68 terms

Business Law

Separation of powers (2)
Horizontal- Judicial, leg, exec (within same gov)
Verticle- State and federal gov.
Supremacy Clause
Federal Government is in control over the state etc
When Congress simplifies law across the nation (Seatbelts). States must follow law.
ATTEMPT removal
State Secrets
President does not need to supply evidence in order to protect national security
Commerce Clause
Ability to regulate business activity.
Commerce Clause Regulation (Foreign)
1. Exclusive & Total: Can tell states what to do and states cannot do anything besides what the federal government tells them to do (Embargos and trade laws that are set up by fed gov and states must follow)
Commerce Clause Regulation (Interstate)
Must be activity between states. Fed gov can regulate all business activity... doesn't do much anymore. (Great depression had lack of fed regulation.)
***Commerce Clause (Limitation) (State Police Power)
State Police Power: State has the responsibility of providing for the safety and well-being of citizens so they are able to regulate business activity as well
Habeas Corpus
If you believe you have been wrongly imprisoned, you can go in front of court and ask the judge to determine if you should be released
Exclusively Federal Conflict
Type of business activities that call for national activity (Set rules nationally)... EX: Airline regulations
Exclusively Local Conflict
Entirely in the state, (In reality does not work this way due to how the courts interpret the commerce clause)
Dual Regulation (Conflict)
1. Federal Pre-emption: Precludes the state from creating any legislation (state laws invalid)
2. Federal Reg. w/ no pre-emption- If state fails any of 3 factors it is unconstitutional
3 Factors for Fed reg w/ no pre-emption
1. Irreconcilable conflict between federal and state law: If you meet state standard can you meet federal law?
2. State law cannot discriminate in favor of in-state business activity at the expense of out-of-state business activity
3. State law cannot impose an undue burden on interstate commerce
State Taxation (Form of Regulation)
Tax must not be so high that an undue burden is created. Must tax in and out of state the same. (Limited by commerce clause)
State Taxation (apportionment)
Must show relationship between the business activity and the state in order to tax it. (Nexus) EX: Driving product thru state isn't taxable but hiring employees within state is
Apportionment formula
An appropriate portion that shows what portion of the business activity is attributable to the state (Can't tax all business activity income, Can't discriminate taxes in favor of in-state businesses, and can't create undue burden w/ taxes)
5 basic constitutional freedoms
1. Not absolute (the more fundamental, the more justification the gov has to restrict it... needs lots of justification to restrict freedom of speech)
2. Balancing Test (balance between competing interests in deciding where the limits of our rights lie)... Can't yell fire...
3. Protect minority (Make sure minority are heard... no majority domination)
4. Variable (society evolves so differences will arise in realm of civil liberties)
5. Apply to states thru 14th Amend
-Incorporation doctrine in which certain provisions of the bill of rights are applied against the states
1st amendment (establishment)
Can't favor one religion over another. No nativity scene on gov property. No group prayer in public school.
Wall of separation
Separation of church and state
Hurting someones character or reputation. must be communicated to a third person. Victim must suffer personal losses.
The non factual publication of false information that defames and hurts someone
Actual Malice
Needed to establish Libel. It is knowing you were lying or had didn't care to find the truth
Political Free Speech
Has most protection. Ppl can burn American flag due to beliefs.
Is hateful speech protected
Yes. Can be verbal, written, or symbolic
Commercial Speech *
Made by nonhuman entities (Advertising, globalization). Greatly expanded.
Obscene *
No protection, But still has doctrine of prior restraint.
Miller Test
Material is considered obscene when applying contemporary community standards, the work appeals to a prurient interest in sex (portrays sexual conduct)
No prior restraint
Doctrine that prevents the government from restricting or punishing speech before it is uttered or published in case the speaker changes their mind before proceeding.
