HillMurray High School The Legal Ethical and Global Environment of Business Worksheet

Chapter 1: Business andIts Legal Environment
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Business Activities
and the Legal Environment
Knowledge of ‘black-letter’ not
enough – business now assumes an
ethical dimension.
Many Different Laws May Affect a
Single Business Transaction.
Ethics and Business Decision Making.

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2
Ex. 1-1 Areas of the Law That May Affect
Business Decision Making
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3
Sources of American Law
Constitutional Law.
Statutory Law.
Ordinances.
Uniform Laws (NCCUSL).
Uniform Commercial Code.
Administrative Law.
Federal Agencies.
State and Local Agencies.→
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4
Sources of American Law
Case Law and Common Law
Doctrines.
Case law governs all areas of law not
covered by statutory or administrative
law.
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5
The Common Law Tradition
Early English Courts.
American law is based largely on
English Common Law which was
based largely on traditions, social
customs, rules, and cases dating back
to 1066 A.D.
Precedent.
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The Common Law Tradition
Stare Decisis (“to stand on decided
cases”) is judge-made law.
 Importance of Precedents in Judicial
Decision-Making. Precedents are ‘binding’
within a court’s jurisdiction.
 Stare Decisis and Legal Stability. Courts
should not overturn their own precedents
without compelling reasons.
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The Common Law Tradition
Stare Decisis (“to stand on decided
cases”) is judge-made law.
▪ Departures from Precedent. In cases of
“first impression” a court may refer to
positive law, public policy, or widely held
social values to craft the decision.
▪ When There is No Precedent.
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8
The Common Law Tradition
Equitable Remedies and Courts of
Equity.
▪ Remedy: means given to a party to
enforce a right or compensate for the
violation of the right.
• Remedies in Equity. Equity is “beyond
law” and looks at notions of fairness
and justice. →
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The Common Law Tradition
Equitable Remedies and Courts of
Equity.
▪ At common law, there were two separate
court systems:
 COURTS OF LAW (awarding money
damages), and
 COURTS OF EQUITY (non-monetary relief)
based on “notions of justice and fair
dealing.” →
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The Common Law Tradition
Equitable Remedies and Courts
of Equity.
Courts of equity were administered by
chancellors appointed by the king.
Equitable remedies include: specific
performance, injunctions, rescissions.
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11
The Common Law Tradition
Equitable Remedies and Courts of
Equity.
▪ Merging of Law and Equity. Federal
and state courts have consolidated
remedies at law and equity.
▪ Generally, the same court can fashion
a remedy that includes both damages
and equitable or injunctive relief.
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Ex. 1-2 Equitable Maxims
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Schools of Legal Thought
Natural Law School. →
Positivist School. →
Historical School. →
Legal Realism. →
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Schools of Legal Thought
Natural Law School.
▪ Adherents believe a higher or
universal law exists that applies to all
humanity, and all written laws should
imitate these principles.
Laws contrary to natural law are
“unjust” and need not be obeyed. →
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Natural Law In History
“[T]here are two types of laws: just and
unjust laws. . . . A just law is a man-made
code that squares with the moral law . . . .
An unjust law is a code that is out of
harmony with the moral law. . . . An unjust
law is a human law that is not rooted in
eternal and natural law.” Martin Luther King,
Jr., Letter from the Birmingham Jail, April 16,
1963.
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16
Schools of Legal Thought
Legal Positivism.
▪ Law is the supreme will of the State
that applies only to the citizens of that
nation at that time.
▪ Law, and therefore rights and ethics,
are not universal. Whether a law is
“good” or “bad” is irrelevant.
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Schools of Legal Thought
Historical School.
▪ Emphasizes the evolutionary process of
law.
▪ Concentrates on the origins of the legal
system.
▪ Law derives its legitimacy and authority
from standards that have withstood the
test of time.
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Schools of Legal Thought
Legal Realism.
▪ Law is not simply a result of the
written law, but a product of the
views of judicial decision makers, as
well as social, economic, and
contextual influences.
▪ Strongly influenced the “sociological
school” of jurisprudence.
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Classifications of Law
Every type of law will be either:
Substantive or Procedural. →
Civil or Criminal. →
Public or Private.
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Classifications of Law
Substantial or Procedural.
▪ Substantive Law: defines or creates
the rights and obligations of persons
and governments.
▪ Procedural Law: provides the steps
one must follow in order to avail
oneself of one’s legal rights or enforce
another’s legal obligations.
