5. us constitution and commerce lecture
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    5. us constitution and commerce lecture 5. us constitution and commerce lecture Presentation Transcript

    • U. S. Constitution
      • Constitutional Law Lecture
      • BA-2900
    • Court Visit Report
      • Your one page typewritten court visit report is due on Friday
    • Joya Assignment
      • 1. Did you use the ethics checklist in book?
      • 2. Did you separate Joya’s opinions from the facts?
      • 3. Did you have Joya talk with Bill or HR before going to the CEO?
      • 4. Did you have Joya do something?
      • 5. Did you have a plan for Joya if her ethical effort did not go well?
    • U.S. Constitution & the Bill of Rights
      • US Constitution establishes:
          • The Preamble establishes the purpose for the government
          • A union of the member states
          • With a Federal Government consisting of
            • Three equal branches
              • The Legislature
              • The Executive
              • The Judicial
    • U.S. Constitution & the Bill of Rights
      • US Constitution:
          • Article 1 : Defines the role, composition, duties and privileges of the bicameral [2 body] legislature
              • A Senate composed of 2 members elected from each state for terms of 6 years
              • A House of Representatives composed of members based on the number of persons residing in each state [ 1 Representative for every 30,000 persons ] for a term of 2 years
              • How many members in the Missouri Congressional delegation?
              • What is issue with results of census?
              • Balances interests of states being equals [regardless of size] with difference in concentrations of population
    • U.S. Constitution & the Bill of Rights
      • Article 1, Section 8
      • Gives Congress the power to regulate Commerce with foreign Nations, among the several States and with the Indian tribes
      • - basis for most regulation of business
      • This is the “ commerce clause ” broadly expanded by President Roosevelt to deal with the Great Depression
    • U.S. Constitution & the Bill of Rights
      • US Constitution:
          • Article 1 , Section 9: The writ of habeas corpus [latin- “bring me the body”]
          • This continued the English common law tradition of the courts being able to require a person seized by the government to be brought before the courts for a public hearing of why the government is detaining the person
          • A fundamental protection of individual liberty
          • Has this right ever been suspended?
          • Why is this a key issue in US cases involving persons interned in Guantanamo and in other places outside of US?
    • U.S. Constitution & the Bill of Rights
      • US Constitution:
          • Article 2: defines the Executive branch
            • A President and a Vice President
            • [only offices to require the person to have been a natural born citizen of the United States]
            • Chosen indirectly by an Electoral College as modified by amendments XII and XXII [selected and their voting determined by the states]
            • Which state governor is not eligible to become president of the US?
            • For a term of 4 years and under amendment XXII for not more than 2 terms
    • U.S. Constitution & the Bill of Rights
      • US Constitution:
          • Article 3: Establishes a Supreme Court [ and allows Congress to add or remove such other and additional inferior courts ie. the Courts of Appeal, District Courts]
              • Judges are appointed for life, subject to impeachment ‘ except upon violation of good behavior’
              • Impeachment process is similar to that for Illinois governor R. Blagojevich
              • see: http://www.youtube.com/watch?v=OIq6Al7wdk0
    • U.S. Constitution & the Bill of Rights
      • US Constitution:
          • Articles 4 through 7 deal with the administration of the Constitution-
            • Admission of new states
            • mutual recognition of public records of federal government and state
            • Amendments
            • Supremacy clause of US Constitution and laws
              • “ This Constitution and the Laws of the United States…shall be the supreme Law of the Land ….”
              • Article 6 (2)
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
          • The US Bill of Rights consists of Amendments 1 through 10 of the US Constitution
          • Added after the adoption of the Constitution at the insistence of some of the founders concerned that the government would become insufficiently attentive to the protection of individual liberty
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
          • First Amendment: Prohibits the federal government from
          • Interfering in Religion
          • 1. establishing a state religion [protest against the Church of England]
          • and
          • 2. with religious practice [protest against persecution of unpopular religious sects in Europe]
          • This is the basis for the tax exemption of church property- the power to tax being the power to regulate, favor or punish
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
          • First Amendment: Prohibits the federal government from
          • Restricting Public Speech or the Press
          • 1. The protection of the right of free speech and press is perceived to be one of the most important principles of the US Constitution and given great deference by the US Supreme Court
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
          • First Amendment: Free Speech and Press
          • US Supreme Court requires any action by the government restricting speech to be justified by a compelling state interest
          • and
          • in efforts to regulate speech the government must try to avoid regulating the content of the speech
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
          • First Amendment: Free Speech and Press
          • Supreme Court has acknowledged that the government has the power to regulate some types of speech
          • such as words which will immediately cause public harm- such as yelling “fire” in a crowded theater
          • or
          • words intended to provoke immediate violence
          • or
        • may regulate time, place and manner for public order [ the context in which the speech will occur but not content ]
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • First Amendment: Free Speech and Press
      • - Other Remedies for unacceptable speech:
          • Civil lawsuits for:
          • Slander - the speaking of false and malicious words about another tending to injure their reputation, business or means of livelihood
          • Libel - publication in writing or on media of false and malicious statements about another
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
          • First Amendment: Free Speech and Press
          • The scope of the first amendment right of free speech was at issue in Kasky v. Nike
          • [Kasky sued Nike alleging that Nike ads responding to claims about its labor practices in Thailand were false and intentionally misleading ]
          • - Is a “company” entitled to the protection of the first amendment?
