executive director and medical director of a planned parenthood association were found guilty of providing such information to a married couple that wished to delay having children for a few years. They then were fined $100 each and followed up in the Connecticut state court system, arguing that state law violated (infringed) a basic or fundamental right of privacy of a married couple. Issues: 1. Was the Connecticut law that made the use, possession, or distribution of birth control devices to prevent contraception unconstitutional? Holding: 1. Yes, the Connecticut Supreme Court ruled this early Connecticut law as unconstitutional. Rationale: (1) The First Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, and Ninth Amendment all share an aspect of constitutional privacy. [Previous] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one. * * * The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which the government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Ruling: The opinion was given by Justice Douglas and upheld the constitutionality of the convictions. Concurring/Dissenting Opinions: Mr. Justice Steward and Mr. Justice Black join the dissenting opinions.

1.4 Sources of law and list priority

Federal takes precedent over state laws. This list is the same for federal gov't and for states. 1. Constitution and laws from the federal government are laws of the land. 2. Statutory Law (Legislative Branch): Law made by a legislature whether state or federal. (Treaties are considered statutory law priority) 3. Administrative Law: All about agencies (Legislative, Executive, and Independent) both at federal or state levels. They write rules and regulations. 4. Executive Orders (Executive Branch): Laws that come from exec branch. 5. Common Law (Judicial Branch): No statutes, just done through judicial review and "stare decisis."

Federalism

Federalism: The idea, built into the structure of the Constitution, that states and the federal government have concurrent powers. In effect, federalism is the concept of shared governance between the states and the federal government. States created fed. gov't! (Tenth Amendment)

1.2 Legal Positivism

Focuses on the law as it is, command of the sovereign. Laws and ethics remain separate from one another, morality is unimportant.

The Bill of Rights was selectively incorporated into which amendment?

Fourteenth Amendment

Article IV: Relations Between the States

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

2.3 The "Agency Problem"

Getting officers and other top management to align interests with shareholders. (EX) Board members susceptible to misalignment of interests, especially if perks are involved.

2.2 Public Goods

Goods that are useful to society (parks, education, national defense, highways) that would ordinarily not be produced by private enterprise. Public goods require public revenues (taxes) and political support to be adequately maintained.

1.3 Sovereign immunity

Government can be sued but people can only get a trial if it waives this. (EX) Warner v. U.S.

Fourth Amendment

Grants protection against unreasonable searches and seizures. This includes persons, houses, papers, and effects. (Only can be searched if there is probable cause leading to a warrant OR in a "closely regulated" industry) (EX) Dow Chemical

2.1 Why should a business be ethical?

In short, good ethics = good business. - The more unethical you are, the easier to slide into the illegal - Typically, people buy more from a certain company if its ethics are stronger (ethics à reputation) - On an ethical business, businesses choose how to do things (esp. advertising)

Separation of powers

In the original design of the Constitution, the executive, legislative, and judicial branches were all given powers that could modify or limit the powers of the other branches of government. (EX) President wields a veto power over congressional legislation.

1.4 Judiciary Law powers

Judicial Review: Where judges can declare acts of legislature unconstitutional. Judicial interpretation of legislation: If disputed, judges decide what legislature meant when it adopted a statute. Judicial adoption (or "discovery") of the common law: Common law is judge-made law where courts must decide a legitimate dispute (barring a few exceptions). A new common-law rule will be accepted if it is not out of line with tradition, and if there is no state statute, the court will have to make up a rule "case of first impression" (Case law or "judge-made law")

Tort Law

Law that deals with harm to a person or a person's property.

1.3 Law vs. Equity

Law: Referred to legal system headed by the Crown common law. It required plaintiffs to fit complaints into special types "writs" and only relief available was monetary damages. Equity: A body of law that addresses concerns that fall outside the jurisdiction of common law. It is fairness, and will not enforce unfair agreements, it is equality, there is NO JURY and technical rules of evidence don't exactly apply. May not be able to get cash, but some sort of recovery.

Classifications of equal protection

Minimal Scrutiny: Economic and social regulations. Government actions are usually upheld if there is a rational basis for them. Intermediate Scrutiny: Gender. Government classifications are sometimes upheld. Strict Scrutiny: Race, ethnicity, and fundamental rights. Classifications based on any of these are almost never upheld. (See Palmore v. Sidoti where the state refused to award custody to the mother b/c her new spouse was racially different from the child. This practice was declared unconstitutional b/c they made a racial classification) Also for same-sex marriages, see Obergefell v. Hodges (2015) where liberty and equality was burdened by prohibitions against same-sex marriage.

