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UA / Law and Legal Studies / LGS 200 / What is the meaning of the commerce clause?

What is the meaning of the commerce clause?

What is the meaning of the commerce clause?

Description

School: University of Alabama - Tuscaloosa
Department: Law and Legal Studies
Course: Legal Environment of Business
Professor: Alan trippe
Term: Spring 2017
Tags:
Cost: 50
Name: LGS test 2
Description: Basic answers to the study guide
Uploaded: 03/03/2018
5 Pages 54 Views 6 Unlocks
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Test 2-LGS 200- R.A. Hall


What is the meaning of the commerce clause?



Chapter 5- Business & the Constitution

1. Commerce Clause

a. Article 1, Section 8, Clause 3 of the Constitution. Gives the Congress power to  “regulate commerce with foreign nations, and among several states, and with  the Indian tribes.”

2. Equal Protection

a. 14th amendment. Requires all states to guarantee the same rights, privileges, and  protections to all citizens. Took effect in 1868. State cannot deny any person in  its jurisdiction.

3. Due process

a. Fair treatment through the normal judicial system, especially as a citizen’s entitlement.

4. Supremacy Clause  

a. Article 6. Stating that all laws made after the Constitution and treaties made  under the authority of the US are the “supreme law of the land”


What is the meaning of due process?



5. Bill of Rights  

a. First 10 amendments of the US Constitution. Rights like freedom of speech,  assembly and worship  

6. Establishment Clause

a. First Amendment. Prohibits the establishment of religion by Congress. 7. Free Exercise Clause  

a. Stating that the government cannot make a law prohibiting the exercise of  religion. Meaning we can choose the religion we want to believe in and exercise  it freely. We also discuss several other topics like What muslim dynasty started to fracture within india by 1750? how did this effect britain?

8. Fourth Amendment

a. Prohibits unreasonable search and seizures and requires any search warrant to  be sanctioned judicially and supported with probable cause.  

9. Protected Speech

a. Your opinion, the right to burn the US flag, right to criticize the President.  Political speech is fully protected.


What is the meaning of the supremacy clause?



i. Limited protection

1. Can enact time, place, and manner restrictions

a. Offensive speech (offensive language on TV can be  

restricted to late night hours [FCC])

b. Commercial speech  

i. Billboards can be limited to certain locations,  

telemarketing calls can be restricted by Do-Not-Call

list

10. Unprotected speech

a. May be forbidden

i. Dangerous Speech (yelling fire in a crowded theater)

ii. “fighting words” intended to provoke violent reactions or  

incitement  

iii. speech that incites violent overthrow of the govt.  

iv. defamatory speech

v. child pornography

vi. obscene speech

b. False statement of facts

i. In Gertz v. Robert Welch, inc. the supreme court decided  Don't forget about the age old question of Is daoism the same as taoism?

that there was “no constitutional value in false statements  

of fact”. This is not a concrete rule because the Court  

struggles with how much of the speech actually matters  

Chapter 6 – Torts & Strict Liability

1. Torts

a. 4 types

i. Intentional torts

1. The tortfeasor (person of commits a tort, meaning it interferes  

with another person’s rights) intends the conduct

2. Assault & battery  

3. False imprisonment

4. Misappropriation of right to publicity

5. Invasion of privacy  

6. Defamation of character—Libel/Slander

7. Fraud—intentional misrepresentation

8. IIED—intentional infliction of emotional distress Don't forget about the age old question of How does quintilian define rhetoric?

9. Malicious prosecution

ii. Negligence

iii. Strict liability

iv. Product liability

2. Negligence

a. “Failure to exercise the Degree of Care that a reasonable person would have  exercised.  

3. Res Ipsa loquitur Don't forget about the age old question of What purposes does a classification system for diagnosing disorders serve?

a. “the facts speak for themselves”

4. Defenses to negligence

a. Contributory Negligence

i. Failure of an injured plaintiff to act prudently

b. Comparative Negligence

i. Reduces the amount of damages that a plaintiff can recover in a  If you want to learn more check out What was the most important thing the ottoman empire controlled?

negligence based claim  

c. Assumption of Risk

i. Bars or reduces a plaintiff right to recovery against the negligent  

tortfeasor if the defendant can demonstrate that the plaintiff voluntarily  & knowingly assumed the risks. i.e dangerous activates

5. Defamation

a. Action of damaging the good reputation of someone; slander or libel Don't forget about the age old question of What are the five main categories of promotion?