          • - Is advertising protected “speech”
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • First Amendment: Free Speech and Press
          • Nike v. Kasky raises the question is advertising a type of speech which may be regulated?
          • ie truth in advertising laws
          • Supreme Court has indicated that it is speech and entitled to protection but to a lesser extent than political speech
          • this is characterized as “ commercial speech ”
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • First Amendment: Free Speech and Press
          • Nike v. Kasky : “commercial speech”
          • Supreme Court set forth three prong test-
          • see: Salib v. City of Mesa [page 116-117]
          • Courts grapple with issue on a case by case basis
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights
      • First Amendment – protects right of assembly and to petition the government for redress of grievances
      • - basis of power for unpopular demonstrations [eg American Nazis, Ku Klux Klan],
      • and
      • - basis for role of lobbyists
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights
      • First Amendment – petition the government for redress of grievances
      • - basis for Citizens United v. Federal Election Commission – Hillary movie case http://video.google.com/videoplay?docid=8464923602139974671&ei=Ixx0S7KlOoHaqAOz1dWSBw&q=hillary+the+movie&hl=en#
      • - Supreme Court decision eliminating campaign spending limits on corporations and unions
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fourth Amendment: Right to be secure from unreasonable searches of your person, home, property and papers without probable cause
      • important in government investigations of business
      • [eg. Search warrants in baseball steroid cases- can you collect data in computer on players other than those named in warrant?]
      • How do you respond to a request by a government official to enter your business and talk with your employees?
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fourth Amendment:
      • In responding to a police or regulatory officer’s request, the business person is making a judgment.
      • If you admit the officer to your offices you demonstrate your desire to cooperate but also may waive your privilege to require the officer to have a judicial warrant to do so
      • - exception for regulated businesses [deemed consent as condition of license ]
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fourth Amendment:
      • This raises the issue of whether any evidence is admissible in court in a case against the company based on the “exclusionary rule”
      • This is a judicially developed rule [eg of ‘stare decisis’] which prohibits the police from using evidence in a criminal case which was improperly obtained in violation of the fourth amendment [ even if highly probative of crime ]
      • - a procedural rule which can be changed or terminated by the courts [ not a constitutional right ]
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth Amendment:
      • 1. No duty to self incriminate in a criminal matter [basis for statement “taking the fifth amendment”]
      • and
      • 2. No taking of private property for public purpose without just compensation
      • - power of eminent domain
      • 3. Protection of due process of law
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth Amendment:
      • The taking of private property for public purpose is called eminent domain
      • Kelo v. City of New London- US Supreme Court upheld use of eminent domain to take property for redevelopment
      • [thus even property not blighted could be taken as part of an overall public purpose even when it would be transferred to another private person [ie developer].
      • This decision has led many states and municipalities to contemplate restrictions on their use of eminent domain
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth Amendment:
      • The taking of private property for public purpose in the US is called eminent domain
      • In international setting the taking of a foreign investor’s property by the host government is called expropriation
      • Developed countries follow the US approach of requiring the foreign government to pay- prompt, adequate and effective compensation in such a situation
      • what is prompt
      • adequate
      • effective
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth Amendment:
      • This amendment also confronts the situation of the government’s use of regulation which deprives the owner of the beneficial use of the property
      • eg- Does a zoning regulation [ is it a taking?] which prohibits farmland from being sold for a suburban housing development constitute a taking which requires compensation?
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth Amendment:
      • Usually regulatory takings do not require compensation , unless:
      • 1. it constitutes a total loss of economic value to the owner; or
      • 2. where the burden imposed is not proportional to the benefit being required of the owner [ ie a requirement that the developer put in sewers, roads and emergency services, such as fire hydrants, but not to build a public park on more than half the property]; or
      • 3. Restriction is imposed subsequent to known intended use of property
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fourteenth Amendment [doctrine of incorporation]:
      • Forbids state governments from depriving citizens of life, liberty or property without due process of law
      • This replicates the restriction on the federal government in the Fifth Amendment
      • This amendment added after the US civil war to prevent state governments from violating the civil and political rights of minorities
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth and Fourteenth Amendments [ significance of use of ‘person’ and ‘citizen’]:
      • Due Process of Law
      • 1. Substantively- protection against laws which unduly burden personal liberty or property
      • 2. Procedurally- requires notice and a fair hearing before government action against a person’s liberty or property
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth and Fourteenth Amendments:
      • Due Process of Law
      • eg: This has become relevant in the commercial context of the courts reducing excessive damage awards as a violation of fundamental fairness
    • U.S. Constitution & the Bill of Rights
      • US Bill of Rights:
      • Fifth and Fourteenth Amendments:
      • Due Process and punitive damages
      • Supreme Court adopted a three factor test to determine if punitive damages were grossly excessive and violative of due process :
      • 1. reprehensibility of defendant’s conduct;
      • 2. ratio between compensatory damages and punitive damages; and
      • 3. comparison of punitive damages with criminal penalties for the activity.
    • Assignment for Thursday
      • Read US Constitution – Appendix A
      • Read Chapter 4