Chapter 4 - Constitutional Law for Business and E-Commerce
Chapter 4 - Constitutional Law for Business and E-Commerce MGT 2106
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This 3 page Class Notes was uploaded by Megan Koh on Friday September 9, 2016. The Class Notes belongs to MGT 2106 at Georgia Institute of Technology taught by Karie Denise Davis-Nozemack in Fall 2016. Since its upload, it has received 5 views. For similar materials see Legal Aspects of Business in Business Administration at Georgia Institute of Technology.
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Date Created: 09/09/16
Chapter 4: Constitutional Law for Business and E-Commerce Megan Koh The Constitution • U.S. Constitution - was the fundamental law of the United States of America. It was ratiﬁed by the states in 1788. • The U.S. Constitution serves two major functions: 1. It creates the three branches of the federal government and allocates powers to these branches. 2. It protects individual rights by limiting the government’s ability to restrict those rights. Federalism - is the U.S. form of government in which the federal government and the 50 • state governments share powers. • Enumerated Powers (Delegated Powers) - are certain powers delegated to the federal government by the states. • Reserved Powers - are any powers that are not speciﬁcally delegated to the federal government, reserved to the state governments by the Constitution. • Article I: Legislative branch • The part of the U.S. government that makes federal laws. •Congress •House of Representatives • Article II: Executive branch • The part of the U.S. government that enforces the federal law •President •Vice President • Article III: Judicial branch • The part of the U.S. government that interprets the law •Supreme Court •Federal courts • Checks and balances - are a system built into the U.S. Constitution to prevent any one of the three branches of the government from becoming too powerful. • Supremacy Clause - is a clause of the U.S. Constitution in Article VI, Clause 2 that establishes that the U.S. Constitution and federal treaties, laws, and regulations as the supreme law of the land. • Preemptive Doctrine - is a doctrine that provides that federal law takes precedence over state or local law. Commerce • Commerce Clause - is a clause of the U.S. Constitution that grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. 1. Commerce with Native American tribes. Indian Gaming Regulatory Act - establishes the requirements for conducting casino • gambling and other gaming activities on tribal land. 2. Foreign commerce •Foreign Commerce Clause - grants the federal government the authority to regulate foreign commerce. 3. Interstate commerce - is commerce that moves between states or that aﬀects commerce between states. Chapter 4: Constitutional Law for Business and E-Commerce Megan Koh Eﬀects of Interstate Commerce Test - proves that not interstate commerce • speciﬁcally can be regulated, but any interstate activity that aﬀects interstate commerce. • Wickard, Secretary of Agriculture v. Filburn - is a case in which Farmer Filburn was forced to plant less wheat, as his surplus of wheat could tamper with the economic market for wheat. • Dormant Commerce Clause - is a situation in which the federal government has the Commerce Clause power to regulate an area of commerce but has chosen not to regulate that area of commerce. • Unduly Burdening Interstate Commerce - is a concept that says states may enact laws which protect or promote the public health, safety, morals, and general welfare, as long as the laws do not unduly burden interstate commerce. • Electronic Commerce (E-commerce) - is when the internet and other computer networks permit parties to obtain website domain names and conduct business electronically. Bill of Rights • Bill of rights - is the ﬁ10 amendments to the Constitution that were added to the U.S. Constitution in 1791. There are 27 amendments in total now. • First Amendment - guarantees freedom (1) of speech, (2) to assemble, (3) of the press, (4) of religion. • Incorporation Doctrine - allows the federal government, as well as state and local governments, to enact intrusive action. • Freedom of speech - is the right to engage in oral, written, and symbolic speech, protected by the First Amendment. • Fully-protect speech - is speech that cannot be prohibited or regulated by the government, e.g. political speech. Limited-protected speech - is speech that the government may not prohibit but that is • subject to time, place, and manner restrictions, e.g. the FCC banning foul language on TV and radio during certain hours. 1. Oﬀensive speech - is speech that is oﬀensive to many members of society. 2. Commercial speech - is speech used by businesses, such as advertising. Unprotected speech - is speech that is not protected by the First Amendment and may • be forbidden by the government. 1. Dangerous speech, e.g. yelling “ﬁre” in a crowded theater when there is no ﬁre 2. Pugnacious speech, e.g. provoking a physical ﬁght by using racial slurs 3. Treacherous speech, e.g. “I’ll kill Hilary Clinton! Here’s a legitimate strategy to do so.” 4. Defamatory speech, e.g. “McDonalds is the cause of all heart attacks!” 5. Child pornography, e.g. DON’T DO IT, MAN 6. Obscene speech - is speech that (1) appeals to the prurient interest, (2) depicts sexual conduct in a patently oﬀensive way, and (3) lacks serious literary, artistic, political, or scientiﬁc value. Amendments • Freedom of Religion (First Amendment) Chapter 4: Constitutional Law for Business and E-Commerce Megan Koh 1. Establishment Clause - is a clause of the First Amendment that prohibits the government from either establishing a state religion or promoting one religion over another. 2. Free Exercise Clause - is a clause of the First Amendment that prohibits the government from interfering with the free exercise of religion in the United States. • Equal Protection (Fourteenth Amendment) •Fourteenth Amendment - is an amendment added to the U.S. Constitution in 1868 that contains the Due Process, Equal Protection, and Privileges and Immunities clauses •Equal Protection Clause - is a clause that provides that a state cannot “deny to any person within its jurisdiction the equal protection of the laws”. •Standards of Review: 1. Strict Scrutiny Test - is a test that is applied to determine the constitutionality of classiﬁcations by the government that are based on a suspect class (e.g. race, nationality origin, and citizenship) or a fundamental right (e.g. voting rights). 2. Intermediate Scrutiny Test - is a test that is applied to determine the constitutionality of classiﬁcations based on a protected class other than a suspect class or a fundamental right (e.g. gender). 3. Rational Basis Test - is a test that is applied to determine the constitutionality of classiﬁcations by the government that do not involve a suspect class, a fundamental right, or a protected class (e.g. age). • Due Process Clause - is a clause that provides no person shall be deprived of “life, liberty, or property” without due process of the law. •Substantiative Due Process - is a category of due process that requires government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope. •Procedural Due Process - is a category of due process that requires that the government give a person proper notice and hearing of the legal action before that person is deprived of his or her life, liberty, and property. • Privileges and Immunities - are constitutional provisions that prohibit states from enacting laws that unduly discriminate in favor of their residents.
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