Constitutional Law Federal Preemption 05 11 2012 Literal conflict between state and federal laws so that it is impossible to follow both Federal law specifically declares that it will preempt state regulation Federal regulation is pervasive State regulation is an obstacle to fulfilling federal law Congress power Interstate Commerce Clause Three ways to regulate o Channels of interstate commerce o Instrumentalities of interstate commerce o Intrastate activities that substantially affect interstate commerce Dormant Commerce Clause Two ways states can violate 1 Undue burden 2 Discriminatory Judicial review supreme court can sit in judgment of the other branches and tell them they are exceeding their power Rights ends means tests intermediate no presumption either way important is less than compelling shades of gray rational has to show it has a legitimate purpose for the law and the means are Fully protected strict scrutiny political speech other non commercial speech Unprotected rational basis obscene speech fighting words child pornography Limited protection intermediate scrutiny commercial offensive reasonable Categories of Speech 1 Substantial government interest 2 Direct advancement of the interest 3 No more extensive than necessary Classification Commercial or Not Speaker commercial Intended audience actual or potential customers Content of the message representations of fact of a commercial nature Equal Protection Clause Categories Strict scrutiny race national origin fundamental right travel vote Intermediate scrutiny sex gender illegitimacy Rational basis economic social relations Substantive Due Process Non Economic Rights Marry Raise children Marital privacy Contraception Abortion Procedural Due Process Three Factors Private interest Risk of error of current process and value of additional or substitute procedures Government interest including cost of additional or substitute procedures Takings Clause Eminent Domain Property real personal contract Taking even regulatory takings Public use o Develop government owned facility o Construct improvements to which the public would have broad access o Further meaningful public purpose Just compensation Analytical Framework Does the government have the power to act pursuant to the constitution o Federal find power o State check for limitation Does the government action violate any constitutional rights ADDITIONAL Separation of powers giving distinct powers to Congress president and federal courts Congress states legislative powers commerce tax spending powers President executive power power to execute or enforce laws passed by Congress Supreme Court judicial power Checks and balances Article I gives president power to veto legislation passed by Congress allows Congress to override such veto by 2 3 vote of each house President vice president and other fed Officials may be impeached and removed from office by 2 3 vote of Senate Treaties made by president must be approved by 2 3 vote of Senate Congress has some control over supreme Court s appellate jurisdiction Federalism structures power relations between federal government and states Federal supremacy makes federal laws supreme over state law Judicial Review courts can declare actions of other government bodies unconstitutional Legislators chosen by people judges are appointed Enumerated powers restricts federal legislative authority by listing the powers Congress can exercise Independent checks limits state and federal power main limitation on congressional power Federal law must meet two general tests in order to be constitutional Based on enumerated power of Congress Must not collide with any of the independent checks Police power state power to regulate for public health safety morals and welfare Contracts 05 11 2012 INTRODUCTION TO CONTRACTS Nature of Contracts Not every promise is legally enforceable When a set of promises has the status of contract a person injured by a breach of that contract is entitled to call on the government courts to force the breaching party Contract law is ancient law but has evolved to reflect social change Law merchant customary practices that merchants that are trading with each other to honor the contract Law gives legal effect in the middle ages began o Developed internal rules in resolving disputes Contract law is private law not public between private people Goal certainty fairness Elements of a Contract Agreement Consideration Capacity Lawful object Contract Classifications Unilateral Bilateral o Refers to the number of promises you have o Bilateral promise for a promise formed immediately at time promise is o Unilateral promise in exchange for performance formed when person made performs Executory Executed Valid Voidable Void o Void Won t enforce even if you want them to o Voidable both can avoid if they choose Express Implied o Express says directly what you are going to do written oral etc o Implied implied from circumstances no one has directly said promise implied in fact not implied in law Sources of Contract Law Common law Uniform commercial code sale of goods only o Uniform every state legislature has adopted it Convention on the international sale of goods CISG UCC Sale of Goods Goods tangible movable personal property Does not apply to o Sale of services o Intangible property stocks intellectual property o Real estate Mixed sale situation whether goods or services predominates in the contract vs gravamen test focuses on part of contract at issue o Goods and services together Two tests that courts use o Predominant factor test whether goods or services predominate looks at whole thing is it more goods that statute applies or more services Nature of business reason entered cost of goods v services language of contract o Gravamen test focuses on part at issue focus on part that they said went wrong Doesn t apply to services Non contract duties Quasi contract o Contract involved in law not a contract theory means as if or like o Implied in law unjust enrichment Promissory estoppel Four Elements Promissory Estoppel Promise Reasonable reliance Actual reliance Injustice Conditional on an act return promise or forbearance refraining from doing THE AGREEMENT OFFER Offer A promise something Parties to a Contract Offeror makes the offer Offeree receives the offer Requirements Parties to a contract must have Intent to enter binding agreement Terms must be definite Offer must be communicated to the offeree Intent Courts use the objective
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