Chapter 1: Business andIts Legal Environment
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
© 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 ascanned,
password-protected
website
for classroom
use. for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
→
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
2
Ex. 1-1 Areas of the Law That May Affect
Business Decision Making
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
3
Sources of American Law
Constitutional Law.
Statutory Law.
Ordinances.
Uniform Laws (NCCUSL).
Uniform Commercial Code.
Administrative Law.
Federal Agencies.
State and Local Agencies.→
© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed
© 2013
Cengage
Learning.
Allor
Rights
Reserved.
May not be copied,
scanned,
or duplicated,
with
a certain
product
or service
otherwise
on a password-protected
website
for classroom
use. in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
6
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
7
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
9
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.” →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
10
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
12
Ex. 1-2 Equitable Maxims
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
13
Schools of Legal Thought
Natural Law School. →
Positivist School. →
Historical School. →
Legal Realism. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
14
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
15
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
17
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
18
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
19
Classifications of Law
Every type of law will be either:
Substantive or Procedural. →
Civil or Criminal. →
Public or Private.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
20
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
21
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
22
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
23
Appendix to Chapter 1: Finding
and Analyzing the Law
Finding Statutory Law and
Administrative Law.
United States Code (USC).
State Codes.
Administrative Rules.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
24
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.).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
25
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
26
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
29
Chapter 5: Torts and
Cyber Torts
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
© 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,
password-protected
website
for classroom
use. for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
4
The Basis of Tort Law
▪ Tort Reform.
• Tort Reform Goals.
• Tort Reform Legislation.
▪ Classification of Torts.
• Intentional Torts.
• Unintentional Torts (negligence).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
5
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
6
Intentional Torts Against Persons
▪ Assault and Battery. →
▪ False Imprisonment. →
▪ Infliction of Emotional Distress. →
▪ Defamation. →
▪ Invasion of Privacy. →
▪ Business Torts. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
7
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
8
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
9
Intentional Torts Against Persons
▪ Defenses to Assault and Battery.
• Consent.
• Self-Defense (reasonable force).
• Defense of Others (reasonable force).
• Defense of Property.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
10
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
11
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
12
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
13
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? →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
14
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
15
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
18
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
19
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
20
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
22
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
24
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
25
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
26
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 →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
27
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
28
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
29
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
30
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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 .
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
32
Unintentional Torts: Negligence
▪ Duty of Care and Breach.
•.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
40
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Assumption of Risk. →
• Superseding Intervening Cause→.
• Contributory or Comparative
Negligence.→
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
45
Unintentional Torts: Negligence
▪ Defenses to Negligence.
• Contributory and Comparative
Negligence.
• Most states have replaced contributory
negligence with the doctrine of
comparative negligence.→
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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%.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
53
Chapter 4: Constitutional
Authority to Regulate Business
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
© 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,
password-protected
website
for classroom
use. for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.” →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
13
The Bill of Rights
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
→
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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?
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.”
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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. →
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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).
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
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.
© 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a
license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
32