6. Product liability

a. Legal liability of a manufacturer or trader incurs for producing or selling a faulty  product. (the water slide at toys r us case)

Chapter 7 – Criminal Law & Cybercrimes

1. Crimes / range of punishments

a. Felonies

i. Serious crimes- mala in se (inherently evil). Punishable by imprisonment,  or if 1st degree murder, some jurisdictions will give death penalty.

1. 1st, 2nd, 3rd degree offenses, 1st being most serious

2. Punishable by fines and/or imprisonment beginning at 1year up to  

life in prison

b. Misdemeanors

i. Less serious than felonies- mala prohibita (not inherently evil) but  

prohibited by society. Punishable by fines and/or imprisonment for up to  one year

2. Mens rea / evil act

a. Criminal intent

i. Specific intent crimes require that the perpetrator intended to achieve  the specific result from his illegal act

ii. General intent crime—perpetrator knew or should have known actions  would lead to harmful results

3. Kentucky v. King

a. Police officers entered an apartment building because they suspected King was  dealing marijuana. They brought in drug dogs to the front porch and he sat when  he could smell it. They went in just under the suspicion of it. No real cause.  4. Burden of proof

a. Obligation to prove ones assertion

5. Probable cause

a. Reasonable grounds for making a search, pressing a charge, etc

6. Double jeopardy

a. A person once prosecuted cannot be tired again for the same crime

7. Exceptions to search warrant

a. Plain View Doctrine

i. If evidence is in plain view, law enforcement does not need a search  

warrant

ii. Exigent circumstances—a warrantless search is reasonable if the  

exigencies of the situation make the needs. E.g. how pursuit of a fleeing  

suspect  

iii. Consent –consent of the individual whose person or property is being  searched

iv. Search incident to arrest –may only include the arrestee’s person and the  area. So not in the back of the car. Only within his wingspan

8. 5th amendment protection

a. protection from self-incrimination –person may not be required to be a witness  against himself in a criminal case

b. double jeopardy –protection from being tried 2x for the same crime

c. Miranda Rights –suspect must be informed before being interrogated so the  suspect will not give up his 5th amendment right

9. 6th amendment

a. right to a trial by public jury

b. an impartial jury of the state in which the alleged crime was committed c. confront (cross examine) witnesses against the accused

d. have the assistance of a lawyer

e. have a speedy trial

10. 8th amendment

a. Protection from cruel & unusual punishment

b. Excessive fines & penalties

c. Prohibits torture

d. Does not prohibit capital punishment

11. Riley v. California  

a. Stopped for an expired tag, his car was searched and 2 concealed and loaded  firearms were found, officers took his phone and went through it to find gang  related info. He was sentenced to 15 yrs in prison.

12. Florida v. Jardines

a. Drug dog was taken to a man’s property and on his front porch, the smell of  marijuana was so strong even outside the dog sat. they went in (with a warrant)  and found the plants he was growing. Court held there was an unreasonable  search and suppressed the evidence.  

b. Was the use of the drug dog an unreasonable search?

Chapter 8 Intellectual Property

1. Copyright

a. Musical, literary, artistic works

b. Expire 70 years after the death of the author

2. Trademark

a. Words, phrases, symbols

b. Expire after they are no longer used in commerce  

3. Trade secret

a. Recipes, secret device or technique used by a company in  

manufacturing its products

4. Patents

a. Discoveries & inventions, industrial designs

b. Expire 17 years after the filing date

5. Reverse engineering

a. A company or brand can figure out the recipe or way to make  another companies product, sell it just with a different name 6. Fair use Doctrine

a. Can use snippets or portions without permission for purposes of i. Criticism

ii. Comment

iii. Teaching

iv. News reporting

v. Scholarship

vi. parody

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