BLW2021GreNotes1 - BLW 2021 Business Law I Professor...

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Business Law 1/22/02 Basic sources of law in the US: 1) Constitution, which is the "supreme law of the land" (Constitution, Article 6). 2) Each state has its own constitution. There is the Federal Constitution and the 50 State Constitution. If there is a conflict between Federal and State Constitutions, the Feds win. Fed talks about freedom of speech and religion and a state Constitution could offer more protection but not less (e.g. abortion). Fed establishes the minimum level of protection and state has ability to increase and add on. Federalism this is a division of power between Federal Government/Constitution and State Government/Constitution. Power is not concentrated in a central authority divided into National Authority and Local Authority. Within Fed Gov't and State Gov't there is a further separation of powers Executive, Judicial and Legislative Branches. Legislative makes the laws. Executive enforces the laws and Judicial interprets the laws. Each serves as a source of law. Legislative law is statutory law legislative pass statutes. Judicial gives us case, or common, law Judiciary decides cases. Executive branch gives executive orders. When looking for a law, you go to the statutes first and then you go to the cases, because cases interpret the statutes. Historiography of Law: Common Law tradition focuses on cases to determine laws any country with historical ties to England is a Common Law country. Civil Law tradition focuses on statutes, or codes of legal principles Continental Europe France, Italy and Germany and other countries that trace their roots to continental Europe. All countries in the 21st century are based on both, but one is more dominant. 1/24 Constitutional law overrides all three branches Code of Hammurabi earliest code of legal principles found - collection. Early Roman law Code of Justinian. 1800's Napoleonic Code France. 1066 English Common Law William the Conqueror after the Invasion of Normandy. Magna Carta for England what the Constitution is to the US. Role of Gov't in society. Common Law: 1) Body of law came to apply in common to all members of society. 2) Meant to apply through the country common for whole country. Before this, each area had its own rules common law made it identical to the whole country. 3) Based on Common practices of the people when a judge had to decide a case, he would look to see what ordinary people do in this situation, hence common practice. If this never happened before he would reason and then come up with a judgment instead of looking into law books. In the US, Louisiana follows mostly according to the Civil law approach, which differs from the rest of the country because the French started Louisiana, and traces its roots back to France. Civil Law as compared to Criminal Law: 1) Crime is something you do wrong against society violates norms of society. In a crime against a person, the way it is tried is the People of State so-and-so v. The Individual, who is represented by the District Attorney. Civil Law is about one Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 1 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg individual v. another individual, and an individual v. a business. Difference between Criminal cases and civil cases is that in criminal cases the punishment is jail or the death penalty and in civil cases the punishment is money, such as in a moving violation. 2) In a criminal case the burden of proof is "beyond a reasonable doubt," which is 90%. In a civil case, the burden of proof is "preponderance of the evidence," which is 50%. This is to overcome reasonable doubt. Procedural Law steps necessary to be taken in order to go through with a case in order to bring it to court, and all of the trial process. Substantive Law what defines my rights and responsibilities what you are and what you are not allowed to do in a court. There are Federal Procedural and Substantive law and State Procedural and Substantive law. They can also be intertwined. In litigation, there is an idea of home court advantage. If there is a case with two people from two different state jurisdictions, you can have Procedural from one state and Substantive from another. Law or Legal Remedies: focus on dollars e.g. suing type cases clear cut rules; formula black & white letter of the law objective Equity or Equitable Remedies doing the right thing being fair on both sides gray area look at the whole picture, see what the appropriate thing to do in this case spirit of the law subjective e.g. injunctive relief (restraining order) court tells someone to stop doing something. Example: Trademark infringement, which can look from both dollar outcomes and equitable remedies such as injunctive relief. In Merry Old England, there were two separate courts, one for legal remedies, and one for equitable remedies. You had to bring two separate court cases. Eventually they were merged into one, and this is where the US gets it from today. Chancery Courts deal with corporate type cases. Years ago they were developed out of a connection to the king. People could go to the king for help in a case, so the king set up these courts that were supervised by the king. People got better treatment than in regular courts. The king would appoint the judges and even sit in the courts himself sometimes. Stare' Decisis "Let the Decision stand" when a current court sits to decide a case, it usually follows the decisions of previous cases precedent case Process of looking back at previous cases and determining the outcome to be similar to the earlier cases. 1/29 Jurisprudence Philosophy of the Law Questions to ask: Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 2 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg 1) What is the role of the judge? Is he there to take the law and interpret it and apply it? Or does he have the ability to create new law in deciding a case? Legislature 2) Where does the law come from? Does man in creating law have any limitations? Natural Law and Positivist Jurisprudence. Natural Law ideas and concepts that are inherent in nature and would follow them even if no one told us not to do it. Example: everyone would know that it is wrong to kill even before anyone told us that. Natural law is limited by human's ability to rule against it. Inherently wrong Positivist Jurisprudence Law is a body of commands that courts are there to follow and enforce. Takes discretion out of the hand of the court can only work within what legislature has established. Primary emphasis on man's ability to make law. Strict Constructionism (Analytical Jurisprudence or Judicial Restraint ) v. Judicial Activism Griswold v. Connecticut 1960's Supreme Court recognizes the right to privacy. Even though the word privacy is not used explicitly, the common denominator in the first and second amendments is security and privacy this is Judicial Activism creating new law on top of what is already there. In Roe v. Wade the way the court ruled is Judicial Activism by building on top of the decision in Griswold v. Connecticut by making the right to an aborting part of the right to privacy. Strict Constructionists would say that if Mrs. Roe wanted a right to an abortion to be part of the Constitution, she would have to go to the Legislative branch and have Congress make it a law. This is having Congress make a new law, not the court. 9 Judges on the Supreme Court: 1 Chief Justice and 8 Associate Justices. The President can appoint the Chief Justice of there is an opening, with the approval of the Senate either bump up an associate or bring in an outsider. Position of chief is administrative. Chief decides who writes the court's opinion in a particular case. Opinion is court's ruling and reason for why the court decided that way. Chief: William H. Rehnquist. Associates: Clarence Thomas, Antonin Scalia, Ruth Bader Ginzburg, Sandra Day O'Connor, David Souter, Anthony Kennedy, Stephen Breyer and John Paul Stevens. Rehnquist, Thomas and Scalia are the three conservative Justices on the court they are the Strict Constructionists. Kennedy and O'Connor are also semi-conservative. Souter, Breyer, Stevens and Ginzburg are liberals but not staunch liberals. Once appointed, you are able to stay for life, unless you step down, die or are removed for illegal reasons. Historical Jurisprudence idea that the law reflects the spirit and the will of the people historical root s of the people back when the country was founded. Example: why are we concerned so much with the first amendment? Because that was what our country is based on freedom of speech, religion, press, etc. Our emphasis on those ideas today is based on our historical tradition. Under historical jurisprudence, law changes and evolves slowly. Sociological Jurisprudence based on current values of society, behavior, need, norms law is a living law and must keep up with the times. Example: recognizing same-sex marriages. Social Engineering idea that the court can decide cases in a way that will omve society in a certain direction, if they don't like the direction that society is moving. Mid Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 3 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg 1950's Brown v. Board of Education "separate but equal is not equal" desegregation case make a new law in an attempt to move society in a certain direction. Early 1800's Marbury v. Madison Chief Justice John Marshall Judicial Review checks and balances between branches. Supreme Court has ability to declare an act of Congress unconstitutional. Is this an example of Judicial Activism or Strict Constructionism? In this case the classical interpretation is Judicial Activism The supreme court took new power than it had previously. James Madison, primary author of the Constitution, considers the legislative branch as the most important, and is written about first in Article I of the Constitution. The reason for this is that legislature represents the people and they didn't want the executive branch to be most important as it was in England. John Marshall decided that he wanted to grab more power for the Judicial branch and show Madison who is boss and granted Supreme Court right to decide laws unconstitutional, and gave the judicial branch the final saw. Marshall didn't want to see legislature abuse its power. In England, the king was the source of law and therefore above the law and he didn't want to see that happen to the Congress and the legislative branch. He wanted to make sure that every branch remained under the Constitution, which is supreme. Others say that this is both Strict Constructionism and Judicial Activism, and no one is the correct answer. Utilitarian Jurisprudence view that a rule of law should benefit the most people. Presumption of innocent until proven guilty. We can live the possibility of some things go wrong if we can find those that go right. Innocence would be much harder to prove than guilt. Innocent means you didn't do it and not-guilty means that it cannot be proven that you committed the crime. Pragmtic Jurisprudence view that legal rules and court decisions should yield the desired results. Before we decide a case, we have to figure out what you want to accomplish ad then figure out how to get there. If someone is arrested for defacing property, prison might not be answer, and community service would be a better solution. Judith Kay, Chief Justice of the NY State Court of Appeals, wanted the elimination of the Rockefeller Drug Laws, under which judges have limited jurisdiction as to the punishment for drug offenders, and they end up punishing small drugees the same as major drug lords. Small drugees would do better in rehab instead of 25 years in prison. Pragmatic Jurisprudence would not go for this strict and stubborn punishment. Existentialist Jurisprudence view that legal principles should help those who cannot help themselves cannot afford an attorney one will be appointed for you. We help criminals because they don't have the same resources as the court does. Egalitarian Jurisprudence view that similarly situated people should be treated alike. Two people with the same sort of crime should have to do the same sort of time, Distributive Jurisprudence law is a means of controlling the distribution of wealth Law and Economics, or Economic School of Law. Law is not decided in a vacuum. Money is an essential component of a case. Example: Cracking down on criminal activities helps to keep economic status quo so that crimes don't continue and cause the deterioration of society. Chapter 2: Ethics What is the difference between law and ethics? Those terms are not synonymus. What is legal is not necessarily ethical and what is unethical is not necessarily illegal. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 4 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg 1) A Priori Ethics notion that there are certain fixed standards that must be followed under all circumstances 2) Situational Ethics there are established standards, but there are exceptional circumstances that allow one to deviate from ordinary practice. 