Fourteenth Amendment
Must be government action
14th (Due process of law) 6 factors
gov must be fair. Can't act arbitrarily, capriciously, or unreasonably
1. Substantive
2. Procedural
3. Applies to gov action
4. 5th Amendment
5. 14th Amendment
14th (Substantive)... (DP)
Legislation must be fair w/ justification... more infringing on rights=more justification
14th (Procedural) 3 things... (DP)
Government must use fair procedures... 1. must give ppl notice
2. must give opportunity to be heard
3. Must be decided by an IMPARTIAL TRIBUNAL (unbiased 3rd party w/ no vested interest)
14th applies to government action... (DP)
It applies to government action
Equal Protection (DP)
No citizen shall be treated unequally w/in their jurisdiction
Equal Protection (DP) Minimum Rationality
Laws that treat ppl differently based on economic, or social status are presumed to be constitutional. Must be related to a permissible state objective. (TAX CODE is an example)
Equal Protection (DP) Quasi-strict scrutiny
Law treating ppl differently has to be directly related to a specific gov objective
Equal Protection (DP) Strict Scrutiny
The standard of review in which the government must prove the law is justified by a compelling government action
Criminal Law
Wrong against society where the state has control whether or not the case moves forward (not the victim)
Can individual citizens sue each other criminally
In criminal cases who is always plaintiff
Indictment (Felony)
The way you are charged
Bill of Information
The indictment for a Misdemeanor
Criminal Intent (Mens Rea)
Intent to engage in criminal behavior
Criminal Intent (Actus Rea)
You committed the criminal act
Grand Jury
Only felonies, defense doesnt appear, can supine witness, citizens decide if this case should go to court at all
Fourth amendment
Unreasonable search and seizure
Six exceptions to needing a warrant first
1. Plain View Doctrine
2. Consent
3. Emergency (Threat to society... if u flee a high speed chase to ur house, they can search the house)
4. Incidental Lawful Arrest (Allowed to search you once arrested)
5. Stop and Frisk: If you fit the description of a wanted person and they can tell you are a risk (Ex: appears to be a gun in ur pocket)
6. Automobile: You have have no expectation of privacy to ur car. Cops still need probable cause to search. They will try to trick you
Exclusionary Rule
If evidence was illegally obtained, you can exclude this evidence bc it violated the 4th amendment
2 exceptions to the Exclusionary Rule ***
1. Good faith rule: Honest mistake of conducting search elsewhere even though they were not supposed to search there
Inevitability rule: Would have gotten around to conducting search anyways (not good. Inconsistent)
Businesses' and jobs expectations to privacy
Some businesses are so heavily regulated that they have no expectation to privacy and some jobs have no privacy
5th amendment applies to civil matters
Gov needs warrant to search businesses
Fifth Amendment
Prevents gov from making you incrimenate yourself.
Self-Incrimination (5th)
Can't force you to testify in a court against yourself
Real or Physical Evidence (5th)
If there is vast blood at scene police can ask for blood sample and you have to give it to them. Can make you speak in recorder bc there was an incriminating messaged believed to have been left by you
Miranda Warnings (3) (5th)
1. Right to remain silent, anything you say can and will be used against you in a court of law.
2. You have the right to speak to an attorney, and to have an attorney present during any questioning.
3. If you cannot afford a lawyer, one will be provided for you at government expense.
-Come into play when you are subject to a custodial interrogation.
Business protection (5th)
Very little protection offered to businesses. Only sole proprietorships are protected.
Random Fact (5th) *(I think this is right...)
Can't use the 5th amendment if charges aren't against you.
Double Jeopardy (5th)
Can't be charged again in the same court (even for a lesser crime) even if new evidence is found. Doesn't pertain to civil (can be tried there)... not sure if there is a limit on amount of times though...
Sixth Amendment
You are entitled to a trial by jury if there is possible jail time
6 elements of the 6th
1. speedy and public (cant be in secret, has to be within certain amount of time ...usually 180 days)
2. by jury of peers (Usually registered voters or drivers)
3. informed of charge (Have to serve u w/ indictment or bill of info)
4. Confront Accuser (You can cross-examine witnesses)
5. Subpoena Witnesses (Court order requiring someone to come to court)
6. Assistance of Attorney (State will appoint an attorney)
Worker Endangerment (Specific Crimes)
If you get hurt at work due to unsafe conditions, company will be sued criminally (can be sued civilly)...... NEW CRIME**....
Obstruction of Justice (Specific Crimes)
You hinder an investigation. Ex. Hiding murder weapon; providing false info, hiding documents or info, or intimidating witnesses; you ask the judge (who is ur friend) to do a favor for a friend who has been charged.
Fraud (Specific Crimes)
You have to intend to make false statement, receiving or depriving someone else from an economic benefit, the State always has the obligation to prove this. (Ex: telling someone u make 180k when u really make 40k)
Bankruptcy Crimes (Specific Crimes)
You can file for bankruptcy and start over. Is against law to give away ur assets or lie about value of ur assets and must update court bout financial info and creditor cannot falsify how much money is owed
RICO statute... Racketeer Influenced and Corrupt Organizations Act (Specific Crimes)
Designed to go after mafia, cartel, and other organized crime... Used different than original intention... Victims can sue estate to get money back, seize all assets in order to go after others, you have a better ability to prosecute those affiliated
Purpose of sentencing guidlines
Creates consistency from similar crimes
Judges used to be given specific sentence parameters for each type of case. what happens now?
Now they are just guidelines, no longer mandatory.