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Classifications of Law
Civil Law vs. Criminal Law.
▪ Civil Law: defines the rights between
individuals or individuals and
governments.
▪ Criminal Law: defines an individual’s
obligations to society as a whole.
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Classifications of Law
National and International Law.
▪ National Law: laws of a particular
country that vary from country to
country.
▪ International Law: applies to more
than one country at a time. Who
enforces violations of international law?
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23
Appendix to Chapter 1: Finding
and Analyzing the Law
Finding Statutory Law and
Administrative Law.
United States Code (USC).
State Codes.
Administrative Rules.
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Appendix to Chapter 1: Finding
and Analyzing the Law
Finding Case Law.
State Court Decisions.
 Regional Reporters.
 Case Citations.
Federal Court Decisions.
 U.S. Supreme Court decisions are
published by the federal government in
United States Reports (U.S.).
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Appendix to Chapter 1: Finding
and Analyzing the Law
Reading and Understanding Case
Law.
▪ Case Titles and Terminology.
▪ Parties to Lawsuits.
▪ Judges and Justices.
▪ Decisions and Opinions.
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Appendix to Chapter 1: Finding
and Analyzing the Law
Legal cases are identified by a “legal
citation” (or a “cite”) as the sample
below:
Fehr v. Algard, ___ N.J. Super ___, A.3d
(2011).
Title: First Party is Plaintiff, second
party is Defendant. The parties are
either italicized or underlined.
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27
Appendix to Chapter 1: Finding
and Analyzing the Law
Legal cases are identified by a “legal
citation” (or a “cite”) as the sample
below:
Fehr v. Algard, ___ N.J. Super ___, A.3d
(2011).
The case is from the Superior Court of
New Jersey and is not numbered as of
the date of this printing.
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28
Appendix to Chapter 1: Finding
and Analyzing the Law
Legal cases are identified by a “legal
citation” (or a “cite”) as the sample
below:
Fehr v. Algard, ___ N.J. Super ___, A.3d
(2011).
The case was decided in 2011.
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29
Chapter 5: Torts and
Cyber Torts
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The Basis of Tort Law
▪ Doing business today involves risks,
both legal and financial.
▪ Purpose of Tort Law.
• A tort is a civil injury designed to provide
a remedy (damages) for injury to a
protected interest. →
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2
The Basis of Tort Law
▪ Damages Available in Tort Actions.
• Compensatory: reimburse plaintiff for
actual losses.
• Special: quantifiable losses, such as
medical expenses, lost wages, and
benefits.
• General: non-monetary, such as pain and
suffering, reputation.
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3
The Basis of Tort Law
▪ Damages Available in Tort Actions.
• Punitive: punish the wrongdoer.
• Appropriate when defendant’s actions
were particularly egregious (actions
were intentional or grossly negligent).
• CASE 5.1 HAMLIN V. HAMPTON LUMBER
MILLS, INC. (2011). What is the formula
the court used to determine the fairness of
the punitive damages?
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The Basis of Tort Law
▪ Tort Reform.
• Tort Reform Goals.
• Tort Reform Legislation.
▪ Classification of Torts.
• Intentional Torts.
• Unintentional Torts (negligence).
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Intentional Torts Against Persons
▪ Tortfeasor must “intend” to commit
the act, which means:
• He intended the consequences of his
act; or
• He knew with substantial certainty that
certain consequences would result.
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Intentional Torts Against Persons
▪ Assault and Battery. →
▪ False Imprisonment. →
▪ Infliction of Emotional Distress. →
▪ Defamation. →
▪ Invasion of Privacy. →
▪ Business Torts. →
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Intentional Torts Against Persons
▪ Assault and Battery.
• ASSAULT is an intentional, unexcused act
that:
• Creates a reasonable apprehension or
fear of,
• Immediate harmful or offensive contact.
• NO CONTACT NECESSARY. →
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Intentional Torts Against Persons
▪ Assault and Battery.
• BATTERY is the completion of the
Assault:
• Intentional or Unexcused.
• Harmful, Offensive or Unwelcome,
Physical Contact.
▪ Plaintiff may be compensated for
physical and emotional harm.
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Intentional Torts Against Persons
▪ Defenses to Assault and Battery.
• Consent.
• Self-Defense (reasonable force).
• Defense of Others (reasonable force).
• Defense of Property.
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Intentional Torts Against Persons
▪ False Imprisonment is the
intentional:
• Confinement or restraint.
• Of another person’s activities.
• Without justification.
