Business Law Exam 2 Constitutional Law Supremacy Clause 07 10 2013 o Article 6 of the U S Constitution states that it shall be the supreme law of the land o Whenever a state law conflicts with federal law it is rendered invalid o Preemption occurs when Congress chooses to act exclusively in a concurrent area Displacement of state law by federal law Commerce Clause o Permits Congress to regulate interstate commerce o Dormant Commerce Clause If state regulations interfere with interstate commerce then they are violating the commerce cause and will be struck down Example from class Nebraska s law that trucks must have mud flaps to pass through there state or must go around the state This effected interstate commerce so the law was struck down allowing trucks to go through without having to use mud flaps Case on Lopez this was what we talked about in class when Lopez was caught on school grounds with a gun and was brought up on federal charges Lopez moved to dismiss the indictment on the ground that the Act was unconstitutional as it is beyond the power of Congress to legislate control over our public schools The trial court denied the motion ruling that was a constitutional exercise of Congress well defined power to regulate activities in and affecting commerce and the business of schools and affects interstate commerce Lopez was tried and convicted He appealed to the Fifth Circuit Court of Appeals claiming that it exceeded Congress power to legislate under the Commerce Clause The Fifth Circuit agreed and reversed his conviction Bill of Rights o Consists of the first 10 amendments to the Constitution was adopted in 1792 and embodies a series of protections for business entities in most cases and individuals against interference of the government o 1st amendment Freedom of speech Most prized freedom Includes symbolic speech corporate political speech and commercial speech Commercial speech AKA advertising can be regulated however if it is misleading o 4th amendment Searches and Seizures right of the people to be secure in their persons houses papers and effects must have a warrant or probable cause to search warrant can only be issued by a judge and it must specifically state what they are looking for and where they are looking for it o 5th amendment Trial and Punishment Compensation shall not be held to answer for a capital crime unless indicted by a Grand Jury Double Jeopardy may not be tried for a crime twice that would make you lose your life or limb Your property cannot be taken from you without just compensation Pleading the 5th exercising your right against compulsory self incriminating o 6th amendment Right to a Speedy Trial right to a speedy trial with an impartial jury o 8th amendment Cruel and Unusual Punishment No excessive bail meaning bail shall not be more than what is necessary to guarantee the presence of the accused in court o 14th amendment Equal Protection A state may not deny to any person within its jurisdiction the equal protection of the laws Courts apply types of scrutiny to see whether the law violates the equal protection clause or not Strict scrutiny Fundamental rights Intermediate scrutiny Classifications about gender Employment Minimal scrutiny AKA Rational Basis Easiest test Social or economic issue o Privacy Rights Supreme Court found a right to privacy on the penumbras of the Constitution based on other constitutional amendments such as 1st 3rd 4th 5th 9th penumbras its not blatantly spelled out in the constitution but it is inferred You cant really see it but know its there Separation of power o Constitutional mandate that requires branches of government with each branch charged with performing certain functions Judicial branch Executive branch Legislative branch Checks and Balances the power of another branch Judicial Review o The process by which each branch of government restrains o Case Marbury vs Madison o Through the process of judicial review determining the constitutionality of laws the judicial branch acts as a check on the executive and legislative branches of government Levels of law making and power of each in order U S Constitution o The supreme law of the land article 6 the supremacy clause U S Statutes U S Administrative Rules Regulations State Constitutions o Supreme within state borders State Statutes State Administrative Rules Regulations State Ordinances Private Law Criminal Law Essential Elements o Preliminary Considerations Act Actus Reus Nature of element Conspiracy An agreement by 2 or more people to commit a crime Criminal Intent Mens Rea General Intent Specific Intent Strict liability Must be proven beyond a reasonable doubt Crime consists of conduct and the law doesn t require that the actor have any particular intent or mental state o Capacity to commit a crime o Corporate liability theories Strict liability Vicarious liability o Defenses Entrapment Immunity The original intent originated with the police Usually granted to witnesses or one person in a group that committed a crime so they can bring charges on the others Insanity A person cannot be found guilty if they lack the mental capacity to have the required criminal intent Intoxication Can not be used if it is voluntary intoxication Similar to insanity but is more restricted Burdens of proof o Civil Assault Battery Robbery etc Preponderance of evidence o Administrative Violating the EPA FDA etc rules Clear and convincing o Criminal Murder Beyond a reasonable doubt White Collar Crimes business crimes o Embezzlement Fraudulent appropriation by one person acting in a fiduciary capacity of the money or property of another o Identity Theft o Insider Trading o Price Fixing Trading of a public companies stock by individuals with non public information about the company an agreement between participants on the same side in a market to buy or sell a product service or commodity only at a fixed price or maintain the market conditions such that the price is maintained at a given level by controlling supply and demand Racketeer Influenced and Corrupt Organizations RICO o Cases are usually brought up against mail and telephone fraud o RICO makes it a crime to Use income obtained from racketeering activity to purchase any interest in a commercial enterprise Acquire or maintain an interest in an enterprise through racketeering activity Conduct or participate in the affairs of an enterprise through racketeering activity Conspire to do any of the preceding activities Foreign Corrupt
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