MILLER
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◆ American
and English court systems
follow the adversarial system of
justice.
◆ Each client is represented by an
attorney although a client is allowed
to represent herself (called “pro-se”).
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2
◆ Trials
involve “due process” which
requires adequate notice and a fair
and impartial hearing.
◆ For example, all civil trials in
federal court are governed by the
Federal Rules of Civil Procedure.
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◆ Stages
of Litigation.
▪ Pretrial.
▪ Trial.
▪ Posttrial.→
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◆ Consulting
an Attorney.
▪ Generally, the first step.
▪ Types of Attorneys’ Fees (hourly
vs. contingent fee).
▪ Settlement Considerations.
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◆ Pleadings.
◆ Discovery.
◆ Conference
◆ Jury
Selection.
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7
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8
◆ Plaintiff’s
Complaint.
Court acquires
jurisdiction over
subject matter and
Plaintiff.
▪ Facts.
▪ Prayer for Court
Relief.
▪
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◆ Service
of
Process.
▪
▪
Plaintiff serves
Defendant with
Complaint and
Summons.
Default Judgment for
Plaintiff, if Defendant
does not Answer.
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◆ Method
of Service.
▪ Usually by Sheriff or private process
server. Copy of Complaint and
Summons personally delivered.
▪ If Defendant cannot be reached,
“Notice by Publication” is allowed in
local newspaper of record.
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◆ Method
of Service.
▪ Corporate Defendants served via
Registered Agent. If the Defendant
is out-of-state, Court can acquire
jurisdiction by “long-arm” statutes.
◆ Waiver
of Service.
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◆ Defendant’s
Response.
▪ The Answer is the Defendant’s
response to the allegations stated
in the Plaintiff’s Complaint.
▪ In the Answer, the Defendant must
specifically admit or deny each
allegation in the Complaint.
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◆ Defendant’s
Response.
▪ Makes General Denial.
▪ May move for Change of Venue.
▪ May allege Affirmative Defenses.
→
▪ May assert Counterclaims against
Plaintiff. →
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◆ Defendant’s
Response.
▪ Affirmative Defense: burden is on
defendant to introduce proof.
▪ Counterclaims: defendant sues
plaintiff, and plaintiff answers.
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◆ Dismissals
and Pre-Trial
Judgments.
▪ Many lawsuits never go to trial.
▪ Perhaps there is a settlement.
▪ Perhaps the case was dismissed.→
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◆ Dismissals
and Pre-Trial
Judgments.
▪ Parties often file “Pre-Trial Motions”
asking the Court to do something.
▪ Motions must be filed and served
on the other party.→
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17
◆ Dismissals
and Pre-Trial
Judgments.
▪ Motion to Dismiss: either party
(normally defendant) can ask the
court to dismiss the case if the
pleadings fail to show a legal
claim.→
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◆ Dismissals
and Pre-Trial
Judgments.
▪ Motion to Dismiss.
• CASE 3.1 ESPRESSO DISPOSITION CORP. 1 V.
SANTANA SALES & MARKETING GROUP, INC.
(2013).
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◆ Dismissals
and Pre-Trial
Judgments.
▪ Motion for Judgment on the
Pleadings: court decides.
▪ Motion for Summary Judgment: no
genuine issue of material fact.
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◆ Dismissals
and Pre-Trial
Judgments. →
▪ Motion for Summary Judgment.
• Asks a court to grant a judgment for moving party
without a trial.
• Facts are viewed in the light most favorable to the
other party.
• Admissible evidence is submitted: affidavits,
documents, contracts, emails.
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◆
◆
◆
◆
◆
◆
◆
EXHIBIT 3–4 Pretrial Motions
MOTION TO DISMISS-A motion normally filed by the defendant in which the defendant asks the court to
dismiss the case for a specified reason, such as improper service, lack of personal jurisdiction, or the plaintiff’s
failure to state a claim for which relief can be granted.