▪ Merchants may reasonably detain
customers if there is probable cause.
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Intentional Torts Against Persons
▪ Intentional Infliction of Emotional
Distress.
• An intentional act that is:
• Extreme and outrageous, that
• Results in severe emotional distress in
another.
• Most courts require some physical
symptom or illness.
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Intentional Torts Against Persons
▪ Defamation.
• Wrongfully hurting a person’s good
reputation.
• Law imposes duty to refrain from making
false statements of fact about others.
• Orally breaching this duty is slander;
breaching it in print or media (and
internet) is libel.
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Intentional Torts Against Persons
▪ Defamation.
• Published statement must be a fact.
• Opinions are protected speech under the
First Amendment, and not actionable.
• CASE 5.2 ORLANDO V. COLE (2010). Why
did the court allow the case to move
forward to trial? →
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Intentional Torts Against Persons
▪ Defamation.
• Publication Requirement.
• Basis of defamation is the “publication”
of a false statement that holds an
individual up to hatred, contempt or
ridicule in the community.
• Publication requires communication to a
3rd party.
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Intentional Torts Against Persons
▪ Defamation.
• Damages for Libel.
• General Damages are presumed; Plaintiff
does not have to show actual injury.
• General damages include compensation
for disgrace, dishonor, humiliation, injury
to reputation and emotional distress.
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16
Intentional Torts Against Persons
▪ Defamation.
• Damages for Slander:
• General Rule: Plaintiff must prove “special
damages” (actual economic loss) to prevail
for slander.
• Exception: Slander Per Se. No proof of
damages: loathsome disease, business
improprieties, serious crime, or unchaste
woman.
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17
Intentional Torts Against Persons
▪ Defenses to Defamation.
• Truth is generally an absolute defense.
• Privileged (or Immune) Speech.
• Absolute: judicial & legislative
proceedings.
• Qualified: Employee Evaluations.
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Intentional Torts Against Persons
▪ Defenses to Defamation.
• Public Figures:
• Exercise substantial governmental power
or are otherwise in the public limelight.
• To prevail, they must show “actual
malice”, i.e., the statement was made
with either knowledge of falsity or
reckless disregard for the truth.
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Intentional Torts Against Persons
▪ Invasion of the Right to Privacy.
• Every person has a fundamental right to
freedom from public scrutiny, such as:
• Appropriation of Identity.
• Intrusion on Individual’s Affairs or Seclusion.
• False Light.
• Public Disclosure of Private Facts.
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Intentional Torts Against Persons
▪ Appropriation.
• Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.
• Issues:
• Degree of Likeness.
• Right of Publicity as a Property Right.
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21
Intentional Torts Against Persons
▪ Fraudulent Misrepresentation.
• Elements:
• Misrepresentation of material fact;
• Intent to induce another to rely;
• Justifiable reliance by innocent party;
• Damages as a result of reliance;
• Causal connection.
• Distinguish Fact vs. Opinion (not puffery).
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Intentional Torts Against Persons
▪ Abusive or Frivolous Litigation.
• Generally, each of us has the right to sue
when we have been legally injured.
• Torts related to abusive or frivolous
litigation include:
• Malicious prosecution, and
• Abuse of process.
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23
Intentional Torts Against Persons
▪ Wrongful Interference With a
Contractual Relationship occurs
when:
• Defendant knows about contract
between A and B;
• Intentionally induces either A or B to
breach the contract; and
• Defendant benefits from breach.
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Intentional Torts Against Persons
▪ Wrongful Interference With a
Business Relationship occurs when:
• There is an established business
relationship;
• The tortfeasor, using predatory methods,
causes relationship to end; and
• Plaintiff suffers damages.
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Intentional Torts Against Persons
▪ Defenses to Wrongful Interference
include:
• Interference with justified or permissible.
• Bona fide competitive behavior is a
permissible interference even if it results
in the breaking of a contract.
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Intentional Torts Against Property
▪ Trespass to Land occurs when a person,
without permission:
• Physically enters onto, above or below
the surface of another’s land; or
• Causes anything to enter onto the land;
or
• Remains, or permits anything to remain,
on the land. Defenses →
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Intentional Torts Against Property
▪ Trespass to Land
• Defenses to Trespass to Land: Trespass
is necessary, or trespasser is a licensee.
▪ Trespass to Personal Property.
• Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
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Intentional Torts Against Property
▪ Conversion.
• Wrongful possession or use of property
without permission.
▪ Disparagement of Property.