2/5 I. One of the major ethical ideas in our society is Ethical Egoism conduct which is motivated by one's self interest, is ethical. However, if everyone is going to do this, then law is nullified so in reality, on a wide scale, society does not accept this approach. Much of our ethical ideas have come from Theological Doctrines, one main one is Pirkei Avos, Ethics of out Fathers. There is also ethical thought in many other secular sources. The Greeks were the earliest society to have ethics Plato, Aristotle, and Socrates. These were Greek philosophers who spoke about ethics and ethical behavior. Example: Telling the truth is ethical, not telling the truth is unethical Socrates. Regarding most questions of ethics, the answer is it depends. Plato spoke about engaging in praiseworthy conduct if someone acts in a manner that is praiseworthy by society, that conduct is ethical. If it is frowned upon by society, then it is unethical. Aristotle spoke about self-control. Someone who exercises self control in their actions is ethical. Someone who behaves any way he pleases is unethical. II. Pragmatic Ethics behavior that produces the societal desired result is ethical. Example: "The ends justify the means." The question has to be asked regarding ethics is: Is something ethical based on a certain school of thought. Cultural Relativism The idea that there are different standards of conduct among societies that have to be taken into account when deciding whether something is ethical or not. Example: In US, bribes are illegal, however in other countries, bribes are expected. Ethics are relative depending on the country. Expectancy Ethics view that action which satisfied commonly held expectations is ethical. Society expects a certain type of behavior from us. Ethical Relativism standards of conduct are relative to one's profession. Standards can vary within a particular profession. Example: Holding professionals to higher standards because society places trust in you and you violate their trust. If a regular citizen fudges his taxes, he gats a fine, but if a CPA does, he can go to jail. III. Psychological Realism if it is in my own best interest it is ethical, so long as their conduct is acceptable to other members of the group, reference group that has to accept his behavior everyone else does it. At least in theory, there is some limitation on my conduct, which is different from Ethical Egoism, which has no limitations. Utilitarian Ethics conduct which brings about the greatest happiness to the greatest number of society. Ethics of Fairness conduct which promotes acting in a fair and proper manner. Preventive Ethics conduct which prevents harm from others is ethical. Bottom Line Ethics Whatever gets you the most money is ethical. It is not always the case that by using the Preventive method you are sacrificing the bottom line, but really they both depend on each other in the long run. 2/7 Litigation: Where to bring the case, which court to go to is the first decision you have to make. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 5 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg I. Subject Matter Jurisdiction the types of cases that a court has ability to hear. Courts of General Jurisdiction have ability to hear all types of cases. Courts of Limited Jurisdiction only specific types of cases. Example: Criminal Court of the City of New York, Civil Court of the City of New York. General Example: New York State Supreme Court which has many branches, such as matrimonial courts. Sometimes, there is Concurrent Jurisdiction shared jurisdiction two or more courts have the ability to hear a certain case. One court can have Exclusive Jurisdiction only court that can hear a particular subject matter. Surrogate Courts type of limited jurisdiction. A court that does not have subject matter jurisdiction over a case is not permitted to hear that case. Entire Federal Court System of the US is a system of Courts of Limited Jurisdiction. So, how do you get into Federal Courts? a) Federal Question Jurisdiction case involves a provision of the US Constitution or a Federal Statute of Federal Rule and Regulation. Example: Copyright infringement. b) Diversity of Citizenship all the plaintiffs on one side of case are from different states then all the defendants on the other side of the case. If one on each side comes from the same state, then they wouldn't get the case in Federal Court. You also need $75,000 in question in this type of case in order to get into Federal Court. This $ amount is used to weed out the smaller cases. There is a good chance that you will end up with more than one possibility of where you can bring the case. II. Personal Jurisdiction ability of the court to decide the rights and liabilities of a particular defendant connection between the court and the defendant. It is based on fairness. It is only an issue regarding the defendant, not the plaintiff, because the plaintiff brings the case. The defendant has to concede to personal jurisdiction. There is personal jurisdiction automatically from the state that you live in. By living there you get benefits, and you also have to take the downsides of living there. For corporations, it depends on where you are incorporated. Delaware is a hot incorporating spot. Long Arm Jurisdiction a case in which you are not regularly in the state, but you have "minimum contacts" with the state, therefore it is unfair for you to get sued there. III. Venue plaintiff and defendant can be thrown out of a court that has no connection, venue, even though there is personal and subject matter jurisdiction. Venue means being appropriate. Have the case where the venue is proper. If you have the choice, you are better off going with the Federal Court over the State courts. Judges in Federal Courts are appointed by the President with the approval and recommendation of the Senators of that state. In State Courts, the judges are elected and usually there because they had money. Basic ways to commence a lawsuit: (Federal) 1) File a complaint against a defendant with the court. 2) Serve the papers to the defendant. Once the papers are served, the lawsuit begins. In many states, it is the opposite: Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 6 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg 1) First you serve the papers 2) Then you file a complaint with the court You have to know the ground rules of the court you are using before you start a lawsuit. 2/12 Skeletal Framework of what a case is about: (Civil Cases) I. Pleadings Complaint where the plaintiff sets forth their story. You don't have to be a lawyer to file a complaint you can do it by yourself. Pro Se a person can proceed as his or her own attorney. There is a Pro Se clerk to help you out if you file your own complaint. The defendant comes back with an answer, which goes point to point through the complaint. Admit, Deny or Deny knowledge and information. These are his three options for each allegation in a complaint. Deny knowledge and information means he doesn't know enough to say one way or another. You can have Affirmative Defenses, which are arguments which the defendant is obligated to raise certain points that have to be made by the defendant. Example: Someone is being accused of murder his defense is that he killed using self-defense burden of proof is on the defendant to show that he killed using self defense. Insanity is another affirmative defense. Counter Claim when the defendant finds out that he is being sued, re responds by counter suing the plaintiff. It is handled as part of the same original lawsuit, so long as the counter claim arises out of the same facts as the original lawsuit. Cross Claim Plaintiff sues two defendants, the one defendant goes and sues the other defendants, to minimize liability, as long it comes out of the same facts and circumstances as the original lawsuit. 2/14 Motions: - Make a request for the judge to do something for them. Different types of motions in litigations. Defendant could make a motion to dismiss for failure to state a course of action minimum amount of information plaintiff has to put down in the complaint in order to get things going. This motion is raised at the beginning of the case only if the plaintiff is not very intelligent and doesn't give any info. If this motion is denied, the case begins. End of discovery finds no material facts in dispute argue about legal conclusion based on facts. Motion for summary judgment one side is arguing that there are no facts in dispute. When opposing side responds to this motion, there could be two different arguments raised 1) There are material facts in dispute 2) Even if there are none in dispute, I am still right as far as the law goes. Point of this motion is that you don't have to go through the trial to establish the facts, because this motion does that. Party only has to present their legal arguments to the judge to get a judgement instead of going through the whole trial party presents a summary of arguments hence the name summary judgment. Most appropriate time for this motion is after discovery because all the facts have been decided on, and before discovery the facts are unknown. Jury Selection get a summons in the mail, and you must show up. Go to central jury room and wait until they say they need jurors, and 50 out of the 300 are selected. The perspective jurors go under Voir Dire opportunity for judge and lawyers to see if potential jurors are fit to sit on the trial could be circumstances that could Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 7 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg prevent jurors from sitting on the jury. Federal courts are faster in the voir dire than state courts. Challenge for Cause Lawyers have opportunity to say reasons for why they don't want a particular juror. Preemptory Challenge don't give a reason for why lawyer doesn't want a certain juror. You are limited to 3 preemptory challenges. You go through the voir dire until you have 12 jurors, even if you have to go through all 50 that were selected originally. You select 12, and 2 alternative jurors, in case something happens to a juror during the trial. At the trial: There is the Opening Statement intro to the case plaintiff goes first because he has the burden of proof. Before the opening statement, jury knows very little about the case. Opening Statement gives the jurors a framework of the case. short, sweet and to the point. After there is the Presentation of the Plaintiff's Case "Counselor, call your first witness" that starts direct examination when the lawyer asks a series of questions of his own witness. Cross Examination is when lawyer asks questions of opposing witness. You need relevance in the questions to the case. Also, can't ask leading questions on direct examination questions that suggest the answer that you want to get. In cross examination, we allow leading questions to see if the witness is lying and ruin his credibility. You also have expert testimony, such as doctors. Also physical evidence photograph and documents, which can only be brought through the testimony of a witness build a foundation which sets the stage for everyone else. This applies to each witness for the plaintiff. Defense can now make a motion for a directed verdict. Before the defendant begins, the plaintiff has the Burden of Production, which is the minimum amount of info that plaintiff must bring. This motion is even if we believe every part of the plaintiff's story, they have failed to make a Prima Facie Case minimum amount, basic case. Plaintiff is obligated to produce this during their part of the trial. If they don't, then defendant wouldn't have to say anything and defendant would win the case without saying a word. Defense now wants the judge to direct a verdict in their favor. 