Chapter 1 The Historical and Constitutional Foundations

1. Chapter 1The Historical and Constitutional Foundations

2. Learning Objectives • 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?

3. The Common Law Tradition • Early English Courts of Law • King’s courts started after Norman conquest of 1066. • Established the common law—body of general legal principles applied throughout the English empire. • King’s courts used precedent to build the common law.

4. 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.

5. 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.”

6. 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)

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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).

16. 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.

17. 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.

18. 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 14th Amendment and applied to the States. • Some protections apply to businesses.

19. 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.

20. 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).

21. 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.

22. 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?

23. Freedom of Religion • First amendment guarantees that “Congress shall make no law respecting anestablishmentof religion, or prohibitingthe free exercisethereof…” • 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.

24. 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

25. Equal Protection • 14th 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.

26. 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.

27. 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.

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

29. 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). This is a U.S. Supreme Court Case (“U.S.”) found in Volume 532, Page 268. This case was decided in 2001.