• Slander of Quality: publication of false
information about another’s product (trade
libel).
• Slander of Title: publication falsely denies or
casts doubt on another’s legal ownership of
property, resulting in financial loss.
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Unintentional Torts: Negligence
▪ Tortfeasor does not intend the
consequences of the act or believes
they will occur.
• Actor’s conduct merely creates a
foreseeable risk of injury. →
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Unintentional Torts: Negligence
▪ Four-Step Analysis:
• Duty: Defendant owed Plaintiff a duty
of care;
• Breach: Defendant breached that duty;
• Causation: Defendant’s breach caused
the injury;
• Damages: Plaintiff suffered legal injury.
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31
Unintentional Torts: Negligence
▪ Duty of Care and Breach.
• Defendant owes duty to protect Plaintiff
from foreseeable risks that he knew or
should have known about.
• Reasonable Person Standard. A
foreseeable risk is one in which the
reasonable person would anticipate
and guard against .
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32
Unintentional Torts: Negligence
▪ Duty of Care and Breach.
•.
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33
Unintentional Torts: Negligence
▪ Duty of Care and Breach.
• Duty of Landowners.
• Duty to Warn Business Invitees of
Foreseeable Risks (knew or should have
known).
• Duty to discover and remove hidden
dangers that might injure invitees.
• EXCEPTION: Obvious Risks.
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34
Unintentional Torts: Negligence
▪ Duty of Care and Breach.
• Duty of Professionals.
• Professionals may owe higher duty of
care based on special education, skill or
intelligence.
• Breach of duty is called professional
malpractice.
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license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
35
Unintentional Torts: Negligence
▪ Causation.
• Even though a tortfeasor owes a duty of
care and breaches the duty of care, the
act must have caused the Plaintiff’s
injuries.
• Causation is both:
• Causation in Fact, and
• Proximate Cause.
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36
Unintentional Torts: Negligence
▪ Causation.
• Is there causation in fact?
• Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
• Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.
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37
Unintentional Torts: Negligence
▪ Causation.
• Proximate Cause: An act is the proximate
(or legal) cause of the injury when the
causal connection between the act and
injury is strong enough to impose liability.
• Were the injuries foreseeable?
• Judges use proximate cause to limit
liability of defendants. →
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38
Unintentional Torts: Negligence
▪ Causation.
• Proximate Cause.
• Proximate cause is limited by
foreseeability in the interests of justice
and fairness.
• Consider the landmark case of Palsgraf v.
Long Island Railroad Co. (1928). Were
the plaintiff’s injuries foreseeable?
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39
Unintentional Torts: Negligence
▪ Injury Requirement and Damages.
• To recover, Plaintiff must show legally
recognizable injury.
• Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
• Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.
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40
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Assumption of Risk. →
• Superseding Intervening Cause→.
• Contributory or Comparative
Negligence.→
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41
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Assumption of Risk.
• Plaintiff has knowledge of the risk, and
voluntarily engages in the act anyway.
• Defense can be used by participants, as
well as spectators and bystanders. →
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42
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Assumption of Risk.
• Assumption of the risk can be express or
implied.
• CASE 5.3 PFENNING V. LINEMAN (2010).
Is the driver of a beverage cart a
“participant” at a golfing event?
• Generally, courts do not apply assumption of
the risk in emergency situations.
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43
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Superseding Cause. A unforeseeable,
intervening act that breaks the causal
link between defendant’s act and
plaintiff’s injury, relieving defendant of
liability.
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44
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Contributory and Comparative
Negligence.
• Under the common law doctrine of
contributory negligence, if Plaintiff in any
way caused his injury, he was barred from
recovery. →
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45
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Contributory and Comparative
Negligence.
• Most states have replaced contributory
negligence with the doctrine of
comparative negligence.→
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46
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Contributory and Comparative
Negligence.
• Comparative negligence computes liability of
Plaintiff and Defendant and apportions
damages.
• Pure Comparative Negligence States (CA & NY)
allow plaintiff to recover even if his liability is
greater than that of defendant. →
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47
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Contributory and Comparative
Negligence.
• Modified Comparative Negligence States:
percent of damages caused by plaintiff is
subtracted from the total award.
– 50 Percent Rule: Plaintiff recovers only if liability is less
than 50%.
– 51 Percent Rule: Plaintiff recovers nothing if liability is
greater than 50%.
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48
Unintentional Torts: Negligence
▪ Special Negligence Doctrines and
Statutes.
• Res Ipsa Loquitur.