Equal Protection Classifications

Minimal scrutiny (usually upheld if there is a rational basis). Intermediate scrutiny: Gender (gov't classifications sometimes upheld). Strict scrutiny: Race, ethnicity, fundamental rights. (Almost never upheld. (EX) someone barres you from working at a job b/c of race)

2.2 What is Deontology?

Moral intent and ethics arise out of doing your duty, based on rational thought. What IF universally everyone does it? What IF everyone acted this way? This is something owed to ALL human beings.

What is morality?

Personal compass of values and motives.

2.4 Human rights (per UN that multinationals should consider)

Pillar 1: State Duty to Protect - Being sure gov'ts don't violate human rights. Pillar 2: Corporate Responsibility to Respect - Refrain from violating human rights and companies are responsible for more than obeying (human rights due diligence). Pillar 3: Access to Remedy - Gov'ts must provide remedies for company abuses (I.E. file a complaint)

2.2 Positive rights vs. negative rights

Positive rights and negative rights are equally important. Positive rights include (right to bear arms, vote, right to privacy) whereas negative rights include (free from gov't seizure of property to be free from unreasonable searches and seizures).

Procedural Due Process

Prevents gov't from arbitrarily depriving a criminal defendant of life, liberty, or property. (EX) Burger King v. Rudzewicz

Kassel v. Consolidated Freightways Corp.

Procedural History: The lower courts declared the statute unconstitutional under the Commerce Clause. On appeal, the court affirmed. Facts of the Case: Iowa state, claiming that double trailers were less safe than single tractor-trailers, enacted a law that banned the use of 65-foot long double trailers from its interstate highways; exemptions were granted to border cities, farm vehicles, and trucks manufactured and mobile homes moved within the state Because of the statutory ban, the trucking firm was required either to divert its trucks from Iowa or detach trailers to shuttle them separately through the state. Issues: 1. Is an Iowa statute that prohibits the use of certain large trucks within the State constitutional? Holding: 1. No, Iowa truck length limitations based on the Iowa statute commerce clause unconstitutionally burden interstate. Rationale: Here, as in Raymond, the State failed to present any persuasive evidence that 65-foot doubles are less safe than 55-foot singles. Moreover, Iowa's law is now out of step with the laws of all other Midwestern and Western States. Iowa thus substantially burdens the interstate flow of goods by truck. In the absence of congressional action to set uniform standards, some burdens associated with state safety regulations must be tolerated. But where, as here, the State's safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate transportation, the state law cannot be harmonized with the Commerce Clause. Ruling: Justice Powell ruled that because Iowa has imposed this burden without any significant countervailing safety interest, its statute violates the Commerce Clause. The judgment of the Court of Appeals is affirmed. Concurring/Dissenting Opinions: Unanimous

Kirkpatrick v. Environmental Tectonics

Procedural History: This case was brought in front of the U.S. Attorney for the District of New Jersey, which resulted in charges against Kirkpatrick and Carpenter for violations of the Foreign Corrupt Practices Act of 1977. The respondent then brought the case to the United States District Court of the District of New Jersey against Carpenter, Akindele, petitioners, and others seeking damages. The Court of Appeals for the Third Circuit reversed their decision to dismiss the complaint based on the act of state doctrine. Facts of the Case: In 1981, Harry Carpenter, who was then chairman of the board and chief executive officer of petitioner W. S. Kirkpatrick & Co., Inc. (Kirkpatrick) learned that the Republic of Nigeria was interested in contracting for the construction and equipment of an aeromedical center at Kaduna Air Force Base in Nigeria. It was agreed that in the event the contract was awarded to Kirkpatrick, Kirkpatrick would pay to two Panamanian entities controlled by Akindele an amount equal to 20% of the contract price, which would in turn be given as a bribe to officials of the Nigerian government. Issues: 1. Does the act of state doctrine apply if the facts do not apply to the foreign sovereign act? Holding: 1. No, the facts here in the act of state doctrine did not apply because no embarrassment of the Executive Branch in its conduct of foreign affairs was evident. Rationale: Act of state doctrine is described as every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government's acts done within its own territory. The District Court concluded that the act of state doctrine applies "if the inquiry presented for judicial determination includes the motivation of a sovereign act which would result in embarrassment to the sovereign or constitute interference in the conduct of foreign policy of the United States." Applying that principle to the facts at hand, the court held that respondents' suit had to be dismissed because to prevail respondents would have to show that "the defendants intended to wrongfully influence the decision to award the Nigerian contract by payment of a bribe, that the government of Nigeria, its officials or other representatives, knew of the bribe offer, that the bribe was actually received or anticipated and that but for the payment or anticipation of the payment of the bribe defendants would not have been awarded the Nigerian contract." Ruling: Justice Scalia stated that the act of state doctrine did not apply as it did not exist based on the facts in the case. Concurring/Dissenting Opinions: No dissenting opinions were provided, it was unanimous.