MOTION TO STRIKE-A motion filed by the defendant in which the defendant asks the court to strike (delete)
certain paragraphs from the complaint. Motions to strike help to clarify the underlying issues that form the
basis for the complaint by removing paragraphs that are redundant or irrelevant to the action.
MOTION TO MAKE MORE DEFINITE AND CERTAIN-A motion filed by the defendant to compel the plaintiff to
clarify the basis of the plaintiff’s cause of action. The motion is filed when the defendant believes that the
complaint is too vague or ambiguous for the defendant to respond to it in a meaningful way.
MOTION FOR JUDGMENT ON THE PLEADINGS-A motion that may be filed by either party in which the party
asks the court to enter a judgment in his or her favor based oninformation contained in the pleadings. A
judgment on the pleadings will be made only if there are no facts in dispute and the only question is how the
law applies to a set of undisputed facts.
MOTION TO COMPEL DISCOVERY-A motion that may be filed by either party in which the party asks the court
to compel the other party to comply with a discovery request. If a party refuses to allow the opponent to
inspect and copy certain documents, for example, the party requesting the documents may make a motion to
compel production of those documents.
MOTION FOR SUMMARY JUDGMENT-A motion that may be filed by either party in which the party asks the
court to enter judgment in his or her favor without a trial. Unlike a motion for judgment on the pleadings, a
motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’
affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery.
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◆ Discovery
is the process by
which parties obtain
information from the
opposing party prior to trial.
▪ CASE 3.2
BLANKENSHIP V. COLLIER
(2010).
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◆ Discovery
Rules.
◆ Depositions: sworn testimony
recorded and transcribed by
court official (court reporter).
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◆ Interrogatories:
written
questions and answers under
oath.
◆ Requests for Admissions:
admission is considered a
“fact” for trial. →
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◆ Requests
for Documents,
Objects, and Entry Upon
Land.
◆ Requests for Examination.
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◆ E-Discovery
Procedures.
▪ FRCP deals specifically with
preservation, retrieval, and
production of electronic data.
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28
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◆ After
discovery is completed
meet with trial judge.
◆ Explore possibility of
settlement, or identify issues
that are in dispute for jury to
consider.
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◆ Right
to Jury Trial is
guaranteed by Seventh
Amendment to U.S.
Constitution. →
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32
◆ Jury
Selection.
▪ Voir Dire.
▪ Jurors can be dismissed
peremptorily (no reason or for
cause (bias).
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33
◆ Opening
Statements.
◆ Rules of Evidence.
▪ Judge decides what evidence is
admissible for jury’s consideration.
▪ Evidence must be relevant to the
issues (tends to prove or disprove).
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34
◆ Examination
of Witnesses.
▪ Expert Witnesses.
Provide
specialized knowledge and opinions
that help jurors decide issues.
▪ CASE 3.3 DOWNEY V. BOB’S DISCOUNT
FURNITURE HOLDINGS, INC. (2011).
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35
◆ Motion
for Directed Verdict.
At conclusion of plaintiffs’ case.
▪ Court looks at evidence in most
favorable light to defendant.
▪
◆ Defendant’s
▪
Evidence.
Plaintiff can ‘rebut’ the evidence, and
defense can state ‘rejoinders.’
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36
◆ Closing
Arguments, Jury
Instructions, and Verdict.
▪
After both sides present their cases, the
attorneys make their closing statements.
Each attorney summarizes the facts and
evidence and tells her client’s story in
the most compelling way possible.
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37
◆ Closing
Arguments, Jury
Instructions, and Verdict.
▪ Jury Instructions:
• After closing arguments, the judge
instructs the jury on the law of the case.
→
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38
◆ Closing
Arguments, Jury
Instructions, and Verdict.
▪ Jury Instructions:
• Criminal cases--burden of proof is
“beyond a reasonable doubt” and the
verdict (for guilty or acquittal) must be
unanimous. If not, mistrial/hung jury.
