Chapter 1 The Historical and Constitutional Foundations

 What is the Common Law Tradition?  What is a Precedent? When might a court depart from precedent?  What is the difference between remedies at law and remedies in equity?  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 the Common Law Tradition?  What is a Precedent? When might a court depart from precedent?  What is the difference between remedies at law and remedies in equity?  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? Learning Objectives

The Common Law Tradition  Early English Courts of Law King’s courts started after Norman conquest of Established the common law—body of general legal principles applied throughout the English empire. King’s courts used precedent to build the common law.  Early English Courts of Law King’s courts started after Norman conquest of Established the common law—body of general legal principles applied throughout the English empire. King’s courts used precedent to build the common law.

The Common Law Tradition  Stare Decisis Practice of deciding new cases based on precedent. A higher court’s decision based on certain facts and law, is a binding authority on lower courts. Helps courts stay efficient.  Stare Decisis Practice of deciding new cases based on precedent. A higher court’s decision based on certain facts and law, is a binding authority on lower courts. Helps courts stay efficient.

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. Merging: Today, legal and equitable remedies are found in the same court. Equitable Maxims: “Whoever seeks equity must do equity.”  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. Merging: Today, legal and equitable remedies are found in the same court. Equitable Maxims: “Whoever seeks equity must do equity.”

Sources of American Law  Constitutional Law Found in text and cases arising from federal and state constitutions. U.S. Constitution is the supreme law of the land.  Statutory Law Federal Statutes State & Local Statutes and Ordinances Uniform Laws (e.g.,Uniform Commercial Code)  Constitutional Law Found in text and cases arising from federal and state constitutions. U.S. Constitution is the supreme law of the land.  Statutory Law Federal Statutes State & Local Statutes and Ordinances Uniform Laws (e.g.,Uniform Commercial Code)

Sources of American Law  Administrative Law 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.  Administrative Law 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.

Sources of American Law  Case Law and Common Law Doctrines Much of the common law is still used today. Common law governs all areas not specifically covered by statutory or constitutional law. Restatements of the Law: modern compilations of common law principles found, e.g., in contracts, torts, property and agency.  Case Law and Common Law Doctrines Much of the common law is still used today. Common law governs all areas not specifically covered by statutory or constitutional law. Restatements of the Law: modern compilations of common law principles found, e.g., in contracts, torts, property and agency.

Classifications of Law  Substantive vs. Procedural Law Substantive: laws that define and regulate rights and duties. Procedural: laws that establish methods for enforcing and protecting rights.  Civil Law and Criminal Law Civil: private rights and duties between persons and government. Criminal: public wrongs against society.  Substantive vs. Procedural Law Substantive: laws that define and regulate rights and duties. Procedural: laws that establish methods for enforcing and protecting rights.  Civil Law and Criminal Law Civil: private rights and duties between persons and government. Criminal: public wrongs against society.

Classifications of Law  National and International Law National: laws of a particular nation. Civil vs. Common Law: Civil law countries based on Roman code (e.g., Latin America). International: body of written and unwritten laws observed by nations when dealing with each other.  Cyberlaw: governs internet transactions.  National and International Law National: laws of a particular nation. Civil vs. Common Law: Civil law countries based on Roman code (e.g., Latin America). International: body of written and unwritten laws observed by nations when dealing with each other.  Cyberlaw: governs internet transactions.

Constitutional Powers of Government  Federalism: The federal constitution was a political compromise between advocates of state sovereignty and central government.  Separation of Powers: Executive, Legislative and Judicial. Provides checks and balances. Legislative: enacts laws Executive: enforces laws Judicial: declares laws/actions unconstitutional.  Federalism: The federal constitution was a political compromise between advocates of state sovereignty and central government.  Separation of Powers: Executive, Legislative and Judicial. Provides checks and balances. Legislative: enacts laws Executive: enforces laws Judicial: declares laws/actions unconstitutional.

The Commerce Clause  U.S. Constitution gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” (Art 1 § 8)  Greatest impact on business than any other Constitutional provision.  U.S. Constitution gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” (Art 1 § 8)  Greatest impact on business than any other Constitutional provision.

The Commerce Clause  Gibbons v. Ogden (1824). Interstate commerce means any business dealing that substantially affects more than one state. The national government has the exclusive power to regulate interstate commerce.  Gibbons v. Ogden (1824). Interstate commerce means any business dealing that substantially affects more than one state. The national government has the exclusive power to regulate interstate commerce.

The Commerce Clause  Since Gibbons v. Ogden, Federal Regulatory Powers have expanded under Commerce Clause: Wickard v. Filburn (1942). Purely local production, sale and consumption of wheat was subject to federal regulation. 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.  Since Gibbons v. Ogden, Federal Regulatory Powers have expanded under Commerce Clause: Wickard v. Filburn (1942). Purely local production, sale and consumption of wheat was subject to federal regulation. 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.

The Commerce Clause  Commerce Clause Today: Theoretically: the federal government has unlimited control over all business transactions since any enterprise (in the aggregate) can have a “substantial effect” on interstate commerce. Practical Limits: Supreme Court has curbed federal regulatory powers in U.S. v. Lopez (1995) and U.S. v. Morrison (2000).  Commerce Clause Today: Theoretically: the federal government has unlimited control over all business transactions since any enterprise (in the aggregate) can have a “substantial effect” on interstate commerce. Practical Limits: Supreme Court has curbed federal regulatory powers in U.S. v. Lopez (1995) and U.S. v. Morrison (2000).