Brown v. Entertainment Merchants Association

Procedural History: Video-game and software industries brought this case to the U.S. District Court for the Northern District of California, which determined it violated the First Amendment. The Court of Appeals then affirmed and granted certiorari [discretionary review]. Facts of the Case: California Assembly Bill 1179 (2005), prohibits the sale or rental of "violent video games" to minors, and requires their packaging to be labeled "18." The Act covers games "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a manner that "a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." Violation of the Act is punishable by a civil fine of up to $1,000. Issues: 1. Can a California statute imposing restrictions on violent video games violate the First Amendment? Holding: 1. Yes, Bill 1179 that prohibits the sale or rental of "violent video games" to minors is in violation of First Amendment rights. Rationale: Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, "esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority" [Citation]." And whatever the challenges of applying the Constitution to ever-advancing technology, "the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary" when a new and different medium for communication appears. [Citation.] California's legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously under-inclusive nor seriously over-inclusive. [Citation, 1993]. As a means of protecting children from portrayals of violence, the legislation is seriously under-inclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously over-inclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny. Ruling: Justice Scalia affirmed that this legislation cannot survive strict scrutiny, and that Bill 1179 did violate First Amendment rights. Concurring/Dissenting Opinions: Justice Thomas and Justice Breyer

1.3 What is a criminal case?

Proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of the public; the plaintiff is always the government.

1.3 Public Law vs. Private Law

Public Law: Laws that come from the government and apply to everyone. (EX) Speed limit on I-40 Private Law: Governs private parties and private groups. (EX) An institution's honor code

First Amendment

Restricts the government from abridging freedom of religion, press, or the right of assembly. Political speech has been given the highest level of protection over other forms of speech like (1) commercial speech, (2) speech that can and should be limited by reasonable restrictions, (3) obscene speech. Additionally, the Court recognized right of people to support political candidates through campaign contributions and to promote particular viewpoints and speech of those candidates. Corporations are "persons" with "free speech rights" and can spend unlimited $ in advocacy.

2.2 Positive Law vs. Natural Law

Rights people have in positive law come from whatever social contract exists in society. Differs from natural-law thinkers in that rights come from God or a transcendent moral order.

2.3 Corporate legal structure

Shareholders (Owners) hire Directors (Elected by Owners) WHO then Hire Officers (Hired by Directors). Officers are known as top-management or C-suite.

1.4 List law by legislature

State Legislature: Legislature is the primary law-making entity in the U.S. Local governments, states, and the federal gov't have these. State legislatures (assemblies) are made up of both a senate and house of representatives like the federal gov't. The governor of a state acts like the president, in a sense a bill is sent to them to sign, and they have veto power. Federal Legislature: Congress which has both a House of Representatives and Senate. The House of Reps are elected every two years from various districts in each state. Districts are determined every ten years by the census (required by Constitution). The Senate has two senators from each state, regardless of the state's population.

1.3 Substantive Law vs. Procedural Law

Substantive Law: Laws that define appropriate behavior or that define and forbit inappropriate behavior. (EX) Don't drive more than 50 mph where speed limit is posted Procedural Law: The rules that the court, lawyers, and parties must follow to properly try a case. Procedural laws deal with dates, times, numbers, and other procedural aspects of a case that must be met in order for the case to proceed according to the law. How and what gets decided in court?

1.5 Code

Systematic and comprehensive written statement of statutory law addressing a certain legal topic. (EX) Traffic code

2.4 Act of state doctrine

That every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government's acts done within its own territory.

Article I, Section 8 of the U.S. Constitution is...

The Commerce Clause. Regarded as the legal authority by which the federal gov't can make law that governs commerce among the states and w/ foreign nations. Most of the federally created legal environment comes from this clause. (HAS TO BE FEDERAL STATUTE for Congress to act) Five important clauses: Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay debts and common defence and welfare of U.S., Borrow money on credit of the U.S., Regulate commerce w/ foreign nations, among the U.S., and w/ Indian Tribes, Establish a Rule of Naturalization and uniform laws on subject of bankruptcies, and to coin money while regulating the value. CONGRESS can only use this to regulate legislation aspects of movement of goods from one state to another, otherwise anything else would be local rather than national.