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39
◆ Closing
Arguments, Jury
Instructions, and Verdict.
▪ Jury Instructions:
• Civil Cases—generally, burden of proof is
by “preponderance” of the evidence and
a majority of jurors must agree on verdict.
If not, then mistrial/ hung jury.
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40
◆ Closing
Arguments, Jury
Instructions, and Verdict.
▪ Verdict:
• The verdict specifies the jury’s findings and
liability.
• Jury can award money damages in a civil case,
or prison in criminal case.
• Jury is dismissed after verdict.
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41
◆ After
jury reaches a verdict,
either party can make a
posttrial motion.
▪ Motion for New Trial: after looking
at all the evidence, judge will grant
the motion IF the jury was in error.
→
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42
◆ After
jury reaches a verdict,
either party can make a
posttrial motion.
▪ Motion for J.N.O.V. :
granted only if
the jury’s verdict was unreasonable
and erroneous.
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43
◆A
party may appeal the jury’s
verdict or any legal issue, motion
or court ruling during the trial.
▪ Appellants must have legitimate
grounds for appeal (usually legal
error).→
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44
◆ Filing
the Appeal.
▪ The Appellant files a brief
that
contains a short statement of the
facts, issues, rulings by the trial
court, grounds to reverse the
judgment, applicable law and
arguments on Appellant’s behalf.
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◆ Appellate
Review.
▪ Appeals court can affirm (agree
with) or reverse (disagree with)
the lower court’s decision.
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46
◆ Requesting
Court Assistance
in Collecting the Judgment.
▪ Writ of Execution: directs sheriff
to seize defendant’s non-exempt
property and sell them to pay for
judgment. →
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47
◆ Availability
of Assets.
▪ Usually a plaintiff looks to see if
the defendant has sufficient assets
before the suit is filed.
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48
MILLER
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◆ Before
the Revolutionary War,
States wanted a confederation
with weak national government
and very limited powers. →
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2
◆ After
the war ended, the States
voted to create a new, federal
government that shared power
with States.
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3
◆ Federal
Form of Government:
Shares power between national and
state governments.
National government has limited,
enumerated powers delegated from
States.
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4
◆ Regulatory
Powers of States.
10th Amendment.
Police Powers: order, safety, morals.
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5
◆ Relations
Among the States.
Privileges and Immunities Clause.
• Art. IV §2 of the U.S. Constitution.
• Prevents state from imposing
unreasonable burdens on citizens –
particularly with regard to basic and
essential activities.
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6
◆ Relations
Among the States.
Full Faith and Credit Clause (Art. IV
§1).
• Applies only to civil matters.
• Ensures that any judicial decision with
respect to such property rights will be
honored and enforced in all states.
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◆ Separation
of Powers.
Federal government provides checks
and balances:
• Legislative (Congress): Creates laws.
• Executive (President/Agencies): Enforce
laws.
• Judicial (Courts): Interpret laws.
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◆ The
Commerce Clause.
Power to regulate interstate
commerce defined in Gibbons v.
Ogden (1824): activities that
“substantially affect interstate
commerce.” →
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9
◆ The
Commerce Clause.
Expansion of Powers:
• In 1942, Supreme Court expanded
commerce clause to purely intrastate
businesses (Wickard v. Filburn). →
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10
◆ The
Commerce Clause.
Expansion of Powers:
• In 1964, Supreme Court prohibited
racial discrimination in interstate
commerce (Heart of Atlanta Motel v.
U.S.).
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◆ The
Commerce Clause.
TODAY, the Commerce Clause
authorizes the national government
to regulate virtually any business
enterprise, including the internetbased. Limits: U.S. v. Lopez (1995).
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◆ The
Commerce Clause.
Medical Marijuana.
• Some states have laws that legalize
marijuana for medical purposes.
• Supreme Court held that use of medical
marijuana does not insulate users from
federal prosecution (2005).