2/19/02 Exam: Book: Chapter 1, 2, 3 Mostly multiple choice: 80 - 90 questions + 20 bonus points. Terms related to motion for directed verdict: Burden of Production, Burden of Persuasion, and Prima Facie case. Burden of Production - Refers to obligation that is initially placed on the plaintiff to raise a minimum amount of evidence. That minimum amount is called the prima facie case. Significance is that if the plaintiff fails to satisfy this minimum amount, they will lose the motion for directed verdict. They defendant will therefore win the case. If the plaintiff did make the prima facie case, that allows him to continue with the trial. He defeats the motion of directed verdict, and now the defendant has to provide its evidence, and say something and not sit there and say nothing. Now defendant has the burden of Production. End of defendant's case, now plaintiff can make a motion for directed verdict, if he feels that the defendant has not satisfied his burden of production. Now there is the question of who wins. Jury has to decide who wins. That is answered based on Burden of Persuasion. Who has the burden of persuasion? The plaintiff does, because he is the one bringing the case. If you want to take something from someone else, you have to prove your case. In a criminal case the burden of persuasion is "beyond Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 8 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg a reasonable doubt." In a civil case, the burden of persuasion is a "preponderance of the evidence." Then you get to the Closing arguments, which are like opening statements. It should be a very effective summary of the evidence, and should tie everything together that happened in the case. You do this to reach the conclusion that you want. The defendant goes first. This is directed to the Jury. Can only focus on evidence that has already been introduced no new evidence. This is persuasive speaking trying to convince the jury one last time. Plaintiff has burden of persuasion so they go last, one last opportunity to persuading the jury. Can the jury consider the closing argument as evidence during deliberation? No. It has to be excluded. Following the closing arguments, there are Jury Instructions judge instructs jury of legal principles. First responsibility is to determine the facts, then after doing so, they apply the relevant law to those facts in order to reach a legal conclusion. Judge supplies information of what legal principles should be used here. If a juror is sitting there listening to the judge and he realizes the judge made a mistake, he is obligated to follow those instructions even if he kno ws it is wrong, because the judge is in charge of the courtroom. The lawyer has the responsibility to find the mistakes that the judge makes and point it out to him. This is followed by Jury Deliberations this is the moment when you realize the power you have as a juror. Outcome of the case is in your hands. Jury now has opportunity to examine all the evidence firsthand. They can listen to some testimony again via the transcripts. It is read to them by the court reporter. During jury deliberation, there is no one in the room except for the juror members, no judge or lawyers or anyone else. They have as much time as they need to deliberate. After deliberations, the jury comes back with a verdict. The final pronouncement is the judgment of the case. The verdict is usually converted into the judgment of the case. Motion of Judgment Not Withstanding the Verdict (JNOV) the lawyer makes this motion that the verdict is not possible based on the facts of the case. The whole idea is that the legal conclusion cannot be supported by the facts of the case, because there is no proof. This is ability to appeal from the verdict without going through the formal method of an appeal that goes through the appeals court. What constitutes grounds for an appeal? Only when the judge commits prejudicial error can there be an appeal. This is where the mistake could have affected the outcome of the case. Example: Judge lets in a piece of evidence that should not have been allowed, or things like that. Mechanics are broken down into two parts. Part One is a written brief, in which the lawyers set forth their legal argument focusing on mistakes of law that were made with regard to those facts. Appeals focus on law, not the facts, because the facts were decided on during trial. Part two is Oral Argument, get up in front of a panel of judges and present your appeal, and the judges ask you all sorts of questions. You usually have 15 minutes for your oral arguments, and try to make those points as quickly as possible, and try to answer the questions in a way to help your case. State: Start off in the trial court New York State Supreme Court. If you lose there, you go up to the Appellate Division. That is an appeal as of right. From there, you go to the New York State Court of Appeals, which is a discretionary appeals court, you have to ask the court for permission, and have a very good reason why you are appealing. Federal: Trial court - United States District Court. Then go to the US Court of Appeals. Then you go the Supreme Court of the US, which is a discretionary appeals court, and you use a Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 9 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg petition for a writ certiorari to ask for permission to bring your case in front of them. You need 4 of the justices to rule in your favor, which is not very easy at all. B-Law Test 2 3/5 Chapter 4 There are 11 Circuit Court of Appeals and then two other special ones: one is US court of appeals of the district of Colombia, because there are many government agencies in D.C. and therefore many lawsuits. Also US court of Appeals for the Federal Circuit only specialized one, hears limited types of cases, and it is national in scope, as opposed to the other 11, which are regional, for each circuit. It is based in Washington but it covers the entire United States. En Banc "On the Bench" when you argue a case in one of the circuit courts, there is a panel of three judges to which you bring your case, bit those three are part of the total of 15 and the 15 serve on a rotating basing, and they don't always sit together they switch off. There can be two different cases, with the same ideas behind it heard by two different panels that can bring 2 different rulings within the same circuit. The losing side in the second case can ask for a rehearing En Banc getting all of the judges from the circuit, thereby getting one ruling that eliminates the discrepancy. The first loser can appeal to the Supreme Court of the United States. But the first ruling is not overturned with En Banc. En Banc is an opportunity to appeal within the same court without going to the Supreme Court. There are 12 different circuits around the US, and therefore it is possible to have different rules of law developed in different circuits. This is one of the easiest ways to get the Supreme Court to grant cert (writ of certiorari), to take on your case. Alternative Dispute Resolution (ADR) there is a major advantage in Alternative Dispute Resolution that you do not have in litigation, is that in ADR, you can negotiate, you can split the difference between the two sides. One might do this if they feel that they don't have the strongest case in the world. They'd rather get something than nothing at all. Alternative Dispute Resolution saves money, time and is more convenient, and doesn't depend on a jury. Specific Types: Negotiation, Mediation, and Arbitration. Those are the big three. Also Mini Trials, Summary Jury Trials, and Hired Jury Trials. Negotiation when the two sides in the dispute and or their representatives (attorneys, agents) try to reach a settlement, an agreement. You don't have a third party no neutral outsider involved in the process. You can always negotiate a settlement, before trial, during trial and even after trial. You need willingness to compromise or else you are going to get nothing. It is often better to have a lawyer deal with this because emotions can sometimes get in the way. Lawyers can eliminate that emotion and deal with it in a legal way. At the end of the negotiations after a decision is made, there is a written agreement that both sides sign, then if someone doesn't follow through you can sue them for a breach of contract. Mediations involves a third party mediator, outsider, whose function is to facilitate some sort of agreement between the two sides. He can offer some sort of advice, or offer some sort of solution, try whatever possible for sides to reach an Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 10 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg agreement. A successful mediator is realer a good psychiatrist, and knowing how people think, and what they want. Arbitration third party makes the decision has ability to bind the two sides to a decision. He is a mediator with real legal authority. Arbitrators give awards. If the other side doesn't pay the award, you can bring the arbitration award to the court and have it converted over to a judgment, and then you can enforce that judgment just like any judgment you would have received during a regular trial. Arbitration is basically the same thing as Beis Din in Jewish Law. If the subject matter is of a religious matter, you could run into a problem of separation of church and state. In order to get the regular court to make the judgment from a beis din, you have to get a contractual agreement stating the validity of the arbitration panel, which is the beis din. 3/7 In order to become an arbitrator in a court related context, you have to show a law degree, as well as several years of law experience. Small claims court works as follows: when you go to court there is a calendar and side decide whether they want their case heard by a judge or an arbitrator. If they choose an arbitrator, chances are very good that their case will be heard that day, with a response coming soon end in sight. If you opt for the judge, there is only one judge and everyone wants the judge, and therefore there is a very good chance that your case won't be heard that day, or even that week, and it could take a very long time to get a decision from the judge. That sort of arbitration is known as Contract based arbitration or Commercial based arbitration. They are entering into a binding agreement to have their dispute resolved by the arbitrator. There is a different type, called Judicial based arbitration, which is different in that there are court systems in which you are not allowed to litigate y case unless you have gone our through some sort of arbitration. If you don't like the result of the arbitration you can go back to the court and say that you now want to bring your case in front of a judge. In contract based, the rule of the arbitrator is final. 99% of the time it is final. If you lose, you can no longer appeal. In judicial based, the ruling could be thrown out by the parties if they don't like the decision and bring the case in front of court. So the losing side should always go and say he wants to litigate because he doesn't like the decision! When you review the case, you realize that you lost the arbitration for a reason and it might not be worth it to bring it to court because you probably will lose again. You can agree to arbitrate before the argument arises or after the argument arises. Usually, in employment cases, it is written in the contract that any dispute will go to an arbitrator, instead of a court. In Major League Baseball, the player puts in the salary # they want and team puts in the salary # they want and the arbitrator chooses one or the other, and cannot split it to be in between. Chapter 5 on our own know name of each statute and organization, and a little bit about what each on is. Chapter 6 The Cons titution Separation of powers, checks and balances, federalism, supremacy clause, notion of preemption, judicial review, privacy, Roe v. Wade, "separate but equal is not equal" Article I, Section VIII, Clause III Commerce clause, Interstate Commerce Clause gives Congress the power to regulate interstate commerce. This is different than Intrastate Commerce Clause, which is commerce within the same state. Today, this Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 11 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg covers almost everything in business. Vast majority of Congressional legislation is under this clause. The Heart of Atlanta Motel v. United States brought shortly after Civil Rights Act of 1964. This act prohibited discrimination based on race. This act was passed under the commerce clause. Whenever Congress passes a law they must be acting under one of their enumerated powers. These powers are contained in Article I, Section VIII of the Constitution "The Congress shall have power to..." There are 16 clauses as the enumerated powers. The 17th is called the elastic clause necessary and proper clause. Congress can do whatever it needs to in order to carry out one of the first 16 clauses. In this case, there was an African American who went into the motel and wanted to rent a room in this motel and the owner said, "We don't rent to your kind". The African American brought the case to court saying that the Civil Rights Act of 1964 prohibits discrimination based on race. The Motel lawyer said that the Civil Rights Act came under the Commerce clause, which is INTERstate commerce, and the motel is INTRAstate. Really the court didn't buy this because the motel really is INTERstate because that is what motels cater to. The Supreme Court developed the Affectation Doctrine Congress has the power not only to regulate the INTERstate commerce, but they even have the power to regulate INTRAstate commerce, which will substantially effect INTERstate commerce. This is a very broad reading of the clause. This is very judicial activist and social engineering. Example: Securities Act of 1933 and Securities Exchange Act of 1934 Federal securities laws, that have to do with federal interstate commerce. Blue Sky Laws state level securities laws. Do states now have ability to regulate interstate commerce? We know that states have ability to regulate intrastate commerce. On the inter-level, the states have the ability to regulate interstate commerce with two major exceptions. 1) A state is not allowed to openly discriminate against commerce from another state. 2) One state is not allowed to pass laws that will excessively burden interstate commerce. Bibb v. Navaho Freight Lines Indiana passed a law requiring trucks to have rounded mudflaps. Most trucks had square mudflaps since they didn't want trucks to go through their state. So they will have to change their mudflaps or they will have to find an alternate route. So the case came before the Supreme Court and they said that this regulation is unduly burdensome. If you want to get by one of those exceptions, you have to demonstrate an overriding health, safety or welfare issue, and then it would be allowed. When states regulate commerce, they do so under their police power states ability to promote health safety and welfare of the people. 