It is my personal approach that creates the climate.

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• It is my personal approach that creates the
  climate. 
• As a human, I possess a tremendous power to make
• a persons life miserable or joyous.
•  I can be a tool of torture or an instrument of
  inspiration. 
• I can humiliate or humor, hurt or heal. 
• In all situations, it is my response that decides
  whether a crisis will be diminished or escalated
• and a fellow human being humanized or
  de-humanized.
• -Haim Ginott

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Welcome to Introduction to Business BUS 002

• Topic History Sources of American Law
• Agenda
• January 24, 2008 (Th), January 30, 2008 (Wed)
• Check-Ins Questions, Comments, Reflections, AhHa
  Moments
• Article Internet Sources for American Law
• Sources of American Law
• Constitutional
• Statutory
• Administrative
• Common
• Commerce Clause
• Emancipate

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Class Norms

• No Anxiety
• Take care of your of your own needs
• Agenda then emancipate
• Submit assignments on time
• Preserve the dignity of self and others in the
  class
• Have regard for everyones voice

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Learning Objectives

• What is the Common Law Tradition?
• What is a precedent? When might a court depart
  from precedent?
• What constitutional clause gives the federal
  government the power to regulate commerce among
  the states?
• What is the Bill of Rights? What freedoms are
  guaranteed by the First Amendment?
• What is a remedy?

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Vocabulary

• Adjudicate A judicial decision (Example When
  an administrative law judge renders a decision in
  an administrative law hearing)
• Commerce Clause The section of the U.S.
  Constitution that gives Congress the power to
  regulate commerce.
• Constitutional Law Laws derived from the U.S.
  Constitution
• Statutory Law Laws derived from legislative
  bodies (state senators, assembly persons, etc.)
• Administrative Law Laws created by
  administrative agencies
• Common Law decisions made on precedence
• Rulemaking Established rules to help regulate
  legislation.
• Remedy what is given to an individual or
  parties for a violation of rights.
• Precedent Previous judicial decisions

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Law Jurisprudence

• Law A body of enforceable rules governing
  relationships among individuals and between
  individuals and their society.
• ? Jurisprudence The study of different schools
  of legal philosophy and how each can affect
  judicial decisionmaking.

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Sources of American Law

• There are four primary sources of domestic law.
• CONSTITUTIONAL LAW
• STATUATORY LAW
• ADMINISTRATIVE LAW
• COMMON LAW

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Sources of American Law

• Constitutional Law.
• Constitutions set forth the fundamental rights of
  the people living within the United States or a
  given state, describing and empowering the
  various branches of government, and setting forth
  limitations on that power
• Federal and state governments have their own
  separate constitutions.
• U.S. Constitution is the supreme law of the land.
• EXAMPLE Amendment 1 Freedom of Religion, Press

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Sources of American Law

• Statutory Law.
• Statutes, enacted by Congress or the legislature
  of a given state and ordinances adopted by a
  given locality
• A state statute may be based on a uniform law
  (e.g., the Uniform Commercial Code Laws that
  are common amongst states) or on a model act
  (e.g., the Model Business Corporations Act Laws
  common amongst corporations). However, each
  state is free to depart from the uniform law or
  model act as it sees fit.
• Federal Statutes.
• State Local Statutes and Ordinances.
• Uniform Laws (e.g.,Uniform Commercial Code).
• EXAMPLE Laws Assemblypersons, Congresspersons,
  Senators enact. (e.g. Senate Bill 21, Assembly
  Bill 217)

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Sources of American Law

• Administrative Law.
• Administrative Rules and Regulations promulgated
  by federal, state, and local regulatory agencies
  and
• Rules, orders and decisions of administrative
  agencies, federal, state and local.
• Administrative agencies can be independent
  regulatory agency such as the Food and Drug
  Administration.
• Agencies make rules, then investigate and enforce
  the rules in administrative hearings.
• EXAMPLE Food and Drug Administration rules on
  importing food into the United States

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Sources of American Law

• Case Law and Common Law Doctrines.
• Common law, is the body of judicial decisions
  that interpret and enforce any of relationships
  among individuals or between individuals and
  their society which are not subject to
  constitutional, statutory, or administrative law.
  