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13
◆ The
“Dormant” Commerce Clause.
Generally, federal government has
exclusive authority to regulate
commerce that substantially affects
trade among the states. →
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◆ The
“Dormant” Commerce Clause.
States possess inherent police
powers to regulate health, safety,
public order, morals and general
welfare. →
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◆ The
“Dormant” Commerce Clause.
However, state police powers or
regulations that substantially
interfere with interstate commerce
will be struck down. →
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◆ The
“Dormant” Commerce Clause.
CASE 4.1 FAMILY WINEMAKERS OF
CALIFORNIA V. JENKINS (2010).
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◆ The
Supremacy Clause and
Federal Preemption.
Article VI of the Constitution
provides that the Constitution,
laws, and treaties of the United
States are the “Supreme Law of
the Land.” →
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◆ The
Supremacy Clause and
Federal Preemption.
In case of direct conflict between
state and federal law, state law is
invalid. →
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◆ The
Supremacy Clause and
Federal Preemption.
A valid federal statute or
regulation will take precedence
over a conflicting state or local
statute. →
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20
◆ The
Supremacy Clause and
Federal Preemption.
Preemption occurs when Congress
chooses to act exclusively when
national and state governments
have concurrent powers
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21
◆ Taxing
and Spending Powers.
• Article I, Section 8: Congress has the
“Power to lay and collect Taxes,
Duties, Imposts, and Excises” which
shall be “uniform” among the states.
• Expansion of commerce clause gives
taxing power as well.
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22
◆ First
Ten Amendments to the
United States Constitution are
called the Bill of Rights.
◆ All apply to natural persons and
most apply to business entities
as well.
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Exhibit 4-1 Protections Guaranteed by the Bill of Rights
1.
First Amendment: Guarantees the freedoms of religion, speech, and the press and the rights to
assemble peaceably and to petition the government.
2.
Second Amendment: States that the right of the people to keep and bear arms shall not be infringed.
3.
Third Amendment: Prohibits, in peacetime, the lodging of soldiers in any house without the owner's
consent.
4.
Fourth Amendment: Prohibits unreasonable searches and seizures of persons or property.
5.
Fifth Amendment: Guarantees the rights to indictment by grand jury, to due process of law, and to fair
payment when private property is taken for public use; prohibits compulsory self-incrimination and
double jeopardy (being tried again for an alleged crime for which one has already stood trial).
6.
Sixth Amendment: Guarantees the accused in a criminal case the right to a speedy and public trial by an
impartial jury and with counsel. The accused has the right to cross-examine witnesses against him or
her and to solicit testimony from witnesses in his or her favor.
7.
Seventh Amendment: Guarantees the right to a trial by jury in a civil case involving at least twenty
dollars.3
8.
Eighth Amendment: Prohibits excessive bail and fines, as well as cruel and unusual punishment.
9.
Ninth Amendment: Establishes that the people have rights in addition to those specified in the
Constitution.
10.
Tenth Amendment: Establishes that those powers neither delegated to the federal government nor
denied to the states are reserved to the states and to the people.
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24
◆ Limits
on Federal and State
Actions.
Originally the Bill of Rights was a
limit on the national government’s
powers. →
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25
◆ Limits
on Federal and State
Actions.
Over time the Bill of Rights was
“incorporated” to States via the due
process clause of the 14th
Amendment.
Rights are not absolute.→
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26
◆
Freedom of Speech.
▪ Right to Free Speech is the basis
for our democratic government.
▪ Free speech also includes symbolic
speech, including gestures,
movements, articles of clothing.→
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27
◆
Freedom of Speech.
▪ Reasonable Restrictions.
• Balance between government’s
obligation to protect, and citizen’s
exercise of rights:
• Content-Neutral Laws: aimed at
combating some social problems. →
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28
◆
Freedom of Speech.
▪ Laws that Restrict Content of
Speech.
