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Duress

Johnny, the CEO of Plastic Spoon Inc., is in a bit of a bind.  His daughter was kidnapped.  The kidnappers are demanding a hefty ransom.  Unfortunately for Johnny, he cannot afford the ransom. So, Johnny withdraws the ransom money from Plastic Spoons account, and he pays the kidnappers.  After returning with his daughter, the directors of the corporation notice the missing funds.  The directors report the loss to the police. The directors suspect that Johnny misappropriated the funds, and they tell the police about their suspicions. The police search Johnny’s home without a warrant.  They find a letter Johnny was writing that confirms that Johnny took the money for the corporation to pay the kidnappers.  The police arrest Johnny, and he is charged with theft.  Johnny is charged with embezzlement. The elements of embezzlement in this state are: The intentional taking of money or property by a CEO or other top official in a corporation without consent. Are the elements of embezzlement present in this fact pattern?  What affirmative defenses can Johnny raise?  Can Johnny get the letter seized by the police suppressed?  Why? The requirements below must be met for your paper to be accepted and graded:  Write between 500 – 750 words (approximately 2- 3 pages) using Microsoft Word. Attempt APA style, see example below. Use font size 12 and 1’ margins. Include cover page and reference page. At least 60% of your paper must be original content/writing. No more than 40% of your content/information may come from references. Use at least two references from outside the course material, preferably from EBSCOhost. Text book, lectures, and other materials in the course may be used, but are not counted toward the two reference requirement. Reference material (data, dates, graphs, quotes, paraphrased words, values, etc.) must be identified in the paper and listed on a reference page. Reference material (data, dates, graphs, quotes, paraphrased words, values, etc.) must come from sources such as, scholarly journals found in EBSCOhost, online newspapers such as The Wall Street Journal, government websites, etc. Sources such as Wikis, Yahoo Answers, eHow, etc. are not acceptable.

Constitutional Law

This week’s lecture is on Constitutional Law.  The constitution is a foundational document in many ways.  It lays out the rules the state and federal government must govern as well as specifies the division of power between the states and the federal government (federalism) and between the various branches of the government (separation of power).  Any government action—whether by the federal government or by state governments–that is found by the courts to conflict with the constitution is invalid.
The document is divided into articles and amendments. There are five articles in the U.S. Constitution.  These articles specify the powers of the federal government as a whole. The articles also delineate what powers each branch of government has.  The amendments to the constitution that we will discuss primarily limit the authority of congress to act.   
The first article in the constitution deals with the powers of Congress. Congress has the primary power to regulate the economy (though it may delegate some of this power to the executive branch in some cases, for example Congress has given the Environmental Protection Agency the ability to enforce and regulate air emissions standards through the Clean Air Act).   One important power found in article one is the taxing and spending power. This gives Congress the power to tax and spend in order to support the general welfare. Obviously, this is of preeminent concern to the economy and business.

However, the commerce clause is by far the most significant way that Congress constitutionally regulates business. This clause gives Congress the ability to regulate commerce with foreign nations, interstate commerce, and commerce that affects interstate commerce.  This affects language is very important. In an early, important case, Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court held that the commerce clause allowed the government to constitutionally penalize a farmer growing wheat to feed animals on his own land as affecting interstate commerce.  

The statute in question created quotas on wheat production in order to stabilize prices. The wheat in question exceeded the quota, and the Supreme Court agreed with the federal government’s argument that by growing wheat for his animal’s use the farmer would likely buy less wheat on the open market, which would have an impact on the price of wheat (especially if many people adopted this approach).  Relying upon this case as precedent, the courts found that practically all Congressional acts met this standard up into the present though some recent cases have limited the scope of this power.  Nonetheless, this case should provide a good example of how sweeping this commerce power is.

The Supremacy Clause is also found in this part of the Constitution. This clause states that the constitution and other constitutional statutes and treaties are “the supreme law of the land.”  Under this clause, state constitutions and laws are invalid and unconstitutional if they conflict with the U.S. Constitution or a constitutional federal action. 

This week’s lecture will end with a discussion of the amendments, specifically with the first ten amendments known as the Bill of Rights. Although these originally only applied to the federal government, they have been expanded to encompass state government actions through a process known as incorporation under the 14th amendment. Collectively, these represent a significant check on governmental action.  For example, the first amendment alone protects freedom of speech and freedom of religion.  Other amendments guarantee business and individuals due process and equal protection of the law. I encourage you to examine these specific protection in more detail in your text.   

Criminal Law

This lecture will concern criminal law’s intersection with the world of business. 

To begin, there are two major types of law: civil law and criminal law.  Civil law deals with the duties between persons and the duties between citizens and government (except for criminal law).  After this week, almost all of our lessons will concern themselves with civil law. 
Criminal law deals with the punishment of acts that are illegal. These punishments take the form of fines, imprisonment, and, in some cases, death.  Within criminal law, there are two divisions that you should be aware of.

Misdemeanors, such as disorderly conduct, are crimes punishable by a fine or by confinement in a jail for up to a year. Felonies, such as burglary, are punishable imprisonment in a penitentiary for more than a year.  

Within each classification, there may be different degrees. These degrees are generally organized around the maximum punishment allowable. 

Now that we have classified crimes, it is important to discuss what makes one criminally liable.  In order to be criminally liable, the government must prove various elements beyond a reasonable doubt.  At bottom, there are two major types of elements. First, there must be the commission of a criminal act (also known as the actus reus).  Second, the act must be performed with requisite mental state (also known as mens rea).  This act and intent to commit a crime will vary based on the statute. And, indeed, there may be multiple elements depending on the crime.

For example, the Model Penal Code defines murder as the purposeful or knowing killing of another person.  The act element here would be the killing of another person. The intent element would be purposefully or knowingly (which is defined as either intending or knowing that the actions will lead to the criminal result).  So, to convict for murder, the prosecution would have to prove both of these elements beyond a reasonable doubt.  
However, even if the prosecution proves each element of the crime beyond a reasonable doubt, the defendant may be able to escape punishment if they are able to prove an affirmative defense (typically defendants are held to the lesser standard of by a preponderance of the evidence or being able to prove it is more likely than not that the defense is valid).  These can be divided into two types: excuses and justifications. 
An excuse defense is one that allows the defendant to get off for wrongful conduct because there is an acknowledgment that though the defendant’s actions were wrong there is something about the situation or the defendant that makes it unfair to find the defendant partially or totally culpable. An example of an excuse defense is insanity. Here, there is no doubt that the defendant committed the crime. However, society has determined that it is unfair to punish one for a crime when due to a mental disease or defect that person is unable to determine right from wrong or appreciate the wrongfulness of his or her conduct. 

A justification defense is one that allows a defendant, who has committed a crime, to escape punishment due to a determination by society that the defendant’s commission of the crime was a better decision than the alternatives. Self-defense is a classic justification defense. In this defense, the defendant is not punished for the commission of a crime because there is a recognition that it is better for the defendant to have protected themselves or another from someone else’s wrongful use of force. 
With this, we have covered some of the basics of criminal law. This material will directly apply to crimes and criminal issues that confront the business world as in the case with embezzlement and other crimes that plague business.