• Based on English Legal System Countries that
  were colonized followed this system
• Based on Precedent What cases were decided
  previously
• Sometimes Precedence is not followed (e.g. Brown
  v. Board of Education)
• Much of the common law is still used today.
  Common law governs all areas not specifically
  covered by statutory or constitutional law.
• EXAMPLE California Traffic Laws

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HIERARCHY AMONG PRIMARYSOURCES OF AMERICAN LAW

• ? Laws emanating from the various primary sources
  of American law are enforced according to the
  following hierarchy
• (1) The United States Constitution takes
  precedence over
• (2) federal statutory law, which takes precedence
  over
• (3) a state constitution, which takes precedence
  over
• (4) state statutory law, which takes precedence
  over
• (5) a local ordinance, which takes precedence
  over
• (6) administrative rules and rulings, which take
  precedence over
• (7) common law.

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(No Transcript)
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The Common Law Tradition

• Equitable Remedies Courts of Equity.
• Remedy means to enforce a right or compensate
  for injury to that right.
• Remedies in Equity based on justice and fair
  dealing a chancery court does what is right.
• Equitable Maxims Whoever seeks equity must do
  equity.

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Classifications of American Laws

• Case Law laws determined based upon court
  decisions. Decisions that are determined from
  the interpretation of judicial precedents,
  statues, and the constitutes.
• Substantive Law laws that define and regulate
  rights and duties.
• Procedural Law laws that establish methods for
  enforcing and protecting rights
• CyberLaw laws dealing with electronic
  communications transactions
• Civil Law laws that deal with private rights
  and duties between persons and government.
• Criminal Law laws dealing with wrongs against
  society
• National Law laws of a particular nation
• International Law unwritten and written laws
  observed by nations when dealing with each other.

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Who Governs American Laws?

• Constitutional Power of U.S. Government
• Separation of Powers
• (3 Branches of the U.S. Government)
• (Checks Balances System)
• Legislative
• House (Congresspersons, Senators) ENACT LAWS
• Executive
• (President, V.P., etc.) ENFORCES LAWS
• Judicial
• (Supreme Court Judges, Federal Judges) DECLARES
  LAWS AND ACTIONS CONSTITUTIONAL/
  UNCONSTITUTIONAL.

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What do you think?

• In groups of three(3), reflect and respond to
  the following three questions
• Which agency brought a case against Martha
  Stewart?
• Under which American Law category is the agency
  located?
• Do you believe agencies should have such power?
  Why or Why not?

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Laws Connection to Business

• U.S. Constitution (Article 1 Section 8) gives
  Congress the power to
• regulate Commerce with foreign Nations, and
  among the several States, and with the Indian
  tribes. (Art 1 8) a.k.a. The Commerce Clause
• Laws that govern business have origins in the
  U.S. Constitution
• Greatest impact on business than any other
  Constitutional provision.
• Interstate commerce means any business dealing
  that substantially affects more than one state.
• National government has the exclusive power to
  regulate interstate commerce.

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U.S. Constitution (Article 1 Section 8) The
Commerce Clause

• Congress regulates both Interstate and Intrastate
  Commerce
• Interstate Commerce (i.e., commerce between two
  or more states) and
• Intrastate Commerce (i.e., commerce within a
  single state),
• as long as the intrastate commerce at issue
  substantially affects interstate commerce.

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U.S. Constitution (Article 1 Section 8) The
Commerce Clause

• Lets look at a case (p. 14 in text)
• Heart of Atlanta Motel v. U.S. (1964). Motel
  that provided public accommodations to guests
  from other states was subject to federal civil
  rights legislation.

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U.S. Constitution (Article 1 Section 8) The
Commerce Clause Today

• Commerce Clause Today
• The federal government has unlimited control over
  all business transactions since any enterprise
  can have a substantial affect on interstate
  commerce.
• Supreme Court has curbed federal regulatory
  powers for Commerce. (See U.S. v. Lopez (1995)
  p. 15 (Gun Act within 1000 feet of schools had
  nothing to do with Commerce)

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U.S. Constitution (Tenth Amendment)
Commerce Clause Power TodayRegulatory Powers of
the State

• Tenth Amendment says
• The powers not delegated to the United States
  by the Constitution, nor prohibited by it to the
  States, are reserved to the States respectively,
  or to the people
• in other words, all powers not under the
  national government control is given to the
  states
• States have inherent police powers.
• Police powers include right to regulate health,
  safety, morals and general welfare of the
  citizens.
• Includes licensing, building codes, parking
  regulations and zoning restrictions.
• As long as the states regulations do not
  interfere with the Interstate Commerce

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Commerce Power Today Dormant Commerce Clause

• U.S Supreme Court has interpreted commerce clause
  to give national government exclusive power to
  regulate.
• States only have a dormant (negative) power to
  regulate interstate commerce.
• Dormant power comes into play when courts balance
  states interest vs. national interest, e.g.,
  internet transactions. (see Vermont Case p. 17)

