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by: Mr. Reginald O'Reilly


Marketplace > Appalachian State University > Law > LAW 2150 > LEGAL ENVIRON OF BUS
Mr. Reginald O'Reilly
GPA 3.56

Richard Mattar

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Richard Mattar
Class Notes
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This 7 page Class Notes was uploaded by Mr. Reginald O'Reilly on Friday October 2, 2015. The Class Notes belongs to LAW 2150 at Appalachian State University taught by Richard Mattar in Fall. Since its upload, it has received 23 views. For similar materials see /class/217674/law-2150-appalachian-state-university in Law at Appalachian State University.




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Date Created: 10/02/15
Patterson 1 Exam 2 Notes Chapter Five The Constitutional Powers ofGovernment 0 Articles of Confederation 7 confederal form of government states had the authority to govern themselves and the national government could exercise only limited powers 0 US Constitution 7 basis for an entirely new form of government series of compromises made by the convention delegates federal form of government A Federal Form of Government 0 Federal Form of Government 7 the national government and states share sovereign power 0 Enumerated Powers 7 National government expressly designated powers The Regulatory Powers of the States 0 Regulate affairs within their borders 0 All powers not delegated to the national government are reserved for the states or to the people 10Lh Amendment to the Constitution 0 Police Powers 7 state regulatory powers broad right of state governments to regulate private activities to protect or promote the public order health safety morals and general welfare fire amp building codes antidiscrimination laws parking regulations zoning restrictions licensing requirements 0 Local governments cities also have police powers Delineating State and National Powers 0 Usually it has been the task of the courts to determine where the boundary line between state and national powers should lie Relations among the States 0 Constitution includes provisions concerning relations among the states in our federal system The Privileges and Immunities Clause 0 Interstate Privileges and Immunities Clause 7 Article IV Section 2 of the Constitution 7 The citizens of each state shall be entitle to all privileges and immunities of citizens in the several states prevents a state from imposing unreasonable burdens on citizens of Patterson 2 another state with no regard to means of livelihood or doing business prevent one state from discriminating against citizens of other states in favor of its own 0 Foreign state must have a substantial reason for treating the nonresident differently from its own residents 0 Transferring property seeking employment accessing the court system 0 Foreign state must also establish that its reason for the discrimination is substantially related to the state s ultimate purpose in adopting the legislation or activity The Full Faith and Credit Clause 0 Full Faith and Credit Clause 7 Article IV Section 1 of the Constitution 7 Full faith and credit shall be given in each state to the public Acts Records and judicial proceedings of every other state applies only to civil matters ensures that rights established under deeds wills contracts and similar instruments in one state will be honored by other states amp that any judicial decision with respect to such property rights will be honored and enforced in all states The Separation of the National Government s Powers 0 The Constitution provides for three branches of government 0 The Legislative Branch Congress makes the laws But the executive branch may veto the law 0 The Executive Branch the President enforces the laws Responsible for foreign affairs but treaties with foreign governments require the advice and consent of the Senate The Judicial Branch interprets the laws Has the power to hold actions of the other two branches unconstitutional 0 Checks and Balances allows each branch to limit the actions of the other two branches 0 The Commerce Clause 0 Commerce Clause 7 The Constitution expressly delegates to the national government the power to regulate interstate commerce 0 Interstate Commerce 7 between the states 0 Intrastate Commerce 7 within the states 0 Gibbons V Ogden 7 commerce within the states could also be regulated by the national government as long as the commerce substantially affected commerce involving more than one state The Expansion of National Powers under the Commerce Clause 0 Heart of Atlanta Motel V United States 7 Supreme Court upheld the federal govemment s authority to prohibit racial discrimination nationwide in public facilities including local motels based on its powers under the commerce clause Patterson 3 The Commerce Power Today Medical Marijuana and the Commerce Clause 0 Supreme Court held that Congress has the authority to prohibit the intrastate possession and noncommercial cultivation of marijuana as pa1t of a larger regulatory scheme Controlled Substance Act State Actions and the Dormant Commerce Clause National Government has the exclusive authority to regulate commerce that substantially affects trade and commerce among the states positive aspect The states do not have the authority to regulate interstate commerce negative aspect or the dormant implied commerce clause 0 O The Supremacy Clause and Federal Preemption o Supremacy Clause 7 Article VI of the Constitution 7 the Constitution laws and treaties of the US are the supreme Law of the Land When there is a direct con ict between a federal law and a state law the state law is rendered invalid 0 Some power are Concurrent 7 shared by the federal government and the states 0 Preemption of State Laws 0 Preemption occurs when Congress chooses to act exclusively in an area in which the federal government and the states have concurrent powers 0 A valid federal statute or regulation will take precedence over a con icting state or local law or regulation on the same general subject Generally congressional intent to preempt will be found if a federal law regulating an activity is so pervasive comprehensive or detailed that the states have no room to regulate in that area 0 Preemption and State Regulation Aimed at Global Warming 0 California amp Car Greenhouse Emissions The Taxing and Spending Powers 0 Congress has the power to lay and collect Taxes Duties Imposts and Excises 7 Article 1 Section 8 7 requires uniformity in taxation among the states while exempting others the power to pay the Debts and provide for the common Defense and general Welfare of the United States Business and the Bill of Rights Patterson 4 0 Bill of Rights 7 the rst ten amendments to the Constitution embody series of protections for the individual against various types of interference by the federal government 0 Corporations exist as separate legal entities or legal persons and enjoy many of the same rights and privileges as natural persons do Limits on Both Federal