• Facts and circumstances create
presumption of negligence by Defendant.
• Burden of proof shifts to Defendant to
show he was not negligent.
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49
Unintentional Torts: Negligence
▪ Special Negligence Doctrines and
Statutes.
• Negligence Per Se: Defendant violates a
statute designed to protect Plaintiff.
• Statute sets out standard of care.
• Plaintiff is member of class intended to be
protected by statute.
• Statute designed to prevent Plaintiff’s
injury.
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50
Unintentional Torts: Negligence
▪ Special Negligence Doctrines and
Statutes.
• “Danger Invites Rescue.”
• Special Negligence Statutes:
• Good Samaritan Statutes: physicians and
medical personnel cannot be sued by
victim.
• Dram Shop Acts.
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51
Strict Liability
▪ Liability without fault.
▪ Abnormally Dangerous Activities.
• Ultrahazardous activities involve serious
risk of harm to persons or property that
cannot be guarded against by exercise of
reasonable care.
▪ Other Applications of Strict Liability.
• Wild animals, and Product Liability (Ch. 11).
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52
Cyber Torts—Online Defamation
▪ Identifying the Author of Online
Defamation: usually a threshold
barrier to filing suit.
▪ What about the Liability of Internet
Service Providers?
• Communications Decency Act.
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53
Chapter 4: Constitutional
Authority to Regulate Business
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© 2013 distributed
Cengage Learning.
All Rights
Reserved.
May
be copied,
or duplicated,
in whole
or in part, except
license
with a certain
product
or service
or not
otherwise
on a scanned,
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website
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The Constitutional
Powers of Government
▪ Before the Revolutionary War, States
wanted a confederation with a weak
national government and very limited
powers. After the war ended, the
States voted to create a new, federal
government that shared power with
States.
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2
The Constitutional
Powers of Government
▪ Federal Form of Government:
• Shares power between national and
state governments.
• National government has limited,
enumerated powers delegated from
States.
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3
The Constitutional
Powers of Government
▪ Federal Form of Government
(cont’d).
• 10th Amendment: powers reserved to
the states and to the people.
• Police Powers: order, safety, morals.
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4
The Constitutional
Powers of Government
▪ The Separation of Powers.
• Three branches that provide checks and
balances:
• Legislative (Congress): Creates laws.
• Executive (President/Agencies): Enforce
laws.
• Judicial (Federal Courts): Interprets laws.
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5
The Constitutional
Powers of Government
▪ The Commerce Clause.
• Power to regulate interstate commerce
defined in Gibbons v. Ogden (1824):
activities that “substantially affect
interstate commerce.” →
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6
The Constitutional
Powers of Government
▪ The Commerce Clause.
• Expansion of National Powers.
• In 1942, Supreme Court expanded
commerce clause to purely interstate
businesses (Wickard v. Filburn).
• In 1964, Supreme Court prohibited racial
discrimination in interstate commerce
(Heart of Atlanta Motel v. U.S.).
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7
The Constitutional
Powers of Government
▪ The Commerce Clause.
• Commerce Clause Today.
• National government can regulate
virtually any business enterprise,
including those that are internet-based.
Limits: U.S. v. Lopez (1995).
• What about medical marijuana and the
commerce clause?
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8
The Constitutional
Powers of Government
▪ The Commerce Clause.
• The “Dormant” Commerce Clause.
• Generally, federal government has
exclusive authority to regulate commerce
that substantially affects trade among the
states.
• States possess inherent police powers to
regulate health, safety, public order,
morals and general welfare. →
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9
The Constitutional
Powers of Government
▪ The Commerce Clause.
• The “Dormant” Commerce Clause.
• State police powers or regulations that
substantially interfere with interstate
commerce will be struck down.
• CASE 4.1 FAMILY WINEMAKERS OF
CALIFORNIA V. JENKINS (2010). Did the
State of Massachusetts discriminate
against out-of-state wineries?
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10
The Constitutional
Powers of Government
▪ The Supremacy Clause.
• In case of direct conflict between state
and federal law, state law is invalid.
• A valid federal statute or regulation will
take precedence over a conflicting state
or local statute. →
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11
The Constitutional
Powers of Government
▪ The Supremacy Clause.
• Preemption occurs when Congress
chooses to act exclusively when
national and state governments have
concurrent powers.
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12
Business and the Bill of Rights
▪ First Ten Amendments to the United
States Constitution are called the Bill
of Rights.
▪ All apply to natural persons and most
apply to business entities as well.