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U.S. Constitution (First Amendment) Freedom of
Speech Business

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress (solution) of
  grievances. 1st Amendment
• Symbolic Speech Speech, including gestures,
  movements, articles of clothing. (see Flag
  burning case p. 20)
• Corporate Commercial Speech (advertising) is
  given substantial protection. Government
  restrictions must
• Seek to implement substantial government
  interest,
• Directly advance that interest, and
• Must go no further than necessary to accomplish.
  (see Ads for video gambling case p. 21)
• Political Speech (contributions to political
  campaigns)
• Corporations also have protected political speech
  (see First National Bank political contributions
  case p. 21)

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Unprotected Speech

• U.S. Supreme Court has held that certain speech
  is NOT protected
• Defamatory speech.
• Threatening speech that violates criminal laws.
• Fighting Words.
• Obscene Speech is patently offensive, violates
  community standards and has no literary,
  artistic, political or scientific merit.

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What do you think?

• What consequence did CBS television issue to
  Don Imus?
• What was the relationship between Don Imus and
  CBS?
• Why do you believe CBS issued the consequence
  they did?

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U.S. Constitution (Fifth and Fourteenth
Amendment) Due Process

• No person shall be held to answer for a
  capital, or otherwise infamous crime, unless on a
  presentment or indictment of a Grand Jury, except
  in cases arising in the land or naval forces, or
  in the Militia, when in actual service in time of
  War or public danger nor shall any person be
  subject for the same offense to be twice put in
  jeopardy of life or limb nor shall be compelled
  in any criminal case to be a witness against
  himself, nor be deprived of life, liberty, or
  property, without due process of law nor shall
  private property be taken for public use, without
  just compensation. 5th Amendment
• All persons born or naturalized in the
  United States, and subject to the jurisdiction
  thereof, are citizens of the United States and of
  the State wherein they reside. No State shall
  make or enforce any law which shall abridge the
  privileges or immunities of citizens of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.
  14th Amendment

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U.S. Constitution (Fifth and Fourteenth
Amendment) Due Process

• Procedural Due Process requires that any
  government decision to take life, liberty, or
  property must be made fairly, giving the
  person(s) from whom life, liberty, or property is
  to be taken prior notice and the opportunity to
  be heard by an impartial decision maker.
• Substantive Due Process requires that the
  interest of the state to be served by any law or
  other governmental action be weighed against the
  right of the individual(s) against whom the law
  or action is directed.
• A fundamental right (e.g., free speech,
  interstate travel, privacy) will be protected
  unless the government can show a compelling state
  interest (e.g., public safety).

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U.S. Constitution (Fourteenth Amendment) Equal
Protection

• A state may not deny to any person within
  its jurisdiction the equal protection of the
  laws. 14th Amendment
• Means that government must treat similarly
  situated individuals (or businesses) in the same
  manner. Courts apply different tests
• Minimal scrutiny-economic rights.
• Intermediate scrutiny.
• Strict Scrutiny fundamental rights.

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U.S. Constitution (Fourth Amendment)Federal Laws
Protecting Privacy Rights

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but upon
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be
  seized. 4th Amendment
• Website privacy policies.
• HIPAA of 1996 (health information).
• (see Exhibit 1-2 Federal Legislation relating to
  Privacy p. 28)

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Appendix

• Finding Statutory Law.
• United States Code (USC).
• State Statutes.
• Finding Administrative Law.
• Code of Federal Regulations (CFR).
• Finding Case Law (Case Citations).
• Supreme Court Cases at Findlaw.com.
• Federal Court Cases at Findlaw.com.
• State Court Cases at Findlaw.com.

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Appendix

• Reading Understanding Case Law
• Legal cases are identified by a legal citation
  (or a cite) as the example below
• EMG Recordings, Inc. v. Sinnot, 300 F. Supp.2d
  993 (E.D. Ca. 2004).

Title First Party is Plaintiff, second party is
Defendant. The parties are either italicized or
underlined.
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Appendix

• Reading Understanding Case Law.
• Legal cases are identified by a legal citation
  (or a cite) as the example below
• EMG Recordings, Inc. v. Sinnot, 300 F. Supp.2d
  993 (E.D. Ca. 2004).

This is a federal court case from the Eastern
District of California, found in Volume 300,
Page 993 of the Federal Supplement 2d. This case
was decided in 2004.
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Reflection

• How might todays content impact my practice in
  business?
• What implications might todays content have on
  the local, state, national, and global
  communities?
• What have I learned about law and business that
  will influence my practice?