Article II (Executive branch)

The Constitution sets forth powers and responsibilities of the branch—the presidency—making clear president is commander in chief of armed forces. Also, it provides the states a role in the election process through the Electoral College!

1.1 Nation-States

The basic entities that comprise the international legal system. Countries, states, and nations are all roughly synonymous. The word "state" can also be used to designate the basic units of federally united states, such as in the United States of America, which is a nation-state.

1.6 "Employment at will"

The common-law doctrine that allows employers to discharge an employee at any time and for any reason. Courts have created exceptions for "bad reasons." State and federal statutes prohibit discrimination on any basis (Title VII of the Civil Rights Act of 1964).

Tenth Amendment

The constitutional amendment stating, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." (Police power or state power)

Implied Preemption

The court looks beyond express language of federal statutes to determine if Congress has "occupied the field" in a state is regulating, or whether a state law directly conflicts with federal law, or whether enforcement of state law might frustrate federal purposes. "Occupied the field" means where there is no room left for state regulation.

Express Preemption (or take over in advance)

The doctrine that—under the Constitution's Supremacy Clause—FEDERAL law or regulation is superior to any conflicting state or local law, rendering the state regulation void. (EX) Cipollone v. Ligget Group (1992)

Bill of Rights

The first ten amendments to the U.S. Constitution. (Applies both federally and to state actions, however it doesn't limit what a company or person in the private sector may do)

2.2 Social Contract

The idea that people in a civil society have voluntarily given up some of their freedoms to have ordered liberty with the assistance of a government that will support that liberty. Thomas Hobbes & Locke are regarded as the preeminent social contract theorists.

Substantive due process

The judicial doctrine that a law or regulation itself takes property from someone, as opposed to having property taken (as with a fine, say) after a trial; the substance of the law violates due process (as opposed to the procedural application of the law).

Original Jurisdiction

The jurisdiction that a judge has to hear witnesses and receive evidence in a trial proceeding.

Takings Clause

The part of the Fifth Amendment that prohibits the government from taking private property for public use except with just compensation.

1.2 Jurisprudence

The philosophy of law.

2.3 Shareholder Theory

The sole duty and purpose of a corporation is to make $ for shareholders.

2.2 Distributive Justice Theory

The theory is concerned with "distributive justice" how to fairly distribute goods among a group of ppl. in community or society. Only way for distributive justice to happen is w/ a governing authority. (EX) Education and health care

2.2 What is utilitarianism?

Theory that the "right" moral act is one that produces greatest good for society. Aligns with free market economics in that it doesn't emphasize RULES but RESULTS (maximizes pleasure). Holds that an action is right if and only if sum of utilities produced by action > than sum of utilities from any other possible act. Pitfalls include: Assuming the greatest good for you or your company is benefiting ALL ppl., failing to come up w/ many reasonable options, underestimating the costs of a certain decision to you or your company, underestimating the cost or harm of certain decisions to a person or people, favoring short-term benefits knowing long-term costs are greater, & assuming all values can be reduced to money.

States cannot disobey federal law (Supremacy Clause) because...

They have to provide due process of the law under the 14th Amendment. The Supreme Court decides what "due process" is.