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13
The Bill of Rights
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14
Business and the Bill of Rights
▪ Limits on Federal and State
Government Actions.
• Bill of Rights was originally intended as a
limit on national government powers.
• Today, Bill of Rights is applied to States via
the “due process” clause of the 14th
Amendment.
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15
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Speech.
• Afforded highest protection by courts.
• Symbolic Speech: Texas v. Johnson (1989),
the “flag burning” case. →
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16
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Speech.
• Reasonable Restrictions.
• Balance must be struck between a government’s
obligation to protect its citizens versus a citizen’s
right to speech.
• If restriction is content neutral, restrictions must
target some societal problem – not to primarily
suppress the message.
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17
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Speech.
• Corporate Political Speech.
• Political speech by corporations is protected
by the First Amendment.
• In Citizens United v. Federal Election
Commission (2010) the Supreme Court ruled
that corporations can spend freely to
support or oppose candidates for President
and Congress.
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18
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Speech.
• Commercial Speech.
• Courts give substantial protection to
commercial speech (advertising).
• Restrictions must: Implement substantial
government interest; directly advance that
interest; and go no further than necessary.

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19
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Speech.
• Commercial Speech.
• CASE 4.2: BAD FROG BREWERY, INC. V.
NEW YORK STATE LIQUOR AUTHORITY
(1998). Did the State unconstitutionally
restrict commercial speech when it
prohibited a certain gesture (illustration)
on beer labels?
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20
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Speech.
• Unprotected Speech: certain types of
speech are not protected by the First
Amendment: slander, fighting words,
pornography.
–Obscenity (see Miller v. California).
–Online Obscenity: CDA, COPA, Children’s
Internet Protection Act, Children’s Internet
Protection Act (2000).
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21
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Religion.
• Government may not “establish” a
religion or prohibit the “free exercise” of
religion.
• The Establishment Clause: prohibits
government from establishing a statesponsored religion, or passing laws that
favor one over the other. →
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22
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Religion.
• The Establishment Clause.
• CASE 4.3 TRUNK V. CITY OF SAN DIEGO
(2011). What was the Supreme
Court’s rationale for ordering the
cross removed?
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23
Business and the Bill of Rights
▪ The First Amendment – Freedom of
Religion.
• Free Exercise Clause: First Amendment
guarantees the “free exercise” of
religion.
• Employers must reasonably
accommodate beliefs as long as
employee has sincerely held beliefs.
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24
Due Process and Equal Protection
▪ Fifth and Fourteenth Amendments
provide “no person shall be deprived
of life, liberty or property without
due process of law.”
▪ Due Process: Procedural and
Substantive issues. →
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25
Due Process and Equal Protection
▪ Due Process.
• Procedural Due Process: procedures
depriving an individual of her rights
must be fair and equitable.
• Constitution requires adequate notice
and a fair and impartial hearing before a
disinterested magistrate.
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26
Due Process and Equal Protection
▪ Due Process.
• Substantive Due Process: focuses on
content or substance of legislation.
• Laws limiting fundamental rights (speech,
privacy, religion) must have a “compelling
state interest.”
• Laws limiting non-fundamental rights
require a “rational basis.”
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27
Due Process and Equal Protection
▪ Equal Protection.
• Similarly situated individuals must be
treated in the same manner.
•Strict Scrutiny Test.
• Suspect trait (race, national origin) must
serve a “compelling state interest” which
includes remedying past discrimination. →
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28
Due Process and Equal Protection
▪ Equal Protection.
• Intermediate Scrutiny.
• Applied to laws involving gender or
legitimacy.
• To be constitutional laws must be
substantially related to important
government objectives.
–(EXAMPLE: Illegitimate teenage
pregnancy).
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29
Due Process and Equal Protection
▪ Equal Protection.
• “Rational Basis” Test.
• Applied to matters of economic or social
welfare.
• Laws will be constitutional if there is a
rational basis relating to legitimate
government interest.
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30
Privacy Rights
▪ Fundamental right not expressly
found in the constitution, but derived
from First, Fifth and Fourteenth
Amendments.
▪ Laws and policies affecting privacy are
subject to the compelling interest
test.
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31
Privacy Rights
▪ Federal Statutes Affecting Privacy
Rights.
• “Pretexting” for financial information
is illegal under Gramm-Leach-Bliley.
• Privacy Act of 1974.
• Medical Information: HIPAA of 1996.
• Court Records.
• USA PATRIOT Act of 2001.
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