3/12 Wickard v. Filburn affectation doctrine. Gov't passed a law limiting the amount of wheat that any one farmer was allowed to grow, so that all farmers would have to sell their wheat. This would be limiting the supply thereby increasing the demand. One farmer wanted to grow some addition amount of wheat, to use for private consumption. Since he was going to use it for himself, it would be exempt from the commerce clause and the federal regulation. Case went to the supreme court, and court said to farmer even though you are not under int erstate commerce, if we let you, then we have to let everyone and thereby increasing the amount of wheat and it would have an effect on the overall economic well-being. On the level of each individual farmer, the impact would be minimal, but on the large scale, it would be a big effect. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 12 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Article I, Section VIII, Clause I Congress's power to tax and spend. Why is this the first power given to Congress? Without the ability to tax the people, the government would have no money. Articles of Confederation, which came before the Constitution, didn't last very long, because their main idea was to have a weak federal government, and give most power to the individual states, specifically without the power to tax. And that is why it didn't last, because the federal government had no power to get money from the states, and they had to rely on donations, which eventually ran out. When the Constitution was being drafted, they realized that there had to be a happy medium between no tax and severe taxes "Taxation with Representation." The taxing power is therefore one of the most important powers of Congress. IF congress uses tax money in a way that you don't like, you can't sue them because you voted for them and you put them where they are. You also can't sue them because of Sovereign Immunity idea that unless the government specifically authorizes us to sue the government, we do not have that ability. This traces back to Merry Old England, because the king made the law, and since he made the law, he is therefore above the law. We as private citizens do not have the ability to sue the government unless the government authorizes us to, via a statute that would grant us that right. Gate keeping method: Standing a legal principle that must be satisfied in order to bring a lawsuit. It refers to the personal stake that I have in this lawsuit. My personal unique connection to what is going on. This is the way that I am being harmed, which is different from everyone in society. You can't sue Congress because there is no guarantee that it is your money that is being used for that program. It is not impossible to sue Congress, but it is very, very difficult. Ripeness idea that the court is not going to get involved in hypothetical questions. Courts don't deal in "what if?" cases. The question has do be substantial. Courts don't get involved until legal questions unless it is ripe for a decision. Example: If one is not pregnant yet but is thinking about getting pregnant, she could not go to court to get permission for an abortion, because the case is not ripe for a decision. Mootness when there is no longer a question to be decided. The underlying legal question may still be there, but the parties are no longer involved in this question, so the court will wait until it happens again and make a decision then. The case is moot. If they don't have to answer the question, then the court won't answer it. Exhaustion of Administrative Remedies when your case involves subject matter that falls within the domain of an administrative agency, then you have to go through all of the options that the agency provides before you will be able to go into the regular court system. Example: If you get a moving violation, you first have to go to the Traffic violations bureau, and then if you lose there, you can go into the regular court system. Article I, Section VIII, Clause VIII Patents and Copyrights Congress has the power to give people protection for their intellectual property. Patents cover scientific discoveries and inventions. Copyrights cover everything else. They must be for limited times. Whatever the time frame is, there has to be some end point to it. They have to go into the public domain. Once it is in the public domain, anyone can take it and use it, but cannot represent it as his or her own. Copyrights are usually for 70 years, whereas Copyrights are for 20 years. Patents and Copyrights are Constitution in their origin. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 13 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Trademarks are not directly constitutional; they are derived from the commerce clause. They are used in commerce to identify the goods of commerce. They don't carry the time limitations that Patents and Copyrights carry. They can go on forever as long as they are being used for commerce. They will never go into the public domain. Article IV Section I Full Faith and Credit Clause if you get married in one state in the US and then you go to live in another state, that other state recognizes the marriage, because it gives full faith and credit. It is suggestive language, but it is not compelled to recognize it "Shall give full faith and credit." This is a general idea, but doesn't work all across the board. 3/14/02 Article IV Section II Privileges and Immunities - You take on the legal rights and responsibilities when you arrive at the new location. The fact that you are an out of stater, does not mean the second state can discriminate against you. This is not an absolute. There are times when there will be distinctions brought between you and state residents. This is significant within the US, but is more significant in the foreign context. You can get in a lot of trouble if you commit a crime in a foreign country. The Bill of Rights The first amendment starts off with the following information "Congress shall make no law," which applies to the entire bill of rights. This is designed to protect us from actions of the federal government, Congress and Federal Agencies. If a state wanted to do something that contradicted the bill of rights, they would be allowed to. The state governments could make a law that goes against the Bill of Rights. They were framed in reaction to what they experienced in England Freedom of religion, speech, the press. These were the things they didn't have in England. They also didn't like the fact that power was centralized in the King, so they made the power decentralized with the three branches. There was no such fear on the state level. So through a long series of Constitution al decisions, the Supreme Court selectively incorporated, carried over various provisions addressed to the Federal Government, and made them applicable to the State Governments. In the XIV Amendment, one of the provisions is the Due Process Clause. This is not the only one; there is another Due Process Clause in the V Amendment. So why are there two? V amendment is addressed to the Federal Government and the XIV amendment is addressed to the State Government. Why is this the only clause that is repeated? In the XIV amendment it means something more than what it means in the V amendment. In the V amendment, it has a narrow meaning, and in the XIV amendment it has a much broader meaning. Through selective incorporation they made everything contained in the Bill of Rights apply to the States as well. First Amendment Freedom of Speech: The easiest way to understand this is through three separate categories. Type of speech that is 1) unprotected at all 2) partially protected the context is protected, but the government can regulate it. Those regulations take the form of time, place and manor When, where and how you say something, but they cannot stop you from saying it 3) fully protected speech. 1) Unprotected a. You can't say anything that would create a clear and present danger like yelling fire in a crowded theater, when there is no fire. Gitlow v. New York no yelling fire in a theater. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 14 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg b. Incitement to imminent unlawful action Stirring everyone to do something that is unlawful, like inciting a crowd to burn down a building. Acting as a rabble-rouser. This has to be imminent, and there can't be a significant amount of time between the incitement and the action. Brandenburg v. Ohio illustrates this idea. c. Fighting Words Chaplinsky v. New Hampshire You can't use fighting words. What are fighting words? These are words designed to provoke a physical confrontation. This is directed to an individual. d. Defamation of Character 1) Libel and 2) Slander. Libel is written and slander is spoken. The speech must be false. If it is true it is not defamation. This is saying something bad about someone. Beginning of Chapter 9 pages 244247. New York Times v. Sullivan 1960's if the subject of the defamation is a public official, it is not enough to show that the statement is false, they much also prove actual malice. Actual Malice is that the speaker knew the statement was false, or acted with reckless disregard for the truth. There was another case: Gertz v. Welch that standard now also applies to public figures, not only public officials. This standard was imposed to protect so that the newspapers shouldn't be afraid to tell the truth. The newspapers should have to check and recheck a story before they publish it. They now have a bit of a cushion before they will get into trouble. For defamation, you need publication - the defamatory statement has to be communicated to at least one person. If no one else heard the statements, there has not been any damage to reputation. Truth is always a wonderful defense to defamation. Libel per se and slander per se If something is presumed, you don't need to prove it. The burden shifts over to the other side to show that you were not hurt if it's a true statement. 3/19/02 e. Obscenity as compared to regular pornography. Difference in that obscenity is unprotected speech. Pornography is protected as to substance, but it can be regulated. A major Supreme Court case of obscenity is Miller v. California 3part test as to evaluating whether something is obscene. 1) Judge a work by looking at it in its entirety, not one individual piece. 2) You judge based on contemporary community standards, which is that we do not go by what the standards were in the 70's, 80's, or 90's, we go based on society today. Standards are different in New York and California than in Midwest states. 3) Whatever is involved in pictorial or literary display has to include subject matter that is prohibited by statute. In every district there are laws prohibiting public display of certain parts of the body. You only get into obscenity problems when displaying certain parts of the body. 4) The work has to lack any sort of literary, artistic or scientific value nothing redeeming about it. It is really difficult today to get something obscene. f. Child Pornography don't do it. There is not defense for child pornography. This refers to selling it, receiving it, possessing it. 2) Partially Protected a. Pornography is what we call objectional or offensive speech and can be regulated based on time, place and manor. The biggest industry on the Internet today is pornography. In the mid 90's Congress pass the Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 15 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Communications Decency Act an attempt to get rid of a lot of the porn from the Internet. Reno v. American Civil Liberties Union this statute, the CDA, was struck down, because it was going to remove protected speech as well as unprotected speech. The statute said any website displaying any sort of nudity cannot operate on the Internet. Such a broad statute ends up knocking out both protected and non-protected speech. This would be unconstitutional. The problem is drafting language that is good enough to work. The follow up is called the Child Online Decency Act, or the Child Online Protection Act said to the websites that even though we can stop you from putting that stuff online, we, the government, can regulate who can gain access to the site. For the vast majority of sites, you have to put in a credit card # in order to get full access. In most cases, if you have a credit card, you are over 18. If you are not 18, then you will be caught. The law says that the credit card requirement has a chilling effect on access to protected speech. You will think twice before going to this site. You are less likely to go because you don't want other people to find out about it. b. Hate Speech this is protected and allowed, because it is only offensive, and not content regulations. Such as KKK. There is symbolic speech, such as waving swastikas, and in Texas v. Johnson the decision was made that it is permissible burn the American Flag, because that is the ultimate form of freedom of speech. c. Commercial Speech advertisements. A few years ago you couldn't make the brand name comparison, such as Coke v. Pepsi, but nowadays it is permissible. A few years ago, it was prohibited for Lawyers and pharmacists to advertise Bates v. State Bar of Arizona lawyers case. There are certain types of products that could be advertised on TV, but now you cannot, such as cigarettes. 