Marbury v. Madison

This case establishes the Supreme Court's power of Judicial Review. Procedural History: This case came before the Supreme Court of the United States directly upon a Writ of Mandamus under the Act of 1789. Facts of the Case: Before the inauguration of President Jefferson, outgoing President Adams attempted to secure Federalist control of the judiciary by creating new judgeships and filling them with Federalist appointees. Included in these efforts was the nomination by President Adams, under the Organic Act of the District of Columbia (the District), of 42 new justices of the peace for the District, which were confirmed by the Senate the day before President Jefferson's inauguration. A few of the commissions, including Marbury's, were undelivered when President Jefferson took office. The new president instructed Secretary of State James Madison to withhold delivery of the commissions. Marbury sought mandamus in the Supreme Court, requiring James Madison to deliver his commission. The mandamus directly to the Supreme Court was authorized by § 13 of the Act of 1789. Issues: 1. Does Marbury hold a right to his judicial appointment? 2. Is Marbury entitled to a remedy under U.S. law? 3. Is Marbury entitled to a writ of mandamus under Section 13 of the Judiciary Act of 1789? Holding: 1. Yes, Marbury has a right to his judicial appointment 2. Yes, Marbury is entitled to a remedy under US Law 3. NO, Marbury is not entitled to a writ of mandamus from the Supreme Court Rationale: The Supreme Court has constitutional authority to review executive actions and legislative acts. The Supreme Court has limited jurisdiction, the bounds of which are set by the United States Constitution, which may not be enlarged by the Congress. (1) and (2) Justice Marshall held that although Marbury was entitled to his commission, the United States Supreme Court could not hear the case because it lacked original jurisdiction. Marbury was lawfully appointed as Justice of the Peace through the president's (Adams) signing of Marbury's commission and Senate confirmation. Under federal law, Marbury is entitled to a remedy. Whether or not Marbury may receive a remedy is contingent upon whether the appointment made Marbury an agent of the president or assigned a duty by law. If appointed as a political agent of the president, Marbury is not entitled to a remedy. However, if Marbury was deprived of the ability to carry out a duty assigned to him by law, Marbury is entitled to a remedy. Here, Adams gave legal title to the office of Justice of the Peace to Marbury for the length of the appointment. Madison interfered with Marbury's legal title when he refused to finalize Marbury's appointment. As a result, Marbury is entitled to a remedy. (3) Section 13 of the Judiciary Act of 1789 authorizing the United States Supreme Court jurisdiction to provide the remedy of a writ of mandamus is unconstitutional. The Judiciary Act of 1789 permits the Supreme Court to exercise original jurisdiction over causes of actions for writs of mandamus. The problem is the provision directly conflicts with the Constitution, specifically Article III. Article III serves as a limitation on the types of cases the Supreme Court has original jurisdiction over. Cases not within the Supreme Court's original jurisdiction may fall under the Court's appellate jurisdiction. In short, Section 13 of The Act is unconstitutional since it attempts to expand the original jurisdiction of the Supreme Court. Ruling: Chief Justice John Marshall denied issuing a writ of mandamus. (Unanimous decision)

What are the two tiers of substantive due process?

Tier 1: Legislation on economic matters, employment relations, and other business affairs involving minimal judicial scrutiny. (Law overturned only if it serves no rational gov't purpose) Tier 2: Legislation concerning fundamental liberties is subject to "heightened judicial scrutiny." (A law will be invalided unless it is "narrowly tailored to serve a significant gov't purpose") EX case) Griswold v. Connecticut

Fourteenth Amendment

U.S. Constitutional amendment, 1868, addressing several post-Civil War legal and political issues. "No state shall deny any person of life, liberty, or property, without due process of law." Fifth Amendment imposes this on the federal gov't too! This provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Essentially, equal benefits of the laws for everyone.

2.4 What are countries doing to stop bribery?

U.S. Foreign Corrupt Practices Act (1976): Forbids bribing of foreign public officials. It also applies under international law, as the U.S. can prescribe and enforce rules for U.S. citizens and those abroad. (RECALL, corporations are considered citizens). OECD Anti-bribery and Corruption Convention: Brought European and Japanese companies into line with U.S. law. Problem is compliance is lagging b/c many nations aren't policing firms headquartered there. No one wants to lose profits in an unlevel playing field when "everyone else is doing it."

Kelo v. New London

U.S. Supreme Court case, 2005, interpreting the 5th Amendment's "taking" clause (as to what is a "public use"). New London tried to use powers of eminent domain to create an industrial park and recreation area as Pfizer & Co. as a principal tenant. City argued increasing tax base was a sufficient "public purpose" and Supreme Court in a close ruling said they didn't violate the Takings Clause. Future legislation would limit the scope of "public purpose" in eminent domain takings and provide additional compensation to property owners.

2.4 Business Ethics Globally

Unethical practices in one country may be perfectly acceptable in another. Companies must consider customers and norms.

2.2 Josephson's Core Values

Values that are generally recognized as positive ethical characteristics of an individual or a business organization. People may have strong views about other kinds of ethical values, but core values are more widely accepted. 6 core values show up: (1) trustworthiness, (2) respect, (3) responsibility, (4) fairness, (5) caring, and (6) citizenship.

What types of policy-making power does the executive branch have?

Veto: Executive can undo it or announce in advance legislation will be vetoed unless it is apart of agenda. Presentation of a budget: Executive presents a budget which is sometimes results in policy development. Executive Orders: These affect management of federal gov't and are subject to judicial review. Nominations to the federal courts: Nominate people to serve with lifetime tenure on fed courts. Appointment or nomination of agency heads: Shape nature of legal & regulatory environment. (Senate confirms appointees)

Strict constructionism

a judicial approach holding that the Constitution should be read literally, with the framers' intentions uppermost in mind.