and State Governmental Actions 0 The Bill of Rights limited m the powers of the national government 0 l4Lh Amendment 7 no state shall deprive any person of life liberty or property without due process of law 0 Constitutional Due Process of Law 0 Today most of the rights and liberties set forth in the Bill of Rights apply to both the state and national government 0 Neither the federal government nor state governments can deprive persons of those rights and liberties Freedom of Speech 0 Symbolic Speech 7 gestures movements articles of clothing and other forms of expressive conduct Reasonable Restrictions 0 Expression is subject to reasonable restriction o Reasonableness is analyzed on a casebycase basis 0 Content Neutral 7 the restriction must be aimed at combating some societal problem such as crime and not be aimed at suppressing the expressive conduct or its message Corporate Political Speech 0 Political speech by corporations also falls within the protection of the First Amendment 0 Bipartisan CampaignFinance Reform Law unconstitutional Commercial Speech 0 Commercial Speech 7 communications primarily advertising and marketing made by business firms that involve only their commercial interests 0 A state may restrict certain kinds of advertising in the interest of preventing consumers from being misled by the advertising practices 0 A restriction on commercial speech will be considered valid as long as it meets three criteria 0 It must seek to implement a substantial government interest 0 It must directly advance that interest Patterson 5 o It must go no further than necessary to accomplish its objectives Unprotected Speech 0 Certain types of speech will not be protected under the First Amendment 0 Speech that violates criminal laws threatening speech and pornography 0 Fighting words speech that is likely to incite others to respond violently 0 Speech that harms the good reputation of another or defamatory speech 0 Defamation 7 must be an assertion of fact and not merely opinion can be veri ed and may require proof in a lawsuit claiming that the statement is defamatory Obscene Speech 0 Miller V California 7 Supreme Court creates a test that must be met for material to be legally obscene o The average person finds that it violates contemporary community standards 0 The work taken as a whole appeals to a prurient arousing or obsessive interest in sex 0 The work shows patently offensive sexual conduct 0 The work lacks serious redeeming literary artistic political or scientific merit Online Obscenity 0 Communications Decency Act CDA 7 declared it a crime to make available to minors online any obscene or indecent message that depicts or describes in terms patently offensive as measured by contemporary community standards sexual or excretory activities or organs Portions of the act rules unconstitutional o The terms indecent and patently a ensive covered large amounts of nonpornographic material with serious educational or other value Subsequent Attempts to Regulate Online Obscenity 0 Child Online Protection Act COPA 0 Contemporary community standards 0 Children s Internet Protection Act CIPA required public schools and libraries to install filtering software to keep children from accessing adult content 0 Meta Tags 7 key words Freedom of Religion 0 The government may neither establish any religion nor prohibit the free exercise of religious practices Establishment Clause 7 separation of church and state Free Exercise Clause 00 Patterson 6 The Establishment Clause 0 Prohibits the government from establishing a statesponsored religion as well as from passing laws that promote aid or endorse religion or that show a preference for one religion over another 0 Sunday closing laws blue law 7 constitutional because they promote the health and welfare of the workers The Free Exercise Clause 0 Guarantees that 0 person can be compelled to do something that is contrary to his or her religious beliefs 0 To break this the government s interest must be sufficiently compelling Searches and Seizures 0 Right of the people to be secure in their persons houses papers and effects 0 Search Warrant 7 an order from a judge or other public official authorizing the search or seizure Search Warrants and Probable Cause 0 Must have probable cause to obtain a search warrant officers must have trustworthy evidence that would convince a reasonable person that the proposed search or seizure is more likely justified than not 0 M general warrants requires particular description of whatever is to be searched or seized Searches and Seizures in the Business Context 0 A warrant is not required for the seizure of spoiled or contaminated food 0 Warrants are not required for searches of businesses in such highly regulated industries as liquor guns and strip mining Border Searches of Computers 0 Warrantless border searches ok Self Incrimination o No person shall be compelled in any criminal case to be a witness against himself 0 An accused person cannot be forced to give testimony that might subject him or her to any criminal prosecution o Extends only to natural persons Patterson 7 Due Process and Equal Protection Due Process 0 No person shall be deprived of life liberty or property without due process of law 0 Due Process Clause 7 procedural and substantive o Applies to legal persons both individuals and corporations Procedural Due Process 0 Requires that any government decision to take life liberty or property must be made equitability o The government must give a person proper notice and an opportunity to be heard Substantive Due Process 0 Protects an individual s life liberty or property against certain government actions regardless of the fairness of the procedures used to implement them 0 Limits what the government may do in its legislative and executive capacities 0 Legislation must be fair and reasonable in content and must further a legitimate government objective 0 If a law or other government action limits a fundamental right the state must have a legitimate and compelling interest to justify its action 0 Interstate travel privacy voting marriage and family all First amendment rights Equal Protection 0 l4Lh Amendment 7 a state may not deny to any person within its jurisdiction the equal protection of the law 0 Equal Protection Clause 7 the government cannot enact laws that treat similarly situated individuals differently 0 Both substantive due process and equal protection require review of the substance of the law or other governmental action rather than review of the procedures used Strict Scrutiny o The classification must be necessary to promote a compelling state interest 0 Applied when a law or action prohibits some persons from exercising a fundamental right or classifres individuals based on a suspect trait Intermediate Scrutiny 0 Applied in cases involving discrimination based on gender or legitimacy 0 Laws using these classifications must be substantially related to important government objectives


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