3/21/02 Freedom of the Press: Most of the principles regarding freedom of speech apply to freedom of the press. One idea, which is unique to the press, involves matters of national security. Regarding classified material the government has the ability to control that information and can prohibit it from being printed. 1970's Pentagon papers case, papers that were going to show that we were losing a lot more money and people than the government wanted the people to believe. The government went and got an injunction prohibiting the newspaper from printing it. The newspaper then went to the court to complain. So the court said, "we are not going to engage in `prior restraints', they'd rather wait for the story to be published and then the court would deal with it. Unless the information is a threat to national security, the court will not get involved until after it is printed. Religion Clauses in the First Amendment : The Establishment Clause - prohibits the government from establishing a national religion. Free Exercise Clause focuses on an individual, an individual has the right to freely practice his beliefs. The Establishment Clause: Lemon v. Kurtzman the Supreme Court said, 1) in order for a statute or a program to be Constitutional, it must be neutral on its face. It cannot favor one religion over another, or Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 16 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg religion over non-religion. Separation of Church and State. That notion has been carried to the extreme. The government doesn't have to be anti- religion, but that is where the government has come over the years. In the historical context, many of the original colonists were subject to religious persecution, and were not allowed to worship their own religion, and they came to this country to practice religion in their own way. On the $1 bill, it says "In G-d We Trust," but that is not restricted to any god. 2) Whatever the statute is it has to have a secular purpose 3) It cannot require the government to become excessively entangled in religion. There have also been many cases regarding holiday displays. Creches (a nativity scene) are very problematic, because it is clearly a religious item. Religious articles, such as Menorahs, or X- mas trees, have been allowed as long as they are put side by side, thereby making everyone happy. Free Exercise Clause: Major case TWA v. Hardison Supreme Court stated that regarding this, there must be reasonable accommodation. This does not entitle someone to do whatever he wants with regard to religion. If one works for a hospital, and there are shifts, could one go to the schedule maker in the beginning or the year and say do not schedule me for Friday night or Saturday? No, the burden is on the individual. The employer can allow you to switch shifts. There are times when the employer can force the issue. For examp le, a type of business that runs on a Tuesday to Saturday schedule, the employer could say that working on Saturday is a legitimate job requirement. This is called a Bona Fide Occupational Qualification, BFOQ, if the employer could show that a certain discrimination is a BFOQ, that discrimination would be allowed. 4/9 Fourth Amendment Search and seizures. Warrants and Searches. When the Police want to search a person or property for criminal activity they must first obtain a search warrant or Arrest warrant. If not, it is an invasion of privacy. Search is based on Probable Cause more likely than not. One can get the warrant from a judge or magistrate, someone like a judge who handles pretrial manners. There are exceptions to the warrant requirement. In those cases, the police can search even without a warrant. Even without the warrant, they still must have probable cause. Exceptions: 1) Items in plain view, seen by police without extraordinary measures can be seized without getting a warrant, because it is no longer part of your privacy. 2) Search incident to a lawful arrest when the police lawfully arrest someone, they then have the right to search the defendant and the area within the defendant's immediate control. If someone gets pulled over for speeding, the cops could search the entire person and car including the trunk. This is to protect the police from potential danger. 3) If the defendant consents to allow the cops in, they don't need a warrant for that particular time. You can give consent only on physical property that belongs to you. If you refuse to give consent and then they barge in and seize evidence, you can make a motion to have that evident suppressed. The court runs a suppression hearing and the judge decides what to do with that evidence. The outcome of that hearing can have a major effect on the outcome of the case. If the originally seized evidence is suppressed, any other evidence obtained as a result of suppressed evidence is not permissible under The Fruit of the Poisonous Tree Doctrine - Wong Sun v. United States. 4) United States v. Leon even when the police mess up, if they acted in good faith, then the evidence stays. That is if they truly believed that there was probable cause. This gives the police a great amount of leeway. This is one of the early decisions of the Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 17 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg conservative court that we have today. 5) Emergency Situations there is no need for a warrant if there is an emergency, and they can go in and seize anything. Exigent Circumstances. 6) Hot Pursuit of a suspect, they can kick down the door of a house without a warrant, and they can seize anything they see there. Fifth Amendment : Contains a number of different provisions. Miranda Rights. Rights against selfincrimination no one can be forced to incriminate themselves. The famous case is Miranda v. Arizona. Right to remain silent, anything you say can and will be held against you. It really will be held against you. They read you your rights when the police are going to put you through custodial interrogation they interrogate you when you do not feel free to simply get up and leave. This right only applies to you. You can be forced to testify against someone else and incriminate that person. If you don't, then they hold you in contempt. Businesses do not enjoy the Fifth Amendment rights, only individuals. Grand Jury 4/11 Double Jeopardy is in the Fifth Amendment can't be tried twice for the same case. How do you know that it is the same crime? Every crime consists of elements or requirements. If you satisfy all the requirements and if two crime's requirements match up, it is Double Jeopardy. Robbery can be broken down into Larceny and assault. If you were acquitted of larceny, could you be tried for assault? No, it is included in robbery, and that would be double jeopardy. This doesn't apply from criminal to civil cases. Also doesn't apply from federal to state cases. Due Process Procedural Due Process involves two ideas - 1) Notice and 2) Opportunity to be heard. When the government is looking to take away your life or liberty or property, they cannot just seize them, you have to get notice that they are doing that and you have to be given an opportunity to have your side of the story heard. In regards to property, sometimes it doesn't have to be physical, tangible things. It is also applied to other things as well, with regards to your job if you are a government employee. The government cannot take away your job. Substantive Due Process requires that laws be fundamentally fair. Has to be some sort of rationale to them. Laws cannot be arbitrary and capricious. This is a very ambiguous concept. "Fundamental rights" involves stuff in first amendment. Others such as right to travel, right to vote and right to enter into contracts. If the government for no reason at all, suddenly says no one can cross the GWB, that law could be challenged based on Substantive due process. Early Substantive due process cases focused on economic issues Lochner v. New York early 1900's about laws limiting child labor. These laws were challenged by big businesses as denying them to enter any business relationships that they wanted to. Early on, those laws were struck down. Government has to keep hands off regarding contractual agreements. Eminent Domain Government has the right to use or take your property for some public purpose, such as building a highway through your backyard, they can as long as they pay you just compensation. Also known as the Takings Clause. Sometimes the government doesn't have to seize our property in order to fall under category of "taking." Example: If the government wants to declare your house a National Landmark, that may constitute a "taking," because the value of your house goes drastically down. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 18 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Sixth Amendment : More criminal procedures Right to a speedy and public trial you may want an open courtroom. This is in reaction to the closed courts in England, so that the government couldn't tyrannize the judgment and the defendants. In regards to a speedy trial, it is a bit misleading. Real focus is not the trial itself. It is focusing on everything leading up to trial. Right to Counsel right to an attorney. Of you cannot afford one, one will be provided for you. Effective assistance of counsel does not mean that you always get the best lawyer every time. Marginally competent is just as good in the eyes of the Supremes. Confrontation Clause - Defendants have the right to be confronted by the witnesses against them. If one is the defendant, and the prosecution can't just bring in a tape of the deposition, they have to be in the courtroom, because it is much harder to lie when you are staring at the defendant. Defendants also have the right to have compulsory process for obtaining witnesses in his favor. They can force a witness with a subpoena to come to court. 4/16 Eighth Amendment: Bail excessive bail shall not be set. This amendment does not provide defendants with an automatic right to bail they are not guaranteed bail. The right given to him is that if the judge decides to set bail, it cannot be excessive. Bail is a dollar amount set high enough to serve as an incentive for the defendant to stick around for trial. When a defendant pays bail, he shows that he will show up for trial, and at the end of the trial, if he shows up, he will get the money back. If the defendant does not show up after paying bail, then he forfeits the money to the court. Before setting bail or deciding to grant bail at all, the judge is going to look at 1 the nature of the crime, 2 a record of previous offenses, 3 a family, 4 assets, 5 or a job. The judge would rather grant bail than keep the defendant in jail, because there isn't enough room in the prisons to house all the criminals. If you don't have the money to pay the bail, then you go to a bail bondsman to get bail bonds. If you need to put up a certain amount of money for bail, you get a bail bond that guarantees that you will show up. In order for him to do this, you have to put up some assets. If you show up, then the bondsman returns everything. If not, then he gets to keep your assets, but he wants money from the court, so then they get a bounty hunter to bring you back to the court, sometimes with excessive force. There is a fee that the bondsman will charge for his services. Cruel and Unusual Punishment Most important idea is that Capital punishment is not cruel and unusual. Only argument is that specific forms might be cruel and unusual. For example: if a state decided to put people to deal by pouring hot lead down their throat, that nowadays would be cruel and unusual. Lethal injection is a popular form of punishment now. It is the least cruel and unusual. The electric chair is still used, but many states that use the chair didn't do a very god job of maintaining the equipment, because it took a long time for the supreme court to say that it wasn't cruel and unusual, and much of the equipment was not working anymore, and there have been many times where it didn't work the first time. But lethal injection is the best way, and least expensive. Fourteenth Amendment : Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 19 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg The fourteenth amendment contains a Due Process clause, a Privileges and immunities clause, and Equal Protection clause everyone is entitled to equal protection under the law. It is not acceptable to treat one group one way and another group another way. Supreme Court developed three separate tests for deciding whether something is discrimination or not. First they have to identify what the appropriate test to be used. 1) Rational Basis Test a classification scheme will be acceptable, constitutional, if it is reasonably related to a legitimate government interest. Under this test most schemes will work, because it is relatively easy to find a legitimate government interest. 