Regulatory Powers of the States  Tenth Amendment reserves all powers to the states that have not been expressly delegated to the national government.  State have inherent “police powers.” Police powers include right to regulate health, safety, morals and general welfare. Includes licensing, building codes, parking regulations and zoning restrictions.  Tenth Amendment reserves all powers to the states that have not been expressly delegated to the national government.  State have inherent “police powers.” Police powers include right to regulate health, safety, morals and general welfare. Includes licensing, building codes, parking regulations and zoning restrictions.

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 state’s interest vs. national interest, e.g., internet transactions.  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 state’s interest vs. national interest, e.g., internet transactions.

Business and the Bill of Rights  1791: Ten written guarantees of protection of individual liberties from government interference.  Originally, Bill of Rights only applied to the federal government.  Later, the Bill of Rights was “incorporated” via the 14 th Amendment and applied to the States.  Some protections apply to businesses.  1791: Ten written guarantees of protection of individual liberties from government interference.  Originally, Bill of Rights only applied to the federal government.  Later, the Bill of Rights was “incorporated” via the 14 th Amendment and applied to the States.  Some protections apply to businesses.

Free Speech  Right to Free Speech is the basis for our democratic government.  Free speech also includes “symbolic” speech, including gestures, movements, articles of clothing. Texas v. Johnson (U.S. 1989): burning the American flag is protected symbolic speech.  Right to Free Speech is the basis for our democratic government.  Free speech also includes “symbolic” speech, including gestures, movements, articles of clothing. Texas v. Johnson (U.S. 1989): burning the American flag is protected symbolic speech.

Corporate Speech  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.  Corporations also have protected political speech (although not to the degree of a natural person).  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.  Corporations also have protected political speech (although not to the degree of a natural person).

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.  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.

Online Speech  Protected or Unprotected? Some of Congress’ attempts to protect children from online pornography have been ruled unconstitutional restriction on free speech. Communications Decency Act (1996) COPA (1998-challenged, in court) Children’s Internet Protection Act (2000) which requires filters for computers in public libraries and public schools). Challenged, in court. What about “hate” speech on the web?  Protected or Unprotected? Some of Congress’ attempts to protect children from online pornography have been ruled unconstitutional restriction on free speech. Communications Decency Act (1996) COPA (1998-challenged, in court) Children’s Internet Protection Act (2000) which requires filters for computers in public libraries and public schools). Challenged, in court. What about “hate” speech on the web?

Freedom of Religion  First amendment guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”  Establishment clause: no state-sponsored religion or preference for one religion over another.  Free Exercise: person can believe what he wants, but actions may be unconstitutional.  First amendment guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”  Establishment clause: no state-sponsored religion or preference for one religion over another.  Free Exercise: person can believe what he wants, but actions may be unconstitutional.

Due Process  Due Process is both procedural and substantive.  Procedural: any government decision to take life, liberty or property must be fair. Requires: Notice and Fair Hearing.  Substantive: focuses on the content or the legislation (the right itself). Fundamental Right: requires compelling state interest. Non-Fundamental: rational relationship to state interest  Due Process is both procedural and substantive.  Procedural: any government decision to take life, liberty or property must be fair. Requires: Notice and Fair Hearing.  Substantive: focuses on the content or the legislation (the right itself). Fundamental Right: requires compelling state interest. Non-Fundamental: rational relationship to state interest

Equal Protection  14 th Amendment: A state may not “deny to any person within its jurisdiction the equal protection of the laws.”  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.  14 th Amendment: A state may not “deny to any person within its jurisdiction the equal protection of the laws.”  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.

Privacy Rights  Fourth amendment protects against unreasonable search and seizures.  What about private information on the internet? Reno v. Condon (2000).  Griswold v. Connecticut (1965) found a right to personal privacy implied in constitution, expanded in Roe v. Wade (1973).  Website privacy policies.  Fourth amendment protects against unreasonable search and seizures.  What about private information on the internet? Reno v. Condon (2000).  Griswold v. Connecticut (1965) found a right to personal privacy implied in constitution, expanded in Roe v. Wade (1973).  Website privacy policies.

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. Supreme Court Cases Federal Court Cases at Findlaw.com. Federal Court Cases State Court Cases at Findlaw.com. State Court Cases  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. Supreme Court Cases Federal Court Cases at Findlaw.com. Federal Court Cases State Court Cases at Findlaw.com. State Court Cases

Appendix  Reading & Understanding Case Law Legal cases are identified by a “legal citation” (or a “cite”) as the example below: Clark County School District vs. Breeden, 532 U.S. 268 (2001).  Reading & Understanding Case Law Legal cases are identified by a “legal citation” (or a “cite”) as the example below: Clark County School District vs. Breeden, 532 U.S. 268 (2001). Title: First Party is Plaintiff, second party is Defendant. The parties are either italicized or underlined.

Appendix  Reading & Understanding Case Law Legal cases are identified by a “legal citation” (or a “cite”) as the example below: Clark County School District vs. Breeden, 532 U.S. 268 (2001).  Reading & Understanding Case Law Legal cases are identified by a “legal citation” (or a “cite”) as the example below: Clark County School District vs. Breeden, 532 U.S. 268 (2001). This is a U.S. Supreme Court Case (“U.S.”) found in Volume 532, Page 268. This case was decided in 2001.