–Laws that restrict content, must have a
compelling state interest.
–CASE 4.2 Doe v. Prosecutor, Marion
County, Indiana (2013).
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29
◆
Freedom of Speech.
▪ Corporate Political Speech.
• In Citizens United v. Federal Election
Commission (2010) the Supreme Court
ruled that corporations can spend freely to
support or oppose candidates for
President and Congress.
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30
◆
Freedom of Speech.
▪ Commercial Speech.
–Courts give substantial protection to
commercial speech (advertising).
Restrictions must: Implement substantial
government interest; directly advance that
interest; and go no further than necessary.→
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license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
31
◆
Freedom of Speech.
▪ Commercial Speech.
–CASE 2.2 BAD FROG BREWERY, INC. V.
NEW YORK STATE LIQUOR AUTHORITY
(2003).
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32
◆
Freedom of Speech.
▪ Unprotected Speech.
–U.S. Supreme Court has held that
certain speech is NOT protected:
defamatory speech, threatening
speech, and “fighting words”. →
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33
◆
Freedom of Speech.
▪ Unprotected Speech.
–Obscene Speech: Miller v. California
(1973), test for legal obscenity.
–Online Obscenity: CDA (1996), COPA
(1998), struck down by the Supreme
Court. CIPA (2000) was upheld.
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34
◆
Freedom of Speech.
▪ Unprotected Speech.
–Virtual Pornography. In 2003,
Congress passed the PROTECT Act,
making it a crime to real and ‘virtual’
porn of children.
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35
◆
Freedom of Religion.
▪ First Amendment may not
“establish” a religion or prohibit
the “free exercise” of religion.→
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36
◆
Freedom of Religion.
▪ The Establishment Clause:
prohibits government from
establishing a state-sponsored
religion, or passing laws that favor
one over the other.
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37
◆
Freedom of Religion.
▪ The Free Exercise Clause
guarantees a person’s right to
freely exercise her religion.
• Employers must reasonably
accommodate beliefs as long as
employee has sincerely held beliefs.
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38
◆
Freedom of Religion.
▪ The Free Exercise Clause:
–Public Welfare Exception. When
religious practices work against
public policy and welfare,
government can act in protecting
the public.
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39
◆
Searches and Seizures.
▪ The Fourth Amendment:
• Requires search warrants to have
“probable cause.”
• General searches through personal
belongings are illegal.
• Search warrants must be specific.
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40
◆
Searches and Seizures.
▪ The Fourth Amendment:
• Generally business inspectors must
have a warrant.
• However, a warrantless search is
permissible for seizure of spoiled or
contaminated food.
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41
◆
Fifth Amendment.
Guarantees no person can be
compelled to testify against himself
in a criminal proceeding.
▪ Does not apply to corporations or
partnerships.
▪
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42
◆ Due
Process.
▪ Procedural Due Process: any
government decision to take life,
liberty or property must be fair.
–Requires: Notice and Fair Hearing.
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43
◆ Due
Process.
▪ Substantive Due Process: focuses
on the content (the right itself).
–Fundamental Right: requires
compelling state interest.
–Non-Fundamental: rational
relationship to state interest.
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44
◆ Equal
Protection.
– Government must treat similarly
situated individuals (or businesses)
in the same manner. →
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45
◆ Equal
Protection.
– Courts apply different tests:
• Strict Scrutiny – fundamental rights.
• Intermediate scrutiny.
• “Rational Basis” Test -economic
rights.
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46
◆ Fundamental
right not expressly
found in the constitution, but
derived from First, Fifth and
Fourteenth Amendments.
◆ Laws and policies affecting privacy
are subject to the compelling
interest test.
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47
◆ Federal
Statutes Affecting
Privacy Rights.
“Pretexting” for financial
information is illegal under GrammLeach-Bliley.
Privacy Act of 1974.
HIPAA of 1996.
USA PATRIOT Act of 2001.
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