2) Strict Scrutiny a classification scheme will be acceptable only if it is necessary to further a compelling state interest. Allowed if there is really no other way to do it. Used why talking about fundamental rights, or first amendment rights, right to vote, right to travel, right to enter into contract. Or when suspect classes are involved. There are four suspect classes: race (three major races: Caucasians, Negro, and Oriental), religion, national origin, and alienage. National Origin refers to your family roots, where you trace your ancestors. Alienage refers to citizenship in US or from a foreign country. These are called suspect classes because they are suspected to be done with an improper motive. The government has to show a compelling state interest. Korematsu v. United States 1942 Japanese were rounded up and put into camps, sued government that he is a national American and the government put him in the camp because of national security. 3) Intermediate Scrutiny Craig v. Boren a classification scheme will be acceptable only if it is substantially related to an important government interest. Used in gender related issues. Used for privacy, such as separate bathrooms. Logically, it should be 1, 2, then 3. To see how it progresses from reasonably, to substantially then to necessary. Everything about this clause applies when talking about the government setting up the scheme, in the private context, this clause does not apply. In private sector, you have to rely on statutory law rather than constitutional protection. That comes in form of civil rights laws. Those laws can be more protecting; can prohibit discrimination in more types of cases than equal protection clause. One topic not covered is sexual orientatio n. You have to separate government and private laws before going to court with a complaint. B-Law Test 2 3/5 Chapter 4 There are 11 Circuit Court of Appeals and then two other special ones: one is US court of appeals of the district of Colombia, because there are many government agencies in D.C. and therefore many lawsuits. Also US court of Appeals for the Federal Circuit only specialized one, hears limited types of cases, and it is national in scope, as opposed to the other 11, which are regional, for each circuit. It is based in Washington but it covers the entire United States. En Banc "On the Bench" when you argue a case in one of the circuit courts, there is a panel of three judges to which you bring your case, bit those three are part of the total of 15 and the 15 serve on a rotating basing, and they don't always sit together they switch off. There can be two different cases, with the same ideas behind it heard by two different panels that can bring 2 different rulings within the same circuit. The losing Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 20 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg side in the second case can ask for a rehearing En Banc getting all of the judges from the circuit, thereby getting one ruling that eliminates the discrepancy. The first loser can appeal to the Supreme Court of the United States. But the first ruling is not overturned with En Banc. En Banc is an opportunity to appeal within the same court without going to the Supreme Court. There are 12 different circuits around the US, and therefore it is possible to have different rules of law developed in different circuits. This is one of the easiest ways to get the Supreme Court to grant cert (writ of certiorari), to take on your case. Alternative Dispute Resolution (ADR) there is a major advantage in Alternative Dispute Resolution that you do not have in litigation, is that in ADR, you can negotiate, you can split the difference between the two sides. One might do this if they feel that they don't have the strongest case in the world. They'd rather get something than nothing at all. Alternative Dispute Resolution saves money, time and is more convenient, and doesn't depend on a jury. Specific Types: Negotiation, Mediation, and Arbitration. Those are the big three. Also Mini Trials, Summary Jury Trials, and Hired Jury Trials. Negotiation when the two sides in the dispute and or their representatives (attorneys, agents) try to reach a settlement, an agreement. You don't have a third party no neutral outsider involved in the process. You can always negotiate a settlement, before trial, during trial and even after trial. You need willingness to compromise or else you are going to get nothing. It is often better to have a lawyer deal with this because emotions can sometimes get in the way. Lawyers can eliminate that emotion and deal with it in a legal way. At the end of the negotiations after a decision is made, there is a written agreement that both sides sign, then if someone doesn't follow through you can sue them for a breach of contract. Mediations involves a third party mediator, outsider, whose function is to facilitate some sort of agreement between the two sides. He can offer some sort of advice, or offer some sort of solution, try whatever possible for sides to reach an agreement. A successful mediator is realer a good psychiatrist, and knowing how people think, and what they want. Arbitration third party makes the decision has ability to bind the two sides to a decision. He is a mediator with real legal authority. Arbitrators give awards. If the other side doesn't pay the award, you can bring the arbitration award to the court and have it converted over to a judgment, and then you can enforce that judgment just like any judgment you would have received during a regular trial. Arbitration is basically the same thing as Beis Din in Jewish Law. If the subject matter is of a religious matter, you could run into a problem of separation of church and state. In order to get the regular court to make the judgment from a beis din, you have to get a contractual agreement stating the validity of the arbitration panel, which is the beis din. 3/7 In order to become an arbitrator in a court related context, you have to show a law degree, as well as several years of law experience. Small claims court works as follows: when you go to court there is a calendar and side decide whether they want their case heard by a judge or an arbitrator. If they choose an arbitrator, chances are very good that their case will be heard that day, with a response coming soon end in sight. If you opt for the judge, there is only one judge and everyone wants the judge, and therefore there is Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 21 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg a very good chance that your case won't be heard that day, or even that week, and it could take a very long time to get a decision from the judge. Tha t sort of arbitration is known as Contract based arbitration or Commercial based arbitration. They are entering into a binding agreement to have their dispute resolved by the arbitrator. There is a different type, called Judicial based arbitration, which is different in that there are court systems in which you are not allowed to litigate your case unless you have gone through some sort of arbitration. If you don't like the result of the arbitration you can go back to the court and say that you now want to bring your case in front of a judge. In contract based, the rule of the arbitrator is final. 99% of the time it is final. If you lose, you can no longer appeal. In judicial based, the ruling could be thrown out by the parties if they don't like the decision and bring the case in front of court. So the losing side should always go and say he wants to litigate because he doesn't like the decision! When you review the case, you realize that you lost the arbitration for a reason and it might not be worth it to bring it to court because you probably will lose again. You can agree to arbitrate before the argument arises or after the argument arises. Usually, in employment cases, it is written in the contract that any dispute will go to an arbitrator, instead of a court. In Major League Baseball, the player puts in the salary # they want and team puts in the salary # they want and the arbitrator chooses one or the other, and cannot split it to be in between. Chapter 5 on our own know name of each statute and organization, and a little bit about what each on is. Chapter 6 The Constitution Separation of powers, checks and balances, federalism, supremacy clause, notion of preemption, judicial review, privacy, Roe v. Wade, "separate but equal is not equal" Article I, Section VIII, Clause III Commerce clause, Interstate Commerce Clause gives Congress the power to regulate interstate commerce. This is different than Intrastate Commerce Clause, which is commerce within the same state. Today, this covers almost everything in business. Vast majority of Congressional legislation is under this clause. The Heart of Atlanta Motel v. United States brought shortly after Civil Rights Act of 1964. This act prohibited discrimination based on race. This act was passed under the commerce clause. Whenever Congress passes a law they must be acting under one of their enumerated powers. These powers are contained in Article I, Section VIII of the Constitution "The Congress shall have power to..." There are 16 clauses as the enumerated powers. The 17th is called the elastic clause necessary and proper clause. Congress can do whatever it needs to in order to carry out one of the first 16 clauses. In this case, there was an African American who went into the motel and wanted to rent a room in this motel and the owner said, "We don't rent to your kind". The African American brought the case to court saying that the Civil Rights Act of 1964 prohibits discrimination based on race. The Motel lawyer said that the Civil Rights Act came under the Commerce clause, which is INTERstate commerce, and the motel is INTRAstate. Really the court didn't buy this because the motel really is INTERstate because that is what motels cater to. The Supreme Court developed the Affectation Doctrine Congress has the power not only to regulate the INTERstate commerce, but they even have the power to regulate INTRAstate commerce, which will substantially Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 22 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg effect INTERstate commerce. This is a very broad reading of the clause. This is very judicial activist and social engineering. Example: Securities Act of 1933 and Securities Exchange Act of 1934 Federal securities laws, that have to do with federal interstate commerce. Blue Sky Laws state level securities laws. Do states now have ability to regulate interstate commerce? We know that states have ability to regulate intrastate commerce. On the inter-level, the states have the ability to regulate interstate commerce with two major exceptions. 1) A state is not allowed to openly discriminate against commerce from another state. 2) One state is not allowed to pass laws that will excessively burden interstate commerce. Bibb v. Navaho Freight Lines Indiana passed a law requiring trucks to have rounded mudflaps. Most trucks had square mudflaps since they didn't want trucks to go through their state. So they will have to change their mudflaps or they will have to find an alternate route. So the case came before the Supreme Court and they said that this regulation is unduly burdensome. If you want to get by one of those exceptions, you have to demonstrate an overriding health, safety or welfare issue, and then it would be allowed. When states regulate commerce, they do so under their police power states ability to promote health safety and welfare of the people. 3/12 Wickard v. Filburn affectation doctrine. Gov't passed a law limiting the amount of wheat that any one farmer was allowed to grow, so that all farmers would have to sell their wheat. This would be limiting the supply thereby increasing the demand. One farmer wanted to grow some addition amount of wheat, to use for private consumption. Since he was going to use it for himself, it would be exempt from the commerce clause and the federal regulation. Case went to the supreme court, and court said to farmer even though you are not under interstate commerce, if we let you, then we have to let everyone and thereby increasing the amount of wheat and it would have an effect on the overall economic well-being. On the level of each individual farmer, the impact would be minimal, but on the large scale, it would be a big effect. Article I, Section VIII, Clause I Congress's power to tax and spend. Why is this the first power given to Congress? Without the ability to tax the people, the government would have no money. Articles of Confederation, which came before the Constitution, didn't last very long, because their main idea was to have a weak federal government, and give most power to the individual states, specifically without the power to tax. And that is why it didn't last, because the federal government had no power to get money from the states, and they had to rely on donations, which eventually ran out. When the Constitution was being drafted, they realized that there had to be a happy medium between no tax and severe taxes "Taxation with Representation." The taxing power is therefore one of the most important powers of Congress. IF congress uses tax money in a way that you don't like, you can't sue them because you voted for them and you put them where they are. You also can't sue them because of Sovereign Immunity idea that unless the government specifically authorizes us to sue the government, we do not have that ability. This traces back to Merry Old England, because the king made the law, and since he made the law, he is therefore above the law. We as private citizens do not have the ability to sue the government unless the government authorizes us to, via a statute that would grant us that right. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 23 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Gate keeping method: Standing a legal principle that must be satisfied in order to bring a lawsuit. It refers to the personal stake that I have in this lawsuit. My personal unique connection to what is going on. This is the way that I am being harmed, which is different from everyone in society. You can't sue Congress because there is no guarantee that it is your money that is being used for that program. It is not impossible to sue Congress, but it is very, very difficult. Ripeness idea that the court is not going to get involved in hypothetical questions. Courts don't deal in "what if?" cases. The question has do be substantial. Courts don't get involved until legal questions unless it is ripe for a decision. Example: If one is no t pregnant yet but is thinking about getting pregnant, she could not go to court to get permission for an abortion, because the case is not ripe for a decision. Mootness when there is no longer a question to be decided. The underlying legal question may still be there, but the parties are no longer involved in this question, so the court will wait until it happens again and make a decision then. The case is moot. If they don't have to answer the question, then the court won't answer it. Exhaustion of Administrative Remedies when your case involves subject matter that falls within the domain of an administrative agency, then you have to go through all of the options that the agency provides before you will be able to go into the regular court system. Example: If you get a moving violation, you first have to go to the Traffic violations bureau, and then if you lose there, you can go into the regular court system. Article I, Section VIII, Clause VIII Patents and Copyrights Congress has the power to give people protection for their intellectual property. Patents cover scientific discoveries and inventions. Copyrights cover everything else. They must be for limited times. Whatever the time frame is, there has to be some end point to it. They have to go into the public domain. Once it is in the public domain, anyone can take it and use it, but cannot represent it as his or her own. Copyrights are usually for 70 years, whereas Copyrights are for 20 years. Patents and Copyrights are Constitution in their origin. Trademarks are not directly constitutional; they are derived from the commerce clause. They are used in commerce to identify the goods of commerce. They don't carry the time limitations that Patents and Copyrights carry. They can go on forever as long as they are being used for commerce. They will never go into the public domain. Article IV Section I Full Faith and Credit Clause if you get married in one state in the US and then you go to live in another state, that other state recognizes the marriage, because it gives full faith and credit. It is suggestive language, but it is not compelled to recognize it "Shall give full faith and credit." This is a general idea, but doesn't work all across the board. 3/14/02 Article IV Section II Privileges and Immunities - You take on the legal rights and responsibilities when you arrive at the new location. The fact that you are an out of stater, does not mean the second state can discriminate against you. This is not an absolute. There are times when there will be distinctions brought between you and state residents. This is significant within the US, but is more significant in the foreign context. You can get in a lot of trouble if you commit a crime in a foreign country. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 24 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg The Bill of Rights The first amendment starts off with the following information "Congress shall make no law," which applies to the entire bill of rights. This is designed to protect us from actions of the federal government, Congress and Federal Agencies. If a state wanted to do something that contradicted the bill of rights, they would be allowed to. The state governments could make a law that goes against the Bill of Rights. They were framed in reaction to what they experienced in England Freedom of religion, speech, the press. These were the things they didn't have in England. They also didn't like the fact that power was centralized in the King, so they made the power decentralized with the three branches. There was no such fear on the state level. So through a long series of Constitution al decisions, the Supreme Court selectively incorporated, carried over various provisions addressed to the Federal Government, and made them applicable to the State Governments. In the XIV Amendment, one of the provisions is the Due Process Clause. This is not the only one; there is another Due Process Clause in the V Amendment. So why are there two? V amendment is addressed to the Federal Government and the XIV amendment is addressed to the State Government. Why is this the only clause that is repeated? In the XIV amendment it means something more than what it means in the V amendment. In the V amendment, it has a narrow meaning, and in the XIV amendment it has a much broader meaning. Through selective incorporation they made everything contained in the Bill of Rights apply to the States as well. First Amendment Freedom of Speech: The easiest way to understand this is through three separate categories. Type of speech that is 1) unprotected at all 2) partially protected the context is protected, but the government can regulate it. Those regulations take the form of time, place and manor When, where and how you say something, but they cannot stop you from saying it 3) fully protected speech. 1) Unprotected a. You can't say anything that would create a clear and present danger like yelling fire in a crowded theater, when there is no fire. Gitlow v. New York no yelling fire in a theater. b. Incitement to imminent unlawful action Stirring everyone to do something that is unlawful, like inciting a crowd to burn down a building. Acting as a rabble-rouser. This has to be imminent, and there can't be a significant amount of time between the incitement and the action. Brandenburg v. Ohio illustrates this idea. c. Fighting Words Chaplinsky v. New Hampshire You can't use fighting words. What are fighting words? These are words designed to provoke a physical confrontation. This is directed to an individual. d. Defamation of Character 1) Libel and 2) Slander. Libel is written and slander is spoken. The speech must be false. If it is true it is not defamation. This is saying something bad about someone. Beginning of Chapter 9 pages 244247. New York Times v. Sullivan 1960's if the subject of the defamation is a public official, it is not enough to show that the statement is false, they much also prove actual malice. Actual Malice is that the speaker knew the statement was false, or acted with reckless disregard for the truth. There was another case: Gertz v. Welch that standard now also applies to public figures, not only public Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 25 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg officials. This standard was imposed to protect so that the newspapers shouldn't be afraid to tell the truth. The newspapers should have to check and recheck a story before they publish it. They now have a bit of a cushion before they will get into trouble. For defamation, you need publication - the defamatory statement has to be communicated to at least one person. If no one else heard the statements, there has not been any damage to reputation. Truth is always a wonderful defense to defamation. Libel per se and slander per se If something is presumed, you don't need to prove it. The burden shifts over to the other side to show that you were not hurt if it's a true statement. 3/19/02 e. Obscenity as compared to regular pornography. Difference in that obscenity is unprotected speech. Pornography is protected as to substance, but it can be regulated. A major Supreme Court case of obscenity is Miller v. California 3part test as to evaluating whether something is obscene. 1) Judge a work by looking at it in its entirety, not one individual piece. 2) You judge based on contemporary community standards, which is that we do not go by what the standards were in the 70's, 80's, or 90's, we go based on society today. Standards are different in New York and California than in Midwest states. 3) Whatever is involved in pictorial or literary display has to include subject matter that is prohibited by statute. In every district there are laws prohibiting public display of certain parts of the body. You only get into obscenity problems when displaying certain parts of the body. 4) The work has to lack any sort of literary, artistic or scientific value nothing redeeming about it. It is really difficult today to get something obscene. f. Child Pornography don't do it. There is not defense for child pornography. This refers to selling it, receiving it, possessing it. 2) Partially Protected d. Pornography is what we call objectional or offensive speech and can be regulated based on time, place and manor. The biggest industry on the Internet today is pornography. In the mid 90's Congress pass the Communications Decency Act an attempt to get rid of a lot of the porn from the Internet. Reno v. American Civil Liberties Union this statute, the CDA, was struck down, because it was going to remove protected speech as well as unprotected speech. The statute said any website displaying any sort of nudity cannot operate on the Internet. Such a broad statute ends up knocking out both protected and non-protected speech. This would be unconstitutional. The problem is drafting language that is good enough to work. The follow up is called the Child Online Decency Act, or the Child Online Protection Act said to the websites that even though we can stop you from putting that stuff online, we, the government, can regulate who can gain access to the site. For the vast majority of sites, you have to put in a credit card # in order to get full access. In most cases, if you have a credit card, you are over 18. If you are not 18, then you will be caught. The law says that the credit card requirement has a chilling effect on access to protected speech. You will think twice before going to this site. You are less likely to go because you don't want other people to find out about it. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 26 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg e. Hate Speech this is protected and allowed, because it is only offensive, and not content regulations. Such as KKK. There is symbolic speech, such as waving swastikas, and in Texas v. Johnson the decision was made that it is permissible burn the American Flag, because that is the ultimate form of freedom of speech. f. Commercial Speech advertisements. A few years ago you couldn't make the brand name comparison, such as Coke v. Pepsi, but nowadays it is permissible. A few years ago, it was prohibited for Lawyers and pharmacists to advertise Bates v. State Bar of Arizona lawyers case. There are certain types of products that could be advertised on TV, but now you cannot, such as cigarettes. 3/21/02 Freedom of the Press: Most of the principles regarding freedom of speech apply to freedom of the press. One idea, which is unique to the press, involves matters of national security. Regarding classified material the government has the ability to control that information and can prohibit it from being printed. 1970's Pentagon papers case, papers that were going to show that we were losing a lot more money and people than the government wanted the people to believe. The government went and got an injunction prohibiting the newspaper from printing it. The newspaper then went to the court to complain. So the court said, "we are not going to engage in `prior restraints', they'd rather wait for the story to be published and then the court would deal with it. Unless the information is a threat to national security, the court will not get involved until after it is printed. Religion Clauses in the First Amendment : The Establishment Clause - prohibits the government from establishing a national religion. Free Exercise Clause focuses on an individual, an individual has the right to freely practice his beliefs. The Establishment Clause: Lemon v. Kurtzman the Supreme Court said, 1) in order for a statute or a program to be Constitutional, it must be neutral on its face. It cannot favor one religion over another, or religion over non-religion. Separation of Church and State. That notion has been carried to the extreme. The government doesn't have to be anti- religion, but that is where the government has come over the years. In the historical context, many of the original colonists were subject to religious persecution, and were not allowed to worship their own religion, and they came to this country to practice religion in their own way. On the $1 bill, it says "In G-d We Trust," but that is not restricted to any god. 2) Whatever the statute is it has to have a secular purpose 3) It cannot require the government to become excessive ly entangled in religion. There have also been many cases regarding holiday displays. Creches (a nativity scene) are very problematic, because it is clearly a religious item. Religious articles, such as Menorahs, or X- mas trees, have been allowed as long as they are put side by side, thereby making everyone happy. Free Exercise Clause: Major case TWA v. Hardison Supreme Court stated that regarding this, there must be reasonable accommodation. This does not entitle someone to do whatever he wants with regard to religion. If one works for a hospital, and there are shifts, could one go to the schedule maker in the beginning or the year and say do not schedule me for Friday night or Saturday? No, the burden is on the individual. The Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 27 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg employer can allow you to switch shifts. There are times when the employer can force the issue. For example, a type of business that runs on a Tuesday to Saturday schedule, the employer could say that working on Saturday is a legitimate job requirement. This is called a Bona Fide Occupational Qualification, BFOQ, if the employer could show that a certain discrimination is a BFOQ, that discrimination would be allowed. 4/9 Fourth Amendment Search and seizures. Warrants and Searches. When the Police want to search a person or property for criminal activity they must first obtain a search warrant or Arrest warrant. If not, it is an invasion of privacy. Search is based on Probable Cause more likely than not. One can get the warrant from a judge or magistrate, someone like a judge who handles pretrial manners. There are exceptions to the warrant requirement. In those cases, the police can search even without a warrant. Even without the warrant, they still must have probable cause. Exceptions: 1) Items in plain view, seen by police without extraordinary measures can be seized without getting a warrant, because it is no longer part of your privacy. 2) Search incident to a lawful arrest when the police lawfully arrest someone, they then have the right to search the defendant and the area within the defendant's immediate control. If someone gets pulled over for speeding, the cops could search the entire person and car including the trunk. This is to protect the police from potential danger. 3) If the defendant consents to allow the cops in, they don't need a warrant for that particular time. You can give consent only on physical property that belongs to you. If you refuse to give consent and then they barge in and seize evidence, you can make a motion to have that evident suppressed. The court runs a suppression hearing and the judge decides what to do with that evidence. The outcome of that hearing can have a major effect on the outcome of the case. If the originally seized evidence is suppressed, any other evidence obtained as a result of suppressed evidence is not permissible under The Fruit of the Poisonous Tree Doctrine - Wong Sun v. United States. 4) United States v. Leon even when the police mess up, if they acted in good faith, then the evidence stays. That is if they truly believed that there was probable cause. This gives the police a great amount of leeway. This is one of the early decisions of the conservative court that we have today. 5) Emergency Situations there is no need for a warrant if there is an emergency, and they can go in and seize anything. Exigent Circumstances. 6) Hot Pursuit of a suspect, they can kick down the door of a house without a warrant, and they can seize anything they see there. Fifth Amendment : Contains a number of different provisions. Miranda Rights. Rights against selfincrimination no one can be forced to incriminate themselves. The famous case is Miranda v. Arizona. Right to remain silent, anything you say can and will be held against you. It really will be held against you. They read you your rights when the police are going to put you through custodial interrogation they interrogate you when you do not feel free to simply get up and leave. This right only applies to you. You can be forced to testify against someone else and incriminate that person. If you don't, then they hold you in contempt. Businesses do not enjoy the Fifth Amendment rights, only individuals. Grand Jury 4/11 Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 28 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg Double Jeopardy is in the Fifth Amendment can't be tried twice for the same case. How do you know that it is the same crime? Every crime consists of elements or requirements. If you satisfy all the requirements and if two crime's requirements match up, it is Double Jeopardy. Robbery can be broken down into Larceny and assault. If you were acquitted of larceny, could you be tried for assault? No, it is included in robbery, and that would be double jeopardy. This doesn't apply from criminal to civil cases. Also doesn't apply from federal to state cases. Due Process Procedural Due Process involves two ideas - 1) Notice and 2) Opportunity to be heard. When the government is looking to take away your life or liberty or property, they cannot just seize them, you have to get notice that they are doing that and you have to be given an opportunity to have your side of the story heard. In regards to property, sometimes it doesn't have to be physical, tangible things. It is also applied to other things as well, with regards to your job if you are a government employee. The government cannot take away your job. Substantive Due Process requires that laws be fundamentally fair. Has to be some sort of rationale to them. Laws cannot be arbitrary and capricious. This is a very ambiguous concept. "Fundamental rights" involves stuff in first amendment. Others such as right to travel, right to vote and right to enter into contracts. If the government for no reason at all, suddenly says no one can cross the GWB, that law could be challenged based on Substantive due process. Early Substantive due process cases focused on economic issues Lochner v. New York early 1900's about laws limiting child labor. These laws were challenged by big businesses as denying them to enter any business relationships that they wanted to. Early on, those laws were struck down. Government has to keep hands off regarding contractual agreements. Eminent Domain Government has the right to use or take your property for some public purpose, such as building a highway through your backyard, they can as long as they pay you just compensation. Also known as the Takings Clause. Sometimes the government doesn't have to seize our property in order to fall under category of "taking." Example: If the government wants to declare your house a National Landmark, that may constitute a "taking," because the value of your house goes drastically down. Sixth Amendment : More criminal procedures Right to a speedy and public trial you may want an open courtroom. This is in reaction to the closed courts in England, so that the government couldn't tyrannize the judgment and the defendants. In regards to a speedy trial, it is a bit misleading. Real focus is not the trial itself. It is focusing on everything leading up to trial. Right to Counsel right to an attorney. Of you cannot afford one, one will be provided for you. Effective assistance of counsel does not mean that you always get the best lawyer every time. Marginally competent is just as good in the eyes of the Supremes. Confrontation Clause - Defendants have the right to be confronted by the witnesses against them. If one is the defendant, and the prosecution can't just bring in a tape of the deposition, they have to be in the courtroom, because it is much harder to lie when you are staring at the defendant. Defendants also have the right to have compulsory process for obtaining witnesses in his favor. They can force a witness with a subpoena to come to court. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 29 of 31 BLW 2021 Business Law I Professor Greenberg 4/16 Spring 2002 Notes by Jeffrey Rosenberg Eighth Amendment: Bail excessive bail shall not be set. This amendment does not provide defendants with an automatic right to bail they are not guaranteed bail. The right given to him is that if the judge decides to set bail, it cannot be excessive. Bail is a dollar amount set high enough to serve as an incentive for the defendant to stick around for trial. When a defendant pays bail, he shows that he will show up for trial, and at the end of the trial, if he shows up, he will get the money back. If the defendant does not show up after paying bail, then he forfeits the money to the court. Before setting bail or deciding to grant bail at all, the judge is going to look at 1 the nature of the crime, 2 a record of previous offenses, 3 a family, 4 assets, 5 or a job. The judge would rather grant bail than keep the defendant in jail, because there isn't enough room in the prisons to house all the criminals. If you don't have the money to pay the bail, then you go to a bail bondsman to get bail bonds. If you need to put up a certain amount of money for bail, you get a bail bond that guarantees that you will show up. In order for him to do this, you have to put up some assets. If you show up, then the bondsman returns everything. If not, then he gets to keep your assets, but he wants money from the court, so then they get a bounty hunter to bring you back to the court, sometimes with excessive force. There is a fee that the bondsman will charge for his services. Cruel and Unusual Punishment Most important idea is that Capital punishment is not cruel and unusual. Only argument is that specific forms might be cruel and unusual. For example: if a state decided to put people to deal by pouring hot lead down their throat, that nowadays would be cruel and unusual. Lethal injection is a popular form of punishment now. It is the least cruel and unusual. The electric chair is still used, but many states that use the chair didn't do a very god job of maintaining the equipment, because it took a long time for the supreme court to say that it wasn't cruel and unusual, and much of the equipment was not working anymore, and there have been many times where it didn't work the first time. But lethal injection is the best way, and least expensive. Fourteenth Amendment : The fourteenth amendment contains a Due Process clause, a Privileges and immunities clause, and Equal Protection clause everyone is entitled to equal protection under the law. It is not acceptable to treat one group one way and another group another way. Supreme Court developed three separate tests for deciding whether something is discrimination or not. First they have to identify what the appropriate test to be used. 1) Rational Basis Test a classification scheme will be acceptable, constitutional, if it is reasonably related to a legitimate government interest. Under this test most schemes will work, because it is relatively easy to find a legitimate government interest. 2) Strict Scrutiny a classification scheme will be acceptable only if it is necessary to further a compelling state interest. Allowed if there is really no other way to do it. Used why talking about fundamental rights, or first amendment rights, right to vote, right to travel, right to enter into contract. Or when suspect classes are involved. There are four suspect classes: race (three major races: Caucasians, Negro, and Oriental), religion, national origin, and alienage. National Origin refers to your family roots, where you trace your ancestors. Alienage refers to citizenship in US or from a foreign country. These are called suspect classes because they are suspected to be done with an improper Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 30 of 31 BLW 2021 Business Law I Professor Greenberg Spring 2002 Notes by Jeffrey Rosenberg motive. The government has to show a compelling state interest. Korematsu v. United States 1942 Japanese were rounded up and put into camps, sued government that he is a national American and the government put him in the camp because of national security. 3) Intermediate Scrutiny Craig v. Boren a classification scheme will be acceptable only if it is substantially related to an important government interest. Used in gender related issues. Used for privacy, such as separate bathrooms. Logically, it should be 1, 2, then 3. To see how it progresses from reasonably, to substantially then to necessary. Everything about this clause applies when talking about the government setting up the scheme, in the private context, this clause does not apply. In private sector, you have to rely on statutory law rather than constitutional protection. That comes in form of civil rights laws. Those laws can be more protecting; can prohibit discrimination in more types of cases than equal protection clause. One topic not covered is sexual orientation. You have to separate government and private laws before going to court with a complaint. Downloaded from: www.yumesorah.com BLW2021GreNotes1.pdf Page 31 of 31 ...
View Full Document

This note was uploaded on 04/17/2008 for the course BUISINESS 2021 taught by Professor Greenberg during the Spring '08 term at Yeshiva.

Ask a homework question - tutors are online